allegation that he participated primarily in a marijuana conspiracy at sentencing the district court told mr mackintosh that if he could he would have searched sentence into a lower sentence but he was bound by the of the evidence in the case there was no hard evidence against mr mcintosh in the sense that he had not been intercepted in any phone calls he had not been observed or surveilled transferring marijuana no marijuana was ever seized from any location that he controlled either his home or his place of business at trial by jury acquitted him on half the counts and convicted him on the other arm and i say that because the errors in the case were critical to the conviction and i'm going to start with i've raised a number of be evidence the the district court it made it for four be evidence which is inconsistent with the wind of cases by this court about the requirements for introduction of prior dr convictions in a drug conviction case this this court has made very clear that they're happy that the fact that someone committed a drug offense in the past does not in any way make it admissible under  to distribute employ and i would imagine marijuana drug distribution and spear not always but a lot of times the and that would put the question of intention into play defense was not that he didn't know what marijuana looked like a hit that he did not that he participated but did not intend to conspire his defense was that he did not participate in this conspiracy and at least three cases johnson hernandez and mcbride this court has reversed convictions and drug cases where obvious one could argue than in any case it goes to trial the issue of intent is always at play but it  two sets of prior convictions and in one thousand nine hundred ninety eight the mr mcintosh had been convicted in pennsylvania for relatively small well in a sting operation relatively small quantity of marijuana his conduct in the movie all of this conspiracy was alleged to have taken to have gone on for over ten years the only conduct of which he would have any evidence was presented with in or about two case in johnson this court found that five years was too long a period in hernandez this court found that six months was too long a period between the prior and the current where there was no we lay shit between those persons no other words time the court mentioned let it in and that mr and will look away as far as that question however the second said the second conviction that was introduced was one in two thousand and four in baltimore county in which it was it was eight pennsylvania conviction and brought in the arresting officer from the one thousand nine hundred conviction it did nothing of it only introduced the fact of the conviction in the two thousand for baltimore county conviction and the court precluded cross grams of marijuana found in his person when the police went to arrest him on a complaint by his by the mother of his child who were disputing a custody who had a custody dispute none of that was introduced i attempted to introduce it and asked some questions about it but i was it was objecting so the baltimore as far as relevancy for a conspiracy to distribute the fact that he had a tiny amount of  the information that was introduced did not did not involve any discussion of the quantity of marijuana that was found on one of the fact that the i mean i i get your point this seems like a pretty close issue on the merits but what about the fact that the government didn't really spend a lot of time talking about these convictions and it's closing our every witness that i put on every character witness that i put on and we put on a wad of character witness because this gentleman had a viable thriving music club running it was not making a lot of money because it's a type of business that has a very thin line of profit but it  were introduced records that show that it brought in millions of dollars over the period of i mean external record second from a ticket company internet ticket company we brought in computer records that showed brought into this case about this mr mcintosh is saying that i wasn't involved in the conspiracy but on the other hand you have a number of witnesses that testified to an extensive involvement extensive involvement in a conspiracy in two thousand and eight two thousand and nine and and he is you know he's denying involvement in the conspiracy but on the other hand you know there's got to be a row for the jury involved that he was not just involved in the conspiracy but he was utilizing employees from sonar in the conspiracy and other members of the conspiracy to deliver marijuana on his behalf and collect the money and so it seems to me from the cumulation of the testimony that this was a pretty strong case against your client or at least defense it was not a strong case it's a question of credibility as to whether the witnesses whether the jury did or did not believe the witnesses and you were correct i d excuse me i don't mean to interrupt but we can have a party about new york at this point in my career i think i just speak my mind and the third aspect that i was born in me completely they were the two worst witnesses in my entire career one witness and this goes to one of the errors one witness took the stand and the court he was not he was it depends believe that he was high on heroin and in fact there was a drug test taken of him the second day of his testimony when he entered the the community facility and  was during and we didn't jury couldn't serve all that for themselves and decide whether to credit well we rejected a lot of his testimony because had it but we just testimony mr mackintosh would have been convicted of every offense he's the quote unquote employee that mr macintosh used his by his own admission i agree your honor in my opinion they should have believed the pain he said but by his own admission he was a motel drug user he lloyd to the stand and question him about his drug use but you you did not you did not do that the court would have all stated at the same time that the only way i could introduce evidence of the drug test about brought in a drug expert to explain it this is a c t a case your honor this this was the engine i needed in order in order to do that i needed to obtain approval from the court to hire his drug use the government's theory of the case was that he was asleep and they questioned him that he was sleepy they questioned him about it and his testimony has he been so worried about testimony that he had stayed up all night they interrupted his testimony that first day and asked the court to let to let the court said sure go home and sleep and the government said we don't think he's he's if we can't we think he would be a danger to society if he gets on the road because he's so and the government's theory was that he was sleeping and the court accepted that the only thing that was undisputed is that the guy was not and he had a history of drug use and it will and there were only two witnesses john who who put my client in the middle of this the other witness was a mere who was put before the grand jury three times to clarify his previous testimony we believe he purchased himself he by his own admission he paid money to a number of the paid their attorneys fees after the add to the conspiracy got busted because of a seizure of drugs he on to