good morning your honour's new johnson for the defendant appellant alexander like a tale there's two issues here the first i'd like to touch briefly which is the vindictiveness and i'm going to save a couple minutes for rebuttal if i can for the pretrial services report available in the courtroom and the discovery provided by the government showed a i dated and stamped computer printout showing that on march sixteenth at three  am the an arrest by d h asked by that the agent who arrested him which is all clear from the record but what i'd really like to focus in on is the march twenty seventh statement the government agrees that they argue that as a confession in the rebuttal they claim that they the prosecution argued all along they were going to try to introduce it as a confession that's simply not true and they point out to the supplemental excerpts of record which was a motion in limine they filed by the government when the case looked even different than it did at trial because you remember that government with went through several iterations of charging mr neck a chair over all and then adding a bunch of charges and then whether was a good deal or not the jury did not convict him of that count on which he was offered a deal the jury hung and it was dismissed he was only convicted of these other counts that came up later was not convicted of that count that he refused to plead to him as to that the evidence used to convict him of the two thousand and twelve out the government's introduction of what in rebuttal was clearly argue as a confession it was a confession i mean why wasn't it a confession because he admitted to being involved in smuggling it ten days before or maybe he was two days off and maybe loosely he was referring to the earlier arrest or he may have been referring to the general period within two days this is not like your typical for a for b case where the evidence is of an entirely different transaction entirely different crime used for the purposes of trying to show propensities of the else this was to he in remember there was no conspiracy charge there had been a conspiracy charge if there have been a conspiracy charge this could have been added mission participating in a conspiracy but it was a different vehicle on a different day which someone who wasn't you don't need a conspiracy charge because even if he was only charged that one incident that day this goes directly to whether or not he confessed that he was involved in smuggling and not some other he was driving for hoover a lift or anything else that day but it wasn't as to the same day and then that becomes a propensity argument the record gave the prosecution one last chance at transparency saying ok so for a four b evidence there's nothing else to say on that right and the government said like the government's moving there in limon a papers did not describe it as a direct mission as a confession of guilt it would have been treated very differently the district court ruled there is no prejudicial overly prejudicial analysis to do on a confession but there is there has to be under four or four big if we say you're right and if you were admitted under only under four for being not confession it would have gone to his state of mind his knowledge which was the crucial issue with regard to the the arrest that we're talking about i mean there were no other elements in dispute he did transport the person was not documented as entrance and so the only issue upon which the hundred four b if that's what applies here went to was knowledge and it's hard to understand how there is prejudice if the even under four b were gone to the critical one disputed fact the only disputed fact that's our argument and the government argued he admitted to this offense that is devastating evidence that would show his knowledge the fact that he may have had knowledge on another occasion and the government can argue that well he should have known here busy he was involved in another time was a completely different argument well and even in your construction he admitted knowledge two days after the charge incident pretty close in time and given all the other circumstances pretty darn compelling as well well it is a government argument the government could have made and didn't make it they said this was a confession of the crime as in the twenty a j letter argument that we pointed out that seem permissible and that what difference does make because it would have come in did come in the only difference is what it could mean with an instruction but together with the instruction there was such powerful evidence of his knowledge of it knowledge two days within the the rest  i don't see where the prejudice of the prejudice exists because it was called a confession and that's ken's to be over that is the most powerful tool in a prosecution's quiver number two that the prejudice exists because the jury was confused about that statement and even sent a letter to the poor explaining whether trying to figure out if that was a confession or not the court has that note in front of it what i'd like to do with the court's permission is i have about a minute thirty now if i could reserve for a bottle please thank you thank you intent to introduce this statement as direct evidence of nichols he has guilt nov ninth at s e r two eleven to twelve the indicated its intent to offer the statement as part of the twenty twelve event on january twel they reiterated their intent introduce the statement as direct evidence even even calling it a confession that's at s e r three zero eight on january fifteenth again the united states we had rated its intent to introduce a statement convicted on one of those overworked violation how do you explain that the record shows that on september twenty third don't care what the record shows i want to know are you explain aware so in other words