oh yea oh yeah oh yeah all persons having any manner or form of business before the honorable the united states court of appeals for the fourth circuit are admonish to not draw night and give their attention for the court is nothing god save the united states in this honorable court he was not present or involved with any aspect of the north carolina incident and to the north carolina incident was not sufficiently similar to the charge conduct in time place manner or motorcycle around we don't think he did have to be present what exactly does that mean he wasn't personally involved but a vehicle talked to me about his relationship his ownership interest in the vehicle so he had title to the vehicle now i know the horse trailer right and  that is it is not he is not involved in this since it he's not driving the car but if someone is driving my car as a getaway vehicle for example would it be accurate to say that there there there is no involvement on my part for purposes of the huddleston task so the huddleston test requires that the jury be able to conclude that the defendant committed the act and was the actor we pointed in our brief to get eastern district of virginia judge alice opinion in the young case which had a very similar fact pattern to hear that it's not precedential is it it's not it's not really that isn't really something we could hang our hats on well it's something that the reason you can hang your hat on the reasoning because the facts are so on point if you're so inclined if you're so inclined and in that case the situation was such that there had been a prior fire there had been ownership of the vehicle on the part of the obvious target or decision to strong wasn't a sufficient link for huddles thing as far as the afterwards or that they reversed will had he decided otherwise only abuse of discretion would that have been reversible which would not have been reversible he he actually and he actually ruled in the alternative in that case that all three balancing that the evidence still would have confused the issue because it made someone think it would make the jury think that that person had committed the arson and it would confuse the issues for the jury just as the admission of the north carolina evidence here confuse the issues for the sufficient here because first of all that there was not sufficient gate keeping power that was that was implemented by the judge here he never will i'm like i'm right now i'm focusing on the limit their curative instruction yes  not sufficient because this was the type of evidence that inflame the passions of the jury it was confusing going to have to sort of focus why was the curative instruction what was the limitation with the curative instruction i understand that you're saying that it was inflammatory and get that that what i'm saying is usually we assume you even with inflammatory tory evidence that a jury is capable of following the instructions of the district court judge to government stated here was that the verdict proved if anything that the that the instruction was followed here and so what ultimately happened was the jury followed the instruction as to mr winston and convicted ham on virtually identical evidence now to judge shad's point were guarding the prior cases in that circuit we want to point out that the government points to no prior case in the presidential history of the fourth circuit where four or four be evidence was admitted with such an attenuated connection to the they can decide you may have opposable reason for why he wasn't involved in that prior act but the jury could draw inferences to say that he was well your honor let's focus in on this court's precedent specifically there are twelve cases that the government you know there is no present in that absolutely determines how we rule in this case is there there there is precedent in our view determines how this case there for us of all the first is the fact that there is no precedent in the circuit that has held that evidence like this is a missible with such an attenuated connection to the actor here he was not in north carolina when the incident occurred he had no control the horse trailer and truck when it was seized there was no evidence that mr winston saw the males want to say but then he owned the trailer he did not own the trailer your honor there undisputed evidence in this case was that he had sold the trailer in two thousand each one of his mexican employees the title of his name the title was in his name but there were no couldn't the jury believe that the title is named still gave him control you could argue against that all you wanted to but what couldn't somebody believe it was still titled somebody could believe that the sale was just a front i'm not saying that it was or wasn't the judge allowed to make those kind of terminations in every case well so you don't you all get in you have an argument that they should not have thought he was involved in that but that's not it is we submit that it's not sufficient in the rig at the reasoning of judge alice applies perfectly here and this is a gate keeping power of the judge needs to and should have what do you think the prior  is what's the prior ag how do you define the prior act here well our our submission is that there wasn't really a prior act the only only information that mr when there was a prior rag you just say he was and it wasn't his prior act he received i mean at most he received after the fact knowledge oh no that's not what i'm asking you i said i'm just trying to understand your application of force or be what is the prior bad act that we should be looking at the  right the prior act is whether