wreck she's from the number one guy who was on the lam and has since just recently been arrested but that would have happened anyway right well but the judge indicated that i but the reason i answer that is because judge will consent indicated that it really didn't play a part in the case that the four four  businessman with you know twenty witnesses that we presented performers people were invested with him some of the government witnesses no no hard evidence and these two people  trial it lasted eight weeks but part of the reason of how or where yes but part of it i wouldn't say we had eight weeks of trial there were a lot of days off because judge titus was out of town and there was an out of town a  they have hid on ace on one statement in argument in the middle of trial where either i misspoke or the or the transcript which is incorrect and i referenced that the government first noticed the the trial that's where they're they're hitting on this statement that i made during oral argument in front of the judge you know told her or months after the case it's stored there but it's a mistake  beginning and no that's the only way if i have it two weeks is that that statement that i made when we were arguing for just child is about the timeliness where where i don't know if i made or whether there's an error in the trust there's a reference to on august first the government gave notice there is no document there's no email there's no prior thank you notice of convictions or or not they say they say they did two ways on august twenty sixth i believe  which they sent a letter saying we reserve the right and and are a couple of days before trial began they sent a packet of of the pennsylvania  and a half weeks before the trial began at the government supplemental appendix page thirty four it says as a reminder the government may introduce evidence of your client's prior convictions pursuant to rule or for b the prior notice august first notice was that a and c i see report a criminal history report provided to the deaf and that's what the record reflects and whether there's an error obvious arced you're saying the government provided in c i c criminal history or yes to that and then on august twenty sixth you said that's what he said as a reminder we're going to write and that's a reference to the discovery agreement which details on it but that was at that point the government gathering information the police reports were turned over september tenth which is that g s a thirty one and they're not introduced until the very last day of the  it's not within the time of the conspiracy it's not the same place it's not the same people it's it's not anything other like this other than the prejudice t so it's what's the point other than to make the jury think well he did it once so he must have done it again which that you cannot do that's correct and i have two responses the first is that although you pointed out several things that can be considered with similarity mcbride points out for others and those are all in the government's favor here so that is the type of drug the action involved the amount whether it's a for example of personal use amount or distribution quantity and the method involved so here words marijuana in both cases it's distribution in both cases it's not possession or manufacture and the amount is a large quantity in both cases in the pennsylvania case it's fifteen pounds amount but a very large amount of marijuana and in both cases we're dealing with use the method of importing marijuana using our courier to go across state lines to import marijuana to bring it back to the same place to baltimore and that's in contrast to for example in hernandez where this court said you know in one case she's talking about a recipe for cooking crack cocaine in new york and in the other case she's charged with a hand to him transaction of powder cocaine in washington d c and so it uses those you know place and type of drug and type of action to distinguish them so there are similarities here i grant you this is not a slam dunk case but it's in the district court's discretion to make these calls the review at this point is for abuse of discretion and the district court put findings on the record where it found that this goes to show his distributive intent and i want to go to the point of whether his intent was issue because it was he didn't deny knowing or being involved with the coconspirators he had knowledge that he knew lloyd that he knew sharp that he knew parker and the question was whether his involvement with these gentlemen you know he had knowledge that he provided void and perfect place to live for example is the question was whether his involvement with them was completely innocent like he come claimed or whether he was part of the drug conspiracy that they were involved in and so at that point his intent in those relationships was at issue so this isn't a case where for example in hernandez where it's an alibi defense and i was out of town when this happened that's not what's going on here he's not saying i have no idea who these guys are they're just framing me he's saying yeah i know them but they might have been involved in that but i wasn't and how is the jury to evaluate the credibility of  and that's where these prior convictions are relevant and in queen which is i think this court's strongest case on the background purposes of the rule for a for b it talks about the doctrine of chances a contrasts this type of minor inductive reasoning found conduct that you do something over and over and over it becomes less likely that the next time it's an accident that's the doctrine of chances from character reasoning which is a much more general version of inductive reasoning that you did something bad therefore your a bad person therefore you do bad things again and that's not what was going on here this was much closer to the first version because of some similarities t about twenty pages of the transcript so it's a very limited part and it's not french it's twenty two hundred pages or so  absolutely understandable so it's i mean the thing about like one percent of the trial the very small thing going on here and the other evidence was very strong so you have these five coconspirators who testified not for about nine years so this is a big part of their lives for a very long period of time and the details that they give about how the marijuana was imported where they brought it from two thousand and one to  you know there are descriptions of the marijuana coming in packaged in exactly the same way in these turkey basting bags and vacuum sealed in the construction trash bags to conceal them and packed into crates and who's there when they're unloading them and then they take them to different stash houses and they're using these phones with the single number to contact each other that the fact that their descriptions are also consistent amongst them indicate is corroborative so you don't have to just take one individual  recounting it mackintosh five witnesses just spain doesn't talk about mcintosh but the other four do so they're talking about mcintosh being present when money is counted that he is present when drugs are unloaded off the trucks that he on each importation is taking around one hundred pounds for distribution out to lower level dealers and that he then gives some of that to boyd