committed the actual two thousand and three drug crime the district court the discourse said that that evidence was irrelevant evidence of whether he committed the two thousand three crime was irrelevant because i quote at issue was whether defendant's actions violated plaintiff's rights but critical to whether holmes rights were violated was whether he committed the two thousand and three drug crime as the jury instructions made clear holmes could prevail only if he could  that there was no objective lee reasonable basis for the arrest or for the prosecution but if he did commit the two thousand and three drug crime then there was an objective way reasonable basis for the arrest and prosecution regardless of any subjective intense that you need to fin pages and pages and pages of criminal law direct appeal for all four b decisions what's what's your best civil case and the application for all four be it the thing approaching running a sleep determining that the evidence of the two thousand and three crime was logically irrelevant then it held that this that this only had a propensity effect but because evidence of the two thousand and three crime was logically relevant and in fact went to the dispositive issue at trial then the district courts for a for b analysis doesn't really come into play so again are you choosing not to answer the question are you getting there i  you could rephrase your question judge i want your best for all application of for all four b analysis that we we encounter many times a year in a criminal appeal to a civil case yes your honor thing it either to exclude or not exclude evidence in the in the civil case yes your honor is this court has repeatedly made clear rule four zero four be only comes into play if the evidence only has presented repeatedly in criminal cases do you understand the question i do i do your honor and again this is a thing that ordinarily doesn't come up because the this type of evidence this court has repeatedly said as far as to whether a person committed a crime this type of evidence is twenty a j letter and well i will do your honor again my point is whether he committed the crime is the critical issue in this appeal because if he committed the crime then there was an objective lee reasonable basis for the arrest and for the prosecution so this was logically relevant now we are obviously on appeal here and i have to establish prejudice but this is also prejudice for two reasons first thing if it's logically relevant you still have a forum for the right for all three of you know that's part of the challenge right well the district court didn't do that because it held that it was logically irrelevant so then when it when it considered role for a for be the only thing it said is because this is logically irrelevant there's no other purpose other than propensity now once it is logically relevant and then eight it can be admitted to to prove that he committed the two thousand and three crime now and this evidence was admitted at his trial for that two thousand and three crime on appeal he attacks that evidence expressively and rule for a for b grounds and this court not only rejected his arguments but also called his argument frivolous so i think it's pretty plain that this all of this evidence is relevant to whether he committed the two thousand and three crime now as to prejudice not only does this go to the objective lee reasonable basis for the arrest or prosecution case but the fact that he committed the crime was not not known at the time of the arrest i mean you can even have a not unreasonable arrest of a crown well i disagree you're on what you can't have an unreasonable arrest of a criminal but as far let's break it down of the two state law claims and the federal law claim the state will claim the malicious prosecution in the false arrests the missouri supreme court in copeland against wix has has stated that these types of actions are highly disfavored they can only be upheld upon the strictest evidence and the courts have held that if there is an actual crime then as a matter of law these you cannot sustain this type of civil claim these are the state law claims at seventeen of his brief he concedes that he doesn't contest that the evidence exists his whole point is that the evidence should have been used against somebody else and it was falsely attributed to him but if he committed the crime then the evidence wasn't law claims will not understand and although i don't know the state law but i understand the argument i don't understand that the the the the the federal so the federal claim goes like this he admits that the evidence exists on page seventeen of his brief he does not contest the all this evidence exists but his story was that he just happened he's he's an innocent hapless person never had any problems with the law goes to visit his grandmother and lo and behold in her house is a bunch of drugs and a bunch of firearms that means that somebody else committed a crime not him and that the police officers falsely attributed the evidence to him that some pitch seventeen of his  but if he actually committed the evidence and again here the evidence would tend to show that he if he committed the evidence than someone we have a very different picture we have a convicted drug dealer who has admitted that drug dealing is  profession who happens to be in a house where lots of drugs and lots of guns are are found i think a jury faced with that ivins would be very likely to conclude that he did not go into this house by mistake that