whether that mr winston was knowingly involved in north carolina incident and none of the evidence that you said one day transportation of drugs transportation of marijuana or marijuana in a secret compartment actor under huddleston this court's precedents also dictate that the similarities weren't sufficient here let's look at go over that aspect of the of of the case here what precedent so we pointed you to the mcbride johnson and hernandez cases the mcbride and so take as the prior act not the actual rest not the actual charge with the transporting drugs now talk about that wise or not was he not involved what could the jury not find that he was involved in that for purposes of saying that was a mistake it was a vehicle he had titled it was a hidden compartment for transporting drugs interstate again there was no there was no evidence linking it to linking mr winston to this case jury what did i said he had title i know he said he so did but he still had high level title isn't an indication of ownership in it in every state in that through title can be an indication of owner can be so the jury could accept that as an indication of ownership or your honor not nice not necessarily again the analysis of judge allison a noble no i don't care about his analysis now and i think you had it right i don't you don't really want to stand there and say title to a vehicle can not this case there is there anything in this case to say that the jury absolutely as a matter of law could not find that mr winston had some ownership interest in the trailer that was being used to different time period three years older and involved different vehicles a horse trailer towing a truck in a different different drivers drivers van over and flores rather than wincing in pain it involved the transports of completely different products marijuana rather than cocaine and entirely different compartments a large partition behind a wall as opposed to a small recess but what we're truck bad and the quantities were massively different one point one million dollars in money to thirty thousand versus half  thirty twenty one kilograms in the other and they were an entire different different part of the country and again he wasn't the prior actor you know we dispute your honour's contention there but as to the differences those differences that i just articulated were at least as great as the difference is that which the case in mcbride and johnson again according to the government's twenty five cases in the twelve drug cases they cited all of those the defendant was an embed you asli the actor meaning the first prong but the question is whether the matter and the reason why the court has solicitude for those differences is because this court does not want to put defendants on trial for core prior acts that are not probative and are disconnected from the prior act and here the differences between the charge conduct and four for be evidence were actually greater than those in johnson and mcbride or at least equal to them we talk about those in detail in our opening brief it pages twenty nine thirty one but to be brief in both johnson mcbride the defendants were in  action as opposed to this case and mcbride johnson had sorry mcbride mcbride had actually sold and dealt in crack cocaine and johnson johnson had actually been involved in past cocaine transactions in mcbride it involved a shorter time difference one and a half years as opposed to the three years here it involved less of a difference in drugs crack could you talking that differences in degree in different parts of the country we're not talking about maryland and california we're talking about two areas within the circuit in what is in inter state transportation so not you're talking my point simply is it's not entirely it's not a stretch to say that you're prior act being a part of the existing conspiracy that's going to happen that's what every got why we're looking at it under four a four b they're going because they're going to be differences in time they're going to be differences some differences in geography  being vehicles in which the defendant has an ownership interest so this similar phenomenon point your honor we simply submit their that this is really isn't a hallmark of one unique drug organisation in the keep pointing out there are some common threads here well the point your honor is that transportation transporting drugs and traps is a hallmark of every drug organization in the world that's information that i can obtain from watching dateline n b c law and order reading  leonard paperback and so that evidence that they had used here was cumulative to the common sense information that everyone knows that the only information mr winston gleamed in this case was the information that the bit that didn't  thank you your honor may i use the court peter martinez on behalf of the united states your honors the evidence regarding the north carolina seizure in this case tending to show that bruce winston was not an unwitting career of drugs or a blind mule as his counsel repeatedly told the jury at trial to the contrary the evidence showed that mr winston knew of the secret compartment in his truck and of the drugs and the money inside that compartment in this case i'm sorry are we talking now about maryland or north carolina we're talking about the import of the north carolina evidence with regard to the issues that were before the jury in this case and whatever you do you are lying on with with respect to the state of mr winston knowledge  involving the north carolina incident we think there are a constellation of factors that the court can print rely on to find that mr winston was an actor