of henderson from the office the federal public defender are present appellant torbay is a bore i'm planning to reserve two minutes for rebuttal and i'm going to start with the venue issue and hopefully have some time for the four o four b ask you about that so i have looked a copy that's much clear that i gather was attached maybe in connection with some motion that was litigated and it clearly says lomita california it plain as day there's no ambiguity  there i recognize that that's not the version that was sent to the jury but since the jury was never asked to make a factual finding on this point does that matter it's the government's burden one way or another whether whether the jury instruction was requested whether the jury instruction was given whether the jury was asked to do it the government bears bears the burden of demonstrating to the jury that this is the correct district that this is the district in which the offenses took place that the snippet that exhibit that actually went into evidence is blurry can't be read and even even to the extent one could puzzle out lomita from it it also doesn't say what the lomita stand means whether that's where it was process whether that's where it was small i'm sure once you get to the place of being able to read it a rational jury could infer that that's what it signifies is that somebody in the office at that location stamped with that stamp but i guess i'm just i'm puzzled by i mean this would be you talk about a technicality my  god i mean the document that was given to the jury in fact does have a stamp that says will mean that we know that in the real world the fact that they couldn't read it i just it's sort of irrelevant because now there would be no reason for them to focus on that given that your client never made any issue of the venue i don't i don't think it's a technicality i mean there's i think there's some case like i said my brief saying that it you know venue is not a mere technicality the government county because you would concede a few wouldn't you be unreasonable in not doing so but if the clear copy had been sent into the jury i'm saying a rational jury certainly could infer from that piece of paper that venue is proper and i'm saying that that piece of paper was given to them it's just that the version t of the court recently reversed the conviction and i have stipulated facts trial where the government forgot to put in the stipulation stipulation existed and the government forgot to submit it into evidence and that's you know their burden that is you so they failed to do it look at what look at what you're presenting to you it isn't as if they didn't put anything in they put i mean they put in a they put in a version of it but they put in a version of it that was illegible and i mean again this is what went in front of the jury i mean we we don't do what ifs what if we'd given the jury the right thing what if we made a different argument to the jury it's you know it's what the jury actually got that's what sufficiency of the evidence is in here the jury didn't get it i ask you a question from out of the field why is this a jury question altogether it's not an element of manifest it doesn't have to be proved beyond a reasonable doubt that it's i mean why says if we were starting from scratch maybe it would be different it is an issue of fact i mean this is the same number there are issues of fact which judges decide that they'll go to the jury and this is it's not an element to be offensive doesn't have to be proved beyond a reasonable ground it only has your failure or your client's failure is this i mean the destruction again is that this is the worst set of facts to think about reversing a conviction i mean obviously if you had said anything to contest venue the government would have made damn sure that the copy of that thing that they sent in what was the clear line right as opposed to the blurry line but if we made them i mean if we'd made it in the rule twenty nine there their case would have been close that they would they would have missed it it's not it's not like we've necessarily robbed them of an opportunity to take get in there and do it to reopen the case the government's case of if it's there's a reasonable basis for it i mean i'm not sure the case law on reopening but i mean it's it's you know again i fall back on its government's burden they haven't they haven't they didn't prove it we could have put it forward in a rule twenty nine we didn't i have you know the arguments against waiver that i made in my briefs and happy to talk about it would be helpful to discuss or  your the argument you make is legit i'm just saying from a i just this is just not a very sympathetic case for your client on this point i mean fair enough but again it's you know it's love there are plenty of a legal thing i'm not i mean i'll tell you in any way if there's a technicality for us i don't think record should dismiss it just because it's a technicality i guess moving on to the for a for b issue it's a fundamental principle of our criminal justice system that a person supposed to be convicted on the basis of the crimes actually charged and here and sorry rather than by showing that they have a propensity to commit bad acts that oh they did it before so they must have done it again here however that's exactly what happened to mr is aboard the district court emitted multiple pieces of other bad accidents over his objection and then the government featured that other bad acts out evidence in its case in chief in such a way that it introduced evidence before it ever introduced evidence that he had of the current passport fraud it told the jury hey just so you know he's already been convicted of passport fraud before it introduced any evidence of the current bank fraud and told the jury hey just so you know he's already been convicted of bank fraud it that doesn't leave much of the presumption of innocence when you're you know letting the jury so you know this is a this is a bad guy the passport fraud one just strikes me you're argument seems very weak there because the whole value of it was being able to compare the handwriting you could have keep the judge i