he knew the drugs and guns were there any court to determine that that was even if relevant a distraction from what the jury was being asked to decide about these two officers action you know your honor a couple things again the court didn't decide  it didn't engage in a for a three analysis for example it held that this was logically irrelevant and for the reasons i said above that's a legal there now as to the remainder of your question it's not true that what happened at the that he had actually committed the crime then there was an objective lee reasonable basis for the arrest for the false prosecution and the defense would prevail as a matter of law now it may be that they had subjective bad intent but that would not matter under the under the state all claims and if he committed and if he committed the offense then the evidence also would be false it would be true evidence and you're not asserting that the officers knew of this for for be evidence before they arrested him it's irrelevant whether they did or not and that you're not you're not are you claiming that they know they knew that again the record does reveal that garrett did know that garrett's not one of the arresting officers though he's not he repeatedly testified that he did not know that drugs were there he'd not intended to visit those drugs or weapons the when the district court excluded evidence that in fact he had committed a drug crime before which this court has repeatedly said is highly  probative evidence for whether a person knows that there are drugs present and intends to possess those when they just were excluded that evidence is stacked the deck against the defendants and it corrupted the truth seeking function of the jury but maybe this goes back to the question that judge loken was asking about application in a civil case and there the government has the burden of proof on the elements of a criminal offense and when i defend it puts that into play they have an opportunity to put on evidence to counter wasn't what was going on here that the defendant did put this into play he testified repeat and we say this on page thirty of our opening brief we cite the record the permanent record cites he repeatedly testified he didn't know there were drugs and guns in the house  the crimes for which he was convicted were a possession of well constructive possession of drugs and firearms and constructive possession requires knowledge of the existence of those contraband items an inten plea testified that he did not have knowledge of these so this was completely relevant it was in fact dispositive to this case whether he had that knowledge whether he had that intense whether he mistakenly went into a room instead of intentionally went into a room where there were drugs and guns now it too briefly to briefly go to a second issue about sufficiency of the evidence is in total a judgment as a matter of law on the on the state law claims and the the missouri supreme court has repeatedly stated that where as here a person did not actually did not actually commit the arrest or the malicious prosecution or i'm sorry or the prosecution when they have to have instigated those events there is no evidence that garrett ever instigated the decision maker in fact the prosecution for example was done by federal authorities not to garrett there's zero evidence in the record that he ever did any of that i'd like rulings and can you help me with the civil forum for being so that's that's my point which is all of the cases that they cite are criminal case so if you do i don't i did not find any case that i thought was instructive one way or are cases in which they're attempting to use it prior drug conviction to prove specific criminal intent element knowledge and intent which are elements of say the controlled substances act or whatever other criminal charge a  the district court never ruled that the police officers couldn't argue guilt that's just not true i was trial counsel in the in the trial the district court allowed them to argue kill nobody but the court excluded impeachment evidence as to the play within of the the district court allowed them to put on substantial evidence of guilt they had officer after officer say they saw those mr holmes holding drugs they saw mr holmes distributing drugs they saw an honorable up with his name on it they saw a rather bad record begins with this fingerprint they argued get what the district court concluded within its discretion when they were not allowed to do was use a single piece of evidence a remote conviction from eight years prior for a different issue which did not involve firearms so that that knocks the firearm propensity issue out which was possession and not trafficking they did not allow that all conviction from another kings to come in and the district court did a very careful analysis of the four of four be evidence throughout the trial to be clear the  this court prescribes in its first turn or the twenty fifteen turner and the district are asked counsel why do you want this evidence in and then the answer changed over the course of the trial the first answer was given we expect plaintiff is going to testify i don't know anything about drugs it to some extent it's really impeachment of his current status with a drug dealer which plaintiff is not and was not but in any event they said we expect plaintiff will testify on long following lines the district court who had a front row seat to the trial heard evidence and plaintiff did not so testify planet and said i don't know anything