the police the court i believe kendricks from here to present all organ on behalf of the appellant watson watson was convicted following it and it was a two day jury trial distributing more than five grams of methamphetamine simple fact was of a single transaction alleged to have occurred on august twenty ninth two thousand and fourteen and the trial testimony was straightforward it was a confidential informant by the confidential informant testified that he set up a transaction with watson on that date august twenty ninth two thousand and fourteen a bottle thirty six grams of methamphetamine actual from him and the remaining part of the government's case was basically the drug task force officers who were operate the confidential informant testimony through some surveillance physical surveillance and some audio visual recordings and jury convicted watson and the judge varied up or two hundred one hundred eighty monts from a god line range of one hundred twenty two hundred thirty seven but issues on appeal the principle of the introduction of other crimes evidence comes about in three instances was the evidence sufficient to convict substantively reasonable the other crimes evidence issue as i said it comes about in three instances i read in the transcript and the first instance of the other crimes evidence was an officer was allowed to testify that watson was a target by taking the end of a knife heating it up and burning this person's eyes this other evidence that was allowed or acts of domestic violence that he had beaten women and children and then a third occasion was is i i don't know if you tried the case of the matter no i didn't try the case and actually just got on a week ago to come in and orally argue it so but it and i say that because it's it's allowed me to take a fresh look at a case that i didn't know anything about yeah i asked the same the theory was this it was litigated pretrial is what's it can i bring in the fact that i had sued the same officers and that's their motivation for targeting me and bring me into this case and judge miller said i hear that theory but if but be careful because if you do it i may allow other evidence in really what their position is of why you were the already represent himself a trial or when he did not this but this was is i mean that was who is the client's urging or i that was my decision that was my reading of the transcript the us that this this is where th wanted this case to go but here's interestingly what happened so it raises the issue of opening the door i can't see that this i mean this is this is a single drug transaction case now you've got evidence that this guy is a torturer and cruel and inhumane and we've gone way beyond the scope of the charge conduct but was there any discussion with the trial court about that and i think the court was trying to limit i thought my review of it was the government wanted even more than what was presented but was there any discussion about hey you know can we keep away some of the violent acts i know that this investigate are the i guess the task force was out looking for  violent quote unquote folks was there some discussion of saying what you know can we downplay that and have some other way of presenting this idea that you were on a list for another reason or related reason i think so either way that i read that pretrial portion of the transcript was the judge was going i'm going to wow you government to get in there now that this caps out about our model allows you to get into some but i don't i didn't see that there was sort of a disciplined approach to how about objections as it came in or along these lines i think that there were actually i may be wrong that would be the in but then there was a list of thirty one examples that were given it three of those were chosen by the government to come in and that they were particularly harshly or particularly the three most prejudicial types of conduct now he hears my position is that that yes this door was opened but as i read the transcript the government to stay with that bad metaphor they knocked first read the testimony of the first officer i think it's frazier and within the first couple of pages of his trial testimony the government's asking him about what's this investigation about and it says we're targeting repeat violent offenders so the cat's out of the bag initially in the government's direct testimony that objected to it was not saying and i would think the defense has the will has to be ready policeman this sort of really it's a for all three type problem i should there have been an objection at that point it may have been tactical on defense counsel's part they got they were looking there they raised it now i get to give my explanation of why watson was targeted it was because he had sued these people in just one i think one of the settlement against him right after this trial or right after the transaction i think but my position is as you know the the government actually was knocking on that door in this was just the response that watson gave  assuming that i'm assuming i'm incorrect on that then the question becomes well was the door opened that wide was it open wide enough to allow this just really loathsome sort of evidence evidence that that is incredibly damaging to do to watson again when we're we're overlooking this as this is just a single drug transaction case and now you're talking about knives and torture and all that and i submit to you know briefly do any of them address this issue sort of generically you can't open the door too wide i mean there's generic case law on it in the end of course there's no rule of evidence called opening case that would illustrate a court reaction to what's what's too wide i don't think so ok in again i guess it's a matter it's really just relevance it's it's just how important was that evidence to the government's case how damaging are prejudicial was it to to to watson how much influence did it have on the jury and when you take in the context of this case again it didn't seem to me to be a difficult case it didn't seem to me to be the world's greatest case for the government you've got a bit of a rogue cia it comes down to the c i and nothing more than attempts by officers to corroborate this you've got a bit of a rogue i a guy that's made over one hundred thousand dollars and doing this is as i gather sort of a profession in a career there are times during these transactions the two talking about what he was charged and convicted of and then  subsequent transaction that came