case about an individual charged with one count felon in possession of a firearm and instead the trial turned into a proceeding in which there was numerous testimony regarding armenian power its members the crimes they committed the types of behaviors they engaged in which completely denied mr maritz a fair trial you know essentially the prosecutor through their primary witness agent and introduce testimony first of all regarding i mean in power who they were what they did that they were not only a organization that indian and white collar crime fraud but also in murders kidnapping extortion and they had ties to international groups none of this was relevant to the fact of whether mr maritz knowingly possessed a firearm i'm very sympathetic to your point of view here there's an awful lot of stuff in here that really is quite irrelevant to whether or not he was possessing a firearm the objections of trial were fairly limited i'm not sure whether i'm really looking at this is plain error or whether there was some sense of a sort of a broad objection because of the objections that were made but even assuming the evidence came in impermissibly and even though the evidence against your client is circumstantial evidence seems to me  strong i would disagree respectfully i think what we have here are several phone calls one that might have somewhat specific language as to fire but the rest were rather general and i have some things i'd like to bring something i and so we have those calls but we have no one witnessing mr ramirez actually possessing these guns firing these guns into the shop where everyone met we don't have anyone witnessing the guns coming out and the guns are then recovered but the other problem is we had outside testimony come in that i believe on approximately ten occasions was the testimony there been you had received firearms from other people during this entire duration of time too so that doesn't necessarily mean that this particular firearm that inclined to accept the argument that all of this argument regarding armenian power and the members of the gangs in the crime that they were engaging in is enough the fact that agents stubbins who was primarily the government's source of evidence in this case  testified that mr ramirez was guilty through a number of statements and so if you take those cumulative errors together especially i do believe it would rise to plain error this was a one count charge that was felon in possession of a fire typically a felon in possession is in shooting fish in a barrel meaning film possession is not very hard to prove and even though this one is circumstantial it seems to me that the proof here freely overwhelming i guess that's where i would disagree especially in light of the fact that there was evidence that armenian power dealt firearms trafficking and there were other guns and so according i would be would have to take into account all the evidence that came in without objection right well if if you're contending that the judge made an error by not sue a spa day excluding some evidence on which there had been objection and if we agree there was an error in not sooner sponte excluding that evidence then we're trying to whether they've affected your client's substantial rights or whether there was harmless  it was properly admitted that includes a lot of things that might have been of similar character to what you're objecting to but wh objected to so the jury would have heard those other things that weren't objective but correct ok ok thanks general terms like that don't some people dealing with drugs or can't use code words on the on the phone that is correct  but oftentimes what that requires is an asian will testify as to what the meaning of those code words potentially that brings in testimony explaining with those words are and this is just an aside i did point out in my brief that you didn't stubbins did serve a dual role here you served as an expert and a lay witness and there was an instruction given to the jury as to how to evaluate his testimony in that regard ok thank not there was plain error for three in terms of evidentiary error and that is a very difficult test to meet under risk indeed this court said it is the rare exception when i just heard court's decision to admit evidence under rule for three constitutes this case is not that rare exception given the strength of the circumstantial evidence that the government presented given the use of the word snub nose in the calls then the finding of the snub nose gun there after moreover a lot of this evidence which defendant absolutely did not object to at all this context will background evidence there were some objections for speculation when an agent sevens was testifying that defendant now claims that amounted to vouching but there was no doubt objection but in terms of this background contractual evidence about what was i mean armenian power what did it do did it what was the type of gang and i'm praising it in a manner that actually the prosecutor did not because the questions more open ended but essentially it the type of gang that engaged in firearms trafficking all of that was can textual evidence totally unobjective to by the defendant there was no motion in limine a there was no objection at trial there was no request for a sidebar there was no motion for a new trial and the reason why is because the parties understood especially in this this specific felon in possession case that context was important and this court has held in united states versus collins that in felon in possession cases in part because they are not made i'm not sure why the context matters because i think here your honor as we've all stated this was a circumstantial case so the context didn't matter because this defendant was not ever caught or seen with a gun in his hand so what we have is the credible i think it does