about drugs and so they couldn't use it to sort of impeach his status generally as a drug dealer or even to say that he didn't have knowledge so then the defendant said well actually what we want to introduce this this prior bad acts evidence of is to rehabilitate defend it dear and the accusation was a definitive guarantee was accused of lying under oath in the civil trial we accused him they claim of giving false testimony the district court found correctly that we never made that allegation in fact there w a motion in limine a by the defendant marshalling them number five which is in the record in the joint appendix in which they said let's not mention the mere even the mere fact that there testified they withdrew that motion immediately prior to trial prior to my opening and said we can see there are maybe some relevant purposes to the fact in fact the the the way that plant got his conviction vacated was the relevant part of the story it's relevant in a myriad of in the civil claim and so they conceded and didn't object to the two references in a week long trial where we let the jury know that gear testified not to the substance of his testimony but to the fact that he testified they then isn't it true that there is testimony had nothing to do with two thousand and three and we didn't object and they asked that question and they got their care to whatever extent you know it was seen as a prejudicial and at the conclusion of the trial during jury instruction conferences on and difficult on appeal to to square this argument of great prejudice such great prejudice that the substantial rights of the defendants are affected that the jury verdict should be appended and the district court's january two thousand and seventeen actually one year ago today order should be vacated because they were so prejudiced but they didn't they didn't even seek a curative instruction they got the cure that they sought the district court allowed evidence of guilt with the district court did not allow after careful balancing under four for b with this one piece of evidence and clues and of this one piece of evidence that didn't even directly link to the events of the day in question which is december ninth two thousand and three certainly wasn't an abuse of discretion different judges may have weighed that evidence differently different judges you have ten judges are you going to let this old conviction come in maybe five would say yes maybe five would say no it's a discretionary decision the district court had ample support in the record to make that decision and there certainly was no prejudice as a result and one thing to note just a footnote when they say that this this argument about excluding the convict the prior conviction was frivolous and that the eighth circuit had previously called this argument for a loop just to be clear that was an anders motion and so the court had to certify that there were no nonproliferation so that counsel could but draw that certainly has no relevan ever linked to anything at the trial the answer's no in order for the defendant to prevail and also mentally this case was about whether the defendants fabricated evidence and had a reasonable belief there has to be something in the record that link to their actions on the summer ninety thousand three to this all the evidence for that to be the reason for it to come to come in and there is absolutely nothing not an offer of proof not testimony nothing defendant sharp for all we know didn't mistake knowledge of the drugs that's what i think they are also they are making both arguments i was in a moment ago responding to where what i thought he was arguing it goes to probable cause that it can't because there's nothing in the evidence that supports that the officers knew knowledge criminal intent i'm not denying that there's a lot of cases on the eighth circuit that in the criminal context where knowledge and intent are elements and the defendant puts on a mere presence in the circuit prior drug cases come in a lot of the time not all the time but a lot of the time and again it's an abuse of discretion standard here i'm not even arguing that there may not be some tangential probative value of an all conviction to say yeah this is a guy who at least in a prior case knew about drugs does it go to intent no i mean that was not a trafficking case that was not a distribution case and there is no faith at allegation that there were drugs or guns excuse me guns in the prior kings but again it's not a question under for a one of this low level relevancy of whether it goes to knowledge intent the defendant's never once during the trial made the argument judge we want to put on this all of conviction because knowledge and ten are elements of the crime they didn't make that argument it's not in the record they didn't even attempt to tie that to they made no attempt to link that up what they didn't even tell the jury what the elements of the crime are what they're trying to do is say plaintiff of the drug dealer plaintiff is the bad apple he's the noddy guy he's a drug dealer don't believe him don't like him don't award any money to him and that is the forbidden purpose of for a for b and the best person to make that old case from an unrelated set of facts had to come in that it was a mandatory inclusion and that the feeler doing clue that was so prejudicial that the defendants were effectively denied a defense absolutely not they don't meet that burden i mean consider what if the plane of had not been arrested before what if this plaintiff had