service of a warrant upon residence upon serving that warrant police officers arrested four people within a residence they did they mirandized all for the residence one my client  declined and declined to speak and asked for a lawyer he was transported to the police station here in memphis and somewhere after arriving at the police station before going in the o testified that he made a statement and that statement was that the this is obviously after a miranda that he had purchased the weapon off the street which was of course is used later in the trial as evidence of actual possession i'll a motion to suppress based upon the fact that this was a post miranda statement under edwards or his arizona presumed involuntary and we did have a hearing on that and the issues  before this court on a motion to suppress are whether or not particularly whether or not my client initiated the conversation because otherwise it would be excluded under edwards's arizona under of most circumstances and initiated the conversation and specifically i wanted this court to look at what the court relied on and the court again found the officers to be credible if even though the  my client simply blurted out that he bought the gun off the street examination i cross examined detective proud to be with the arrest record record of arrest which said that detective graves told my client that the weapon was stolen and then my client spoke so even just with detective crosby in cross examination we have two different scenarios and then on a reopening of the evidence detective graves testified to a third scenario that being that after hearing the communication which was loud and clear according to everybody in the police car that he at detective be where the gun was stolen from and then my client made the statement so if we're relying on these police officers being credible and we have three different scenarios i question even under a clear air standard whether or not the finding of the court that they were credible and the finding of the court that my client initiated was in fact so  that i bring that before the court and get a look at that carefully and i would point the court to a couple of things one under maryland versus schatz or the the later i guess in the game that communication is made the more likely it is co e and the other is as a statement especially of detective or the testimony of detective graves that he did have communication and after miranda all the time in front of defendants and that  his his story was different what his record of arrest was different from what detective probably did and i know under here you don't have to exclude if we get that far but it's like this should be deterred that the court to consider finding that would be that since there was an actual possession of the weapon charge a jury charge given and this where the defendant statement which very convincing oftentimes to journalism case law says that there's no other prove at all the actual possession there wasn't one transaction testified to concerning my comment about a gun involved with a drug sale or a gun in any it is even assault for a for b would any of the testimony the gun remained the entire time and i  place so this is certainly very harmful asked the court to consider it even though i understand the standard is tough and out any questions on that i'd be happy to answer and you cite as much authority from the six circuit where we reversed the credibility different scenarios and we're also we have to have to remind the court that it is a little difficult for a judge anderson since he reopened the proof and didn't hear the proof the first time magistrate judge farm heard the first witness and then judges and heard the second hear your thoughts on you know what makes this situation you know quote unquote extreme you argue that there are these sort of three versions of what occurred as officers acros the griese were conducting this check on the station be over the open mike but you know one could argue that the inconsistency of a prohibited custodial interrogation and that what i think makes it different is that if you give great actually said to him did the weapon was stolen post miranda without giving any further warning it's a different scenario than if he just started talking about he stole the weapon i mean that's that's the problem i have with the way the facts with which what the judge or the court did because if if he just blurted out after hearing what i would consider to be an unintelligible conversation in code that's one thing if there that it's got generalized discussion between the officers that's another thing but in fact you've taken great actually was telling the defendant something and telling him that actually accusing him of another crime that far different and far more extreme and we just can't help from the court just fine it is the officers were credible and it's great it's graves testimony isn't it isn't it that it was your client who asked if the gun was  i think that a very good argument if that is the functional equivalent of interrogation and we can't get to which of those scenarios the court relied on if you just called a copters credible counselor robinson this is judge pierce my question goes to the extraordinary steps i think the district judge took to confirm who said what and what the response if anyone's because you said and i think the record flecks said before the magistra judge it was unclear whether chalmers volunteered his statement or whether grades on the other hand ask any question and i think the district judge when the judge reopen the hearing which is not typically done you can tell me if your experience has been different but i think when the hearing was reopened the judge did certainly what you said credibility findings but also took the extraordinary steps to clarify the sequence of events the announcements from the dispatch operator and what was said in response to that by the officers were using to see it differently i do not think that the court  didn't i appreciate the court reopening the proof i think it was necessary and appreciate the court going through his findings but i just asked this court to to look