please the court the trial court erred when it reversed its initial ruling on that act evidence on the third day of trial after opening statement had already been given and multiple witnesses had been examined in this fraud case  bar the jury heard about prior bad acts including multiple thefts as well as a later suspected fraud scheme hearing that ultimately prejudiced mr brenton and render the trial fundamentally unfair the laptop at issue mr brewington had already conceded that he would not contest possession of and that's very critical in determining whether or not the prior bad acts were an extra wind now the information that was on the laptop is what was used at trial to try to prove that t t s a new c s the company's issue were were conducting fraud the prior even possession of a laptop because he never disputed that the laptop was in the office that his name was on the lease for and this stealing this so called strong arm robbery that happened to access the laptop that the taking of it the theft of it the strong arm robbery aspect of it is what was not necessary so i guess there are two pieces of questioning to which you might plausibly be objecting one is use of the word took right and one is the use of the word stole but you guys asked the stole question right are you are you committed to the line of questioning that resulted in the testimony of stole mean would that be invited error or the respectfully no judge in the air would listen invited because the question that ended up eliciting that testimony it was an impeachment it was a reading back of the trial testimony and rather than simply say yes that was the testimony the witness went off and that testimony was elicited in addition the witness had already been advised not to because of the motions lemony not to say those statements so who asked the question just on clear who asked the question that resulted in the testimony that the laptop was stolen it started it started incrementally first the trial court allowed for the word taken instead of obtained in then it was taken from a person and it was implicated extensively that it was robbery quote came from mr brenton asking the question of reading back the grand jury testimony for impeachment and then though the witness stated that yeah i'm sorry go ahead  thought that the sequence and correct me if i have this wrong was brewington challenged bell's characterization of brewing tins visit as having been merely  pretextual question isn't it true that you testified before the grand jury he didn't receive his last check that was the question that elicited the offending response bell replies quote he appeared in the office to dispute money that was not owed to him that would have been ok right would not have been i think their response and wouldn't that make it relevant to the inquiry that he went there on the false pretense of collecting a check when in fact the object was just to get that computer that would let's hold aside the second part of the comment respectfully no judge and the reason why is because the reading back of the testimony was very specific it was that no last check was provided all the witness had to do is respond yes the testimony was read exactly how it was given at the grand jury and in addition the witness had also been  advised the the limits of the testimony so the witness did not follow the court's orders regarding the limit limiting instruction or at least the assistant united states attorneys and that that did he give basically the same account that he gave to you when that question was asked no juror no judge and the reason why is because the the grand jury testimony was exactly what was read into the record  and there was just a moment guess what i'm asking is just one line did he say in words or substances was a strong arm robbery in the grand jury and you had that drinks material in advance when you questioned him i recall something to the that a fact that would have triggered the need to go for a motion in limine and that's exactly why i filed the motion lemonades is anticipating that that could potentially come up as an issue at trial and once the trial court granted the motion lemony vats what misprinted did not what exactly did the judge say in ruling on your motion in limine about the context of what bill cotton could not say it began with that the word obtained would be used which was neutral and that the assistant attorney would use leading questions to avoid eliciting the correct correct what about the strong on business was did you move in lemony about that knowing that bell had said that in the grand jury yes and did the judge give a prophylactic ruling and say you make sure this witness says nothing about strong arm robbery that part of the judge's ruling in response to your motion in limine and the judge i do not recall the judge turning to mr bell and instructed mr bell himself however the usa did state on the record i've instructed mr boult this came when  question assuming argue window that it was already we listed from that bell had no business and it was an invited saying that he grabbed from the secretary forcibly committing a strong armed robbery that's what his testimony was the offending comment let's assume that was era why wasn't it harmless in the face of a pretty powerful case against brewing the it it is not simply the fifth motion lemony language which has to do with the stolen it's the individual as well as the cumulative prior bad acts and subsequent bad acts that render the process fundamentally unfair so it's not simply about the stealing of the laptop it's the stealing over the laptop as well as the jury hearing about a subsequent suspected fraud scheme it would be  individually and cumulatively all of