the other two counts the only evidence from which the jury could possibly find this person guilty of the conspiracy chair that she conspired with justin smith her codefendant who was staying in her or that she had any discussions at all with smith concerning narcotics the evidence would respect to miss persons knowledge was extremely weak there was no evidence at all as to how long any of the items that were island made a phone call to friends in which he indicated that when the police were knocking on the door he normally sleeps with a gun by his side and he's reaching for the gun he can't find it so he's pulling everything out from under the food time why is he keeping everything person was convicted because she was denied a fair trial the most significant error related to purported for a for b evidence at the trial of the court permitted the government to introduce evidence of his soon to rule for four be that seven years earlier two men had been arrested in or immediately outside her apartment in possession of crack and one of them had a large amount of money also and that also that this person allegedly had been in possession of cr no cases been found with a four four b evidence was ever committed based upon crimes committed by other people all of four or four be cases related crimes why isn't that highly relevant to the question  was raising that she didn't know had no knowledge of her house being used that way now you know it is also prejudicial crack had some relationship with smith that would be progress that the people related to smith had possessed drugs in her apartment seven years earlier but the fact that it so many possesses them a long time ago doesn't give her knowledge that somebody totally unrelated to them possesses it seven years later it's just not it's not probative or arrest and her apartment well that's one of them was arrested in front of our apartment  knowledge with regard to the current instance and she know that smith had this possessing a machine but knowing how conspirator in this possession with intent to distribute this earlier instance occurring at the exactly same same place also involving narcotics two men doesn't just on a sort of doctrine of chances doesn't help us illuminate her intent to maybe twenty people staying in between that that didn't have drugs you have no reason to think that everybody staying in your apartment has drugs just because some got seven years earlier it does is make any sense that then becomes a question for the jury i mean yes the jury could perfectly well and i might very well come out the other way but isn't that extremely strong point about ineffective assistance of counsel at your in response to your motion to survey q and a given that it's only ten i know of your ten minutes have passed and you haven't reached it yet are you going to talk about it if you applied so it didn't matter whether whether you believe this person or you believe the office is really versus john also explained that that he was denying the motion because i'm hearing will be hop reopened only when new evidence is sought to be offered if that evidence was previously unavailable and unknown and your point your very point rests on the fact that not only was it available but it was known and it was the it was because it was known that it was ineffective counsel to bring it out that's right i mean and it in effect of this argument can't be based upon something that's unknown if it was i know that the lawyer is blameless but if it's something it's known and should been brought for denying the motion the fact that counsel failed to bring out that the woman i did ask to change her clothes at a later time according to her testimony that's crime and his failure to ask that made her search to make a sweep surge even if you arrest is made outside the premises i think for for quality of life offenses where they have no reason to think there's anybody inside or anybody there might destroy evidence when the the judge any reason why mr person would not have asked to change her clothes also that she knew there was a gun there she knew that justin smith was there the last thing she wants is to give them any excuse to come inside the apartment if she hadn't been dressed she would have gotten dress before she opened the door and the missions reopened the evidence was not newly discovered didn't also say that it wasn't material how could it not be i don't see how could not be material course it wasn't newly discovered i determine it should have been because it should have been material that was examination because she's trying to leave the apartment the kind of a restaurant right outside the apartment and they and they would if the officer you can see that he would have done that to me was i mean material a very material lawyer left the evidence in a manner that proclaimed his client to be lying because it's it appeared that she was saying she never said she wanted to change her clothes she was shown to have changed her clothes and that is what he failed to bring out was that she by her own account did ask to change your clothes later on when she was being arrested for for the narcotics offense rather than simply because of the trivial offenses represented in the work you want to with respect to the inconsistent verdict of the government after a motion posts very motions were filed to govern for the first time reasons the judge gave for the denial of the motion to reopen the hearing yes your honor i think that makes sense yes your honor i think the key point is that the judge had concluded and although it's not as clearly articulated as it could have been in the decision that a hearing on the matter would be fruitless because even if all those facts were credited to the defendant here the suppression hearing would still be denied on the basis of maryland we believe because of maryland v buoy your honor because as the court found in its findings of fact the defendant was arrested standing in her doorway with the door open under those facts the police officers had the right to engage in a cursory sweep to protect themselves and that as the facts bear out in this case a cursory sweep was in fact necessary there was another individual in  this partment with a loaded firearm in that apartment given those facts even if the defendant had said she didn't need to change even if the facts are credited here the police officers had the permission to go in and see the items that in those circumstances we're not talking about down the hallway outside of a a locked apartment we're talking about an open would one want to mill whether a cursory sweep was necessary i mean at least r then why you do it and i still don't quite see how safety would have been in the hands by doing this who is off in your honor the court did in fact have a hearing on that suppression hearing dealt in detail with that and there was in fact a map put in that hearing where the and testimony by the officers about where she was arrested the safety is enhanced because it's possible that a person could have been standing i get a subject i'd like to pursue this yes please because the whatever the judge found with just but she was testify my intent was to get out of the apartment and they stopped me and motion was that her credibility was exactly what what was not supported by the ineffectiveness of prior counsel because prior counsel left the evidence in a manner that  proclaimed her to be lying with respect to the change of clothes and in a manner that supported the officers position rather than her as where which it was essential to demonstrate her credibility two things to show that sheep yes she did ask to change your clothes but only after they had discovered the evidence of narcotics and second to bring out her awareness of the gun in the apartment as supporting her desire to get out of the apartment to make sure the officers didn't