at the court why dear the jurors about whether or not they would be able to follow that type of instruction and i think the judge's denial of that request with error here that he denied the request because it wasn't he didn't think was appropriate to give a question about a specific type of the dense but it's not really that much different spend a lot of the other standard questions that people ask about mental health juries feel bug mental health evidence for firearms or a particular type of defense and while the california court of appeals cases is really persuasive authority controlling i obligation to q have you get information from the jurors to determine whether they are biased or prejudiced when they have learned of a defendant's prior conviction like everyone agreed that they would in the fact that the jones case talks about with this particular types the things that the practice and experience has known that juries are likely to be biased and those type of things the judges obligated to ask enough question to be able to develop that bias in this case in particular that's one area that the for the the first thing a defense attorney tries to do is keep the defendant's prior convictions because there's a general sense that once a jury hears that could be so powerful that they're going to forget they're not going to listen to all the rest of it you can be so biased against them that they're not going to really follow the judge's instructions and look at all the evidence carefully that set forth and will four four be i have stipulated to it it's clearly going to be there so it's best to be able to confront it rather than ignore it and determine whether there's bias in the fifth juror says something to the effect that particular types of evidence like how you are you always going to believe law enforcement officers but that's the type of thing that the judges are required to ask if the defense attorney asked for that type of a question and if they don't then it's abuse of discretion that's exactly what you have here let me move on to the other issues i well because i think the argument was the last instruction that the that the jury heard and it was they argue that interpreted in the judge's instruction judge would instruct and what reasonable but they heard the prosecutor's explanation of that that went under budget and what the prosecutor says it's beyond a reasonable doubt which is something less than that is something that leaves you reasonably convinced and that's it it's that simple don't get carol wise by the fact that there was an instruction of beyond a reasonable doubt this was in the prosecutors with bob and closing argument but the force with which it is defense did not have another opportunity to respond to it courts should district court should consider the sentencing commission's findings that the guy is lying ranges for crack cocaine do not promote the purposes of sentencing they exaggerate the seriousness of th they have no it doesn't promote respect for the wall and it doesn't promote just punishment because of essentially three reasons why this is so one is that the disparity between the guidelines between crack cocaine and part of pain tends to hit the small level of retail crack cocaine viewers in the street much more severely than the wholesale more culpable suppliers of powder cocaine that actually is used for the street dealers the second reason the sentencing commission said that the disparity is inappropriate is it fails to distinguish even between the different crack closing argument prosecutor i was closing argument but i have been asked to step in because mr bender's illness and other people then availability i want to just sort of briefly respond to the arguments made by mr balla admissible at trial but if the judge is sort of in this untenable position of simply letting the cat out of the bag to the entire what your panel veneer then the government election that to introduce that evidence the case to decide whether they want to testify well i think the issue though is whether the voice of your panel would be instructed in the manner that the defendant suggests in the senate scenario where the defense makes it known to the district court i would like  instruction because in the event my defendant testifies i need to know if when he's impeached for this park conviction these people are going to be so prejudiced that they can't be fair and oftentimes defendants like not to testify and i think you would see the argument  that the district court prepared to this would be the flip side by highlighting this prior that never came in because my client never testified the government would consistently be in a position and district courts would be in a very unsuitable position of having to accept this instruction test the reaction and juries why shouldn't that a journey given that chance i think to really answer is the federal rules invest why discretion in district courts to make this precise call based on the facts of each case presented and in this case a very experienced trial judge decided to exercise its discretion and he made very pointed findings or at least articulated on the record why it is the judge here see it felt in this case it would not be appropriate and it would have the impact of highlighting the evidence  discretion in this manner but as the panel pointed out in some of its questions through the fence there is no limiting principle there is sort of the slippery slope if we permit every question that could conceivably be asked by defense counsel to be submitted to the court and a flurry of questions all of which could create reversible error i think it's a very intangible position for district course to have to continue to to sort through without being able to if you have the wide discretion that they're given under the federal that the evidence as admitted and carefully limited through instructions throughout the trial was appropriate and not an abuse of discretion i would note too that the gillis case which is relied on in the reply brief can be easily of a case that was against the same defendant gillis a month later similar veneer panel for a second methamphetamine conspiracy case that threw more instruction about the same defendant and in that case i think  different factual setting for the finding that there was error there these were the same panel members hearing about the same defendant in a prejudicial manner and the problem there is it's clear i think in addition the chapman case if you read it carefully as a core pointed out is not binding it is a state court decision but what's important about that too is that the case did not involve any limiting instructions when the prior conviction came in and it involved  actual element of the crime and in federal court when you have a nine twenty two felon in possession case there is a limiting instruction and