those prior bad acts together render the process fundamentally unfair and regarding if you want to point out on some of the kind of running  good morning may please the court i would like to direct the court's attention in the limited time to i think was the main issue  my appeal which was the use of the acquitted on charged conduct sentencing the case law including a lien seems to say that any punishment that will be above what the jury found actually should not be above what the jury found and one analogy i would use to this is that we went into this trial i believe twelve charges and my client was convicted of the conspiracy count but out of all the amounts that the jury could have picked they picked seven hundred ninety four dollars and checked not guilty on everything else so you know in jail it is it's kind of like going to trial in a grand theft and the jury comes back with the petty theft but then at sentencing you have a second trial where the judge is using a lower standard to determine punishment and this just seems to be at odds with the sixth amendment is that true even though the even below the guidelines i think it is because it would have been substantially lower if the amount used was a seven hundred ninety four dollars i mean my argument would be if the government wants to prove six thousand dollars or more they need to prove it they need to prove it trial yeah i mean i guess i guess what i should i should have prefaced my question by saying under our case law is your does your argument hold up even if it's the sentence is below the statutory maximum and the guidelines right i do believe so and i do believe the case law has said that the maximum is is not the statutory maximum the maximum is what the judge can inflict without finding additional facts the jury found so i would argue that you could still be in the middle range somewhere and then perhaps you should have been at the low end of all possible sentences so i don't believe that applies just to the ma it was your contention then that cases of ours like the one that i've got jotted down in my notes united states versus mess sentencing courts may consider both one charge and acquitted conduct in determining an appropriate sentence and may find by a preponderance of the evidence all facts related to imposing maximum has been overcome by a lien or otherwise i would argue definitely by a lien which seems to incorporate a premiere and other cases that basically say that if you're going to punish someone it should and certainly goes against the common sense right the problem you have here though is you would have to either convince this court sitting in bulk to reverse that case law because this panel is part of bound by these prior cases or convince the supreme court on a cert petition other than that where we're bound by this prior law aren't we i mean the prior eleventh circuit precedent squarely on point lawless volved it's accurately summarized at pages twenty four to twenty six of our brief and all the record cites are there what happened here is that i don't know if it was in the grand jury testimony or if it was in some other document that the defendants had but they knew ahead of time that bell was going to characterize this as a strong arm robbery because that was the words that they used in their motion and lemony they moved in lemony to exclude the evidence the court considered the motion defense counsel suggested that that bell could use the word obtained instead of stolen or strong arm robbery and as a compromise a middle ground the court attempted to sanitize the evidence and asked the prosecutor to a little elicit the evidence in that fashion and the prosecutor said he would have to do that then when bell testified he gave all his direct testimony a very sanitized version of events using the word took instead of obtained the trial court ruled that that was merely semantics and that for brewington to be worried about the use of the word took instead of obtain it was over direction yes but that the court ruled that that was just a matter of semantics and that the difference between took an obtained was tantamount to a change in the tire on a car that was on fire so they proceeded to cross examination and on cross examination all of the defendants including brewington tried to impeach bill with the circumstances of the event why would you go to work for somebody who'd taken something for it from you isn't it true you owed him your last paycheck his last paycheck and he was just trying to get that money they pressed bell and in response during testimony bell used the word stolen it was during brewing tense cross examination that belle used the word strong arm robbery and the court ruled then in there that was invited error regardless of who invited it or how it came in the evidence was admissible this was evidence of the set up of the crime and just like what relief was sought at that moment oh she moved for a mistrial based on that and testimony was the facts of what happened and this was this was important in pietschmann evidence for bell because that the jury had to put in context why he was there why he knew about things i mean these were all judgments information that the jury was entitled to have there was a cautionary instruction when there was a question about you didn't call the police did you and bill blurted out well that was some other offense that was some other case that happened before and that summarized in our brief too it's in a footnote in the pages that i referenced at that point the court gave an instruction and said this is not evidence before you you shouldn't consider it so there was that one cautionary instruction but the rest of it did the judge advised bell to be careful