at what he found and it did send the determination that the doctors were credible because it's so very important to what to what whether or not my client initiated the statement i think that judge anderson did not work hard or that he didn't do everything he could to give me an option to put proof in case he did and what i am saying is that h what his conclusions were are not questionable and i'm questioning them now based on what was before the court both for the magistrate court and for judge anderson and i guess what i'm asking is jumper at the time which is what you ask what would be different because th essentially did it twice but i think what might be different is that we would have both of these officers at the same time testifying i think i could make it more clear to the court what the distinctions were and i believe we might have a different result thank you your honors may please the court my name is brian coleman i represent the united states of america the united states respectfully ask this court to deny the opponents a motion for a new trial in the for the rulings of the district court  in response to the first argument and to deal with three separate issues before the court but i will respond to counsel's argument concerning the statement the counsel requested in her motion to  suppress i think the record was clear before the magistrate court and in the district court when the judge reopened the evidence that the manner in which the conversation occurred between the defendant and officers in the car was as a result of conversations had between the two officers when they were checking the state of the firearm before tagging it into evidence a response on the radio as to the signal signal w and subsequent to that the defendant responding to what he heard on the radio it should be noted defense counsel speaks about codes being given over the radio and of course there was a code of signal w that was given a class face class occasion given to firearms that are stolen it should be noted also that the person on the radio asked if the defendant was secured for the the officer safety once those things were confirmed not only did they give the signal w that the weapon was stolen but they gave where the firearm was stolen from and upon hearing that it's the united states contention that the defendant became more interested in allowing the officers to know that he had not stolen the gun but that he bought it for twenty dollars off the street and there was not a way that the defendant could have responded to where that gun was stolen unless he heard the same information that the officers heard i do think that the officers gave different versions of what was heard by one another but i actually think that makes them more credible because one both officers are having a conversation with another but it should be noted that the defendant only had a conversation with one with the defendant and so they testified before the magistrate court i believe it was cross be that he did not hear all of the conversations going back and forth and based on the clear air standard there has to be some dilemma a deliberate reckless or grossly negligent conduct by the officers in the record this evidence went in the court was extremely careful as your honor has stated and making sure that he had an opportunity to not only hear from the o testified before the magistrate judge but to reopen the hearing and speak and get testimony from opposite grace before the case was put before the jury he then heard also grace testimony and then as a result of that did in fact then make a finding as to credibility unfortunately defense counsel does not have a basis or a motion to suppress to be overturned simply because they don't like the evidence that was elicited and even if there are different versions of events credibility can be found by the magistrate court and that issue as to credibility can be put in front of a jury to determine the credibility of those witnesses and again i would say that no deliberate or reckless conduct by the officers was present also  defense counsel brief that the district court abused its discretion by admitting evidence of the defendant's ten prior sales as intrinsic evidence that should be noted that this evidence one to the need to the nature of the evidence all of those and private student there are question now there's not continue ok i'm sorry that's right we're probably having a technical glitch ok the evidence that was put before the court concerning the ten prior sales involved a time period that was proximate in time to the arrest it was two weeks prior it involved the same drug which was marijuana the same packaging the same residence on the dexter street residence where the defendant was arrested it was also by a search warrant in the earlier matter scuse me i'm sorry i'm sorry  from similar to for the reasons you were listening but separate from the charge defense of possession with intent to distribute and for that reason not intrinsic but more likely than not at best for or for b and if you could address that directly why those ten prior bills are not for a for b that would be helpful thank you your honor i do think the court made a correct  distinction in this evidence in stating that it was in transit i believe it's in transit one because it involved the same parties there was also evidence before the court that the same person who purchased the marijuana on the ten prior occasions was present at the time of the arrest it should be noted also that the defense asserted by the defendant was that the defendant was there randomly victim of circumstance and was not truly in possession of anything and if so  it was a mirror marijuana more so misdemeanor level marijuana i do think it's intrinsically involved because one the time period we're not speaking about elongating time period we're talking about ten times within fourteen days immediately before the subject of the arrest and again i've listed for the court the the same factors concerning those ten prior occasions but i do think it's interesting not only was the drugs the same but we're dealing with the same parties and one of the requirements for the proof