we now have two consolidated appeals in united states against maybe the threat case the judge never made a proper ruling on the government's proposed for a four yep it's he in fact reversed the process by which  supposed to or was supposed to analyze the government's proposed b n evidence by putting the burden on mr maybe once mr may be said i object to this coming in the district judge then said that mr maybe did not properly explain why the four hundred four b evidence was not admissible rather than saying this is how the government has met its burden that this court laid out in gomes to showing hundred four b evidence was admissible in what was in particular specifically lacking was the chain of reasoning as to how the evidence was relevant without relying on the improper propensity it nowhere did the did the government do that in the written materials they didn't do it before judge reagan at the here at the hearing they just said we're going to rely on our written materials and when mr maybe objected at trial race four hundred four b objections a trial the government never said this is how this it is relevant now in the written materials they list it out a bunch of oral or b purposes but that doesn't satisfy the the goal masterson and they said well here's the purposes and we're not putting it in for propensity we're putting it in for these purposes but the whole reason gomez has this requirement that you have to the proponent of the evidence has to lay out the chain of reasoning is to basically put your money where your mouth is you know explain to me how you were going to use this in a way that doesn't rely on propensity disease suffer and then came back on the record and said my ruling is it's coming in but did not give his reason in the defendant's didn't say judge could you explain your reasoning so that stare everything was done on the record in this case there was a here there was a written submission and then there was a hearing where mr maybe made the argument and in fact the judge then issued his opinion like six days later saying well you didn't make specific enough objections so i'm letting i and then the judge said well mr maybe at being in the trial he said you can still raise specific objections and so mr maybe did that even when he was the first day when he's going pro se for example when the police officer windstream testified he was the first government witness he was the guy that investigated the burglary he did when he tried to get in this letter that mr maybe had written after the threatening letters that the charged letters in mr maybe argued relevance and it's prejudicial the government's at it's four or b and its purpose is to show a pattern of threats and the judge said ok i mean to show a pattern of threat is saying we are using it for propensity because he has a pattern of threatening people that means that the charge letters are threats that's the way the four a four b evidence got used the e mail the the voice mails of deep when the government went to play those at trial mr maybe specifically objected says this seems like a move i object to like rule for or be evidence to me and the district judge said no even though it was in the government's for noticed he somehow said it goes directly to whether the these are threats and after the voice mails were put in the government was then allowed to have dba testify i saw all of these things in verbatim from the winds from from the statement the officer klein the statement anderson the statement to brooks you don't have to get verbatim all of these things in to give the jury enough context from which to understand the case and so even if some of this evidence would have been admissible under rule four hundred four be it not all of it is necessarily admissible and if the judge had done the proper gomez and the done the proper which includes doing a poor old to rebalance you you could then at least have something to review because here you don't even have anything from the district judge to review and well you comesa she was thoroughly aired every i mean the case is clearly on the court's mind and i was briefed thoroughly i wouldn't dispute that it was a brief there really even from the government's like as if you look at the establish that this up are very odd reasons they continued to brief it under the similarity rules and stop that gomez reject why isn't this just part of the context of the charge scrying mean the church threats those communications are obscure without this background well that are the real meaning of them is obscure without the background so why is this for a for b at all it's just part of the in the course of conduct it's charged here is that this guy had a motive to threaten these people stemming from the burglary that resulted in the theft of his tools and the failure to adequately investigated or his idea that there had been a failure to adequately investigate it and none of that made sense i mean the charge communications don't make sense as a threat unless the background evidence is before the jury but two things on that number one that shows how important this forum for be evidence was right context it's not for a p that's just part of the course of conduct that underlies the charge threats i would s the government should have been allowed to put in some evidence put in evidence about the burglary for example which from a good you know ninety nine percent of his testimony was or because all right because he's just testifying about the burglary and the investigation but there's no need that the letter to whin strong filenames and stuff like that it mentions deeble wants doesn't contain any threat towards the or anything that doesn't happen that is for a for be evidence that's not part of the course of conduct because that letter was written after the threatening letters in not to the people that were threatened in the charge letters