here because what also happens what we have are the subsequent actions so the the defendant is never even seen dropping off the guns has by as we chop he's not seen coming out of the we've shot what we have to then explain it's our burden of proof is how then were all these other individuals involved how did that gun or those guns because they were three of them get from has by as we each up to sarah boyens father's trunk there are c d s and so this is a felon in possession case yes but it has many moving parts and moving players it just so happens that those moving parts and moving players existed within this armenian power organization but that is the context in which defendant was dealing and i think your honor is we have to go back to the fact that none of this was objected during the trial and i quarrel with the characterization that it was an overwhelming amount of evidence that the government never said excuse me an overwhelming amount of improper evidence the government was putting in with that background contractual information we didn't argue that these guns were used then later for any murders as the defendant suggests in her reply brief we don't say that defendant was involved in any other criminal activity besides what we were alleging to be this gun dealing relations a crime boss to somebody involved in organized crime is quite different i'm sure in the jury's mind  you are then setting up a situation where the gun can and very likely will be used for further criminal activity possibly killing people possibly intimidating very likely for that purpose and i  just don't see the purpose of how it helps the government's case to give that influence how it helps persuade them yes he was the guy who possessed the gun i  not seen how that helps legitimately because i can i certainly understand how it helps illegitimately i mean how of the van feeling from that i can understand very well  i think what the court is getting to it is something there's always going to be a little bit of prejudice in these types of cases because given the type of crimes that we are prosecuting  guess i know what i'm wondering is i can see only prejudice i am trying to get out of you what non prejudicial purpose is for that information i prejudice part and the stance sometimes you have stuff that's over and that's helpful to legitimately put in the case and you also have prejudice and you just have to put up with the prejudice because you know that's the way it goes but what implication when you're selling to an organized crime group is when they use it for illegal purposes for killing maiming intimidation that kind of stuff ok first of all this was the context in which the crime took place number two the probative value of this evidence is that explains the actions of the defendant and explains his communications with this person and then why don't be any and would be instructing other people to hold on to their guns to pick up the guns explains the interworkings and what otherwise looks like a conspiracy what's what otherwise sounds like walks like talks like a conspiracy and the government has an obligation improving its case to explain the different moving parts it was no intent to smear this is the fact of the matter this was the organization that he was dealing with it if it had been a different organization so be it but i think there are some things that we cannot change in terms of the nature of the crime that's been committed the probative value is that it explained the series of steps that occurred and how the law enforcement offic steps could not have been explained without talking about the fact that this is this is an organized media an organized them as you couldn't have done the explanation and kept that part of the doubt that they are without any of this background contractual evidence the vast majority of which the government believes was probative and relevant and not unduly prejudicial the fact still remains of the defendant hasn't shown a miscarriage of justice which is what he has to show under the pla here indeed subverting the defendant's argument that there was a miscarriage of justice was his own reliance in closing on this very same background contemptuous information he used it to craft his defense that was his defense in fact on cross examination of even sevens he asked him didn't this organization deal with fire other firearms specialist wasn't durbin ian caught on the wiretaps distributing guns to other people he then used that in closing to argue my guy my defendant was not the firearms specialist in this case so even if the court isn't persuaded that there was no error that's only prong one prong two of the plane air test defended simply cannot satisfy plan three and this was a felon in possession of a firearm case and as your honor stated it doesn't matter who he sold the guns to and by incorporating the armenian power and counsel the object i mean i guess i'm  magnitude of the inference that can be made mr ramirez told guns to armenian power they then use the guns to kill people and kidnap people and extort people that was essentially the problem and it's a big case because of what can be admittedly unconstitutional probation search yet the government disingenuously attempts to salvage the fruits of the illegal search based on an after the fact just cation of some suppose a consent and this case is also just another example of the you make that argument yes here are the facts remain that at least at the time of that search the glendale police department specifically stated at the time of that search and in their declarations in support of the government's opposition to the motion to suppress that they were there to do a probation compliance check and ultimately once they encountered mr lawrence girlfriend misstep and ask who they specifically stated we're here to see mr officers are a uniformed