good morning your honor campbell on behalf of timothy binford doing my best to reserve three minutes for one bottle at the outset as a sort of housekeeping matter we've raised in essence two separate arguments here to trial related issue one of sentencing issue the government in its answering brief effectively conceded that under the current state of the law washington robbery would not qualify but raised a plain error type of argument i was informed this morning by the government's counsel that the government will no longer be advancing that play never argument effectively conceding excellence that a reversal is necessary that makes here in the easiest issue so that being said i don't plan on addressing that further thank you thanks to the government for its knowledge ok this case proceeded toward trial on a single found in possession of the firearm count under nine twenty two g one on the ev trial literally the government superceded you had an alternate theory that mr binford was a habitual user of drugs in possession of a firearm under nine twenty two g three the only reason for the government to add this alternate theory was to allow it to admit drugs and there was no charge relating to drugs and clearly under the felony possession charge by itself they would have been inadmissible but for the the superseding you know that's two tional problem or anything like independent of independent of the normal for a for b and not in for a three not type of analysis the admission we believe the admission of that drug evidence was erroneous for numerous reasons first it was undu prejudicial and should have called for an election of theory second retroactive miss joinder requires reversal of the conviction third superseding on the eve of trial constituted unfair surprise and fourth reversing the government's reversing of its position after the motion in limine a excluding the evidence was granted amounted to in fact vindictive prosecution we know that this these errors were particularly egregious and light of the fact that the government had no evidence of had bitch will long time use of drugs which is required under nine twenty three and it was because they had no such evidence that the district court granted the rule twenty nine motion on the user in possession post verdict and then you really come down your client doesn't have that charge you can really come down to a question of prejudice don't yes your honor and give the at the time that the initial motion was made so the jury never heard about the drug charge the jury would never have heard about considerable amounts of evidence regarding drugs namely methamphetamine residue drug paraphernalia all right all even though the drug evidence you may paint him as an unsavory person in that regard how did it prejudice the fact that kind of dead bang the gun is in the bag i think it prejudiced the fact because it  underscored that it brought drugs into a case that effectively drugs were not involved in and what that did if we look to cases and we cited the blackstone case which i believe was judge goodwin's case  see that linking drugs to guns raises the specter that a person is a bad person who is deserving of punishment for whatever misconduct they had committed the question presented in this case effectively who put that gun in that bag they could have charged it a long so and so and you were your client was convicted of only one count right they only when they superseded they only charge one count one two alternate theories and they're right and so in looking at the cases that you rely on the appeared to be cases in which there were there were multiple counts so that the prejudice was that the that the that the defendant could have been convicted of two counts for the same conduct and that many of the cases do arise in the situation that you raise but we think that the from a for a for a point and or for a three analysis it still holds whether you have any or already for that well if we look at cases like blackstone like the bradley case that i cited they discuss that the danger presented by their own use for a three four or four b type of evidence is that the jury will convict when it's otherwise unsure of guilt because it's convinced that the defendant is a bad person deserving of punishment and that would be a good argument if there were significant uncertainty about the felon in possession but haven't really heard from you what evidence there was that would suggest that this would prejudice and also what evidence there was that would make the felon in possession charge somewhat sketchy because there wasn't sufficient evidence certainly around the issue here this or this arose from a traffic stop there were two individuals in the car mr bin for to mr jackson ultimately the evidence showed that the officers believe that both of them were under the influence of drugs the evidence showed that there was a backpack that had a gun in it but there was ample opportunity for either mr binford or mr jackson to put that fire raised at trial that perhaps the bag wasn't mr ben for it's the question was simply who put the firearm in the back and there were two possibilities under that seemed reasonable either mr jackson or mr get in this evidence right it's not the only reason it's a it's an important reason to me overall my job is to try to present as complete and clear a case to the jury as i can that's complete have to do it the day before trial that any way that seems to me to be you know make it very difficult i know there were some discussions about it but it's not you know we don't you know go to the grand was that when i returned to the case on an appearance at the at the second pretrial hearing this this was still basically the first trial set in the case had been set for trial had been moved  january fourteenth and had been moved to february twenty sixth me february twenty third so at the start of that pretrial hearing on  on january twenty second the trial date the status quo was a trial that was february twenty third not february fourth and it was at that hearing that i said you know i'm back on the case i am exploring this this possibility of superseding indictment there had not been a formal motion to exclude evidence there not been any briefing on that issue there not been in the any explanation to the court as to exactly what was in the ba g and the court had it been no explanation of what the possible defense theories were so that the question of the relevance of that drug evidence and the the relevance that that evidence of other items and in the bags was still up in the air and it was still something that was under that was being contested so i told the court i told counsel that i was i intended to supersede the indictment if i could now in terms of the evidence we were still waiting on  drug analysis we couldn't present asked for superseding indictment least i didn't couldn't go back and ask for superseding indictment unless i knew for sure that we had the drug and i did not record it's in the grand jury record but i plead was asked the question when receive that confirmation it was it was just before the grand jury i asked to have that expedited and we were able to obtain that so so notice had been given as to what the government's intent was and the court then moved the trial date or advanced the trial date from february twenty third originally it wanted to set it on february second i  would say government counsel had a medical appointment on that date the court accommodated that and reset it for february fourth and that left february third available for the government to present it never is the only date that the government could have presented to the grand jury and so the