opening argument will primarily focus on challenging the underlying conviction for two main reasons first the district court committed plain error when it improperly allowed the government's primary witness ms whitney blackwell to testify the highly prejudicial other acts in violation of federal rule of evidence for zero four b second the government's warrantless acquisition of mr thomas's historical cell site location information infringed upon his fourth amendment rights and alternatively should this court not find grounds to reverse mr thomas's conviction the appellant further argues that his sentence should be vacated and the case re mandate for recent unsing because the sentencing court improperly applied the mandatory minimum sentence turning to my first point in this court and united states v addison opined that in order for an individual to show plane air they must first show one that there was an air to that it was clear or obvious and three that it affected the appellant substantial rights and the first prong of that analysis f r e for a for b prohibits the introduction of other acts to demonstrate that an individual has a propensity to commit a certain type of crime in fact for or for b has a very limited number of exceptions to prove motive opportunity intent or the like in this matter whitney blackwell on page one eighty nine of the record testified to incredibly prejudicial acts about mr thomas's prior associations with other individuals specifically she said in response to how mr thomas knew another individual that she was able to quote go out sell drugs shoot people and steal something this goes directly to the cross and now we ask what would you have had the district judge or the prosecutor do different here in particular mr blackwell is obviously a very challenging witness yes or virtually impossible to control and unpredictable a veteran trial defense attorney seem court and defense attorney prior to ms blackall taking the stand about her possible proclivity to testify to whatever comes to her mind in terms of what the government could have done in that case they could have directed the witness in a more in a manner in which they started to notice that she was having these tendencies to exert her testify to other acts that were harmful and prejudicial to mr thomas in fact the government in its own brief concedes that the domestic violence incident in which ms thomas and excuse me miss blackwell testified to on page one ninety merely of the next page subsequent page after she testified to mr thomas's ability to influence others to go out and shoot people it was a for a for b violation moreover the court was put on notice about ms blackwell's proclivity to testify to these types of other out let me understand the criticism of ms blackwell yes but tell me what you would have had the prosecutor or district judge do differently without objection from the defense counsel specifically that cohen argues that the district court judge should have either offered a charade of instruction in the moment stating that that was improper or heard or just done it unilaterally here military twar it's a charade of instruction that would have prevented or immediately rectified this or this trouble some testimony that would have john attention to her outbursts yes that's the concern in the government's case to dish out freelancing and jumping in with curative instructions and where the parties may not want them and let me actually do more harm than good the it's not yes yes around and one hesitant to speculate about trial counsel's particular strategic moves the objections that he had lodged after ms blackwell had already testified well not specifically to for a for b but to non responsive demonstrates that counsel had a problem or had a an specifically federal the federal rules of evidence are to ensure that an individual is not convicted for participation in past prior acts the second circuit offer some persuasive authority here in the united states be a man of faith day in that state in that worries about including these other acts which could have an individual being convicted not because of the crimes underlying being charged by the government beyond a reasonable bat reasonable doubt but because this individual has a propensity as a character to act in that propensity inference yes this is a fleeting remark by a sort of of a wild witness this was not and the government certainly didn't fight this i don't think you're suggesting that the government invited this everybody was aware that she was unpredictable and they were fleeting remarks and so it's the propensity in france was  emphasized here by anybody and no one attempted to make use of this other acts evidence so even if it was a for a for b violation lice and the harmless you're out of the reason why it's not harmless and this actually goes directly to united states v gomez is that the particular for a for b evidence that was offered whether to in a testimonial for isn't would not have necessarily bin is not necessarily as equivalent to the gomez case in which there were other factors which demonstrated that that individual and gomez it was a user quantity of cocaine that there was other things that the government had proffered within their testimony to suggest that that individual had had been in the and had been the defendant that participated in the drug transaction she or it's a diff it has a it's a distinguishable because the test some of the government is trying to prove that mr thomas had devised a complex kidnapping scheme through the utilization of multiple individuals and had the ability and the influence to be able to dictate their actions that goes directly to the government's case and mrs black will be able to testify that he has done in the past could potentially raise the likelihood that the jury uses that inference in their in their deliberations and that's what this court is is meant to safeguard against the point is she wasn't the only government's witness there with massive evidence here your client's direction  participation in it correct your honor respectfully for a for b is designed regardless irrespective of the amount of evidence that ended at the government but the harmless error analysis does take account of the amount of evidence yes y there certainly would take into account and what's more similar here a case that might be more similar into these facts would be united states b johnson which escaped court also had decided one particular aspect of the case while they did not find on harmless error on a different grounds an officer had testified the fact that he had multiple run ins with the with the defendant the defendant in that case and the this court stated that it be unlikely further for the jury to have been able to divorce that type of statement from from innocuous or other type of behavior which is why that's more analogous to be sure the court did not