so that is for be evidence there is no reason to put that in other than to establish which is exactly what they did i the charge letter so it couldn't have had any impact on how the victims interpreted the charge letters because it's post dated and there's no evidence they even knew about it but had the judge done it proper for all for be analysis so that you had that to review then i can understand the question of well all right some of this could have been proper for context some of it could have been proper for knowledge although how it shows absence of mistake i'm not quite sure how  there was an instruction in this case and so don't consider for propensity yes there was a there was a limiting instruction but i'm not aware of any case that says that properly that it proper limiting instruction error of improperly introducing them for a form of evidence in the first place and it was the lack of any ruling in the district judge and i do think this is critical and the district judge really says this explicitly in his or he flips the burden to mr maybe to say tell me why this isn't admissible not just in a socratic method when you're having a hearing so you can try and understand the arguments better but in his actual ruling he says well you didn't make a specific enough objection as to why this isn't admissible under four hundred four be therefore i'm letting it in saying nothing never says i looked at the arguments in the government's brief as to why they say it's admissible i find that those are proper and i adopt them he does not say that he never says that he says i'm not ruling on this because mr maybe did not make a specific enough objection and so therefore you don't have a proper evidentiary ruling to review even if you didn't know who could sit here in say i can think of some ways that maybe it would have been admissible that's not the way it's supposed to work  if i could move on to the assault case judge mills erred when he did not even consider mr maybe's request to proceed pro se now the pro se request  not and that is a rather bizarre exchange but as far as the pro se request it while it's reviewed for an abuse of discretion abuse of discretion and there has to have been an exercise of discretion and all judge mills said was you know i don't care what you're talking about i don't care what your reasoning so we tried to bend over backwards to accommodate you and all we gets difficulty any time things aren't going exactly as you want you to a tantrum and you your council the problem is none of that it happened before mr maybe started off pro se in conducted himself perfectly well no problems he had two hearings in front of the judge they had no fighting no nothing inappropriate the only reason he gave up his pro se status because the county jail wouldn't let him have a computer or d v d player in which to review the discovery which was some of which was recordings that were on d v d and then he lost that benefit when trial counsel said he was going to play these calls for him and said if he didn't like it he could ask the judge to go for the thing so mr may be asked to go pro se but it no time that mr may be thrown a fit in front of the judge to try and get rid of counsel requiring mr maybe to remain present in the courtroom every constitutional right is  winnable much to the chagrin of most of my clients who give statements to the government when they're in custody it is always consistently you have the right of a defendant has the right to the right to waive their constitutional right in to not allow him to absent himself from the court room when he requested outside of the presence of the jury not causing any disruption to the trial with the jury being present was an absolute abuse of discretion  in there's no explanation of why it wasn't proper for him to our wasn't permissible for him to waive his right to be present on the first day when he said no you have to be here but then on the second day they said do you want to be president no i don't want to be present was it ok to go back to the jail cell than that should have been what happened on the first day and then mr maybe would not have suffered that prejudice finally with regard to the sentencing and know our reply brief we set out how the grouping rules would have worked and the sentencing range he would have looked at if he would have been sentenced at the same time for these offenses under the group rules and his guideline range would have been eighty four to one hundred five months if this was that both cases were sentenced at the same time he got twenty one years combined and you know that is a massive variance you have to judge reagan maximum i mean literally gave him the maximum sentence and judge reagan did that to a large extent for the very reason that they brought barry in to testify at that sentencing the judge found him credible found that the assault happened said that part of the reason i'm giving a higher sentence is because you've now progressed to instead of just threats now there's an actual altercation so they get the max sentence the judge reading all these breathtaking variance because of the assault then turn around get a conviction on the assault and get six more years consecutively and even if you would have found it would have found that the statutory maximum sentence in the trek case was reasonable  would dispute that but even if you would say fine he had a long history with the divas and then he has this assault on barrier combining those two then going and getting the assault conviction against barry and getting an additional six years consecutive to the assault case for the exact same conduct resulted in an aggregate sentence that is unreasonable and under the reserve the balance of my time to honour's with respect to the first issue just kind of asked if the defendant had suffered any ill consequences by the judge not providing