government did it did so having provided as much notice as possible to the court and to the end to the to the defendant so it's it's not something that was done by sleight of hand it was done through the timing of it was driven in part by the court moving the trial ahead from where it was set when i originally told the court i was contemplating a superseding indictment and the court did that  because a date had opened up and i believe the court wish to accommodate the defendant as much as possible and in pursuing new trial as quickly as possible so that's how that happened now i didn't believe that the evidence from the bag was inadmissible and i was vigorously arguing on a secondary level that it should come in in any event because it was necessary for the government to tell a complete story and present a coherent theory about what happened well that the evidence was wished he had paraphernalia was just indicated that it was for personal use and that right yeah there were some there were some several dimebag easer was a scale those kinds of things were not necessarily indicative of personal use but i wasn't making the argument that that it was the gun was there duration and for that the gun was there to protect him as a drug traffic r i simply was arguing that that he was a drug user and that that was an alternative theory for possession now in doing so one of the things i was concerned about was what happened in this case defendant told the police officer when he was asked do you want anything taken to jail he said i want to i want my bag taken with me to jail so the whole the whole defense theory was was really why would he have said that if he knew there was a in the bag and therefore it must have been charlie jackson who put the firearm there charlie jackson testified he denied knowing anything about the firearm so in terms of the  prejudice here there was testimony from charlie jackson who looked at the jury and denied know anything about the fire however the point here is that by excluding the drug evidence that the defense is is strengthening i knowledge and sell because the general principle that you use guns in order to protect the drugs doesn't apply right it wasn't offered for that purpose that's not why the government offered i didn't make that argument i didn't present that way it was the way i argued it was to rebut the defense theory that he did that he would not have said i want that bag to go with me unless he unless you believe there was no firearm in there because the my argument was look there was other there were other things in the back there were other weapons which the government was not able to get into in much detail but we talked about it a little bit just in terms of where the firearm was located in relation to the drugs it was not at the top of the bag it was stuffed down in the middle the bag beneath a very sharp object so my my my rebuttal to the defense argument was there were other things in that bag including drug paraphernalia including drug residues that this defendant would also not have wanted to go to the jail so so it was relevant because it tended to rebut the specific theory that the defense was trying to raise and by excluding it you gave the defense the sort of gave the defense's opening ground to argue something that really was based upon something that wasn't true so  let me just let me just say that because why would anybody ever charge two theories in one twenty two g case because there are there are plenty examples in the case law where it's done and it's not really explored i would suggest in addition to the government and i feel a responsibility to present its complete and coherent a case that includes the legal theories that includes the evidence but also that firearm cases can be controversial particularly in the west that by providing the jury with an alternative means for you to consider you're giving them broader ground more space within which to deliberate and consider the the defendant's guilt and that that it's helpful to do that and it's not improper to do that so  the timing was was not something that i was in control of i tried to manage it as best i could through providing notice and and then i was stuck with the dates that i had so and then the defense made it decisions about how to proceed to trial and what time they wanted to do so if the defense had asked for a continuance request right now continuance requests and i think one reason is because if they had requested a continuous i would have had more opportunity to further develop my case there was the defendant did have a positive your analysis for methamphetamine the day before he was stopped and arrested that evidence would have taken more logistical effort because you're now says testing was done out of the  district so a continuous may have benefited the government actually more than it would have benefited the defendant i think that was a defense strategy was their call but i don't think at the end of the day the government acted improperly or or that the the decisions made prejudiced unduly prejudiced the defendant thank you to address the government's arguments in the court's questions i think it's clear that the only reason the government did supersede was to simply get this got evidence in because by adding this theory the government actually took on an additional burden that is to mr binford actually possessed that firearm by adding this alternative theory that the government says was necessary what it required itself to do if that there would be accepted would be to prove not only that he possessed a firearm but that he was a  and the evidence shows in judge peterson found that the government had no evidence of that and realistically could not think it did so the only purpose was to bring in this drug evidence the government says that it hadn't decided yet whether or not it was going to try if it wanted to reverse the ruling that judge peterson already made they could very easily have filed a motion to reconsider he didn't do that because it knew that the evidence wouldn't come in but for this charge charge that it had no evidence of the government did note that there was some a dime bag and some scales i would proffer that those are perfectly consistent with personal use and the judge wrote is correct that the ninth circuit case law says evidence of personal use is generally not appropriate in a felon in possession cases the government talked about the need for this evidence because why would mr binford want to bring a bag if it was it was his fire m well if its theory is that he wasn't thinking clearly they had plenty of testimony from several different officers who testified that he was either slurring his words or not remembering things so it had that evidence that's not a reason why it needed to get into all of this evidence evidence which according to precedent would otherwise be inadmissible it talks about the need to rebut the defense's theory but as has come out this case was proceeding to use judge peterson's phrase at warp speed  at that point the government couldn't be aware what the defense theory was and to add to supersede in this manner at the eve of trial in the hope of defeating the defense theory seems speculation at best and then in regard to the continuance issue it's our position we brief this briefly that the defense isn't required to move to continue to prevent another constitutional or statutory violation under the doctrine unconstitutional conditions so we don't think we were required to ask for a continuance we should have been allowed to go to trial on a charge that had been raised all thank you thank both counsel for your argument this morning the case of united states