who distributes them brings the money back to him  and that he goes through these real estate transactions with who's the big boss who just pleaded guilty a couple weeks ago and that the real estate transactions to both conceal his ownership testimony of a lizabeth bar who was a legitimate employee of macintosh's at the talking head which was another one of the clubs that he managed and she she's not involved in the conspiracy she is and when she testified she's in do me a favor she goes over and he has a cargo van loaded up with marijuana and a guy there who she doesn't recognize but who was supposed to drive the van and is way too drunk to drive it so mcintosh tells her put the guy in the van drive the van out to this house and and but drop him off there so she does it puts him and drives him out there and drops him off and he takes all the marijuana into that the house and along the way he throws up in the van clearly because it's this very unusual event and her testimony is essentially unimpeachable and it's corroborative of everything else that's going on here and that's another reason why the evident why anything that  i think this court could consider it we're looking at whether the evidence is so overwhelming to be harmless but i think that's why the fact that all five witnesses are telling a very consistent story about the conspiracy kind overtakes any doubts that one might have about their appearance or demeanor and also you have the district court giving his own view of void where mr ward was sleeping  actually sleeping homeless he was not sleeping on the stand he was he was very tired he had stayed up all night the night before and he says sitting in his car by the side of the road being anxious about think that he had an agreement yes that he wouldn't be prosecuted for this crime and he was obviously subject to other prosecution yes your honor and he's crossed that link in the cross examination is i think to counsel's credit expensive and well done but you have j eight ninety nine the district court's consideration of a motion to strike that district court says i observed this witness i found him to be responsive i recognize that he was tired and that's why i was happy to send him home early to get a good night's sleep i do not believe this gentleman while he may have been a drug user in the past walked into this courtroom stoned and unable to comprehend the questions so although credibility is obviously for the jury you do have on the record the district court's analysis of his own observations of this witness so that you don't have to you know just infer what the witness looked like from the record you have t evidence about how long how sensitive this test was and this is one of the reasons that this report excluded it because there was some discussion at this sidebar that some tests can can reach back four weeks and so what he had already admitted on the stand could have been the result of the test and also on this point about the drug test that the court didn't require the defendant to call an expert it offered that she could have  the employees from the prison facility as the jail the county jail who was responsible with that for the test i'm familiar with the test to come in and explain how it was done and what it means and what it tests for the court offered to  or so they talked about also the baltimore conviction and wanting to get in the facts about that and it was offered page twenty nine hundred twenty ninety two that she could have called the police officer in her case and chief to talk about the details of back conviction but obvious that would have been subject to cross examination and the cross examination would bring out that it's not just seventy grams of marijuana that was found that were grow by this and other distribution type things found at the house so that was an offer made to the defendant it was something that he declined to do so the reason those facts aren't in the record is because of this trial this way there it's it's a challenge it's certainly is and i think the judge here did an excellent job trying to manage all of the interests and keep the trial moving i don't have anything else most words for the questions witnesses there was the other truck driver named spain who had been asked by short pedal to lie before the grand jury he did not know mr mackintosh had never seen him did not mention constantin ideas was a guy who was also a heroin addict perjured himself and when shown a picture of my client it's at trial identified him and said he saw him once or twice when shown a picture of my client pretrial he did not pick him out misidentified him complete men shot who worked at sonar he he was working with nick carr throughout the first ten twelve years and this was his third conviction work for mr mackintosh its owner worked i asked him on the stand did you work did you actually work or was this because he needed a job couldn't find a job you needed job because he was on probation he said no i worked there i got paid ten dollars an hour i did handyman work he this would come out in his demeanor and testimony of the of the co heroes or lack of coherence of someone's testimony is on full display before the jury whether somebody district court apparently after seeing all of that opined that he was sleepy one must infer from that that some of the jurors would have have agreed with the government when in fact you know you asked about the weight of the evidence we believe the drug test should have come in if the government wanted to argue and we told the district don't let it come in the government can argue that it should not be given any weight because it was taken after the fact the very argument that is made when the defense tries to into to go into a witness every witnesses drug tests he said you could cross examine lloyd about his drug use but we just wanted to introduce the certified document that person who administered the test yeah and the person a minute took the test is someone who works at the jail who knows nothing about what it means you know pee into this bar that person could give us no could not give us what the court wanted to be introduced but again that should have gone to the weight of the evidence we his testimony about whether he's testimony was he was clean completely clean but i've done marijuana once three weeks ago if that's the case then it should not have he tested both positive for opiates and marijuana and it just should have gone in because as the district court made can reach the conclusion that he was sleepy and that's the government's argument that's exactly what she did commit castello was another primary witness  the prosecutor and i didn't make an argument over this but the prosecutor made the present you know call mr mackintosh i asked a question of of a government agent arm the prosecutor and open court out loud in front the jury said the only person who can answer that question is your client if you want to testify i move for a mistrial it's an eight week trial i didn't think that the court was going to reverse the conviction on that point alone but i just say that to give you a flavor of what was going on in that trial and my client very quick to want me to bring the thout so i'm bringing it out mr macintosh deserves a new trial and i would ask the court to wish you presented your client's case thank you so much thank