and sufficiently linked to the events in the work or what are they they are that he held title to him as owner of the trailer in which the drugs and money were being transported his employees from his farm were towing that trailer using his wife's truck and after the drugs and money were seized in north carolina mr winston went to north carolina claimed his wife's truck discussed the circumstances of the seizure with law enforcement and attempted to distance himself from the contents of the trailer just as he attempted to distance himself from the contents of his truck in this case so take it is me mr martinez and i have a question about this i think that what we need to focus on is what was mr winston's act for zero four b requires evidence of another act and what did this defendant do in two thousand and ten well your honor i just attempted to articulate that he owned the truck the trailer rather that was transport owning a truck isn't an evidence of a bad act so you're saying the fact that he owned a truck that was later used in a crime is sufficient for four zero for being purposes no your honor that that's not the government's position here the government's position is that when you take together the fact that mr winston owned the trailer that his employe the individuals who were driving the truck that was towing that trailer and then he went to north carolina and claimed his wife's truck discussed the circumstances of the seizure with law enforcement and thereby gain knowledge that a vehicle belonging to him had been used to transport drugs and money in a secret compartment all of those things are a constellation of acts that connect mr winston to that seizure in north carolina and so that you know it seems mr martinez and i apologize for the i don't mean to interrupt you but it is just a little awkward with the video the thing that troubles me about this case and perhaps you could help me is the fact that in almost every other case it's undisputed that the involving four of corby is undisputed that the prior act was committed by the defendant and it seems to me here that your logic is a little bit circular that what you're doing is you're trying to use evidence from two thousand and thirteen to prove that in fact he committed an act in two thousand and ten and doesn't the fact that we don't have indisputable evidence that he committed an act in two thousand and ten rendering this case different from the other cases you're relying on believe that all of the factors that i just articulated taken together do bring this within the ambit of an act and one reason we know that your honor is this court's holding in the united states versus role in that case the defendant's primary act for purposes of the government's intrin c case was that he owns trailers that were used to transport marijuana and that he employed family members who actually transported the drugs and so it's our position your honor that if that universe of conduct is sufficient to constitute an act for purposes of the government's testimony which you don't have from two thousand and ten well there are certainly differences your honor and one difference was the forum for b prong of the accomplices testimony but the general point is that if the defendant's conduct involves sufficient constitute an act for purposes of an intrinsic case which must be proven beyond a reasonable doubt then it's our position that it would also constitute an act for purposes of an extreme case which is subject to a lower evident truth threshold and the rule for mr martinez what there were two i think essential problems would be limiting instruction the district court gave the jury the first was that they the jury was not to consider the evidence regarding the north carolina seizure as evidence that mr winston had a criminal to that limiting instruction mr martinez the court didn't really tell the jury for what purpose it just said for a more limited purpose it may be considered if the court ever tell the jury for what purpose it could be consider court did not your honor but i would note that in the government's opening statements as well as the opening close and rebuttal closing arguments we did inform the jury a that they the evidence was not a substitute for instruction and here's to me kind of curious that the court didn't tell the jury the purpose for which it could be considered it just said it was intended for a much more limited purpose and you may consider it only for that limited purpose it is up to you to just side what if any consideration you give to this testimony so it didn't that kind of leave the jury not really knowing in terms of the instructions from the court rather than from the government as to what it could consider it for well your honor i think the instruction left no doubt as to what the jury could not do with the evidence and that was to consider it as as evidence of character or propensity and i think this goes to the judge should point to one of the questions he raised during  instruction there was not gone and do you think there might have been headed to jury told the judge told the jury how they were to use the evidence rather than how they were not to use the evidence it in the lemon is to say you may not use it for this impermissible reason and then in the evidence and if you try to use it or the other side of border try to use it impermissibly then there would be an objection and it would be resolved at that point rather than have the job judge and the limiting instruction do contain the essential ingredient that is the limit that told the jury what they could use the evidence for what you think i want to go back to this evidence before