approaching the lectern the court notes that you were appointed to under the criminal justice act that is correct your honor and the court wants you to know we deeply appreciate your willingness to accept the assignment thank you and i appreciate that and i think you could if you raise the lectern as far as it will i did not try the case in the lower court and it was a poignant on this appeal this is a case of a felon in possession of firearm and he was sentenced to the maximum sentence of ten years for that crime prior to trial trial counsel filed a motion in limine e on the drugs that were going to be testified in this case what did parent and there also was drugs found near where he was arrested the problem with the court overruling that motion in limine e and then overruling when it was renewed and for a new trial and j judge found that this was interlinked could be well intertwined with the rest of the testimony and it gave a full story well the probably value it is is certainly not there you could take this if this was a movie you could take the throwing of the drugs to the other witness out and put it on the floor of the cutting film in the drugs that were found and take those out and you still have the full story about the gun but what you wouldn't have is you wouldn't have the prejudice that when you try a case in the district court the people hear about drugs and someone using drugs or having drugs or becoming a drug dealer that it prejudice them so greatly here seems like a drug which doesn't of course eliminate them for o credible that's true that it is in there but the problem is that it you can have the story and it can be a complete story for the charge that of a felon in possession without of are putting in about the drugs and then the credibility is is is is not shot for the defendant on these other people who are using drugs and are testifying  your a large amount of drugs a very large amount so it's seems to me that you take that out and you're going to have a cleaner and a fair trial it it's very difficult to try a case i don't in fact i don't know of anything you can be more harmful to a defendant than have drug testimony that he has drugs when that's supplier because he had left when he leaves there he doesn't he's gone he's gone with it with allegedly with the gun this is the first time that shows it that where the drugs came from this is not showing where the drugs they may have used earlier in the day and that in that scenario and it doesn't show where the intoxication the beverages came from so i have a real difficulty when the government who has a war on drugs and brings a charge for something else and then wants to put in drugs into the case it seems to me that the probably value is fair is far outweighed by the prejudicial the unfair prejudicial in this case i just don't see this this struck me from the very beginning when i read the transcript this was the part that i just cannot see why it had to be in there i don't think it's so intertwined that you can't cut it out all of the stuff is still there all of the the evidence that you need to prove if you could prove it that was there it didn't need the  drugs to be testified to in this particular case the credibility became a very very important part of this and you if you already have the jury thinking you know there's this man is a drug dealer it's pretty well gone down the tube on the kid on the the case the credibility for the other witnesses they're not going to listen to to the to it  prejudicial effect the evidence of the drugs may have had totally outweighed by the uncontrovertible evidence of the possession of a gun that would make it work well first of all we don't know that but i don't think that it's that uncontroversial because of the credibility of all the other witnesses because the other witnesses who testified they were all hot they were all drunk and they all met at that and they all met or they had bad memories on so it would give a sufficiency of the evidence argument bout that because it would become well well well can we convict this man and then the police officers scuse me might be the tipping point in favor of conviction i suppose that's my contention your honor and the police officers in this case then never actually saw him with the gun so there's there's no testimony there that would put him in possession of it so he'd have a fighting chance of this drug thing in there i think that took away his fighting chance in this case that tell you the truth and i think that counsel for the defendant and they lowered him saw that immediately and merely went after that particular situation and did a fine job on that because it's well preserved in the record and i believe that if he did what he need to do as to this the second thing i want to  talk about is the maximum sentence the average sentence in the district southern district i was fifty nine months this gentleman got the maximum sentence i think it's really pushed up there because of his past criminal record i think that by doing that the judge did not look at it and i always find a very difficult when the criminal part of the guidelines pushes it up so high that it's really the controlling factor of why he got the maximum sentence established it's the defendant's choice whether he should testify when i don't think it's a represented the fineness i don't think unilaterally the defendant can say what i want but the lawyer has to he's out of control way or controls it but doesn't doesn't the fan then have to raise it to the court not presence of the jury obviously but the say the lawyer when i've i think there's an important witness in my lawyer will defendant he's not going to know that he has to create this record it should be up to the lawyer to go up