may please the court the constitutional guarantee to a fair trial means to actually when the mandatory penalty is life the district court allowed in almost every single piece of propensity evidence the government requested in this case putting mr curry's at a severe disadvantage from the beginning when he was on trial for the rest of his life for context this trial took three days there were two days of testimony there were seven witnesses three of which were cults only for a propensity evidence and another who also testified to propensity that would be officer hola him for the evidence so five of the seven witnesses that testified in the case spent time on propensity and other acts evidence that did not directly relate to the charge at issue and only three of the seven witnesses had anything to say about the specific charge and the case by my calculation the amount of time spent on propensity testimony was nearly double that of testimony that directly related to the charge from two thousand and  this court cannot ignore the extremely prejudicial nature of propensity evidence in a sexual assault case and of course the resultant risk that the jury convicted mr curry spaced on emotion rather than proof beyond a reasonable to helps them that risk is ample side with the government's misconduct throughout this trial starting with the st venturing into reserves testimony during the very st government witness and culminating with the prosecutor's remarks to the jury disparaging defense counsel during rebuttal closing both prosecutors repeatedly disregarded the court's pretty trial and in trial rulings about what evidence and when and how it may come in this force the defense attorneys to constantly object and look to the jury as if especially in the context of this case that we were trying to hide something from them and then the trial ended with a rebuttal closing argument during which the prosecutor disparaged the defense directly to the jury st by calling mr gonzales route for conducting a legitimate cross examination with leading questions and then nd by making a direct comment to the jury a wise crack heard judge herrera i expected that when the defense counsel objected  because the records show that the record reflects that he said it expected that the record does have that and then i believe if you go to judge herrera what judge herrera said when we were in front of the bench i believe she didn't say something about that you can't make comments directly to the jury so from her i did that's how she saw it as well i remember that statement thank you yes and so at this point the defense had been forced to object repeatedly throughout the trial as the government ventured into areas of testimony which he had gotten pretty child rulings on and then in some of his last words the prosecutor makes this wise  thought the lawyer may have intended that is somewhat of a self critical remark that you know maybe i shouldn't you know i expected because i realize that i'm getting into i didn't take it that way in trial and i can't speak for how the jury took it but you know of course the transcript doesn't reflect chauhan but i think that judge herrera's response kind of shows the general reaction in the courtroom to it which is that everyone was pretty shocked that she had made such a comment directly to the chariots and feel to me as that it was a self reflection if it felt to me and i think the later actuary reacted to as well was that it was a comment designed to be critical of the defense attorneys we we believe that the cumulative prosecutorial misconduct in this case should warrant a new trial  i also think that this court can consider whether this was done in bad faith and i believe that there are six examples which suggests some type of bad faith on the part of the prosecutors the st is that this if they those cases those four situations did the excluded testimony get to the jury were it was really given and given to the jury in both cases they got to the jury was the secondly at one point during the trial there was an objection to testament or samantha she had a about whether she recalled seeing a movie blood in blood out with mr perris and that was a piece of evidence that had been litigated pretrial in the court had excluded and the government went into that and mr novak told the court at that point that the court he did not believe the court had excluded that but then he quickly changed an argument to say that we had opened the door to the proper witnesses the court had ruled but throughout the trial in a trial with all this propensity evidence where three of the seven witnesses were soley dedicated to talking about other times and other things that mr aris has done wrong then we are forced to repeatedly objects throughout each each girl throughout each test so he and jurors are humans and yes they're instructed to not take objections as evidence but they're human beings and they're we all are and they're naturally curious and i think it's not a stretch to suggest that the jury understood that there were additional things out there that we were trying to hide in this case especially when our client you know has all this other  that and that is because of what i'm talking about these objections and that and the serious left thinking well he must have done even more wrong than just what we heard about so they're not even evaluating what look at the direct evidence on that point it's actually pretty slim it's chris and fortunately just testimony and her story changed over time and a little bit at trial she gave two pretrial statements to law enforcement and they were not consistent so there was that the meat the evidence on that specific question is slim and at the same time as we pointed out in the priest mr priest was prohibited while there's just this evidence of the one time from her and all the other propensity evidence the defense is forced to repeatedly object making the jury think that we're trying to hide something and that in some of his last word to the jury the the prosecutor comments on a difference objection expected that to the jury and i think of them printed out before about the way the courts have it this court can kind of see how that was perceived in the courtroom which reflective but a disparaging remark to its defense counsel and so i think that without any serious instructions directly directed specifically at the misconduct that we cannot the government has acknowledged in their answer briefs that the standard of review for the cumulative misconduct claim is abuse is i'm sorry abuse of discretion it's not a plain error analysis attorney's office and albuquerque like to start with the last point that was raised about the standard to review the standard of review generally for a motion to for a new trial is abuse of discretion but this court has held that where there is no objection to prosecutorial conduct claims made during the trial then plane our review applies so i would