in i suppose under a rule for a for b i think the government argues it's intrinsic evidence but there are times during those transactions where he was lost he was on monitored the audiovisual equipment i think it's off by a couple of days it's not the world's greatest need of most efficient case for the government so but you bring in this sort of awful evidence and it seems to me a conviction was a foregone conclusion once that jury heard this guy was taking a knife and torturing people with and assaulting officers that lift that leads then so you have the opening the door argument on the really i was that evidence and miscible and again watson submission as it's that it's not the government's position is that's intrinsic evidence it's not even for a for b it's part of the story that seems implausible to me that the complete the story part of intrinsic evidence is is it necessary is it needed is it essential to complete the story of the charge transaction and it mccormack looked at it and i think a cup three different ways it is it if you leave that out this un charge conduct there's a leave the jury guessing what one of them get this whole stor under the rule i don't see which exception it would fit in and of the i guess there are nine under four or four b it's first of all it's subsequent conduct so it's not going to go to his preparation for the aug twenty ninth george transaction his plan to do it you know the government's position and it's brief this is simply it's similar unkind and close in time i mean i think that's debatable but three weeks and specific reason other than the similarity of what makes it admissible if there are cases cited in there as well it's intrinsic evidence because it helps explain the relationship to the parties or again it helps to show the complete picture of the charge conduct had been completed three weeks before so there was no yes no necessity to complete the story and it doesn't explain the relationship between the parties they don't know each other this was a c i acting out there so i don't see how the subsequent transaction was either admissible as an exception to the care or no character evidence rule or is intrinsic evidence one of the intrinsic issue who strikes me that the course of conduct even though this is this is obscene when probably the government would would believe that it helps corroborate what the rogue c impeachment is more credibility is typically considered the intrinsic question yeah you know i don't know i i look at intrinsic evidence as does it again complete the story and that completion of the story is what led up to what you got charged with again this is what happened afterwards the story it just doesn't seem to us here to mirror tell the government here the story was the cut as i understand from the briefs the is typical contraband so i mean it it's sort of completes the the rogue c i story if not the if not the drug transaction story that seems to me to be of these and intrinsic theory but i don't know if the cases with or in our submission is that the story was complete on august one right now but there is a second layer to that that's sort of interesting is that part of that september nineteenth transaction one charge also involved to the the defendant's brother robbing the c i and that came in and i see that as actually i don't think it's addressed separately in the brief but it occurred to me that that's a separate another other crimes evidence instant that's come in that should be analyzed because i did nothing but again serve to prejudice the defendant is not only you're familiar with and yes or do you understand there to be a challenge to the guideline calculations i do it and here's what i understand that challenge to be is that watson objected i can't tell you what specific prior conviction but i know that he objected to a prior conviction the pre sentence report writer of the new amended the p s r to say i've got the necessary court documents to prove that prior conviction yeah i said i saw that's why i asked i saw an argument it's buried under a caption says the corn erred in varying from the guidelines so that those are two different arguments and i sed yes sir i did see that was two different arguments and i think as the general proposition is provide a citation the court on that point let me let me ask the question my understanding is he objected to the existence of several convictions and that the court relied entirely on the p s r told her all those convictions and i think we have cases that say you can't do that yes your honor and i think in the case that i was going to provide it was it was not an either party's brief stapleton united states versus stapleton to sixty eight f thirty five ninety seven it's a two thousand and one officer regarding some prior convictions and the pinion indicates that that is not sufficient to resolve the factual dispute or you conceding this issue it is adverse to our position with respect to the procedural error and whether the court should have should have required more so yes united seating that we need to remand on that in a minimal i'm not your honor i'm not going saying we need to remain on that and i'm conceding that the united states should have put forth evidence regarding that however never man is necessary in this instance because and mr watson's case has extensive criminal history he had nine one point criminal convictions and the  paragraph twenty six and thirty six convictions that he objected to were one point convictions and so it doesn't matter he had even if you disregarded those paragraph twenty six and thirty six convictions you still would have had was not convicted of something he just said i wasn't convicted of multiple things and both parents forty one and forty two i was only convicted of one thing in each case so that was his position and so there and is harmless in this instance brief the substantive reasonableness issue the district court did not use this discretion and imposing an up or variance in this case here we're dealing with a defendant who has twenty two paragraphs of criminal convictions a defendant who has over thirty other paragraphs of criminal conduct you know some of that was discussed pretty trial in the government's notice whenever the government provided notice of its intent to offer evidence and details a lot of those arrest report and so that's also reiterated in the p s r and discussed in the p s r his colonel history is seriously under represented in this case and the district court was right to very upward in this instance