unarmed and while we do not will argue that they had guns drawn was that was it was this an apartment building in apartment buildings or they were in the hallway outside of the door i unfortunately don't know fully exactly how the apartment fire looks outside that door i understand there might have been a railing but it didn't appear at least from the testimony that there was tremendous space if you will outside of her but i guess i don't know for sure of that with the government did it made hametz an exhibit was the layout of the apartment so how good is the record in terms of how many of those officers she could see at the time she records not extremely clear on how many she could see at that time she did not testify infer and i guess impose if you will that she might not have seen them all but there is no direct evidence or statements by the i don't believe there's any direct statements by the two officers who did present are provide declarations and testimony that there's no way they state they gained entry and officer hemet as he was the one he said i saw in plain view the marijuana and other contraband he first checked the first quote for safety reasons we checked the two bedrooms for additional people they searched that apartment and then i then stood behind the kitchen power while the other officer spoke with a lot of stuff and i ask you this it wasn't just that we walked in and happened to see in plain sight so at the threshold that would be a pretty difficult argument kitchen there's no you know specific well was there is pony walls there it's not necessarily you walk in and you would just see it now of course i haven't walked in the front myself but i find it hard to believe that they they saw it in plain sight because their declarations do around the starts moving on the corners but that's in violation of the fourth amendment ring into open doors and i'm not sure was a constitutional principle as well i mean we all buy gas in your apartment you know friends do you sort of say you know you can only go to the places i specifically give permission can't go to the bathroom to believe that there is injure safety but the government specifically says we do not argue there were extended circumstances the only thing the government proceeds on saying why the search and subsequent warrant based on that search was valid was because she consented to their first read if i'm correct with i believe two thousand and six that this is going on the books for good while that that alone will not give enough enough factual support to provide that they can then go search through the remaining property and i mean it wasn't just  them going the kitchen for example why wasn't the defendant's burden to say look the kitchen was not within the reasonable scope of the concern and here's what you could see and here is where you have to stand to get in the kitchen that the consent consent was effective to overcome an unreasonable search and seizure and to the extent of the organiser worry we got the consent so this is not a probation search they say we got consent and this is just part of why the burden of the point of the defendant to say but they went beyond the scope of the consent you know this evidence that they say is in plain sight you could only see it if you walked into the next room in all the stuff they see they claim they saw in plain sight was not in plain sight it was somewhere where they had no business in walking you know if that was the record then we could be in a different situation but morning your honor please the court means allison was going to represent the united states i'll start by just answering one of judge fletcher's questions regarding the number of the officers it's true that there were seven officers but i would just  congregating ok but on the previous page in the middle of the page blind fourteen seven officers at the door when she opened the door you said she said desires your testimony correct that's true and so i think that he's little different but it sounds to me is though it's pretty likely that seven officers would have been visible to her looking out the door the district court specifically found that it wasn't clear whether she could have uniform at the door she sees them and she then here is one of them say we're here to do our probation search we need to see someone saw we need to come in there's a fair amount of course and both the statement and of the number of officers and that i think cuts against the government on the other hand if there's only one officer visible and she gives consent that i think may hurt the government in terms of what happens after they come him because of the seven of them and she gives consent they're going to have to stand somewhere and someone might end up in the kitchen just because a small out of place and they scatter so which way do you want to lose this one well or rather which way do you want to when i've been but do you want to choose as to whether she knew there were seven or whether she didn't know there were seven i can't i can't you because i can't make of the fact i do think it's probably fair given the testimony you just cited that the seven officers were maybe they weren't congregating at the door but they were outside they were not kind of fighting in parked cars i don't think that in itself should be seven officers out the door when you open the let me just briefly correct what you said they didn't actually say we're here to conduct a probation search the testimony was you know we're with police is that it is the defendant here she said yes then they said we need to speak with him he's on probation and then they asked me we come in and she said yes or something to the effect of sure go ahead and then she stepped back opens the door and the testimony and you can point me to it  so when they have a chance to think about it right analyse