no color on the color of law representation by our client your honor the main issue here is that former police officer at one time was a police officer and also working for the a force agent is accused of stealing from an individual but there was never any representations by him that he was a police officer to an individual or anybody else i think the main issue is more than the fact that these was not under common law because they were not there for any legal purpose they were just part of the alleged conspiracy and this  i don't know this excessive independent body which part of the conspiracy definitely and the fact that they were acting for their own self interest and not in any way were they acting for a legal purpose  was a personal pursuit of them prevents it from being an action of them for the state in other words if if you allow that that's part of the picture becomes an action of the state then every time a police officer is search and seizure when they committed the burner but there was nothing about a search and seizure in this case this was a typical everyday robbery the it was not a police officer that went into the building it was allegedly thoughts from the street used their power as police officers to change anything that happened you're in iraq itself was it wasn't that the purpose of having a car going to place they didn't show up you know rented enterprise that the up paying for call the police to come to report the crime because he was being blamed by the alleged owner or the alleged victim so we have a little bit of confusion because how can you pro there is circumstantial evidence but the victim the one that allegedly was has had his rights violated did not testify there we have evidence from other people that say what he said that he had money rob but he did not say it who cares well i suppose they killed him during the robbery he wouldn't testify but then you had you had evidence that they cost and then you wouldn't allow from the police that interview where the owner at one point stated that nothing else was thinking about some money and so documents and later the found documents there were also fingerprint reports that show that there were no fingerprints but those of the  warrant so that she would be forced to come in and the judge then i did you know her testimony she was the first person that i went there and interview and her statements were not allowed to be heard by the jury and her statement puts in doubt even the robbery it was also already violation because it was given on the sunday before the monday where the trial started and in spite of the fact that we were able to beat her because a remote ical condition she refused to show under or to not allow us well your honor the evidence of prior bad acts just basically the jury to the belief that my line was as bad as these t housing got only oh well that never happened we're going to do a house here oh that never happened they had me go i got to testify that he had a good feeling that my client was involved but when he was cross examined he said no i didn't know we hear the conversation i don't know what  it was all about so they created an image using bad acts that really did not involve my client then a reference to a robbery in the airport that michael i wasn't even involved in all these bad acts that they put into the record basically prior to trial and we reinforce the next trial when this was brought in by the government so we believe again that the bias was not could not be cured by anything  now the evidence presented show that the conspiracy did happen under color of law here and we have martina's contact sergeant this for the sole purpose of trying to find an individual wor which is the area of where the robbery occurred that was of utmost importance because in order for the plan to succeed they needed to have an individual was going to be on duty in a patrol car with access to the radio but his role did not stop there lopez testified that the importance of being on duty at the scene was not only to give at all some security that nothing was afoot but if there was indeed a complaint he could be the if the conspiracy in includes individuals that are acting under the color of law they are indeed liable under two forty one and this is a two for one conspiracy case it wasn't charged as a two forty two actual deprivation although the evidence presented at trial did establish that also this agreement should do what indeed happened to sit there to listen to the police radio to have the ability to deviate the investigation was only made possible because lopez was closed under the authority of the state his role he could only perform this duty by virtue of being an on duty police officer and that is the precise reason why he was recruited by martinez  any other copy recruiter someone cop it was a catalina cop who was on duty who would be there at the time who had a legitimate purpose to be there at the time the robbery was occurring by the very terms of the plan the success of the operation depended upon this police presence and additionally there was sufficient evidence about the conspiracy itself lopez testified about his meeting and how it was to to enter to illegally enter to search and to seize money drugs and jewelry from this a t f despite the fact the occupant of the of the apartment did not testify there is plenty of circumstantial evidence on the record to show that there was a known individual this wasn't a coaster of theoretical person we have to play and we're martinez's explaining to lopez that there's this guy i think that there's going to be money drugs and jewelry in his and his apartment i'm going to i'm going to go in and we're going to take it as unlawful search and seizure and what they do is just that and then the next day there is a complaint and the police going investigate and the evidence of the pictures taken by the technician show forced entry show that the apartment was ransacked show that an individual did indeed live there there were pictures there was there were clothes everywhere there's a bed there was an individual who rights were violated by this illegal search and seizure and for that reason the government present its evidence of a conspiracy of this agreement of martina's with lopez ha who acted under the color of law now turning to the court's question about the four o four b evidence the district court here did not abuse its discretion in allowing this evidence because the evidence not only had special relevance but it was not overly prejudicial considering all of the other evidence that was there at the time using an on duty yes ma'am using the on duty officers