mean if what you need is a handwriting sample you could've put in a sanitized version of the st application for the handwriting for the picture with his admission that this was his handwriting and this was his picture and compare those you know i have to give the jury the conviction yeah i thought it was but that that actually helps establish that he's admitted that this is his handwriting and that he submitted this and so boy let's put these side by side it looks awfully similar i assume that someone who did this i think i mean i think there's materially we haven't contested materiality as to that passport fraud but it is i mean it is more pressure prejudicial than probative because you're not just saying here's his handwriting here's this picture he admits this is and writing compare them you're saying and he was convicted of this prior passport fraud he's done it before folks he's and they go on in their argument and they do this he's done it before folks the reason you know he's done it is that he did it before and that's really not what you're supposed to be able to do and i don't have the most time i'd like to hold on to some of it i just point out that with regard to the other two pieces of evidence there there's the issue that the government didn't articulate precisely its evidential hypothesis for a non propensity purpose and that the district court as far as we can tell did nothing to interrogate the laundry list of purposes that it threw that the government threw out really leaving this kind of an exam good morning your honor is may please the court alex wyman on behalf of the united states i want to start with the venue because although i agree with your honor's that if we get to play in error review the evidence submitted in the record was sufficient to overcome that plain error standard the passport application submit it did bear the words lomita p o but before getting to play an error i want to discuss waiver to respond to some of the arguments made in the defendant's reply brief this court has repeatedly held that a defendant who fails to raise an objection to venue before the district court either before the jury returns its verdict or in a rule twenty nine motion waived his right to raise venue on appeal the defendant argues that the supreme court's one thousand nine hundred and two decision in  do overrules this longstanding precedent in this district excuse me in the circuit but along no which never mentioned venue explicitly held that whether a right is waive a bill and the circumstances necessary to constitute waiver for that right depend entirely on the right at issue and since along a was decided this circuit this court has continuously held that venue may be waived without any affirmative evidence in the record that the defendant was personally aware of that remains binding precedent in this court martial found that the defendant had waived his right to challenge venue without any affirmative evidence that he intentionally relinquished that right what about our recent  yes yes your honor to putin also did not discuss venue and so it is it cannot be considered to be clearly irreconcilable with with marsh which is necessary to overrule standing at present we used to have a pretty clear and jenner the distinction between waiver and for iture there that the plies across the board no that's correct your honor and then after to pew this court decided guerrero in which the court made clear that rule twelve defenses such as venue are thought this is not the kind of rule twelve  challenge that to the one there litigating is not the one that's covered by rule twelve so guerrero does and doesn't apply here i'm talking about the few just use as i can remember the names that the name of yesterday i thought we had just said look we're going to for once and all for once and for all we're going to make clear that the distinction between waiver and forfeitures this i didn't think that it was limited to the specific context that was an issue in that case so i thought it would have whatever this case from earlier you're talking about i've seen yes there's a three judge panel yes  error and to pugh and unlike jury instructions in the present case cited by the defense venue is something that very rarely comes up on the record so unlike jury instructions and pres for example or the p s r which are always discussed by the parties and with the judge you know prior to either trial or dispensing venue is almost never discussed in the open record as judge korman was it was was explained or commenting it's unclear as to why it should even be a required element for the jury to decide so to say that venue you have to have affirmative evidence that the defendant intentionally relinquished that right would effectively make venue and an waive a bull right which would overrule longstanding precedent in this court from powell hansen gilbert and marsh and i don't read the pew as being it clearly irreconcilable with those cases and so i do not think that it overruled those cases but even under either standard either venue is waived or applying the plain error standard i agree with you i think the  leaning which is that the evidence in the record is sufficient to establish the plain error of you not not the version that went to the jury because that thing you cannot tell what that stamp says i was just commenting that my walker showed me a different version of that document which  as clear as day i don't know why you all didn't put that one in why did you give the buzzy one to the jury and so the nice crisp clear one that not happening taps to some degree in retrospect that would have been better all represent that the the blurry version was the certified copy that the government received from the department of state which had been i think photocopied which is why it was less blurry but i think that even with that that blurry copy that is sufficient to a step to overcome plain error review here which the standard is if if any reasonable juror could have found by a preponderance of the evidence that says lomita california no reasonable juror could read that thing i'm just saying i looked at it i cannot make out even knowing what you guys want