ultimately find the plane or a harmless air had been violated but it certainly but it did not rule on that specific state here despite the very highly prejudicial nature for the foregoing reasons we respectfully request that this court reverse mr th may please the court brian writes for the united states i would like to start by answering the question what else could have been done and then move on to why any error was harmless of the four of four feet first of all i think from opponents principle there's really nothing that has been suggested that the court or the prosecution could have done short of violating this court's instructions and gomez i would like to talk about what was done as well because the record here shows the government taking significant steps to to prevent this from occurring first of all we spoke with miss blackwell ball to ball times and warned her not to do this in fact we had her sign a piece of paper saying so that's shown in the record as miss blackwell stop yourself from answering a question and says i'm not supposed to talk about this second we warned both the district court judge and the defense attorney that this blackwell was a difficult client was proposed was had proclivities for outbursts i think the experienced defense counsel judge hamilton pointed out didn't ask for anything i think almost scott at that the fact this witness could be that unruly but as it turned out she of course sort of was number three on the steps we took whenever we thought she would miss blackwell was about to say something improper we still stepped in and made an objection so the record shows us trying to do the best we can and i think the court should also recognize that we don't pick the victims of our crimes or the people that are adjacent to our crime so there are many times we're going to have unruly witnesses and the courts expect us to do what we did here and it's try to prevent any of these outbursts which we did now i would like to move on to why in the year was harmless i think it's just sites pointed out first of all this was non strategic it was something that came in but it was never used the government never talked about this we tried to stay away stray away from that that is different than law or six lousy aware of the government introduced the evidence spoke about it and actually introduced extraneous evidence to support that here we have fleeting moments of improprieties and in a trial that was five days fanning thirty one witness says and over eleven hundred pages of transcript for and beyond that i think it's important to place this evidence in context of the facts of this particular case this case the facts war novel like the jury was almost certain to be enthralled by mr thomas's interstate kidnapping and the characters and this is by comparison the four of four b violations were rather mundane certainly there may be cases where the for a for b violations here might be more likely to sway the jury but in the facts of this particular case which were so interesting and captivating it is difficult to believe that couple statements with the first witness would have persuaded the jury based on the propensity to commit the crime the court has no further questions the government is happy to rest on that i have a question about a couple of guideline  issues on the sentencing mr rights on the question of victim restraints am i remembering correctly that somebody other than the two children who were kidnapped  that three a one point three does not seem to apply to kidnapping dr lines are quite specific about that but i'm wondering how it might apply if people other than the victim of the kidnapping are restrained yes we think that non kidnapping victims being restrained would qualify under that guideline you also argued in your brief that you thought you could avoid the the limitations on the restrained victim unhandsome and by relying on the conspiracy theory i have to say i'm not very persuaded by that beak at least in this case because the guidelines here are being applied for conspiracy on the basis that the crime was completed you get the year for the full the full offense level rather than the three level discount for conspiracy or attempt so but i'd be interested in your further comment on that so the application notes say that you shouldn't apply it when it's an element of that that's an understanding that the conspiracy was based on a completed kidnapping either way an element of conspiracy is not does not involve that the elements of conspiracy are just an agreement to commit commit the kidnapping so we think in that situation the conspiracy doesn't inherently very odd though a one person kidnapping doesn't a two person conspiracy charge only as a conspiracy does the it's weird but i think it could be understood that way i think in that situation at least as apply here there may be a good to the extent of this is a difficult guideline interpretation know it can be avoided here because with or without this he mr to thomas is still well above forty three and his guideline is like even accepting every action that mr thomas has made on appeal he is still well above forty three in his guideline is life and the same is true of the in lean in or yes here that this is not a mandatory minimum sentence anyway and so we don't have any kind of harm from any mean there right the mandatory  twenty years which appears to be an error did not drive the sentence because the sentence is true driven by his guidelines life so it's harmless on that and certainly not plain or bad or any of the arguments conflicting with the victim's testimony about their own age honor there was no admitted of its conflicting with regards to the victim's ideas however here the only evidence that supported the finding of the victims as was the testimony from the victims themselves there was no so there was no submission of photo jury could have convicted mr thomas of kidnapping but not of kidnapping a minor rely on pure testimony on filtered by the jury perhaps as perhaps if this issue had been necessary to the underlying conviction this juror this court should we treat it as a plain error and why isn't it perfectly clear that any error would have been harmless will you may think this is bizarre but we're talking here about experienced professionals where no objection was raised and the district judge seems to have made quite clear impacted mr thomas the sentence explicitly the district court mentioned on three separate occasions that the inflated total was outrageously off the charts and then in its sentence reasoning for why it decided not to depart from the guidelines based on the arguments but counts by trial counsel that mr thomas's age hope and other considerations warranted a departure from the men from the recommended life sentence the court reason that because this point to reference the point total in its reasoning as to why this was such a serious offen