washington apartment to every maryland and events that happened afterward but it's really two cases it's a case about marijuana possession in which the evidence was overwhelming and then it's a case about kidnapping and weapons charges in which the evidence was much closer and more ambiguous and the st issue we've raised in our brief is that the case did not meet the requirements of rule eighty for jointer should have been tried separately and that it was dollars parts standard there are three three different elements under rule a if the cases are of the same or similar character if they're based on the same actor transaction or if they're connected whether part of a common scheme or plan but i think it has to protect a events as part of a common scheme or plan and if you think back to what the original indictment was during the original damon was just to count not including marijuana that count three was added several weeks  later mr smith nobody made any objection i know you were trying to counsel but there were there was no no motions in limine whatsoever filed in this case that right not by the defense that's correct there were and in our ineffective assistance argument we raise that among the several items that we point to and i think just to jump over to that point briefly to the extent that this court looks at the ru day issue or the rule fourteen issue or the instruction for that matter and decides that well there was legal there but it doesn't rise to the level of plainer that i think that goes to prejudice under stric filings two of which the government has pointed to there simply isn't enough to point to this as a common transaction a common scheme and i think anyone but what about i mean is it as the government argue marijuana going back to his home in d c and the narrative that it seems like the district judge is crediting that makes it harder connected common scheme is you know that this this urgency and the kidnapping would have occurred or don't even matter where there wouldn't but it was part of the getting the marijuana for the charge and trial evidence and his perception the trial of it which clearly oversaw he had that perception i think them the main problem with that is it really requires the piling of an inference upon inference because we don't know what was in the suitcase we don't know what was in that bag and so to accept the version of events that well you had this you were out here eighty miles from home you got this bag you want to get on because you have a marijuana operation running out of your apartment i think we have to infer what was in the bag and then we also have to wait for what motivated him and i think that's just too far of a logical leap to be a different case i agree if the contents of the bag and been established but what the court did here and also we raise the point with regard it's just too much of a logical leap based on the evidence and i think the court has spoken previously not trafficking or  i would not i would say no to lead your honor what i would what i would suggest as perhaps more important is the fact that when you look at the kidnapping charge in the superseding indictment he's not alleged  interstate transportation for purposes of conducting drug activity or for purposes of trafficking in drugs all it alleges that is that he forced mr flores to try to take him interstate and there really is when you look at the superseding indictment there really is almost a watertight dichotomy between the marijuana charge and the others and another point that i think is important richardson is it talks about evan entry of overlap being a key to jointer and the notion of trial economy and convenience and here this would have easily made two separate trials as we've listed in our brief there was one set of witnesses and exhibits on the weapon and connecting charges there was a completely different set of witnesses and exhibits on the marijuana charge and the prejudice that mr brown suffered from having both of those tried together is really at the heart of argument and if a district judge had severed the two counts and tried the kidnapping separately and the government had wanted to introduce some evidence of drug activity to tell and preparing about what the motive if they could fit it under one of the exceptions to forty four dollars b and that that would be litigated then i think the trial judge would have to let it in i don't think i can't have a hard time imagining a circumstance in which seventy eight dollars pounds of marijuana on the table right so i think that's a bit of a difference in that respect  d i gather there are three separate counsel post trial counsel and now you and you don't have any idea why browns post trial counsel didn't raise an ineffective assistance claim before the district court and do you think that matters in terms of our review well my understanding of this court's case law is that if it colorable claim is raised now on appeal that the court and if it's clear enough the court can decide it   the government has made the point that well mr flores testified that he saw prior to this incident that only victims of domestic violence could take advantage of the u visa program and i would just suggest i happening and i think a lot depends on how you define this incident if he means you know before he ever laid eyes on shane brown i didn't know then that leaves open the possibility that speaking with his wife on the phone he could have found out in which case i think the instruction becomes dead on point so i would just point out that i don't think that testimony is quite as clear as perhaps it's been for trade unless of course there's any other questions over his or the bell i have one that's not i'm sure is not part of the record is florrie still in this country i'm sorry ron is florence still in this country your honor i don't know that i don't have no idea the answer that question perhaps the government does all right thank you best it should have been to show clear and obvious to the district court that these offenses were mis joined that the district court should have noticed it on its own and suicide buntay step or the charges these offenses should not have enjoined under way and we think they can't make that showing in this case and one of the questions