relating to the admission of evidence the first one is whether the evidence rule for or for b was violated by the admission of evidence that bell trans brother was arrested for transporting meth of methamphetamine seven months earlier in colorado now under four for b in a traffic case evidence of other crimes is admissible to cruel predisposition if there is a sufficient link between the prior act and the current offense and our position in this case is that the link between different in nature his brother's case was transporting belcher had arranged for a hand to hand sale to an informant according to the informant whose narcotics was the brother transporting informant said it was beltran so therefore it's not so it's a tenuous connection as well the informant is someone who is looking at a fifty year sentence and working for the government so larry that's a matter go argue to the jury not well i think it is it's part of the picture as a coconspirator to his brothers that theoretical possibility certainly but really i think the essential point apart from these remoteness in geography in time is the evidence linking this to beltran really wasn't clear and convincing it was primarily from the informant and there were some other things the fact that his brother had his card but you know beltran had an auto repair shop so the fact that his brother had a has paid his own brother's card it really there was also a fairly good list of cars that bore iowa plates that were that were titled in the name of a cousin i believe that's correct your honor and so there was there was quite a there was there were quite a few links here to the jets that the number of cars that had been purchased in that were involved both in los angeles and in nebraska that there was a connection between them wasn't there well for an auto dealer is perhaps not nearly as suspicious that would be for someone who didn't have an auto business but he's got some of these cars going around the country  so you know that's the explanation for that but you know almost all the times you see four of four big evidence comes in is a prior conviction of the defendant not his brother it's prior conduct of the defendant not someone else and i think that is the essential point of the four for b issue that creates the attenuation the second issue is whether the evidence will seven o four b was violated by the admission of expert testimony that dull trant had prior experience of drug trafficking the expert testified in this case that they had prior experience now it's clearly the case that under will generally you can have expert testimony on the ultimate issue and mr began ask the question do you have an opinion on page two twenty seven as to whether or not the person identified as bill tran had prior experience in drug trafficking and he said and explained reasons for it yes on the next page to twenty eight so experts can clearly testify that a novice won't be allowed to engage in a drug deal this case or an expert can testify that this fits the pattern of a distributor and are not for personal use but where you go over the line on that seven hundred four b limit is when you testify that this defendant had predisposition now he never said the word predisposition excuse me he didn't say predisposition and he did not say a word said that in order to be entrusted with this amount of drugs the guy had to have some prayer experience but i think he said he had prior experience  and there's two elements to it he tested mike that's different from previous position it is your honor but it still violates the rule and here is why if he testified he had a predisposition that violates seven o four b but the test under the started by mr mccain is if you testify and he had the mental element are you testify to something from which it necessarily follows something which compels the ultimate conclusion that also violates seven o b so to testify that he engaged in prior drug deals is from that it necessarily follow that it's compelled that he was predisposed and which was fatal to the entrapment defense so i think if you look at the cases at seven o four b it's either if you testify that the person has a mental state or some are you testify to something from which it necessarily follows that that's the dividing line and by saying that mr and had prior experience that was what goes over the line and those are the two points i want to make without further questions are either of my time thinking thank you count and its relevance to the entrapment defense or i think it's judge duffy pointed out the testimony at trial this is a government that sort of record page seventy one is that the confidential source clearly testified that the defendant emitted that he had sent his brother to the brasco with a load of drugs that belonged to him that was seven months prior to the time which he arranged the distribution of one pound of pure methamphetamine it seems to us that if the test is whether or not there was sufficient evidence and the test is drawing all inferences in the light most favorable to the government in this case that this court has to conclude that there was sufficient evidence in the court below that there simply this court held that it was not fair to introduce evidence of drug trafficking eight years prior to the time at which the defendant had been apprehended i do want to know one thing for the record the government is arguing that answering pre court decided huddleston versus united states in which it held that in deciding on the threshold admissibility of evidence under four hundred four b the court only need to find a preponderance of the evidence and i only point that out to this court because as far as i know has never been overruled but i do believe it's in conflict with other fora for the cases both subsequent to the decision and some talk and the supreme court let me deal with the issue of the expert the expert as judge nelson correctly noted never testified that i believe that this defendant had the mental state to distribute drugs he testified to conduct he testified to facts which is prior experience the district court specifically relied on in this court's decision in  united states versus figure a low pens in which it held that it was permissible for an expert to testify as to conduct and that's exactly what agent marzullo did the test with this court in determining whether or not there was an error in the general my experience is that people in los angeles aren't entrusted with ten pounds of meth or one hundred pounds of marijuana unless they have substantial experience because that's a huge amount and that's just not the way the people generally conduct business but how his conversations or anything else there's no personal information about bill tran that's correct he's been given a profile and said in this situation if you had somebody who did x y and z would it would be likely that somebody that somebody would would have would not have any experience dealing drugs if they were dealing in in quantities this large that's correct so what the age of mars one testified to was fact did this person have prior experience in dealing drugs now i think the that's my question can the agent say yes based on what you told me this person had prior experience it's not all he could say it is mike it is in my experience it is more likely than not or is highly unlikely that somebody like bill friend would have been able to do this i'm not sure i appreciate the fine distinction that you're drawing judge my view what he's saying is in my opinion and that's always offering is an opinion he's not up there testifying that in fact he must he absolutely did have experience he's offering his opinion that this appears to me to be a person who has had experience based upon his familiarity with drug terminology based upon his to know it based upon agent experience and i quote from this court's opinion it appears virtually certain how the government opted to do so the expert witness could have been formally qualified as an expert on friday when opinion witness could have been formally qualified as an expert on the i don't think the expert is doing anything other than making a suggestion he simply offering an opinion that in his view the conduct suggests that bell tran had had prior experience but the thief even if the court has some issue with whether or not he went too far inside and should if overboard and in should have said well it suggests to me sort of offering a formal opinion that i believe this happened he's still not testifying to mental state just because this person was an experience trafficker does not necessarily mean that at that time on april second two thousand and three the defendant have the predisposition at that time the jury could have simply concluded while i agree he has experience in drug trafficking but i'm not persuaded that on april second two thousand and three he had the predisposition on that date so i think the defendant is one to say that when he offered the opinion that the person had experience that unequivocally without question establish that the expert was beyond a reasonable doubt that in april second two thousand and three he was predisposed to commit the crime and in light of that i think it was only fair and certainly not an abuse of discretion for the court to conclude that the government could introduce expert of which the government relies on has to do with the relationship between rule seven zero one and seven zero two lay witness testimony and expert testimony it really doesn't address as carefully as these other cases this issue nine zero six those are the cases which drew this to prime test in which it is it violates seven zero four b if you say the magic words predisposition are if you give testimony from which it necessarily follows so in that sense just by being in answer to your question the fact that it was an entrapment defense this is really irrelevant because the issue is mental state of an element an element of an offense or the defense and so the mental state