to the judge and say i have a disagreement with my client he wants this person to testify i don't think this person should testify life well the reason i brought it up was because the judge in the district court put it in her in the record but all your reserve the rest of your time and thank you will hear from the government mr the government could have told the story the story of how this firearm got from mr williams house to the driveway on current street without talking about the drugs but of course that is not the question before this court the question isn't can you tell the story without this evidence  motions of course for a new trial on this regard their disfavor their grand sparingly there needs to be a clear and prejudicial abuse of discretion i agree quite obviously with judge is inextricably intertwined evidence here think of the crack cocaine and its purpose in the same way that you think of the vodka bottle if you'll recall the evidence at trial was that mr wal barged into mr williams house where mr nuff was also present he was upset having had an earlier dispute and went straight back into a back bedroom that mr williams had a tree of the shotgun exited from the bedroom was loading shotgun shells into it at that point mr williams and mr naff realized what was going on tried to talk him out of it tried to dissuade him and he in his frustration and in attempt to get them to leave him sorry or are there recorded were recorded then he left the house and proceeded to walk through the city of burlington with the shotgun headed back towards where he originally had that  as he was walking in various citizens called complained of a man walking down the street with a shotgun and the burlington police department responded and one officer saw mr wallace walking towards him walking south on towards him he lost him behind the house mr wallace saw the uniformed police officer ducked behind the house the evidence clearly shows was behind that house that he tucked the shotgun to a vehicle parked behind that house walked around a fence to the neighboring house encountered a separate burlington police officer this was officer gertner and when he saw officer gertner he stopped in its tracks turned hustled back up the driveway briefly went out of sight into a corner of the house reappeared from that corner and then complied with officer gardner's commands at that point he laid down he was taken into custody in the investigation continued well in that corner was found the crack cocaine and on his person was found a vodka bottle so as i said think of the crack cocaine in the same way they do the vodka bottle that connects the defendant mr walls to the house from which he took the shotgun it connects him to the shotgun in that regard and for that reason it's an extra complaint intertwined i'll make one other point which isn't actually in the brief about the vodka bottle and this may go to defense's position here this morning which is that you can have this story without having the drugs be a part of it the vodka bottle was found on mr walls person vodka is not an inherently illegal substance was nothing illegal about mr wallace possessing vodka mr was being a previously convicted felon there's something illegal about him carrying a shotgun a shotgun is not an inherently illegal substance but it's illegal for mr walz crack cocaine quite obviously is essentially an inherently illegal substance this story involves vodka which connects him to williams house which he did not discard because it is not illegal for him to it the crack cocaine also connects his discarding of an illegal item to him discarding the firearm and so it was required it was intertwined and important and probative in that regard  so basically what you're saying is what you say in your brief evidence was offered for the purpose of providing the context in which the charge grabbed occurred to complete the story and to provide the total picture and context of the complete absolutely runner and that astray from this court that is inextricably intertwined it's sort of a completeness argument it is and i know that one of you and i don't recall which inquired of mr payton whether  there was anything showing that mr was was a supplier mr payton responded fairly emphatically no and i will agree with him absolutely not and quite honestly that was purposeful because mr payne suggests there's no greater prejudice than drugs no greater prejudice for any defendant than evidence of possession of drugs i don't know that i agree with that but it was purposeful on the government's part to limit this crack cocaine evidence and if you read through the trial record you will see there was no suggestion that he demanded payment from mr walton mr neff in fact it was presented more like he just gave it to them to get them to leave him alone so they would stop telling him not to take the shotgun williams house which was the place from which walls stole the shotgun that evidence function in the exact same way that viable function obviously the second step i guess an analysis it admission of evidence because it's an extra billion or twined with a case does not remove it from a four through four or three analysis and i know that part of the defendant's contention  is that even if it were inexplicably intertwined the prejudice is so great that it should not have been invented for that reason the government disagrees and i think the trial record supports that the government and in fact the district court took steps to make sure that the prejudice did not substantially outweigh the probative value which of course is what would be required that is correct is not an element here the reason for the dollars shotgun background house background is because the gun was under a car