any explanation i believe my opponent said no in oral argument here today and so my question is why are we here i don't think that he did suffer any consequences by not having the explanation from the judge shatner knew that the government had and would introduce or try to introduce significant amounts of for a for b evans at that time he could have asked the judge to explain to give his explanations probity prejudiced analysis but he did not it's clear from the record that the judge would have been amenable to such a request and so that's it the government says that there is a waiver here under lawson and he could have raised that matter but he did not furthermore as i said the for his supper no prejudice so i don't believe there has all and i think part of my reply would be that we used to have a doctrine that allowed evidence in relating to in evidence but to the court to bend your favor of for a for b analysis i would actually agree with you that it seems to me that it really is part of the part of the charge these threats are building over over time it really is part of the charge in a goes to a number of things regarding true threats like the obviously the intent of the defendant as well as the determination of objective reasonable notice that is required for a true threat of my opponent has brought up several things about particular items of evidence today calling them overly prejudicial and particularly the windstream matter but that was not his argument in his brief his argument was that he didn't the judge didn't provide an adequate at the beginning stage of the trial we needed to establish that of course mr maybe was the author of these letters and we didn't know that later on he would take the stand and admit that he he  don't think that it got developed at trial there is some reason that we had there for using the information from that letter to suggest that it was in fact  reasonable as to to consider this as a threat that that is the charge letters a stretch because here you have another letter of similar handwriting it but also similar verbiage and you have yet another person receiving letters about more or less about the same incident who also perceived these letters as that of the particular letter to him was addressed right has not the language of the charge communications explanation for why the charge communications kinds to the threat or at least to family that question under the relevant legal standard exactly and that's why the government felt that it had to put on the amount of sentencing and before it was such that the breath taking so much was in fact justified it was a reasonable sentence under the circumstances the judge filed a twenty one of page memorandum threats he was likely to are sort of bait is outrageous behavior that he did not retreat ever tracked the comment about that he made about dragging marshall barry the sentence imposed the consecutive sentence imposed by the judge in the assault case was certainly justified as well again that judge defendant in their long histories of being judges and if i may just point out one mistake that i made in the brief on page sixty one  i should have said that the sentence would be justified even without reference to the assault case i think it's a truth case and with respect to the from these either so i don't really understand why these are being even raised at this point but at any rate i think the judge has discretion over both matters clear discretion to control the behavior that happens in the review so and the prejudice one serves from being forced to stay in a courtroom you don't want to is the threat against your personal dignity even though you're charged with an offense you still have your rights and the you can waive your rights and mr maybe was prejudiced by the judge forcing him to stay in the courtroom with a lawyer that had actively started arguing against mr maybe and then mr maybe ends up when an evidentiary objection is made on the record and the judge rules on that on the record that the defense counsel or de whoever has the objection loses the objection has to then make an exception to that and say judge would you please explain your denial to me in more detail that is not the law the lawson case was a unique situation where the parties agreed to do things off the record and for all the court knew the the district judge had given an extremely detailed unlink the explanation for his ruling and it's just the defense counsel didn't ask that that be put on the record that's not the situation here in the law is not that a party who makes an objection gets a ruling from the judge is then required to ask the judge to in effect no make the right record because what is the defendant going to say other than your judge that's wrong the district the judge doesn't want to hear that especially if you're in the middle of a trial you're likely to get smacked down for trying to argue things in the presence of the jury well this is in the context of an issue that was litigated extensively in lemony we're not talking about just that loses is under no burden to say judge would you issue a supplemental opinion please giving more details to your reasoning because you did a bad job in explaining your reasoning that that's not likely to meet with a very positive response from the it can be reviewed by this court the litigants job is to say to file an objection to say i object to this it is then the district court's job to rule on it and give sufficient explanation so that that can be reviewed and it's not could have said you know your honor we'd like to have a little bit more of a detailed explanation and i think prosecutors do that before usually when the trying to save something that the district judges does like judge do you really mean to say you know x y and z  thank you thank you very much the case is taken under advisement and the court will be in recess