what was the is the transportation of drugs and currency in a vehicle with the secret compartment but then secondarily on in the act even if the court doesn't accept that as an act the act is going to north carolina claiming the truck that was towing the trailer to him and how is that so since all of that occurred after the fact of the act how is that evidence of his involvement in the act in your opinion well i believe it goes to the knowledge that he acquired in connection with this prior events because what his going to north carolina and claim i don't want to know and when you say that the knowledge that he of why this seems to me that you make is some comic claim that he learned from this incident how to transport being attributable to him seem to me that all human is not relevant well it is relevant your honor to the extent that when he was there he gave this story about how he had sold the trailer which i think goes to his sort of guilty knowledge regarding his ownership of the trailer and i thought you were getting ready to say it goes to his credibility since apparently there was some dispute about the state of his ownership or title yes and no no that was  question i mean i'm a little unclear also it is it it wasn't clear to me what i was reading it whether you were saying that perhaps he should have been charged after the fact but wasn't i was also i'm also a little unclear about what we are to make of his claiming he's going in claiming the vehicle after it was apparently impounded what are we to infer from that what the  trailer received by the government the drums were turned to him and he went and claimed it apparently he did own it even though there was there was some suggestion that he had sold it to his employees yes your honor i think that that corroborates the fact that he had an ownership interest in both  and with regard to the trailer specifically the evidence was that he held title the text of herman testified at trial that he was the registered owner of the trailer and your honor he was the debt holder on a ten thousand dollar loan for which the trailer service collateral so is there any evidence in the in the record that you are aware of from the north carolina incident of mr winston's involved in any way even after the fact well after that well the after the fact piece we were just discussing which is when he went i mean the twit involvement in the transportation of the marijuana in the hidden compartment where yes you're on him so he employed the individuals who were telling the trailer they worked at his farm and at the scene of that stop the driver of the truck and her van over told a police officer that mr winston had told him to go to north carolina to pick up two mules from a man named don and that was contrary to what mr winston told the authorities in north carolina when he went to pick up the truck he said he hadn't seen at the scene of this massive i mean let's do this while to make your strongest argument that mr winston was involved in the prior i had which from which evidence the jury could did what else do you have he said there was a discussion that one of the defendants in the criminal case said he'd been instructed not specifically on drugs but did take the trailer but what else do you have about mr winters involvement in the transportation of those drugs in north carolina ownership and waddles ownership the second one your honor is employment of the individuals who were riding in the truck they were both his employees they worked at his farm and i was just telling judge duncan your honor that when the individuals in the truck were pulled over the driver told law enforcement that he had been told by mr winston to go to north carolina to pick up two mules from a man named dunn and sort of minimum that was evidence that they were in north carolina on mr winston's instructor you employees had done the transporting and one of the defendants employees you say said in this twisted head and showed him to drive that vehicle to north carolina that's correct your honor and then in addition to that evidence there was evidence before the district court during the motions hearing that the drugs involved in that prior seizure in north carolina along with on carlos flores who was the texas drug trafficker who owned the drugs that were seized here in maryland or in maryland rather in connection with the government's interest that case and so that's yet another factor that i think tends to support a number that proves that mr winston did was involved so what do you say about that well i don't think for purposes of relevance on the role for for beer i don't think we're required to prove that he was involved by a reasonable doubt i think huddleston simply requires that there be evidence from which a jury could conclude the act occurred and that the defendant was the actor and we're not applying a reasonable doubt standard here and certainly there was sufficient evidence in the form of all the things we just discussed ownership employment what that driver told law enforcement that would allow the jury to make the inference that mr winston was in fact an actor in connection with that prior incident i will note that even if this court concludes that there trailer where the defendant wasn't present it's not accurate to say that the evidence was excluded to be sure your honour's two judges found that the evidence was not of prior asked by the defendant and therefore not admissible under will for reform but they nonetheless held th evidence was relevant and admissible in the rules for a one four two one four three and they held that because the evidence showed that the defendant knew that drugs