good morning your honor may please the court michael marks federal defenders for mysterious my client was convicted by a jury that never got to hear relevant and admissible evidence that somebody else might have convicted or might have committed this offense  district court picked out the right rule and it didn't this case has this court has said over and over that fundamental standards of relevancy is the right rule determine whether or not third party culpability comes in  district court clearly relied on a different standard a california standard of substantial evidence and in addition to that said this evidence shouldn't come in because it's too speculative this court has said in armstrong crosby steve or via a hoe that the fundamental centers of relevancy controls that the rules of evidence speak for themselves and indicated that the district court is not to say this is only i think he said something to the effect the standard is very very very low just evidence just doesn't meet that very very very standard what was he doing i don't i don't know exactly he was trying to characterize his evidentiary ruling to say that it was very very very low  is all well and good the question is did he pick out the right rule he clearly thought he said this evidence has to be more than relevance he said it's not just relevance it's whether there is substantial evidence so whether he thought that that was a low standard or a high standard it was the wrong standard and he was requiring my client to produce more evidence than that he should have and you know think think about what this what this evidence shows the governor has argued this is harmless it's clearly not harmless there in order to get methamphetamine from the from mexico into the united states and make a profit you need you need to know some things you need to know how to get the methamphetamine how to get it across the border safely what to do with it how to sell it once again to the united states that's what this evidence would have shown the fact that this person had a connection not only to california and los angeles where by the way mysterious would have been headed according to the receipts and the car that he had connection to drug dealing that he had a connection to methamphetamine that he had attempted to cross methamphetamine across very similar point in the border in the past and then he took off right after she was arrested so answers that question that the court keeps asking this court keeps asking all of these cases if your theory is i don't know the jury is going to ask well if you don't know who does that was the problem in crosby that was a problem  hope that was the problem and steve or excluding the defendant from answering that question is air it's air and under the rules and terror under the constitution and that's what she wasn't allowed to do she had a good answer for that  that this person maybe hadn't left this life behind it showed again the connection to california but i think you're right in many ways it was redone that we had the convictions that show that he was in fact a drug dealer on the streets of los angeles that he had in fact been convicted of methamphetamine and certainly without the evidence it's not enough i mean i think the other evidence is enough to get over the harmlessness problem even if the court were to rule that it that it should have been excluded so so no i don't think the court should get bogged down in the facebook page you're only you mention for a for b and i think that's a important consideration first first of all in reviewing the record the court never actually excluded this evidence under four forty the district court mentioned a number of times it had concerns about the and certainly in the case that that that i've cited and armstrong crosby the echo steve or all of them there's always going to be some danger propensity i think when you're arguing that somebody else committed a crime because of some other stuff that they did in the past and that's always going to be present but what i think the court made clear in the court chris garcia later is that when you're dealing with for a for b and it's the defense as a proponent of the evidence at the court as long as it's not just pure propensity should sort of bend over backwards to let this stuff in and the reason is there's no constitutional concern that if anyone is going to be convicted based on something he did before rather than the evidence before him that concern is has vanished and in fact in these garcia one of the concerns was well this is a witness is going to allow the jury to discredit a witness just based on propensity but here we're going to even talking about a witness we're talking about a next door neighbor who had fled there was no danger to that person the prosecution wasn't a witness for either the government or the defend it so this was the case where the courts really should have done everything it could to allow mysterious to present her defense it said i'm bending over backwards to do that but but it didn't i just i had trouble figuring out what the concern the district court's concern was here why was this not something that the jury was perfectly capable of valuating  fact that he shared a door with with mysterious and the district court shut down questioning when the defense tried to admit photos of the neighbor and then what they did is they went through during a you know  conference outside of the presence of the jury they went through all of the particular pieces of evidence that the defense wanted to admit and they talked about photos they talked about the facebook page they talked about the five prior convictions and ultimately what the district court said was you know i have concerns about some of these pieces of evidence but ultimately i don't think this is a relevant theory i don't think you have enough evidence connecting this person to the purposes of this case essentially a way to think about it doesn't he have he hasn't satisfied in step one so that the court has to rule he abused his discretion and then the only question is can the government meet its burden of showing that this evidence could not have come in otherwise and would not have made a difference had it come it i good morning your honour's may please the court column macdonald for the united states the district court here reasonably exercised its discretion to exclude specific pieces of evidence that would have supported a third party culpability is  when the when defense counsel got up to make is some asian he wanted to make this argument there's nothing he could point to well your honor i was no there was nothing there there there was evidence that was that was admitted with respect to the neighbors  did allow mysterious to produce evidence for probability but when that evidence that was supporting that claim turned incompetent was inadmissible the court said no so there were some way out and are you saying that he didn't make assuming these specific pieces of evidence are admissible i don't find the thought that the that there is a sufficient link between this third party and the defendant and you're defending yes we're defending both pieces and and note for the court that the court had already made that decision he had already made that decision under the basis of armstrong and crosby before the united states offered the substantial evidence test in the first place the court looked at armstrong crosby first and said well in that case there's a there's a there's a there's a link between the third party and armstrong the bank robber the third party had bait bills from the bank robbery in his pocket and used them