morning your honour's may please the court elizabeth richardson royer on behalf of the appellant ronnie johnson i intend to reserve two minutes for rebuttal but i will watch the clock and this morning i plan to focus on two issues the first is why the palm on robbery evidence should have been excluded where the commonalities between that robbery and the charged offense were not sufficiently unique peculiar or bizarre enough to support an inference of identity under the circu authority and the second issue that i hope to address is why the evidence of the placenta and northridge robbery's should not have been admitted merely to show the criminal relationship between mr johnson and darryl as the government conten should so turning first to the palm a robbery this trial within a trial that happened in district court this court has repeatedly held that admitting another crime to prove identity is only permissible where that other crime was essentially similar to the charge crime in unique or distinctive ways and that will prompt the palme of robbery the july robbery in this case was not most of the similarities between the palmer robbery and the charge citi bank robbery were entirely  generic casing a bank before robbing it robbing it in the morning before it's going to be busy treating a bank near a getaway route a freeway wearing all black doing the robbery in a take over style filling up proceeds afterwards you simply wearing all black but the kind of path that was worn and i think the hat is really the key issue in the key fact that the government points to in the government's argument for this being sufficiently unique under th circuit's authority i think it's not i don't think it rises to the level of this peculiar unique or bizarre that this court has suggested would be sufficient especially standing alone it's not mickey mouse years as the court suggested in luna might be enough it's not  in johnson the court suggested that the combination of the caustic style had an orange jacket and it had brown gloves asking the teller for change in coins that might be enough and this is just a hat and there's no authority from this circuit suggesting that wearing a particular kind of hat but you could only a hat that's not you know it's readily available it's a common style would be enough to allow this trial within a trial this incredibly prejudicial evidence to come in and in a trial where there was you know most of the evidence otherwise came from a codefendant whose testimony should be viewed with suspicion and would have been this is enormously prejudicial and the productivity of that robbery is really based only  inference of identity and that's based on this hat so the probity is very low and the prejudice is very high so to the extent that the court doesn't agree that it wasn't sufficiently similar to come in under four four be it was an abuse of discretion to the judge issue limiting black man in the courtroom after he had told multiple investigators he would not have been able to do so and then there was some circumstantial evidence that supported the co defendants theory but there was no other there were no you know fingerprints there was for the prior evidence this is why it was so harmful there was d n a evidence connecting mr johnson to the get the which car the car that was abandoned and so that for the prior robbery there was some identity evidence that that showed that he might have been involved but for this one there really was only the co defendants testimony which is what made it so harmful there were no fingerprints no d n a nothing like that tying him to it it was just though his codefendant or cooperate or whoever it was bank robbery there was there were videos and there were photographs they they were not unlike the prior crime where you could see mr you know of a face that resembled mr johnson you couldn't tell who this was in the video or the from the city bank robbery so that is you know why the harmfulness was so significant and why the limiting instruction really wasn't enough when you did you know anything about the hat that the person was wearing in the citibank photo you could tell that that it was a similar style hat similar in style in color to the hat worn in the prior crime so that is the one really you know the one fact that shows any similarity all but under the circuit's authority it doesn't it's not a peculiar bizarre had it's not something that really says this is the only person who could have done this robbery and when you're talking about the way of the prejudice in the productivity of this evidence should not have come honour's have additional questions about that robbery i wanted to turn to the jail calls and the minutes of the other robberies that came in because i think there's there's really a problem with the government's argument here about th criminal relationship being a potential exception to the requirement of similarity for identity evidence in the government's position is essentially that if you can show a criminal relationship then you don't have to show a similarity and if that were true then it would it would investigate that requirement of a similarity at all because most times that you have evidence of prior crimes it's going to come in through a codefendant or somebody who has a criminal relationship with the defendant beyond that there's none of the government's cases from this circuit or any other circuit have a court allowing evidence of a prior crime to come in for purposes of establishing a criminal relationship to show identity it's a court of allowed it to show other things like the case that the government cited in its twenty eight day letter back when the evidence was allowed to come into show knowledge because in that case the defendant disputed that he knew there was marijuana in the trailer that he was hauling across the border there's no there's no relevance like that in this case the only the the standard that's laid out by this court in the luna case which is the case the defense primarily relies on is that the other crimes evidence need only and these next three words or are e support and inference of identity whether or not it referring to the other crimes evidence whether or not it proves and that is that house identity is the question for the jury and so the question befor this court is are the similarities that the government lays out on pages thirty six and thirty seven of its brief in this case and i won't belabor reading reading the similarities to you but the question is do those similarities together in combination support an inference of identity between the perpetrator of the palmer robbery and the perpetrator of the city bank robbery the charge of robbery and i would  absolutely it does the they do i would actually urge the court the court asked defense counsel were there photos and videos from the city bank robbery in the probably their war and the government's move to transmit them and i believe that motion has been granted electronically i urge the court to look at those photographs and and look in particular at their exhibits from  surveillance video showing a photograph of the defendant robbing the palma and he's wearing all black and a black fisherman's hat and