the next case on for argument is united states versus permanent digs down here in new york it's starting to look that way judge may please the court my name is joseph care chef ski i represent the united states on this appeal this is the government's appeal of the district court's order excluding evidence and this this order of the district court was an abuse of discretion and it was so because the district court misapplied the law in concluding that evidence of a specific firearm that was seized on a specific date from a specific place was irrelevant merely because there was a mistake in the indictment in i as to the manufacturer which was misspelled and the fact that it incorrectly stated that the pistol did not have a serial number which it did which it does which it does yes so why did it take the government so  in this matter and is this mistake not repeated a number of times it did your honor and frankly there is there's no real explanation as to why that happened actually the reason it was noticed at the time that it was noticed is the government attorneys were getting ready for trial and they looked at the evidence more closely and realized that there was this divergence that there was this variance between what the evidence at trial would show about this firearm and what had been alleged in the indictment about the fire one one point that occurs to me is that even if the judge son the the the souring son thirty to thirty two is the right direction to prove the specific counts that name did with errors in the name of the judge ruled that it was irrelevant for any purpose and any object and any attempt to offer it would be sustained now it occurs to me that there are numerous purposes  for which it would be relevant valid evidence even if it can't be used to to to satisfy the possession counts that name it with incorrect incorrect details  it is it is classic uncommon in narcotics prosecution to offer weapons as part of the proof of knowledge and intent in narcotics charges of knowledge intent  offer of a thirty two weapon together with a properly charged thirty two bullets is relevant to show intentionality knowledge and lack of mistake with respect to with respect to the bullets every one of the every one of the charges offerings and a classically valid purpose for offering a firearm even if there hadn't been the charges which name it by by its misspelled name and so forth i agree your honor as you noted count three of the indictment of the of the redacted indictment does charge a drug distributes a substantive drug distribution count intentionally did do the the presence of a gun and seizing a gun can be used to show knowledge and intent intent to distribute and knowledge of the drugs which are elements of drug offenses yes your honor and we pointed and we did i believe i did make that point in the reply brief that specifically there are very specific reasons why this firearm misidentify albeit in the in the indictment is relevant for each of those counts count three the drug count so i mean the conclusion from that seems to me to be before without reaching the question whether the draw with the district judge abused his discretion in refusing to your last minute motion to change the indictment or you did and as i understand you did not offer any another superseding indictment in which the grand jury would properly charge the weapon that's correct your honor this was right up against trial as this court is noted as you've noted your honor it's also this situation i mean as a practical matter that grand jury wasn't sitting anymore and so i don't need that grand jury and have any grand jury that's correct your honor i agree with that however in addition to that there are other defendants that were charged in that indictment that had been severed so there are still two other defendants out there who have been severed so you know there would be logistical issues with regard to that i'm not saying it could not have happened your honor but you know there are there are certain things to be sad  support of the district judge's ruling with respect to the improperly named weapon which was allowed to stay there even though the government was obviously aware of the error because it made all these disclosures and the government that was there was no new new information so i guess to me that the judge will yes annoyed and found it unprofessional and so forth for you to have gone through superseding indictment after superseding indictment not correcting this  thought passing that the the the ruling that the district judge made i think was unquestionably excessively broad in making an anticipatory ruling and excluded the weapon for all purposes yes judge that is our argument that the with regard to the judges and all we asked the judge to do was to let us let us alter the mistake that was in the indictment in a fortune proceeding indictment the judge said no ok fine we'll go to trial with a with an indictment that improperly or it accurately describes the firearm however the judge took the next drastic step in the on warranted step in saying look if you try firearm i will sustain an objection to that's what he said he didn't say and if he'd said it the way you just said it that would have been talking about offering the weapon in a matter that doesn't conform if you offer it in support of the narcotics charges in often supportive of knowledge an intent which back to narcotics charges and with respect to the thirty two bullets you're not arguing that it does or doesn't conform to any description you're not relying on any intent with respect to the drug things that's not seeking to conform to the description in the indictment that's just offering evidence in support of the gentry i agree i agree with you i just room but you can't do that i will say though that what the judge did say in this is that page eighty one zero seven it is if there is evidence relating to a thirty two caliber model thirty eight pistol with serial number three five five two zero six that evidence would be irrelevant and i would sustain the objection the only relevant evidence would be with respect to a sure in sewell c h l seven point six five millimeter pistol with no serial number so the judge in essence said look you can't introduce evidence of this pistol the accurate description of the pistol only the only evidence you can introduce is evidence that's consistent with what's in the indictment which of in a charging instrument and what the proof would be at trial i mean how could the jury convicted a gun without a serial number because this serial number is not an element of the offense the serial number is the act i understand happened and it charges a certain con and act on it doesn't exist but is that description doesn't exist the same gun the proof a trial will be the second far away no dispute whatsoever so you have this situation where the and this was one of the firearm see the one we're talking about is one of the other is the other firearm