i think that was asked had to do with so what is that what is that what is th heart of what their argument is that it's not that it's not fair it was not fair to infer that this is a case that was picked up and near that appellant picked up a maryland contain drugs i was there any evidence whatsoever time the suitcase the answer to my question is no there isn't we don't even have a photograph and we do of this suitcase matching one of the partment we don't have any allegation here the photographs of all the suitcases in the apartment but not but nothing no description from florence of the suitcase a dark colored really wheeled suitcase but then i didn't see any evidence that linked that suitcase to those to the ones in the apartment it's just like the other suitcase is in the apartment and so inference so you can consider the totality of the circumstances and is it reasonable is it reasonable to conclude that that suitcase that he went to pick up contained drugs or drug profits and we think it is based on the totality of circumstances the district court thought it was completely obvious that that was what he was up to when you consider everything not isolating out every piece of evidence and saying well this doesn't prove it and so we're done if we look at everything which is he's clearly transporting marijuana in suitcases because he's got three suitcases stuffed with marijuana in his apartment so that's a piece of the puzzle or somebody ends i mean i don't think there's evidence that he was transporting as well he's a somebody and it's his although he transport suitcases on some occasions because he did that in this case right but that's the question is whether the assumption has been and where there's evidence supporting it can you explain i have the same question for you that i have for  defense counsel if in fact the cases had been severed would marijuana have been admissible in the kidnapping case and if so can you walk me through how that would be yes because the drug trafficking is the motive for the kidnapping it's a fair in ence based on all of the evidence the as your honor pointed out a quick trip up to aberdeen maryland that was very expensive going to meet somebody as soon as he meets somebody  he comes out quickly demands a ride back to he's angry that the round trip has been canceled because that's squashed his plans to get back to d c nonetheless he won't take no for an answer he insists on the ride he gets in the car and he's up and he when he can't sort of charm mr flores into driving him home that's when he pulls the gun and demands and the kidnapping occurs and demands the ride back to d c and this is all  inferences this is he's in such a rush because he's got contraband and the so the the marijuana and the huge amount of cash in the apartment corrupt that  to this is all part of his drug trafficking so your position that the government would have been able to introduce him in just pushing you i'm in charge you know you're given one defense counsel has said what was introduced was a lot of marijuana an overwhelming pile of marijuana presumably if counsel had perhaps differently for mr brown there would have been a mean i think that it might have been the case that the district court said you know what just we can bring all the pictures in we're not going to be all the marijuana and perhaps that would happen but that that you know that's not enough to say that that there's a reasonable probability of a different outcome in to handle on without the prejudice is or is that's what i'm saying i think you know you might have instead of i don't think that the district court would abused its distract its discretion in permitting the government as it did to just briefly show the jury the marijuana but but we didn't the court doesn't need to decide that because let's assume the court in a separate trial would have limited the government to photographs of all the marijuana in this co of prejudice the fact that in separate trials the government would have introduced photographs of all the marijuana as opposed to all of the physical marijuana the court can't say that that that difference would have defense raised and so they're they're really struggling with this even with the evidence that was presented so i do think it's important that we understand your position on what the evidence would have looked like a letter and been separate  that tie it up in both the opening and closing right i saw happen in the evidence that was there any witness or any evidentiary matter other than the argument though the witness mr flores described the suitcase and the suitcase looked just like the other  suitcases that were found in the search warrant that were clearly in the apartment at the time that the defendant appellant was making his trip quick trip up to aberdeen maryland and  back and then i just wanted to touch briefly cell moving away from joined up there are no further questions and having the court focuses on the plane they are standard at best as opposed to a discussion is that we're looking at that's for abuse of discretion moving to the jury instruction i just wanted to point out that again this is where i'm playing here a review of the instruction was not requested so it had to set must be so clear and obvious that this be scratching their heads because that sounds in criminal like he's under criminal investigation i think what as you listen to the argument opponent is making i think what they really are saying is they wanted an hour and instruction saying you've heard it evidence that he's in immigration proceedings and you should consider that but that's not the again he didn't request that instruction either and they're not really they haven't requested an appeal but i think that's really what the argument and that instruction wasn't requested either at trial or before this court but i think that is sort of the heart of what they're getting at that's what would make more sense there are no further questions we death of the judge will be  that constitutes a true or legal invocation in any event or would you prefer did and ask the court to look at the tape which that in any event physical evidence wouldn't is wouldn't be required to be suppressed unless the statement was also involuntary and there's no evidence of that