the day after the robbery to bought three thousand dollars to buy a car in crosby  third party was the husband who had previously assaulted the wife and he was upset and she was sent there that he says she says here that the this neighbor disappeared wasn't there yes there was that and that was admitted to the court allow that that evidence to be admitted on on e r e r two thirty that came in and also that they were right next to each other on the block i understand i thought he said that she couldn't point to this person at all  at the point at which the for the facebook page was attempted to be introduced the defense had already admitted of right of evidence about the neighbor that he had that he looked one of the one of the statements was one of the witnesses says that they had neighbors appearance didn't seem right it didn't inspire confidence or trust him so they basically said one the neighbor looks creepy and then they said that he lives right next door and that he vacated the house apparently shortly after the event they were able to show that he had a prior record want to make sure i understand because that's how i read the record that's it that's also and that in that is right and the reason is because they could not authenticate and they did not have a way to admit the evidence that would have supported it's fine for them to have a general broad  they have to be able to actually admit the evidence that distinguish that's what he said he's really he said he would do you see you saying that he's just not allowing it because it's based entirely on speculation well all know for instance on the facebook page on with  york to forty seven to forty seven the courts conclusion is that there's absolutely no authentication of the facebook page that taking everything else ok the only other thing the only other thing there's a criminal action little rap sheet and deportation and the deportation there's no documents whatsoever why i don't know how they were going to even produce this evidence or admit the evidence they all had was around that's a different problem it's not based on the basis of the ruling unless i'm on e r two six six is just the wrong place there's a number of places throughout the record where the court look pivotal sentence there you are right actually this is this is significant is that middle sentence i have no competent evidence to support it so with regard to the ministry the only they didn't provide any facts about his underlying importation charge the the rap sheet itself which which i don't know how they would admit that into evidence but they in the court even asked believe it said maybe two fifty one the court asked are there do you have conviction documents and no one ever responded to that that  cases in which the government has come in with exactly this document to prove convictions i mean and immigration cases and so on well and further what the court did is he said i don't know how a conviction from two thousand one shows motive or opportunity so one of them that at least in two thousand and one who knew where to get methamphetamine well i knew had had a small house michael that well the sale and so the problem with that you are is that the record doesn't show that and in most of these cases the defense says i'm just a mere courier i had no idea what the drugs were we don't know if this neighbor knew what the drugs were we don't know if he was in your career we don't know if he carried them across in a backpack we don't know if you throw them across in a car we know nothing about the underlying facts and  a non propensity purpose under four four be the acts have to be sufficiently similar that the fact of the conviction alone does not show that he has a source of supply of methamphetamine the fact that he crossed methamphetamine possibly and that was on a fifty fifty shot that a year old excluded is exactly because it's going to have the people's general assumption is that people do again what they did before and there are instances in which that's a very unfair assumption but in this instance where you're not dealing with the credibility of the when you're not dealing with a defendant you're dealing with a pure balance question why isn't it relevant and why does four or four be of anything to do with it well the lay whole itself for instance says ordinarily evidence of another person similar the to the court that even in these other cases the court does a four four b analysis in this circumstance where there where a defendant is trying to prove that someone else did a bad act before and thus he did the bad act again later that is propensity that is strictly prohibited by rule for a for b and so that's where the court says i don't know the court the court was concerned with the jury saying well i don't want the jury to be able to say he did it once before so he's good for it again i'm wondering why not this context well if there was a proper four for b basis the court was clear that he would have admitted the evidence but with regard one to motive the court said how how does a fifteen year old conviction show motive to convict or to commit the offense if it doesn't follow that doesn't follow this not like crosby where the husband the third party was upset at the wife for having an affair similarly with opportunity that the defense suggests that he had the opportunity he had a source of supply of methamphetamine but that doesn't father follow either that in two thousand and one he had you know methamphetamine in his car we have no idea what the circumstances and i would look i would i would ask my friend to point the court to the record where we know any facts about the underlying case from the two thousand and one conviction now with with regard to the guard to the to the harmless to the harmlessness well i'll  with regard to the harmless stand this is different than that the set of cases armstrong et cetera because the underlying evidence the criminal history that we've just that we just discussed there's no four four b basis for it pro license photo that linked to a rap sheet that had multiple aliases and the name and the rap sheet name was provided by the fifth unauthenticated facebook page that had a different name than both of the convictions that they wanted to introduce that they didn't have conviction records for so the the probity of that evidence was so low in the long run they couldn't show that the that this third party had a source of supply of methamphetamine they couldn't show that he  he crossed the drugs before whether it was in a backpack whether it was a body carry or whether he drove it in they don't have any none of those facts are on the record so even if that criminal history got in and even if they could show that it actually was the neighbors which that was down and cather that they had they were was the same person that had the prior conviction for importation of methamphetamine had the prior conviction for marijuana that had been deported i don't think there was any question that that evidence was going to come in somehow how it would have gotten in whether there were certified convictions a filed documents i don't know i never got the opportunity to because district court cut us off before we could it ever get there with regard to the similarity of you know the facts of the prior methamphetamine convict conviction it's the same drug it's  about five miles away from where my client was arrested the jury gets to decide whether or not that's enough weight to to call question that you know whether or not that was enough to cause reasonable doubt or not it's really not for the judge to decide that up front that's that's