get in so when you say that the judge found the facts to be that she was arrested in her apartment and the judge ruled against her on credibility and the ineffectiveness of counsel related precisely to her credibility so i don't see how it can be irrelevant whether counsel was ineffective in his present ation of the evidence at the hearing or not your honor where i would defer is that i don't think the court needed to make a credibility determination as it relates to where the defendant was arrested even if we could if the the defendant's i'd as opposed to ins i don't think there's any dispute and i don't think there is any testimony to indicate she was arrested physically outside of our apartment with the door closed and locked under this court's jurisprudence when you're at the threshold of a doorway the police officers are entitled to do a cursory inspection of that adjacent room and so i don't think there was any credibility terminations need to be made on that issue  the district court excluded her paystubs saying that this was cumulative because she had testified to the fact that she had gotten bit money and there was evidence which she was will pave and so on i don't see how it was cumulative because vince goes to whether she told the truth when she said that she had money that is very supports again her credibility about having money and the fact that she has that there was evidence that she was well paid in so i'm doesn't go to the fact that she actually had now it's fairly distant because that question venezuela cash you get shoes and so on so it may it may be harmless i don't know but the judge's decision against admitting it i'm a bases of because of the other evidence that was admitted including the physical evidence why was it human because your honor the point being made by the defendant was that she had approximately nine hundred dollars in her apartment that point was made repeatedly both by her testimony and sufficiently distant but that's a different thing and i'm puzzled by which you know it's a little bit like a thirteen stroke i don't quite know what the judge was doing and that worries me yes  honor i think to be clear why it's cumulative is because we didn't just have to rely on the defendant's testimony to assess our credibility in the court already permitted her to introduce those check stubs which makes largely the same point as the cashing certainly a different judge could conclude differently and allow more and more evidence in fact evidence physical evidence of the fact that she currently has a job additional documentary evidence just that she had cash at that time her argument is not just that she was relative you will off she says i had cash and the fact that she had just cash checks which was excluded supports her statement i cash no that's a different point from whether she had money yes your honor i understand and i would just submit that  don't disagree with it that if you're resting someone in a doorway marilynn p u e as a matter of course since there's an area in which a protective sweep is permissible even absent reasonable suspicion just as a matter of course i think that's the right read of maryland but in in terms of the motion to reopen i was reading judge placers opinion slightly differently and i wonder if you can help me understand if i'm reading it incorrectly there was the opinion says there was a testimony that there is testimony the hearing that the new testimony would corroborate her testimony that she was told prior to opening the door that the officers were there to arrest her an outstanding bench warrants that as soon as she opened the door she attempted to exeter apartment and close the door behind this new testimony would corroborate that and he then goes on to the next portion to say the credibility of these witnesses and the relevant portions of their testimony which the court regarded as my determination as to this witness is credibility and my over reading that conclusion no i think that's i think that's accurate your honor if what you're saying is that the court essentially consider those facts if they were proven is true would it affect the determination of the judge made i think that's what the judge is saying as well if that's what you're asking your honor so i do think that's right i do think the buoy decision and some of the additional supporting decisions about arrests in the threshold of the doorway do are dispositive in this case i see that i believe my time is up i'm happy to address any other questions the court has at this time relate to it to rip the relate to the pay your honor to oppose a few pieces of paper coming into evidence as humid i mean it seems to me one of the most dangerous things a trial judge can do in a criminal case is playing with fire is not allowing the defendant to put in evidence in the in the in the defense of course there are limits but what was the harm in allowing these to coming in why wouldn't you say to the judge please judge just let the men who don't object your honor if i recall at the time we saw it for the first time as a defense counsel handed it over to us and i think our immediate reaction to it worse twofold that one the point had been made that the defendant seemed to be trying to be making and to it was very confusing we thought it would confuse the jury we were a bit confused as to exactly what it was about when we looked at it was a printout of a transaction log you know in perhaps we wouldn't have objected to it but at the time we thought that the point of trying to made make had been made and that this was not going to add to it  reopening the hearing i don't see how the judge glass it can make credibility determinations based of not having heard the witnesses if she testified as to her reason why she would not open the door why she would cha clothes before opening the door if she was not ready to leave i don't see she did just hear she testified the hearing but the lawyer did nothing to make a credible in fact thought the point that i thought judge livingston was interpreting judge glass or his opinion as saying that i have considered the evidence that you say you would like to introduce which is to say the the defendant person say yes i did ask to change my clothes later on and that would not change my my finding that was part of it was also that that the got that she knew that there was a gun there and her knowledge of the gun was that and she could use it preserve that for trial and then go to trial and claim she didn't know she really told the district attorney that you know about the gun when the case was the laws state what i'm saying is i understand judge livingston to be saying she interprets judge plasters opinion saying i have considered on the issue of credibility i have considered the items of evidence that you say should have been introduced into evidence at the hearing in order to persuade me judge glasser that she's credible in saying that she exited the apartment and was forced back in by the officers and it doesn't change my findings i still find the way i follow well except that some of the things that the lawyer that's that's the problem some southerners are to the point of the omissions by counsel is not your point as to the ineffectiveness of counsel is he failed to support her credibility by really important evidence that could have been same clearly enough we can rely on it even if i take her to be credible and all of these things i would still have come out the same way and that is basically  what it would be wrong if a judge livingston's interpretation was different and i'm not correct not that not that if i find her to be credible but i find i i i reject her that even if i take into account the testimony that you say she should have given that i know that i did ask to change my clothes later on i still find that she was arrested in circumstances that that authorized the