about how he testified to stay away from strong arm robbery and things like that now your honor he just told prosecutors to be careful he told the prosecutor at bush and women he that all rely on you to elicit things in that fashion and then when bill used the word taken the court ruled that that was not a violation as bell president when that call it went down it appears so yes it appears so all of don't see why it was necessary to bring out that he took it by strong arm robbery well it's your ticket only when the judge said you know spend so much time talking defendant because the government didn't cause the ground for the mistrial though the so if the if the court granted the motion for a mistrial it in effect was depriving the defendant o yes and that was the point i was trying to make just now bell was talking about the circumstances of how this often started and his i mean it was clear during all of the cross examination he was a hostile witness to all of them i mean after all he's one of the witnesses who put allegorically managing his own tier of collars and he knew a lot about what went on in that harpo building and so they had a right to impeach him and the questions that they were asked nobody's disputing that they had a right to impeach nobody was disputing that some of this would come  been easy enough for the prosecutor to have cautioned bell to be careful i think the prosecutor and not just stay away from strong arm robbery and cannot just get a clarification i'm so sorry for missing a fundamental point who's asking the questions that lead to strong arm robbery and stolen aliquid we asked the question that led to stolen right ruling to ask the question that led to strong arm robbery during the direct bell testified about took and taken that's what i thought and i think that the direct was a very sanitized version and that is what the court was trying to achieve but you can't to sanitize this witness's perception that he's been the victim of a strong arm robbery i wish they hadn't used the word strong arm robbery i think it was harmless in the context of the trial but it is what happened and that came out was it right that's a risk that co that it was era for bell to bring out strong arm robbery as opposed he got it he obtained it he took it even he stole that strong arm robbery is a very loaded way to put it may be accurate but gives its own implication why was that if era homeless given the nature of the evidence presented against brewington in the case ok for two reasons first the jury would have had no trouble assessing bell's emotional state bell's perception and juxtaposing that against the other side of what happened isn't it true you owed him a paycheck he was impeached with his grand jury testimony to that effect so i don't think the jury had any difficulty assessing the credit credibility of this evidence and its weight that's one to the evidence against brewington in the context of this fraud scheme was huge were recordings of him with the bank the police officer who was posing as a bank manager talking all around how this wasn't a fraud you know we can't work with this company anymore and we can't work with that company anymore we've been misled and thank you for pointing out to us and we'll try to fix it all but you're hurt all of that and they hurt all of the testimony from the victims about how they were defrauded how things were set up how brewington set up the incorporation and put it in suttons name used an address that was different from the hard code building that they were operating in which would have made it much more difficult for someone to identify the building the business that actually committed the fraud how they switched bank accounts how this came from bell how brewington said bell up to be the fall guy that's overwhelming evidence against brewington and he was the organizer so i don't think any of that evidence about the laptop was unfairly prejudicial to him at all i would like to make one point about the other business there was no point in this trial not one in which the jury was informed that the other business gold vault metals was investigated by police they were not told that what the jury heard was that brewington went back to the hard cold building and bit and rented another office and that was intrinsic evidence because brewington explained to the manager why they made the midnight move the district court found that the evidence of the midnight move was as pure a form of consciousness of guilt as there could be and there was no way to bring it out except to say that he rented another building then later an orlando police officer testified to establish the chain of custody and said that he executed a search warrant at that building there was no reason for the jury to have understood that the search warrant was based on information relating to another business and not to the charge fraud as a matter of fact the police officer when he testified was asked have you investigated fraud cases before and he said he didn't vest a gaited time sure telemarketing fraud there was no information about any fraud related to gold vault metals there was no prejudicial impact relating to any other potential yes your honor if the court has no other questions i'd ask this court to offer the trial court should not have incrementally taken steps celta mentally reversed the motion in limine a ruling and one of the factors is also the the view the probative value of impeaching bell was not necessary several other witnesses had already placed in there so be the landlord as well as the receptionist place mr bell at the business several times so whether or not mr bell went to work for mr brenton was not at issue  you're going to move to dismiss the