of the united states is that we prove every element of the crime and possession of marijuana with the intent to distribute is a key factor here if we are required to prove that not only is it is the defendant in possession of marijuana but is intending to distribute said marijuana and there is evidence on those prior occasions with the same individuals involved with the same drugs involved out of the same residence that he was in fact stripping marijuana that it's intrinsically involved in the count that's that charged in the indictment the i gotta agree with that i don't think  they were simply other business dealings the legal business dealings that occur park mccleon time same drugs same individuals so i disagree with you on that i don't disagree that that evidence might have been of the defendants and tent and if used appropriately is intent it may be supportable under four for b if you meet the other requirement pretrial notice and then of course there's the problem i think this case presents as to whether or not the judge made the appropriate findings of whether or not the probative value outweigh the potential prejudicial effect can you address that for me let's assume that i'm i haven't bought possible sale of the trial court judge to weigh the potential prejudicial effect thank you your honor i think it's important that the judge was extremely careful in making sure that the reasons she had for allowing it to come in as extreme to get didn't were put on the record but he also looked at the evidence under four for the also and i believe the intent standard which i stated earlier was a proper basis to bring this in and so in the alternative the court stated that even if it notice what i will tell you is that the united states learned of the ten prior sales in preparing the witness junk shot team of gum reefer trial once learning  this the united states informed the defense counsel immediately and i would like to say that it was during a period where i believe the jury was being picked once it was communicated to the defense counsel defense counsel then had the opportunity to argue against its inclusion before the judge outside the presence of the jury i think this is important one because there is no proof of any possible prejudice against the defendant because the jury has not heard the evidence so we're not dealing with a situation with the evidence has come out first secondly  oral for allows for notice to be given during trial for good cause and i would i would state the good cause would be that the united states did not know about the evidence and upon learning of the evidence  disclosed it to defense counsel and dealt with it appropriately not to mention the united states asked for permission to put this evidence before the jury before its inclusion and reference to the reason being given by the judge forced inclusion i believe that the judge made a proper basis as to its inclusion if you are if you look at not only the reason given to defense counsel as to its inclusion but also the curative instruction given to the jury  concerning intent and by giving that specific instruction i think we've covered our bases as far as the four hundred four b inclusion of this evidence if it was deemed that the intrinsic evidence selling marijuana and normally we don't allow prior convictions to come in that can you can you address that issue and why you don't think that was error to admit the defendant's conviction three years earlier when your honor this court has most certainly don't with this issue of allowing prior arrest when that prior arrest tends to go to an element of the crime that's charged in the indictment before the district court here your brief keeps talking about arrest but the jury was told he was convicted were they  not i actually believe and i may be incorrect on this but i don't believe that conviction was not spoken about i think it was about the arresting officer was put on the that i'm having trouble with it was three years before he was convicted he served time in the corrections department where presumably he was corrected that's why we send them there y ou're saying because he committed a crime three years before before this crime he intended to create a crime three years later i mean that that's your argument that the relevance is that with intent to distribute did ok how's the houses intent in two thousand and five at all relevant to his intent in two thousand and eight because not only are we dealing with the is intent to distribute which is addressed by the same manner in which the drugs were packaged and being sold at the same residence we also have a situation where the defense counsel through that the basis of her defense is separating the defendant the defendant from the residence and arguing that he is just an active has passive presence in the residence and just happens to be there at the wrong place wrong time and so if that is in fact the case they are putting on a defense that attacks the element that attacks the specific intent that's required for possession with intent to distribute if he had based on it sold drugs out of that house twelve years before would that be admissible i mean what's the cut i well your honor what i will say is in one twelve i believe i would have a lot more scrutiny from the district court i  l and i would hope so i mean absolutely absolutely three is ok but if he did it five years before that that wouldn't your honor i'm going by the precedent of the court this court has affirmed in united states versus jones eight year old drug offense under four four be evidence under united states versus matthews an eight year old drug sale for four for be evidence and collecting cases involving even older can convictions in that instance and that's a two thousand and six case in the sixth circuit there's a long line of cases that is much older than the three years in this instance where this court has allowed evidence  specifically allowing evidence when it has to do with an element of the crime and i'm not i'm a stone not sure i have i mean the the inference here is that he did it before he likely did it again and that is prejudicial and it's it would fail the balancing