argue that plane error review standard review applies to all claims except for the objection to the expected that comment i think it's fair to take the objection there as a claim of prosecutorial misconduct and then that case the standard or be given some detail next i'd like to move to the expected back comment which was the st instance of a legit misconduct that was brought up we don't we don't claim that the prosecutor comment was it was proper it was improper and unprofessional the district court so found and we don't contest that i would also say i don't think it was a suffer effect of comm because when the whim of the prosecutor himself went up to the bench he apologized and said i lost my cool so i want to be frank about back to the but the thing is this driven by exasperated by the number of objections by the defense in that that evidence to be considered about what the jury might have felt prosecutors or experience there in trial all the time and they expected objections as part of that part of the price would be no trial lawyer but if if the objections that the defendant was forced to make in this case were so much that the prosecutor said gosh i lost it i'm sorry i just got so frustrated by these objections isn't that pretty powerful evidence about what these extended mix objections required of the defendant might have had on the jury no your honor i think i took his remark as being an or frustration that particular objection not the other objection that the defense made during trial which were sustained i don't think that it's clear that simply having to object four times during the  trial would have been prejudicial either for one thing the district court instructed the jury at the beginning of trial that there's going to be objections and you're going to if i sustain them you're not going to don't pay attention to them and at the end the trial the district court said you're not supposed to guess what anything would reveal the nd thing is that i think it's it's not clear that a jury hearing objections that are sustained what think that the defense was necessarily trying to hide something if i heard the jury might have said well look these prosecutors keep getting objection sustained against them and maybe they're not they're not on the up they're not prepared as they should be or draw negative inference about them to necessarily have taken it that way there's no indication that the jury disregarded in its instructions and defense never want to ask for a curative instruction at trial they never once at least with the question until the expected there was any prejudice from those questions to to overturn the trial excluded in the order of a motion in limine or the whole point of a motion that limited and reserved you can rule i mean you would think that lawyers would realize even without explicit instruction repeatedly reserve a rule now one of the difficulties would mitigate its position is i think that our case law is pretty scarce about whether it is prejudicial either under the abuse of discretion or lawyer specifically without any announcement in any hesitation had left right into those hearings is this a case where we ought to set the limits because of the i think the key thing here to overturn a trial you have to have some kind of prejudice also with the ask you know objecting four times and you're not at that there's no case law specifically on that subject and the or the good faith i think the with the i think the most difficult one for us is probably the one where the evidence was excluded and the prosecutor felt the door was open and in fact that's what the defense counsel when they went to sidebar the st thing she said is he's going to say the door is open but we didn't get in the door so they all knew what was going on there and the district court in its ruling says the  yes that was my ruling but the prosecutor thought that the door had been open she seemed to take that as make that assessment which are your case law allows a district court to make district court was present and was  photos the district court had ruled earlier that if i'm going to come in there has to be a witness of personal knowledge and i have to show that the age of m t v who was on the  photos that she was a minor at the time they were taking the prosecutor's st question was did you see any photos and i think that was going to a good faith effort to establish the personal knowledge that was required that what they should have done next is ask about the age but that again that evidence never never came out so i think this is not the sort of case where there is pervasive prejudice it's it doesn't ride to the level of some of us courts other cases where i mean prosecutorial misconduct that's led to reversal of has been cases where prosecutors ask questions that implicate the defendant's right constitutional right such as commenting on the right to silence or implying that there was something wrong with the defendant seeking counsel or misstating the evidence in closing argument or making time sir attacks on the integrity of defense counsel such as implying that depends counsel has fabricated evidence or things of that nature and that's the sort of thing that's what this court the rule for thirteen evidence as well yes there were several incidents of the defendants prior sexual misconduct that were admitted at trial but this isn't a case where almost every piece the government wanted to introduce was admitted to the district court issued a written order in which it carefully evaluated each piece of evidence decided that the striking similarity a lot of a lot of these incidents where the conduct charge in this case as well as the frequency with which it occurred justified the admission and made the probative value of it much higher than any prejudicial effect if and a thought that the wife's sister saw some of this conduct and s p said i didn't see it i don't remember it so all we have is a dispute about whether she actually saw her she didn't say that about go back to the government comment that there was no request for it your different struction that is true we did not request it sort of instruction but i would also point out at this point case law suggests that the district court has its own obligation to properly instruct the jury and but argument that we're bringing exists and it's the conduct of the prosecutor was improper and it was throughout the trial and this is significant i think it would be appropriate for this court to recognized that jurors are left questioning what the defense is hiding in particularly the points that the government was making about that there was a question about the photographs and that mr name back should have asked yet next what was her age but after question about the photographs i objected and then the next question that the present you're asked to the jury after the objection was what were the photos so the jury was left with that question and nobody answer