seized right correct ok correct sorry i didn't mean yes yes i'm sorry yes that is the case so you have a situation where the analysis needs to be ok this proof that will be introduced at trial varies from the description that's in the indictment so the court needs to look to whether or not the pleading in the proof substantially corresponds whether or not the variances of a character that could have misled the defendant on trial and here it was not i  think i don't think your understanding what i'm saying to you because judge cham just asked you whether you would have any relevance to any of the counts in which that was improperly named and you answered you answered essential to same argument you were making to the district judge that you should be allowed to prove it because the exact name is not an element of the offense but i thought we were in agreement that in answer to judge chin's question would be that first of all as to one of the counts i think it's the felon in possession count it charges the thirty two bullets right yes  even if it is not relevant to prove the aspect of that count that charges the possession of an incorrectly named pistol the offer of a thirty two pistol along with a thirty two bullets is relevant to show intentionality knowledge and intent with respect to the illegal possession of the bullets i agree ok now as to the other count which doesn't charge the bullets the other  not for the nine twenty fourth's you count for the nine twenty four see if it has to one of the elements of that count is to show that the that the correctly named gun what was the other gun was correctly  smith and wesson that the smith and wesson was was was was possessed in furtherance of a drug processing crime the possession of additional weapons beyond the smith and wesson contribute to proof that this possession of the smith and wesson was in furtherance of a drug processing crime these people have more like an arsenal not just one not just one gun as to which there might be some other explanation than further and some of the drugs fro also agree so those are answers that you might have given the judge chin's question that would not permit you to prove that the gun satisfied the charge of the incorrectly named gun but it would be relevant for these other purposes but even more so now in the in the in the in the charges that don't name a gun at all agree just so so mean that means that even if we find that the judge was we in his correct discretion in saying that this is unprofessional action on the part of the u s attorney in letting this mistake to go on for active and seeking at the last moment to ask the judge to save you by changing the indictment even if he's absolutely any sense apologies if i may be right or judge of elf i can just respond before i go into anything any further about what the court is saying and it is a is a hear what you're saying you seem to be at least indicating that there's a possibility that the government could use the thirty two or thirty eight or seven point six five whatever he happens to be not as direct proof of guilt but alternatively is proof of it's seems to be you know a fallback and that there are there are ten thousand cases in which we have apel the admission of firearms as proof of drug drunk i don't know if there's ten thousand euro but being offered not to show proof direct proof of his guilt of the particular gun allegedly named in the indictment but for a for b is what i think the court's talking about knowledge intention or  i dropped you but you are the government never offered it for that purpose the government never said to judge trial you haven't tried but i understand that but just really was firm and from the beginning we were on the day of jury selection when the government is first making this argument the jury was in the building and the jury was about to be called up you're not really telling me that all this time you're taken by surprise that all of a sudden they they have this gun that you never knew about that was i mean was disclosed to you again and again and again and again your honor what was disclosed to us there may have been a report here or there you take the time to look at the gun we did your honor so i thought it was a gun and you knew what the guns were to firearms right effort until literally the day of trial to indicate that there was something different from what we had been told to us you have to fire running through this area that's correct that's correct only this one which the government chose to is prove that there's a fire and relationships lavelle's point in relation to a drug distribution right i am of the one twenty four c that's correct that's correct your honor but the bottom line is they don't have to prove that the ammunition traveled interstate i don't think but obviously the good and the york state so that there was never an issue on the interstate commerce issue the only issue that was that we get we had reached before judge scrutiny when the issue came up for the first time was the fact that we were told for four and a half years through five separate indictments five in don't mess with what the nomenclature in the type of the gun was and the government never say never made any attempt the government's trying to say we told them but how could the government say we are tempted to tell them when the government itself never moved or never made any changes to the or human that i was suggesting because because even if the indictment didn't mention this gun at all in any fashion it would still be relevant for all the purposes that i was  so i mean what difference does it make if if judge scrutinies is dead scrutiny is permitted to explode the gun too to tell the jury that this gun here is not proof of the of the of the counts that specifically charge the differently named guy that doesn't mean it's not relevant to prove narcotics charges and to prove the the nine twenty two g with his back to the up when we were ready to pick a jury the judge indicated what his ruling was going to be and what is ruling was and he said i'm not going to let or deny find it to be irrelevant the government at the appointed time leader the afternoon of the next day because jury selection was scheduled for two days later because it took most of the morning to to resolve the other issue the weather would be admissible the government didn't notify the court that ok it's a fall back is you honor saying it's a fall be it we want to offer it for other reasons the government never never never guessed claim that you're on it and you know if there is a waiver provision it should be applied in this case because the government has never suggested a judge of all that was going to offer the weapon for any other purpose other than substantively of the defendant's guilt that's what they wanted to offer it for that's what they told them through their first motion that's what they told the judge on the second motion and they never went in the direction that the court's