how could your situation be that you were either you should've been aware or we question whether were you really was the council really investigating all this time and just finding these things right so there is two separate declarations from the usas that indicate when they found these other prior incidents and that said s e r two eighty four through eighty eight where they indicate that they first learned of these incidents on on september twenty first and then within the next couple days they brought those events to the attention of defense counsel and then offered a plea they said we found previous events and we're we're prepared to to add charges is there some kind of imputed knowledge to the government well i think the kent case for instance says in the course of preparing a case for trial this is a direct quote in the course of preparing a case or trial the prosecutor may uncover additional information that suggests a basis for further prosecution or he may simply come to the roof to realize that information possessed by the prosecution has a broader significance and i think that's particularly important here where on the one singular event it was it was clear that the that the defense was going to be that she did not know he was smuggling an alien when now there were previous events that that demonstrated that he had done it before so that would as the u additional information that he has the right if not the duty to increase charges and then certainly a plea offer was made a plea offer was made in kent as a matter of law the filing of additional charges to make good on a plea bargaining threat as occurred here will not establish the requisite punitive motive so the united states would say that the one that the increase charges were result of investigation is not common but prosecutors offer a plea deal we're going to come back with more  and we're telling you right now i understand that the courts courts are concerns on that so and then alternately in the end the district judge here found that there was no vindictiveness and made needed and made a finding that there was no actual  or on the one that was hung by the jury that's correct so that alternately was dismissed that that particular town is that way did the district court judge take those charges or incidences into account in sentencing it's not clear to me whether that happened i'm not i'm not sure of that i know that the p s r recounts the prior incidences of smuggling as relevant conduct counsel did the united states consistently treated it as direct evidence four different times the prosecutor indicated that this was direct evidence pretrial the defense brought it for for the motion seeking to exclude it and the court said s e r one thirty seven he's not admitting he did it before he's referring back probably to what's the same incident as your one thirty seven further the district said it may very well be that the incident that he's referring to ten days ago was actually twelve days ago that's the earth one thirty six the court also noted that the statements were really two one was a general admission to smuggling i smuggle aliens and another was specific to an event so the court said the statements not specific to an event he said i'm working for george smuggling aliens that's as you know one forty one and yet the little bit unclear he was certainly entertaining the hypothetical four for the motion probably defense and said i and quickly rejected the four for the position from the defense as they concede was right and they can see that it was properly admitted under four four b but at trial it was clear everyone was treating as direct evidence the prosecutor treated it that way the the district court did not give a living instruction and in its rule twenty nine analysis referenced the admission ten days later when denying the will twenty nine motion that's a as you are three forty nine and defense counsel gave the clearest argument in all of trial that this was the correct evidence in his closing the defense said that statement can't refer to this event because ten days before is not twelve days before and the denali is not in accord he was treating it as direct evidence it and he says are rebuttal evidence or rebuttal close said it was a confession the record never says the prosecutor never referred to this as a confession in closing the prosecutor referred to it as going to the knowledge of the of the defendant which is the precise form for b reason that the defense admits was appropriate and rebuttal they just said two days off two days off what said she had the information previously but she forgot about it and then she remembered it or something like that new declaration you know that well i know but right why would they not include it in a pretty delicate charge if they were they i mean it's no excuse right to do it doesn't make a difference legally i mean even if you soon that a prosecutor had evidence they knew about it kind of kept it in their hip pocket but there is a back and forth addictive prosecution elsa's when he said no to the first round even though the government trying to reopen it and they gave him time and counsel said well let me talk with my client be it i mean you say that it was s close to that point it was close he did not want to plead to the cop that he wasn't convicted of yes but why michael couldn't the government ask him to reconsider in light of these additional charges because they knew about all those before him and never made that enough resources ever to have prosecuted those cases i would not concede that they didn't have the resources to not resources that they didn't have the prosecutorial level of problem i see i think that that that might undercut our argument but i don't think at the end it matters because if they had decided that this is enough to prosecute with in fact in some respects it may