need to and then when they're on the stand a little later on they say may well i don't think it's significantly different whether it's need to hear me but i do think the live testimony that was actually elicited  i don't think it really matters that even if whether it's you know we need to speak to him he's on probation and may was thinking that he's on probation and that in of itself is not what's the standard in terms of whether we were the legal standard in terms of whether it's co articulated so this court has consistently held that in determining whether consent was voluntarily given that is for clear air i believe that in the seibu case the court held that to the extent you're making a general rule about what actions can and not and cannot constitute consent that might be to know however the government would contend here no i'm asking a different question not standard to reveal but what is the standard in terms of determining whether or not it is coercive well i actually had articulated i think it would be similar to you know the standard as to whether somebody is seized and such that they would be for example what a reasonable person in her its decision and i believe pyatt on soriano where there the court affirmed voluntary consent even though there were five or six officers in this motel with this woman the woman repeatedly said i'm unsure as to what to do as to whether i should grant consent and one officer even suggested that if she did not sign the consent her children might be taken away from her and so this is i think a far cry from that situation where the court affirmed the district court's determination of voluntary consent and the government's position is that every other kind of claim that has been raised on appeal was simply not raised in the district court and is procedurally waived in terms of clear error in a factual finding by the district judge based on a determination about as to the disputed or unclear facts we obviously have to respect but if the question is not what happened but rather the legal consequence of that what happened i'm not sure of that  well i would just say that this court has consistently you know framed it as in determining whether under the fatality of the circumstances it was voluntary consent that is reviewed for care so given that i don't know that you could go against that  but in any case i think the circumstances here are a far cry from many other cases where this court has found voluntary consent and you know the guns were not drawn and there's no evidence that the tone was anything but cordial and she certainly was a suspect they clearly were interested in talking to the defendant so i think that also cuts in favor of consent so i don't think there is any clear air now once they're in the apartment they've raised this issue of the protective sweep and i would just point out again there was no challenge to this fellow and so my opponent actually referenced the fact that there are facts we don't know we don't know whether they still would have been standing in the kitchen after this week we don't know what exactly they would have been able to see and the government submits but that's because the defendant didn't raise that claim below and so the government was deprived of the ability to introduce that evidence in any case if your honour's look at excerpts of record three forty four and three forty six the kitchen is immediately to the left of the doorway the jars of marijuana there clear jars clear plastic baggies there's a clear bag of ammunition and so you're looking at your work to be clear these are not photographs of diagrams showing where exactly the evidence was but there's a picture that shows the apartment shows where the kitchen counter is relative to the door that is that the front door your honor i see so when you walk in the front door if you're standing there you're basically standing in the kitchen correct area to see if it were behind the counter they might have to be back in behind it but it was on the counter it should be visible actually from the rest of the room that's true are there any other questions about the eviden numbering and it's just real briefly just to start off with the photos of the kitchen for first and foremost we don't know exactly they said it was on the kitchen counter if you look at those kitchen it's not one flat counter there's multiple part and not one hundred percent sure where that might have been so it's not so clear cut that they could have walked in and seen it and as the record shows they did not walk and just see it it had occurred after they did a protective suite and then what's placed themselves in the kitchen so it's not clear that it would have been in plain sight at that but again do they need to stand and walk into the kitchen to stand there is an ample living room and dining room area as well you stand one place or the other and wherever they go they find something you're going to say they didn't need to stay in there but i saying on the counter where it was found and where if it really would have been so visible had the even stuff put in the kitchen or did they need to look you know near the refrigerator and or anything but in any in any case back to  our first point is that we don't concede that there was any valid consent at any time and ultimately that it would have been that it was the result of coersion though yet not necessarily expressly are pushing their way and  by implicitly showing some form of lawful authority that they had the right to be there and that they could go in because he was on probation and and also it is always the government's burden to to prove that this warrantless search was reasonable even if reviewed and the defense is not real it is not to dispute the factual findings were disputing whether the factual findings really did amount to consent and with that i submit thank you