perhaps in those cases where it's an element of the crime of what your question would be more appropriate in this case i think the  pointed out the court the district court in this case could be correctly instructed on reasonable doubt a one word slip is not i would submit an egregious misstatement it's clear that there was error but it was not conspiracy defendants fingerprint on a powder powder cocaine stained cuff in the kitchen whether appeared to be an active crack distribution manufacturing going on inside the house and additionally the government  the first circuit case in the line of cases citing the government's story those cases say that if you substitute your own ratio in the cases that i've seen most of them has done district courts have substituted the one hundred  with a twenty to one in those cases there is a clear legal error and the district court is improper in doing so by substituting its own policy decisions and essentially agreeing with the commissions and adopted recommendations in various reports so that creates legal or that the newest case picket is actually an interesting one in that it simply says the district court can consider the show in imposing the overall sense it is not signing off on the photo problem of substituting the ratio and i think even think it itself the district the d c circuit court distinguishes follow and the entire line of cases and i thought about how that could be and the only thing i can conclude  district court even this district court in get on remain and could impose a sentence less than what the guidelines call for using the idea that i find that the ratio of one hundred to one creates a high sentence and therefore i'm going to give a lower one the d c circuit has permitted that in their circuit but what he has not said is that substituting is permissible i think all the courts are are in agreement across the board and in this case judge garcia that's what his statement met when he said i don't think i have discretion to substitute my judgment or something to that effect that's on the record he's pointing to that first circuit of course the d c circuit hadn't cited pickett yet and i think what's important is that issue isn't really before the court at all it's not as if we have a district court who himself substituted the ratio and now you're reviewing whether that was appropriate or reasonable instead you have a district court that was presented the arguments presented in full and said i'm not going to go there i think that's congress job and i think that's consistent with all the circuits that have addressed this substitution issue and i think in this case the record demonstrates that the defendant would have been sentenced to the same sentence no matter what judge made clear this defendant's criminal history his gang affiliation his leadership role the conduct in this case his prior conviction the fight the fact that he was on federal supervised release for nine twenty two violation at the time of this crime all supported the sentence under thirty five fifty three and in the excerpts of record one for the defense i think the court makes clear that deviating or giving any sort of break to this defendant was not in the cards in courting to this district court and i would like to finally know before he asked the court for any of its questions that one item that was not included in the in the government's brief that i discovered last night it's simply on the franks issue in reviewing  the court's in the excerpts of record i notice that one thing that kind of needed needed to be framed is that down in the district court in excerpts of record it page thirty eight the defense was registered as a drug offender where he was required by law to make an accurate statement and then a little further down on excerpts of record thirty eight lines twenty three and twenty four mr denver actually says the judge so the probable cause would indicate that the east avenue and that the hazleton stuff that's being retread on appeal had already basically been decided and for those reasons i think the phrase that issue was largely a red herring  what was cited in the brief was the sort of problem that we see with affirming that the governor of the defense tactics in this case not scott is lawrence and that's the case in which the prior conviction was discussed the one here not admitted into evidence and then error was found because of the sort of letting the cat out of the bag problem that is created with giving this one of your instruction about our counsel told the court it would introduce the plaintiff's prior convictions for impeachment the court then went on to give extensive idea or at least very specific want hear about the two prior convictions the prior convictions that not come in for various reasons set forth in th decision i think it was that they were not disclosed timely or are some faults of the party and then on appeal it was held to be error for putting that out there and so at what i would suggest is that if use of discretion standard in this case  and the actions taken by judge garcia were very well thought out and i think in the context of this case it was not an abuse of discretion because he was afraid to highlight it and it also would tie the government's hands in terms of the evidence that would be produced in the trial by putting it out there if it ultimately for whatever reason the government can consider well this this for for be evidence we just don't need it or we're not going to do it or for whatever reason there came up decided not to do it and now the question before the idea second i think it's very well ok it would be i think that the argument would be let's say because there was the stipulation was cited stipulated and then let's say he had asked the did it and then the evidence turns out differently and that was error so why doesn't it stand for the flip side that when you're worried about that and you try to avoid that problem that that would be a proper exercise of your discretion to  case or if you've heard that someone's been arrested before how do you feel some people say well if you spend arrested you must be guilty then the government and the police must have some evidence that's what the defense wanted to get out here when it was my boss makes don't hold water they said the ultimately the judge didn't strike to jurors that they should only consider the prior conviction for a limited purpose but at that point it's too late the whole issue here is not whether the instruction was appropriate but whether the defense attorneys and the court was able to determine whether the any of the jurors were biased during the why dear that's both  selling crack cocaine possession for sale he's on trial for the exact same thing here can you put that all of it's mind in terms of propensity and power of the judge's instructions i mean that's just the crucial