trying to suggest  similar a type of four zero four b type of argument and so judge scrawny was left to say to himself i believe i don't mean to speak for him but he's looking at it and saying there is no other reason being proffered by the government for offering or for me to allow the going to into evidence or to be shown to the jury other than what the government is saying at this point in time and what the government wants to do the bottom line is i just want to clear you're saying that the government never argued that the gun would motion for reconsideration which they filed this all came up because the government asked the judge to change the indictment so that the gun would be would be would fit the description in the indictment and i mean i i don't understand that the government ever said we will not refer to the firearms in support of the of the of the of the drug charges why why should they say that why were they ever called upon to do that they asked the judge to make a ruling on the evidence and the judge said i'm not putting it in no way no how that gun is out that's correct so why is that a correct ruling the judge's ruling judge brittney's ruling what was his rule is it a correct ruling where the government was saying the government is coming the same change the indictment so that it fits the actual gun and there was a judge said no good government said well in that case we asked you to tell the jury that the small discrepancy doesn't really make a difference judge said no i'm not going to do that and the judge said that the government then said well please make a ruling and i'm please make a ruling on its admissibility i guess as a device to be able to come to the court of appeals i suppose that's why i think the the the the government said that and the judge then said i'm not looking it in under any for any purpose at all if you are for that god i'm going to sustain the objection to it why was the government why were you misled by the government's not volunteering to go to the state of review every purpose for which the government from which the gun could be i'm not going to say that i'm the only one who was misled here i would say the judge scrutiny was misled because he gave them the opportunity or maybe think about this i don't know that judge scrutiny yesterday you know if you are going to put the burden on judge scrutiny to say well maybe the government could offer it for some other reasons which they never advanced it never suggested that they wanted to would have set you may not or for this case to prove the charges that name reconsideration they could have done two things consistent with what we've done or suggesting they could have said number one we think you're wrong judge and we want you to let it in in any event but they could have also said and in any event there is a fallback you hon because we think the court is wrong we think that the court could allow it in for other reasons for knowledge intent or lack of mistake or whatever is a relates to perhaps a drug charges but the bottom line is that the government chose not to do that your honor and  i don't think it was george scrutinies obligation to say well what other reasons could the government offer it traditionally in our district the four zero four b motions are always made before trial they didn't do it here whatever the name whatever the whatever the serial number a lack of serial number is as to the nine twenty four c counts agent walks in however it went down this is we were at the site here the firearms we found these are firearms period end of story that comes in now setting aside judge scratches ruling oh well it does not you don't even need to identify my number all you have to do is prove that there were there were firearms there and you probably could do it on that if you wanted to risk it if the government wonderous could do it on the basis of the agent's testimony that he she saw a firearm present on the promises and at the risk of a mistrial if they try to do that your hon in and the government brought it up before trial well the government brought the issue up before trial and they're saying well we have this problem we have a problem because the indictment says one thing factually and in our opinion the proof is going to show something totally different and judge scrutiny gave a lot of different reasons for it and found that there was some snow just prejudice he found that there was substantial prejudice nerd to the defendants because of what the government was doing and i think one of the judges said earlier he was pertur government's argument continuously sort of is a constructive amendment argument suggesting that this is a constructive and then that issue it's not it's a variance issue it has to do with the facts it has to do with rule of in the federal rules of criminal procedure as to what indictment should show and we've not argue that it's an element issue we've argued that it's a a difference in terms of the facts which the government was going to try to show viz a viz the indictment so the only issue really that should be before this court in my opinion is the issue of prejudice and whether the judge abused his discretion in finding that there was prejudice and i think that there were plenty of reasons why he was entitled to do that and that's why we've claimed throughout that the government should not be bility of this firearm what we did do was asked the judge to amend the indictment or to change the language of the indictment to conform with the proof and we also when the judge said no i'm not going to allow you to do that we said well why don't you just strike that description of the firearm all together so that those are the two things that we i thought you then asked the judge to make make a ruling with respect to  the judge did that on his own actually and i think the mistake that the judge made was that well if i'm going to deny your motion to change the wording of the indictment change this mistake then it naturally follows that this is going to be inadmissible we did not ask the judge to do that the judge did that on his own said i deny your motion and furthermore if you try to introduce evidence of this i will sustain a relevance specific firearm is not an element of the one twenty four c charge specifically so that that went into i don't know if i was with that in the context of re arguing the motion for leave to a man was  indictment and charging the jury in a certain way with respect to the specific possession charges yes your second mr agreement did say that this all occurred while the jury was waiting while that we are set for jury selection we actually made the motion approximately a week prior to that so we did make our first motion a week prior to that the judge judge gretly ruled on it the day that the jury was scheduled to be picked and and with that i would ask that the that this court reversed the order of the district court in this case thank you very much thank you both safe travels back