test we most certainly didn't want to say because on a private caijing the defendant is predisposed to commit crimes later in time basically argument his intent three years before can recent case that this court has dealt with united states versus roderick rae and this case forgive me for bringing it up at this time but this case was decided since the founding to the brief in this in this case dealt with this this actual issue and and allowing prior acts of evidence specifically prior drug sales under four for be when the intent is  is given reason under four for b to prove intent to distribute in that case i believe the drug in itself was crack cocaine and the court dealt with that very issue allowing prior prior sales to come into it to prove intent and specifically the united states is arguing that for the purpose of intent and specifically because intent is required in the current indictment to show not just that he possessed it but that he intended to possess it with the intent to distribute it's not simply to show that you know that he's guilty at earlier time and now that he's guilty now but the fact that if a defense is brought forward that he is not distributing drugs and there was another case where he is in fact distributing drugs from the same residence same drugs same manner in which it's distributed this court has allowed that in that evidence to come in and i do share the same concern that you have concerning the cutoff of  time but i think we have precedent to deal with what is allowed and and what is trouble troublesome to the court as far as the timing is concerned thank you have a calm and just call your time is expired is the great case the you in cleveland and do you know whether that case was published we can check but i don't think it's published but it's a number twelve dash six one eight zero and the da situation like this where we might run into a case like the brian bell case where we're talking about a whole lot of additional evidence and without that balancing test it was before the court is that this is as to intent and i can  quote from the united states versus brian bell but it says here by directing the jury to consider these acts for the purpose of ascertaining belden ten the court implicitly was approving the kind of reasoning which would suggest that because it was a drug distributor in the past the jury to five conviction whether or not conviction and those words were used and in oral i'm sorry in that argument or actually in rebuttal counsel you know stated that it is on page i d number one zero nine eight is being brought in because in that case there were multiple multiple multiple individually wrapped marijuana back in that situation in two thousand and five and he admitted to that in of all the things chair looks like the intention or what the jury is going to be in danger of finding is  that he did it multiple he had multiple multiple bad then he's a bad guy he's a drug dealer he doesn't ever spec for the law well i need to worry about the facts before it's now we need to convict this guy and i think that's what happened and i think the danger of that happening is something that this court can be is a strict instruction as to add that instruction doesn't change the fact that we've now got that information before the court there was a lot of other information including this very same witness on the ten prior to testify that she bought from him that day and had drugs in her pocket that day there were other individuals in there there was paraphernalia and whatnot and i think that that it's not always going to be grounds for reversal but in a case like this i think th evidence introduced where they will be controlled by is that the government and they're there informant or whatever we'll do several controlled by and there might be five six seven of them and defendant will be charged with the last controlled by but these other by are always admitted that the evidence because they're part of the transaction how is that different there are well first of all do you do dispute that those cases exist and secondly why isn't this a transactional evidence here because you have the same complaint doing the same by within a two week period valving the same defendant the same location how is that different than these controlled by cases that we see all the time and there's only one charge but several different sales i don't think a lot different those are admissible  but if you get those ten prior sales with the complainant in as transactional evidence isn't the evidence here overwhelming of the guilt that the defendant possessed the marijuana with the intent to distribute that's the charge with the intent to distribute since he had been distributing the ten times because are not just talking about a dozen within  one and three which really drive this case which are involved as action of of the weapon and since the information came in was admitted as intent in specifically as account to the problem that i have and why been given notice of three confidential informant or three from a confidential informant that doesn't this is going to be all about and then on the day while we're doing jury instructions you're i'm sorry jury but action and then i got the information at the ten sales would notice at that point that i said i would agree probably with mr coleman that notice something that rate and it's important but that the court could waive that so i don't think that's a strong you talked over my question so i with the telephone argument my question is is if the ten transactional sales are admissible why wouldn't we rule that even though was an error to admit the conviction of two thousand and five that that error was harmless error in view of the overwhelming evidence as to possession with intent to commit to sell marijuana because  so tell me why wouldn't be harmlessly or i think there was enough other information brought out your cross examination in the course of the trial that while that is strong evidence as to his  i certainly appreciate your arguments and participation by way of telephone not the most perfect way of proceeding with argument but hopefully went as well as could be expected