never had didn't have this one prior let him rest in his sixty year life or they think they can't defend against a fabrication claim unless the plaintiff has priors what that really exposes their argument is our officers didn't have credibility our officers couldn't meet their burden you know couldn't defend against the fabrication there was a lot of evidence of guilt there was a lot of evidence where the police officers were telling inconsistent stories on the stand they were in line to the jury there was in their impeach by the police report there a peach by photographic evidence of what the the house looked like and that the only way they could overcome this mountain prosecution but in any event and then the state prosecutors will take some affirmative action by the feds to yes your honor so the evidence in the record again here you know with the standard in mind as they're being the verdict should be  appended only if it's utterly lacking evidence support here the evidence was that gear and sharp worked together from the outset we argued and put on evidence that they came up with a plan they from soup to nuts here it was involved from before they got to the house they went to the house they were they went with the plaintiff to the police station and gear it was with sharp and it was garrett who testified don't go back to that house again sign this money  to whether he he goaded the predator all prosecution all of us have been talking about the state prosecution and then i think for reasons that are not entirely clear to me the state and federal prosecutors made a decision to have this proceed federal case but the evidence and the case all that we said is clear that we don't have garrett does not have to be the one sitting down with the prosecutor to be responsible for instigating the prosecution and the jury instructions made that point so there was enough evidence in the record for the jury to conclude that give it to instigated the prosecution because you're in sharper really they cannot really be differentiated in terms of what they did  in the coming up with the plan the going to the house the arrest of michael taking him to the station shop signed the police report but here it's name is all over the police report you know doesn't deny that he was never made this argument that everything turned on whether he was guilty or innocent that's not true on pages six twenty one and twenty two of the joint appendix as well as a forty three through eight forty five the of the joint appendix we expressly stated that and i'm almost quoting  that everything turned on whether he was innocent the opposing counsel is also stated i think has shifted the analysis a little bit to the subject of intense of the officers at issue here and that's not what that's not what is at issue now subjective attend intent is one of the elements in the false arrest in malicious prosecution claims but the other element is whether there is an objective reasonable basis and the reason that elements exists is because missouri supreme court and copeland case has repeatedly said these are highly disfavored claims and that is because there is a public policy interests and prosecute people who have committed crimes so if there's if there's an objective we reasonable basis regardless of subjective intent then then that claim must fail as far as for as far as instigation goes judge look and i think here i think your questions are quite right there's no evidence that courts in the crow case that we cited have stated that truthful actions honest information is not getting it is not instigation and and holmes contest holmes says that this information that the money did not belong to him so when he signed a form that said the money didn't belong to him that was just a truthful form there's nothing goading about that there's nothing instigating about that briefly concluded the district court in the certificate of innocence case looked at the same evidence we tried to admit and the dish court concluded that holmes committed the two thousand and three crime if the jury had been permitted to listen to this same evidence we think the jury would have come to the same conclusion in this courtship quick question for you when the conviction was actually vacated i guess it was i was twenty two fifty five or something if they committed it was their hearing in an opinion by the district court or to the government simply conceded there is there is an opinion by the district court the issue was that sharp and garrett were the only ones who our brief and then at the certificate of innocence stage the district courts stated that there was sufficient evidence the evidence that we had we tried to submit and next to the question i had in addition to the government at the time it was the conviction the federal conviction was vacated to the government challenge that did they concede the government made the process tauriel discretion to not retry him again after that so that the government the government did not concede that there was insufficient evidence see so they contested first in the district court found that the evidence would have been and so right right in the certificate of innocence stage the government presented alan ray who was also there who who testified as to what happened in the dish court said by preponderance of advisement we also have this morning force of mission of the war without argument number seventeen fourteen seventy wealth bun pipes versus liberty mutual insurance company and w that does that include our morning's business