indictment on grounds of former jeopardy that the judge did not make an error you agree with that i mean it was a witness who who volunteered the information i believe that the judge's me i understand the judge instructed the prosecutor to interrogate him and a certain way and the prosecutor did that then this happens on cross examination and he blurted out who committed the error if this court were to find i don't know can you answer that question who committed the air the government it's the position is to bring to that the trial court and the trial court permitting of the trial court nowhere so and that now he blurted out and there's a motion rimm is trial judge grants the motion it was brought in but the argument is that the the new trial in and i recognize that the court would view that as an incredible remedy well so the only other thing the only other thing is a cost or instruction of course but he's on the horns  you want to you want it reversed you want to know trial on the ground of the witness blood to something out of that that judge i would see it that the trial court reversed its ruling and we never would have gotten to the strong arm robbery in the for a mistrial came from you not from the government the error obviously came from the witness whether it was because you asked the question or because the prosecutor didn't properly advise the witness well because the witness said something he wasn't obliged to do can be debated but you moved for the mistrial if the court had granted it and they rescheduled the case for a new trial a week later would you have a double jeopardy cl could you say judge you can't try my client twice for the same crime because of the circumstances surrounding how the counsel you're blaming the government for creating the grounds for the mistrial i want to defend the most for mistrial because the government has created the grounds for the is if the court had granted the motion you wanted and if indeed that led to a conclusion that it was double jeopardy then he almost would have been compelled to say no all you've got is a prophylactic construction if you want one a curative instruction if you want one but you didn't ask him for a curative instruction did you at that point in time right i believe that once the words were blurted out of bell's mouth did you say judge i want to mistrial court says no well at least give me a curative instruction of boom boom and pull i thought the answer is no to that correct judge that i asked for a curative because no curative instruction could have remedied if the valve that had been wrong now the judge had at times rendered to once the bell was rung and he blurted it out case over i think that could be a theory was and my theory was along the lines of the issue regarding the severance i believe that that could be leverage as a mistrial when used when you  ruled about it was inadmissible evidence even though the defense had opened the door and with the baker court be reversed even without an objection when there are other bad act evidence that came in let me ask you something i severance after the trial and i have to the verdict not before the trial and not in the middle of the trial do i have that right the word summons are not the matter you move for a severance you said that the interests of your client was so mutually antagonistic to the interests of the co defendants and the defenses were so mutually antagonistic they could not be tried together but you made that motion if i have it right after the trial after the verdict etc at that point you said there should have been a severance i antagonistic defenses that was post trial so in the trial you didn't say judge their defenses around tagging mistake you got a several grant a mistrial you didn't say that you wanted  mistrial because he blurted out strong arm robbery the most i just want to do i have that right or if i misunderstood that you you have it right that the word severance wasn't used with the request for the motion for mistrial however the motion for mistrial was out i did yes as a severance yes use the court counsel the government didn't spend much time addressing my primary argument which would well the government the government has the same problem you do l i don't know if the court wants to hear any other arguments well anything you want to say in rebuttal to what what the government said that relied on precedent well the one thing i would like to perhaps discuss to maybe maybe shed a little light on what they say what the government said about brewington which is i know that i questioned bell about the laptop because for impeachment because what he said was you know this guy came he stole my laptop you know i made a big deal out of it he himself called it a strong arm robbery but then i went to work with him and so it as the impeachment of so you're going to go to work for someone who steals from you now it was my understanding that strong arm robbery was not going to be allowed and the judge saw our defenses somewhat antagonistic but the judge you did you want to bring out strong arm robbery no i didn't care i just said stole because the idea was that right but you weren't looking to impeach bell and bring out that in fact the other defendant was involved your object now and i never would he is that language so i think the judge could just kind of understood that that limited the government but it really didn't limit me and i think the judge was comfortable with the language i use but again i did it as impeachment because it was my opinion at the time that that probably didn't happen i stole from him and then you know become buddies and he even said that was the only job he could find like in the entire world was to go to work for brewington