in a patrol car shows that this it's knowledge it's perforation it's the intent and the plan of these conspiracies also all of the targets of these conspiracies the police acquired using their law enforcement background you've got a couple of factors but the car or uniform somewhere your honor admittedly the ensuring of the apartments in these two situations are different the government acknowledges that but however the preparation the conspiracy the using the car to deviate investigation to have the individual they testified that they were going to execute this false or no warrant in the case of whatever house but a car was supposed to be on the street to deviate if other cops were coming also the knowledge how did they get these plants the knowledge was based on their virtue of being a law enforcement because these conspiracy targeted individuals who would not complain just like a drug dealer would not call the  to say someone stole my drugs and money in this situation the knowledge of who the target was always a result of that law enforcement background investigation but in any event even if it were air there was plenty of made it to prior having lied on the stand in the jury was able to assess their credibility part of the reason presumably the jury assessed their credibility is that their story was corroborated by dependent evidence that is not that is does not lead criminals all of that story is backed up by the records and then on the night of the robbery between seven and eleven pm we have nineteen phone calls between these two individuals on duty cop and the mastermind data shows that those two individuals were in that same area of east la very day all of that was sufficient evidence was more than sufficient evidence for the jury to conclude that this indeed happened into credit these such error was indeed harmless although the government argues that it was properly and with respect to the strength of the whole phone telephone call evidence the court did not allow the evidence to come in that this was verifying information with respect to another individual have that information been admitted wouldn't that have made it ever so slightly less probable that the government's case was so defense presented the two letter the two a letter was that it was going to be for character evidence and it said it may come that they need to testify about a certain incident at trial the court asked what is this testimony is that character testimony defendant self serving statement i told you that i called so and so it wasn't clear whether that testimony was going to be based on personal knowledge so the court heard the testimony outside the presence of the jury the first  testified that these phone calls happened but he didn't know anything about them so he heard them through the grapevine which would have been hearsay testimony then sergeant excuse me we'll go to this also testified that there was an investigation of an individual who was arrested in september he stated september of two thousand and ten that there were going to investigate the background of him and the phone calls could have been made he didn't tell them how to investigate but the few that martinez was going to investigate he stated that he didn't on the twentieth asked to clarify so was his cooperation after the a t f arrest on september twentieth that that he said yes yes really but then the government he was arrested on said early september but then on cross examination the government said well wasn't his arrest on the twentieth yes so what his cooperation would have been after september twentieth yes and it was based on that the government examination there's a proffered process and then the ruling so the parties did not argue this notion in the briefs that the government intentionally induced error that didn't happen the government's argument was teller to sergeant pardon understood that the witness and it made that argument after this was this was denied in this case but at the end of the day the only thing at the end of the day whether the phone calls were made that testimony would have been allowed to come to the jury because didn't know that if anything he would have just he would have limited it in saying that there was an investigation which did come through asia and i mean excuse me sergeant fernandez because he testified that he had no personal knowledge of these telephone calls undoubtably your honor but at the end of the day that story when sergeant fernandez testified it also became relevant because he said that it was after in november when this happened in september and cooperation happened after his arrest and if the arrest was on september twentieth it would not change our posture if you had said i don't see it as a time or twentieth not to be not to be parsing here but it is early september anyway but  he could have presented and there was no other issue that that individual could have indeed said let's let's let's assume that that question should have been allowed in front of the jury because it was relevant if it was before the twentieth and then it could have been but the court made the decision that he had no at least personal knowledge of the phone calls the only thing that would have happened afterwards is sergeant fred and this is testimony that i received a phone call in november and then when you take that to the phone calls i think the jury looking at the credibility of the facts that on the night of the robbery are you going to call your individual lopez twenty different times which we excuse me nineteen between seven pm and eleven pm when a robbery is happening to keep asking him is this and is this person credible is this person credible is this person credible that that theory the evidence itself discredited and to the extent that they were able to present it if i may just finish my sentence to the extent that they were able that sergeant fernandes was able to testify and was saying that i did indeed receive this call that was presented to the jury and even though the times were not appropriate it was also you to follow with where you were heading our belief is that the whole story for our defense that this was a proper phone calls made following his investigation of the testimony of all three so so we didn't know that there was a history behind it the whole purpose of this testimony from the fence is present list to show that your client had a reason to be calling these fellows exactly legitimate reasons the problem seizure yes so i would suggest that the the under color of law is really one of the big issues but the forum for b and the four three argument is extremely relevant because it created