and not on his person well correct then we had the ultimate owner of the shotgun your honor he was nearby the car that were found and he was seen walking with us back here he had been carrying something that was suspicious he was he was not seen walking with a stick he was seen various people saw him walking statement officer cameron the first officer to encounter mr wallace as references in the defense's brief to officer cameron having been impeached that is absolutely not the right word for the nature of officer cameron's testimony he was wearing a body camera and so his interaction with fellow officers was recorded and it's the audio portion of that camera that's informative at times while mr wall is still being sought while the event is still ongoing before officer gertner encountered him where cameron tells other officers he was holding something i'm not sure what it was well at trial the portion of the video was played for the jury and i inquired of officer cameron what did you mean when you said that and his response was i could tell it was a firearm i didn't know if it was a shotgun i didn't know if it was a rifle i didn't know essentially kind of the size or gauge of the shotgun if it were a shotgun the size of the rifle those types of things officer cameron was fully examined on direct and importantly on cross on that issue and ultimately the conclusion that the jury made and what was clear from officer cameron's testimony was that he saw the defendant mr wallace with a tried but i think i think that affects the four zero three and again the the crack cocaine connect this shotgun to the to the source you have officer cameron who saw him with it the source you don't need to tell the whole story that was it was mitigated and as the district court indicated in this report finally given the strength of the linkage between the crack cocaine and the shot and given that they were both present earlier had mr williams house given the strength of that linkage the probative value in fact substantially outweighed any potential precious that was the finding of the district court and on this record this certainly isn't the the opposite which is so much prejudice that would substantially outweigh the probative value here the problem of value it was strong it connected again that shotgun found underneath the car many many blocks from mr williams house to mr williams house and the common thread there is mr walls because the evidence clearly shows he took it from mr williams house walked many many blocks before he was all to me one countered by the burlington police department  the defense seemed to suggest that there was a fact procedural error here but of course there was no objection at the trial level and so the the review here is for plain error and it seems as if the defense is claiming the procedural is the district court failed to consider any sentence between what was listed in the p s r as the average in our district which is fifty nine months and ultimately the sentence mr was received of one hundred twenty but of course there's no such requirement in the law to take that argument to a fairly extreme extent does that mean the district courts now need to list off why each of the sixty month possibilities there are sixty possibilities between those two and i think the defense is suggesting just reports need to say why each of those sixty possible sentences is inappropriate in course there's no requirement in the law and that would be incredibly burdensome the district court is simply the district court did not given an opportunity to give a better explanation don't come to us saying oh you didn't explain he didn't explain i apologize for leaving that out your honor when i say there are some things that do not have to be objected to are never clear in my own mind exactly what those are that you're after i mean not you not the government but the defense attorney has to raise to preserve the air there are certain things but your best argument is raised or not there has no merit absolutely i mean i should make your argument for you because district judge made an adequate explanation of why the they started so that caven i mean i assume that that's what the thrust of your argument absolutely the payton again thank you ana i want to talk first of all about officer cameron and i may have used the wrong word in there when i said he was impeached listen to the tape in the tape he never mentions again and in fact his his whole scenario is not he doesn't know what he's carrying at that time so that may have been a word that i should not have used that way i think counsel is trying to say that the officer clarified that that he didn't know what kind of gun it was but that isn't what he said and he said he didn't know what it was so it seems to me there's  misstatement there by the the officer in the court once again he's probably embellishing his testimony or his recollection isn't as good as it was at first the second part of that was brought up i would like to address is the fact that of the vodka bottle and drugs you know the vodka bottle doesn't doesn't harm it isn't unfair prejudice the drugs an unfair prejudice that's why counsel didn't bring up the fact about the drugs i mean about the baka bottle because it didn't unfairly prejudiced the the jury the drugs does unfairly present the jury he still gets the link with the with the drug he still he still gets to bring in the vodka bottle in the testimony and he doesn't have to exercise it out with the drugs is a different matter it should be exercised not in this case because he's charged with a felony in possession not we have a drug charge thank you very well we thank you for the argument both the case is now submitted and we will take it under consideration