here the indictment doesn't allege a specific street that the transaction occurred on or not required to allow just the civic location in that regard beyond in our district and so i don't think that there is an actual varian indictment that the transaction occurred based on the c i d brief and defense counsel had access to that report as well it was the september second report that was discussed in the transcript  jernigan and so the special agent on the case was aware of where the transaction had occurred based both on and that was presented to the grand jury that would be in the grand jury transcripts it is your honor and i check before i wanted to represent that to the court i did and  there was there was not it was not represented to the grand jury that the transaction occurred at maple street there was a discussion about going to several of patients in that transcript so that are you know that's not what they that it was based on it was based on the actual facts of the case they were presented at trial with respect to  d and the testimony of bobby athlon whenever he testified i don't think there was ever the word torture used in front of the jury i would just say that i think you know i do we gave several instances of violent conduct once it was clear that defense counsel is attacking the motivations of the officers in the case and so we need to come back and rebut that with why why at the violent aspect so you have to counter the the i guess defense that he was being targeted because he filed this lawsuit so the court gives you nothing opportunity to rebut but why do you need the violent part when there be something else that you could present to say no you are a target of an investigation for another reason without getting into something that really wasn't part of the the case itself well your honor be candid in truthful about it and the reason that he was targeted is because we were targeting violent offenders and that i would they have to be truthful they are supposed also supposed to limit their answers to the questions asked so i assume on direct the jury that the only reason he was ever targeted was because he had sued the officers and that they were improperly biased against him and had motivation and it was challenging their credibility and it was a rehabilitation did you after cross examination and we believe that the door had been opened an order for us to present this on redirect examination of mr athlon and we took a break and and actually made sure with f on that he wasn't going to go into too much detail or talk about incident beyond what was necessary to make our point that this is not a bias that mister if one had against the defendant were any of the incidents connected to drug dealing described it wasn't termed the guy with a knife because he didn't pay me for the drugs i sold him type situation you know you are there are out of there are some domestic violence incidents that involve drugs but we didn't go into that level of detail ten f one had personal knowledge of because we wanted to demonstrate that he was not biased against mr watts and because of this lawsuit rather he had a legitimate reason for pursuing him as a suspect and targeting him in this federal n and and start from stanton that included both guys of drugs and guns and so it was we were particularly targeting repeat violent offenders that the competition informant would bring to law enforcement and indicate they were selling drugs and he could make about and so that was the goal and purpose was to take violent offenders off the street and i think if the district court rightly allowed us to go in tilbury limited degree considering the actual history of mr watson it was a very limited degree that we were allowed to go into about mr watson's violent history in order to rebut these attacks on the credibility of the witnesses in our case now and i would point out that it's not like it's counsel raised this with one witness defense counsel talked about this lawsuit with the first witness officer frazier with bobby f one with company source and then again with officer barnett so it was a repeated theme throughout this trial and we only brought the specific instances of conduct with respect to the redirect of mr affluent so we did appropriately lament that with respect to the september nineteenth transaction it is the government's position that this was intrinsic evidence  know at trial we briefed it pre trial for the court and said and if it's not intrinsic out we think it's intrinsic evidence but if you believe it's not then it's at least four four b and we get appropriate for four being that you're you brief this is the myriad of four or four be presidents in this circuit in elsewhere but just just tell me one that's involved subsequent conduct for that was that was held to be proper for all for be covered because i mean in the gosh knows how many four or four b cases i've had over the years i don't remember one where the where was this kind of subsequent conduct i understand the intrinsic  it's something her cover did you didn't cover for i give you two minutes for a bottle thank you judge the first position where i heard the panel going was you're right this was an hour caught ics investigation targeting specific type of offenders that have some sort of violent background the three instances of misconduct that were introduced were not associated with that sort of investigation i could have understood if what came in and responds to have open d that door into the question of how wide was it open was this we had it this guy has a history of using guns and selling drugs at the same time that would have been relevant connected to that to that investigation but these were three types of offenses that unless committed on federal property there was even no federal jurisdiction to prosecute these were local crimes not associated with drug trafficking so there was no federal jury jurisdictional hook for which he didn't have a chance to prepare a response but he have any response to the harmlessness argument on the dotted line calculation i can't say that i'm that familiar with it i understood that if you knocked that prior conviction or prior convictions out because the government won when the burden shifted to the government failed to prove the that enhancement beyond partly by a preponderance of the evidence i don't know where that late i of five years and notion would be that can't be harmless because if you're starting that low there's no reason for us to believe the judge would have gone that high thank you