he's pointing a gun i don't call it a fisherman's that i can tell you or i think it's i think it's question i was it maybe it's a golf those certainly a question i was not prepared for this morning was there any evidence that it's a fisherman's only that multiple witnesses referred to it that way it's called either a bucket hat or back and i think one of the other reports that makes more sense but one of the other important points your honor i think in analyzing how to think about the uniqueness of the the bucket hat or the fisherman's hat the points of similarity is the question is are the points of similarity between the two acts so common to most bank robberies as to be entirely unhelpful in in supporting an inference of identity it's not is this a hat that anyone has ever worn ever on the face of the earth in public it's are is this a generic feature of a bank robbery that your bank robber always comes in and he's wearing a fisherman's hat the elements you find your  are more generic i mean before ten am freeway it sounds to me like you're really focusing on the hat is there anything beyond the hat there is your honor and i guess i would say  before going into that and the courts are also clear that a combination of less distinctive similarities can also in combination give rise to an end inference of identity and so those those less common similarities are also pointed out because they they do contribute to the inference of identity that can be made here in addition to the fisherman's hat the getaway car arrangement here was fairly unique and  something that's not present in any of the cases this circuit or otherwise where the where the court concludes that the similarities are insufficiently distinctive so just quickly the getaway arrangement was these individuals would go and steal a and all model toyota camry and they would they would caravan down from los angeles to orange county in than cooperate and defendant cooperate in witness wise ners chevy tahoe along with the stolen camry they would parked the stolen or the the chevy tahoe at a secluded location near the bank the  robbers would proceed to the bank in the approach car the stolen camry robbed the bank come back abandon the stolen camry and leave in the chevy tahoe that that level of similarity is not present in any of the cases where the courts have said you don't have enough similarity in addition in this is sort of gotten a little lost in the briefing is in both cases the defendant used a pillowcase now some of the it you have to be careful because the level of generality with which you describe what's happening sort of the facts how whether you can make an inference of identity the lewis case was troubled by the fact that in some of the charge cases in the uncharged robberies there were pillow cases there were canvas bags there were different things in in the look upon a robbery in the city bank robbery the defendant used a pillowcase to carry the proceeds out now you can you know the only evidence of that with respect to the palm robbery is the actual surveillance video itself because the victim didn't wasn't able to testify that didn't remember that it was specifically a pillow case but again i would urge the courts the court to to look at their surveillance video for both robberies and the photos are taken from it and how much of th it's very difficult to see if you can certainly see that he's wearing a black fisherman's hat and all black clothing but the face is fairly blurry the face is a little bit clearer in the lip balm robbery but i would i would take issue with the fact that that  full transcript of the phone call you'll see that this is a phone call of somebody who has just been arrested and is and is very clearly trying to deal with the fallout from being arrested and dealing with his criminal conduct and the statement there in the transcript of that call tell d he are right in the context it's practically a confession that he's been engaged in criminal conduct with daryl wizen or the cooperating witness in this case and that was the key issue in the case was in fact the defendant involved in criminal conduct with darryl weisner i can to you had that statement you know without information that he'd been arrested well you're are and if i'm misreading the defense position i apologize but my understanding is the defense position is not actually that they are not contesting the relevance of the fact of arrest the only the only portion is  that that the fact that the arrest took place or something wiser wasn't involved in was inappropriate and i'm and the position is that needed to be in there in order to give give meaning to the fact that this was basically a confession that he had been engaged in criminal conduct with darryl wiser it was extremely probative of that and even defense counsel's alternative explanation in the reply brief makes clear that that this was this was probative even if it was that the defendant was telling wisely or are saying that he was going to talk to police that meant in two thousand and seven in basically identical circumstances to this case there was the significant portion the defense in general focused on the cooperators alleged incentive to implicate the defendant the defense theory in get all was as here that it was the cooperator himself would actually committed the crime and was falsely implicating the defendant who was known to him and the insurgent said look that evidence was appropriately offered to show the ok i want to focus on the two things that i didn't talk about in the opening part of the argument that your honour's were asking the government about the first is the coast of mesa the arrest for the january coastal mesa robbery which the government maintains was necessary in order to explain this comment tell d he's ok and that comment would have been copa tory based on mr johnson's arrest regardless of whether there had been a what the arrest  for he had been arrested and were not can you know contending that he that that evidence shouldn't have been available to the jury but what he was arrested for the government did not need to bring in this other crime they could have just said he's arrested and he says  he's ok which as the government hope to show really isn't colbert or it could have still been a culpa tour without this hugely prejudicial other crimes evidence the one case that the government points to this criminal relationship case doesn't support the government's position and it's now out of circuit case this court has never approved criminal a ship in that way but even gadol an issue in that case was the defendant had said i didn't know the gun was stolen this was a  charge that he had sold a stolen firearm he said i didn't know the gun was stolen so the evidence of the prior bad act between the defendant and the witness was evidence to do to defeat his argument about knowledge and several of the cases that the government sites have to do with knowledge but what the government is saying in this case is that this criminal relationship these other crimes having to do with a criminal a ship should come in purely for identity and i haven't seen a case in the government hasn't cited one where that is permissible and therefore a