to say i couldn't figure out what the hell the thing said so i don't think any reasonable jury could have deciphered from that the fuzzy stand that simple need well i would respectfully disagree with that reading of that and i think that special is especially true given that the court is required to draw inferences in favor of the government under the under under plane air review and i think that's particularly true given the defense counsel's closing our closing argument in which she invited the jury to draw the inference that this passport application was submitted lomita california telling them in fact as you saw this passport was submitted in at the low me to post office really close by here and so i think given the inference is that the jury was invited to draw it was a it is a reasonable inference for the to dismiss the counts without prejudice and allow the government to retry those counts in which they would simply introduce that cleaner version or ask one more question of the special agent or introduce an witness from the lomita post office it was evidence that was submitted that was introduced at trial both because the evidence was all properly admitted by the district court and because any error in admitting such evidence was harmless given the overwhelming evidence of guilt you could start with the bank fraud conviction because what is the non propensity inference that if you are it supports the introduction of that very simply its intent this court has repeatedly held the similar prior acts related to state of mind should generally be admitted in cases involving fraud dishonesty or false statements i referring to the cases cited in the government's brief evans diggs jenkins and ford these are all fraud cases in which that one circuit and published decisions allowed evidence of prior convictions of fraud to prove fraudulent intent this is a very different case than i know in our case to say yes or no to my own personal views that they're all wrong but i guess i'm just asking you as a factual matter just put were before the jury and i don't even remember what his defense was to the bank for fraud charges was here but explain why the jury knowing that he was convicted in two thousand and eleven of bank fraud helps them determine some particular fact that's been put issued by his defense in this trial well your honor this is a specific intent crime and so to prove fraudulent intent the government must establish that he had the requisite and intent to defraud the bank that distinguishes that distinguishes this case from the case cited the seven circuit drug case cited by asking you to put aside cases for c s r and just talk to me like i'm a juror ok so what was his defense to the bank fraud charges here the he didn't put on a case and so you're ok so you're just trying to prove of the same crime help you determine anything about what's at issue in this case other than he is your opponent i think persuasively put it in his brief he did it before my goodness it must be him doing it again well you're right i would  refer back to the cases the th circuit said put aside and i want to just hear that actual just walk me through the chain of inferences that get you from point a to point b that doesn't rely on propensity i think that if he's someone who has the fraudulent intent to defraud the beck because he did it before because he has shown that fraudulent intent in the past not because that's tirpitz it isn't that but i know there are about that than just straight propensity that's what i guess i don't understand from our cases i grant you what the you're right with our case to say but i'm just trying to figure out what is what's the non propensity inference in that in that chain well that i would say that i'm not sure i have another explanation other than those cases but i would say that the bank fraud conspiracy to commit bank fraud conviction was also relevant to prove  modus operandi since he had done a very similar scheme in the past a using rd party person identifying information counterfeit identification documents and fraudulent checks to defraud a bank and so it was relevant for that reason as well with the judge giving limiting instruction yes your honor the court the district court did give a limiting instruction and there is no challenge to the propriety of that instruction as i understand it ok very good your honor thank you very much you have a little bit of time left  do address harmlessness on the four for b just because the government brought it up and i something that they pushed quite a quite a bit in their briefs i don't think the government can claim harmlessness here in part because they just use the evidence wasn't him that somebody else somebody else did these acts which was the defense proffered a trial so so their intent i mean to go to the point tense really not formally they have to rule that there was argument there was an argument there was no evidence there was no there's no there was no defense case but on this as there is often no defense gets put out but but formally what they're arguing is what what was argued below was identity not not intent and you know it's x despite the government's claims the acts aren't all that similar and if you're doing it for identity there's actually specific rules for introducing identity evidence here in one circuit it's not enough to say there are similar features that are similar to any crime of this nature a lot of bank frauds involve using false names or whatever you have to have a distinguishing feature so there is a united states v luna twenty one dollars thirty eight cents talks about mickey mouse ears he can't say two bank robberies are the same because there were guns because there were masks because there were bags and shoes you know you got to have something like mickey mouse ears there are no mickey mouse ears in this case there's nothing distinctive enough sufficiently distinctive about the two thousand and eleven fraud that you can say this has to have been the same person so i don't think it would have survived for four b analysis on identity and i'm way over my time thank you thank you very much counsel yeah the case just argued is submitted