united states facing seventy seventy nine of  good morning your honor is ours to feldman on behalf of the appellant c j a c j a counsel your honor is evidence of any prior bad acts or offenses which a defendant is not on trial for are arguably the most damaging and unfairly prejudicial evidence a jury may hear in a criminal trial clearly the commission of a prior bad act is not proof in of itself of the commission of the charged offense yet such evidence often prompts the jury to more readily accept the government's theory that the accused is guilty argument was that this was that the prior incident was hearsay and not rule for a for a bad situation i mean you know i thought i thought that was the issue yes it was whether it was properly admitted because it was because it was over it was hearsay it was it was hearsay ok then my gut argument that's the one we're interested in that's the one you put in your brief for the government's argument in essence is that this is not hearsay fact they say that it's background that it's background but the truth of the matter is it's quadruple hearsay it's testify about his own actually just to repeat what other people and said he did she did talk about what other people had told him and that sure but he also talked about things that he did on that day wreck that he talked about the st made up of the appellant the defendant right in the end in that earlier six months prior right and so this is the out of court statements were used to explain why toledo good what he did they were the background otherwise you would know why he did what he did there would be no there would be no logic to it it was of course the be logic to it there was absolutely no necessity for the jury to hear that that mr singh's spoke to a claire and showed a picture and then the clerk called the tribal police officer who called the trooper who then called toledo all that patrol officer toledo had to say is that he made a stop he spoke to the defendant this is what the defendant said and he let him go that was the that was the issue that he should have testified to to incorporate the quadruple hearsay into his testimony created undue prejudice that clearly would have confused any juror it's not simply background because the argument  the government's argument is not that it was background the argument make the government make several arguments in its opposition one that it proved knowledge and intent and and that it  somehow gave explanation to the investigation but there was no need to give explanation to the investigation all that had to happen is is the testimony needed to be simplified and not include items which could then affect the integrity of the process the defendant's due process rights to cross examine anybody he could have cross examined toledo but he was unable to cross examine three other people that toledo says he relied upon i think that it's very interesting i found that in the government's position they don't address the ninth circuit case which  absolutely print plain error in allowing the trooper toledo to testify about the statements and the circumstances of all of these additional parties that were never subject to cross examination and although it's not clearly pointed out in the brief but it's pointed out in some of the case certainly those people might have been able to be brought in they were government right we have a tribal police officer we have that not obviated by the district court's instruction limiting instruction particularly in the context of our examining whether it was harmless error because i don't believe that the court's limiting instruction was gave the jury the information that it needed to disregard the hearsay upon hearsay and said the jury couldn't consider that as any proof that the defendant did what he was charged with doing but under the circumstances and the way the evidence came out and the way it was presented it's unlikely that the jury was not would follow such an instruction that this was at its core i would argue that this was proof of propensity that's really what the government's trying to show they had a very weak case and what they did was they both strapped their very weak case with with a propensity argument trying to show that there was knowledge and intent but in order to show now age and intent the government's must identify similarity or connection between the facts here we have two different locations pick up locations we have an identified people we have hearsay statements and what the government is really trying to do was show if he did it then he's going to do it again and that's not appropriate due process and i don't believe that the judge's limiting instruction would have been sufficient to override that he well mr singh's statements somewhat but the testimony of trooper toledo in the way he it was presented clearly showed and implied and as the government argued that he was lying right that was the government's argument mr singh is going to always tell you what he can and he's going to deny what he  can deny and admit what he has to admit that was the government's argument in closing and so what what they really did when they introduced this hearsay evidence was they try to show that what he actually said to it to trooper toledo was really undermined by his activity through the hearsay testimony through the hearsay statements of the other  what vocal saying told him was admitted not for the truth of the matter certitude but rather to show why special agent toledo did what he did on that night in december of two thousand and fifteen when he stopped singing and when he questioned him regarding his reason for being at the border on that particular night and provided the testimony without all the back well i think you could have your honor yes i think the default position should be that the government has a right to present the case as it so chooses to give a narrative that to the jury to orient the jury and allow them to understand the context in which a  law enforcement citizen interaction occurred i think that's especially relevant here where you're talking about an agency border patrol that the average lay juror is going to be unfamiliar with they're going to be unfamiliar with how those interactions happen under what circumstances they happen and you have a specific question an answer between agent toledo and seeing on that night in december twenty fift that are going to be unfamiliar to to a lay juror asked questions about where he was born or what his nationality is that's different than for example your average traffic stop hello option and you know if there had been a motion in limine a if there had been an objection then perhaps that's what the government would have done here i would point out your honor that this whole incident that happened six months prior to the a special agent vocals and had they called the clerk from the comfort inn then all of a sudden you would have had multiple witnesses including witnesses from an additional law enforcement law enforcement agency tribal police at trial and this incident that happened some six months before the incident for which mr singh was being charged would become a trial within a trial explains probably the course you chose and i guess in your favor certainly couldn't discern one from the defendant as to proceed in any other way and your honor and i think to that as well i would add the fact that the defense in this case had every opportunity to make a motion witness that's true your honor yes and you also even in the even in the manner in which the question was asked broadcaster forecast to the defense that that the government was asking toledo to convey information that was c to him i think that was the exact question what information if any was conveyed to you from vogels saying when he made that phone call during a shift switch out approximately eleven pm on that night so your honor i think the r pointed out you're in the appellants arguments those are those statements were echoed by mr singh himself in his own statements he explains that he was that he came up to the border  favor to for his brother to pick up two women he found he finds out that they are in the country illegally that they're illegal immigrants that he doesn't he doesn't want anything to do with them so he turns around and he's headed back to new york city and i think one point that it seems to me that the appellant misses is is exactly the reason why or how the government argued this for all for be evidence at trial and that's it it's not it's not it wasn't for a propensity it wasn't to show that mr singh had committed the same crime for which he had been charged some six months earlier in fact in the government rebuttal summation they say that in december twenty fifteen during that incident mr singh learned that if you were to come to the border to do a favor for a friend by picking somebody up then the person he's picking up is most likely to be in the country illegally border on there's a set of circumstances to pick somebody up you run the grave brick risk of picking up an illegal immigrant and then when he goes and does it a second time six months later then you know he  lesson that he should have learned in the summer of twenty fifteen it's not just background it's for well again i think i think that there's a conflating on the part of the defense and on the part court to orally pronounce that aspect of the supervisor's loot release which is not part and parcel of a of us into you know your own thank you  honor you know that the government argues that it may present a case as it so chooses but it can't present a case chooses that denies due process to the defendant so when the government looks at a witness and decides what the witness should or shouldn't testify about they're not held to any standard the government is held to a higher standard in determining what is a product appropriate evidence and what is not appropriate evidence because the government is not supposed to try a case to violate the due process of the defendant this supposed to try a fair and and understand that but your government just outlined a series  nothing from the defense and so one argument could be that the defendant here got his due process concerns addressed by the fact that the government submitted a four for the letter outlining exactly what they were going to present to the jury without objection and i believe that the my recollection of the four or four letter in the motion and opposition it talked about that officer told lido was going to testify about an interaction i don't believe that that that motion outlined that toledo was going to testify the vocal saying said that a clerk at a hotel contacted a tribal police officer who contacted vocal saying and all of stations and all of the statements that were made in that context he didn't specify any of that it was i believe a much more general application and i think that it's part of this case and the court is free to look at it and analyze it but but but that's really the issue that that is the government allowed to simply when it's providing for zero three