and money were shipped across the border in tractor trailers and he knew in fact that one of his trailers been used to do just that and truck and second case and so under those facts and in light of the district court's careful limiting instruction and considering the manner in which the evidence was used at trial i don't see a four three problem even if that  that's a good question your honor i think it might be more apropos in a conspiracy case but certainly here on these facts it is our position that the evidence of the prior incident is admissible in a rule for a for b and in fact i that i mentioned there's a concurring opinion which simply says that the majority took a detour and should have found that the evidence was admissible in the form for b and we would submit that there are additional links between mr winston in the prior act in our case that were present and such as his appointment of the drivers the fact that the drivers were there on his instruction and the same person on the drug stand it only means you know this for abuse of discretion that's correct your honor and it's our position that the district court was well within its broad discretion information is your response to why this was necessary the fact that you don't know at the outset what's going to be necessary or not seen proffer everything that seems reasonably arguable in support of conviction it seems as though there was a lot they are based on without the need for the information about the north trying to stop well in hindsight your honor that's certainly true i don't think we knew in advance of you know this is going to come in that way so much of this depended on the testimony  blind mule defense and that his knowledge and his intent were going to be the central contested issues of the case and so we thought given that it was critical that the jury hear that he had previously owned a trailer that was used to ship a half ton of marijuana and over a million dollars in north carolina we thought that was critical to knowledge and that's why we thought it was necessary as out of one of the governor's theory of better put in too much and we had invited out later than to not put enough and lose them my experience trying cases  governor just puts and everything they have because they just don't know what's going to be you know i think that's fair to say you're on a bit more careful about this and we did sincerely believe it was necessary at the time and as i said we didn't have a good indication as to how the cooperate or testify thinking as a prior attorney defending people the number of comments that he made false explanations the sale entergy training programs the work that he did  pardon me that he never did but he never less got paid for there are so many things that he alluded to or blatantly stated that were plainly false so how did this one piece of evidence so pervade the body of the evidence to make this prejudicial requiring reversal well look the question you know your honor as you know is whether the it is probable the error could have affected the verdict here your pain was acquitted and winston was convicted the government repeatedly emphasized most of the and point about shale energy he also testified about shell energy in the government repeated he times during its closing that both winston and payne gave that explanation of the jury so that was not a distinction that holland pennsylvania when he clearly wasn't his cell phone location data indicated otherwise he said he was paid for work he didn't do he made a lot of statements that mr paine never me that royal also made statements on the side of the road right after he was arrested regarding the new holland pennsylvania and he also was wearing a shell shirt and he was also trembling at the time so there is evidence that suggests that mr paine was equally nervous and possibly made incriminating statements as well so we just don't think that that is sufficient to tip the scales given is the winston say he didn't even believe his own story mr winston that that is very thin evidence it is evidence that asked you that assiduity say it there is just get it straight because the jury believe when it liberated that he said yes or no the jury heard it would be a yes or no answer yes they could have possibly believed that but it was testimony that was couple points i want to make that are really important here first we're going the role case the government suggested that that was the most instructive case before and we agree the similarities there were actually much greater than there was here in raul that we're all head a prior act where he drove tractor trailers that were laden with marijuana with paper products stuffed in the back with false bills of lading he transferred driving duties to his family so it was a clear connection and then in the actual charge conic the family members again drove tractor trailers same vehicle loaded with marijuana same drug and with paper products in the back same exact m o in stark contrast to this case and even despite those drastically greater similarities that were present there than here this court did not admit the evidence as to would sure you'd finished answering i did finish answering that question your honor and just the final point is my time expires if i may complete the point shows that ultimately the doctrine of chances was the basis for the government's argument here it reiterated an opening cross and closing and this case was about the defendants who x who basically virtually identical evidence the government exploited the cognitive biases of the jury which could not be cured by a limiting instruction and winston suffered a ten year