was guilty of the drug charge and attempted to plead that way the just report refused to allow him to plead or system to trial on both charges our position is that he had a right to to the drug case and that when or refused to let him do that it in fact bribed him a fair trial on the gun case but that two basic categories of arguments here i'll try to be that's correct and is it is it is it the judge's discretion within the judge's discretion to decide whether a person pleats well the judge's discretion to make that decision if of course the government and the defend don't come to some agreement before hand your honour's our position that the judge had no discretion in this particular matter because this was not anything related to a plea agreement to separate charges they happened to be combined as they always are often are there were two separate charges each eager to be treated separately and he had a right to plead guilty or not guilty as to each as if they were separate cases but they were both in the same indictment they were they were here on a they they  were and i would go back to this point let's assume that when mr simpson originally appeared before the magistrate judge he had indicated he wanted to plead guilty to the drug charge that of course he would have been able to and we would have moved forward on the gun ch he would have had to live with the ramifications of the plea to the to the drug case just like he would have if that plea had been accepted here so my my position is that in regard to the not because i never had a chance to try to make it to limit evidence i can tell you your honor what i think the limitations should have been for example for example if mr simpson had pled guilty to the drug charge i don't know that there would have been but i don't think it would have been properly admitted when the government offered a very lengthy videotape that was frankly  unflattering and related only only to drugs it's where showing where the where the evidence was seized from mr simpson there were a number of text messages introduced not relevant to the gun at all that painted a picture of mr simpson overall being i think more of a larger scale drug dealer there  was rankly a when the government was allowed to prove up its drug case in its entirety it's because it introduced evidence including evidence of the expert that related to that testified about drugs if you will activity terminology and cetera much of what he talked about related to drug dealers that that wasn't in dispute so what we had was a picture of mr simpson being painted in a way that he sought to avoid by pleading guilty to that counsel they try to answer your question as directly as i can judge like it would be it would be text messages it would be videotape it would be expert witness testimony  in regard to what the what the government used against mr simpson that we think would have been inadmissible but again we never had the chance to make those motions we never had the chance to fight those fights because the court did not allow us to enter that plea so we think the trial would have looked much different and would have been much fairer on the gun count if he had been allowed to proceed that possession with intent to distribute controlled substances another worse as elements of drug drug offenses was still be there why would not all of this same evidence of coming in  that your honor once mr simpson pled guilty and was please accept that he admitted he was guilty of the of the drug trafficking offense then the question becomes well under the rules is it appropriate for the government to go back and still prove its entire case in that regard and again i i don't know what rulings the judge would have made if if i'd been able to challenge those things so my position is i would have to want to be as candid as i can to the court my position would be that if mr simpson pled guilty and the government came back and said well we don't care we're going exactly the same things we would have anyway my position would be well much of this is inadmissible in the rules for a one or two for a three not relevant overly prejudicial and there simply be no point in in doing that again i didn't have a chance to get rulings on that and go forward on that so we think that it should have been limited more but again it never got evaluated i would i was going to make one other quick point if i could regarding what happened below when we were arguing this point before the district court and when the court ruled against the request to offer the police the cork based its ruling in part upon the fact that there could be harm to mr simpson by offering the police statements could be used against him and several essentially a sensually the court took away the tactical approach or the tactical decision that mr simpson was intitled to make and i think the best indicator of that is the comment made by the government at the time of that motion when the government at that time indicated that there their research found support for mr simpson's position in  certain case in order to keep the other two are out i know your honor i know fact is it i tried the case and i did make that concession in opening statement it didn't limit evidence at all it did not limit the evidence at all well i guess i'm assuming because even though i made that statement that concession in opening statement i guess because of the way the district court rule the government was still held to its burden to prove those things that it wouldn't have had to prove if he pled guilty so me making the statement that he concedes built on the drug case  still left the government with the need to prove that and the court allowed them to prove that as opposed to a guilty plea which would have ended that and would  by believe that i did exactly what you suggest said in opening and closing he's guilty of that charge but he didn't stop any other means so your honour's i see that my time is wrapping up here much thank you will need some government please the court my name is aaron lane and i represent the united states in this case like my colleague mr graham i was also a trial counsel on this the district court abuse its discretion when it decided to admit the testimony of a drug trafficking expert moreover the defendant here has not met his burden to overcome overturn the factual findings of the jury which found this defendant guilty of actually three charges being a felon in possession of a firearm possession with intent to distribute heroin and possession of a firearm in furtherance of drug trafficking and contrary in one thousand foresee and  finally the below guidelines sentence that the defendant received here is reasonable because my colleague focused the majority of this oral argument on the partial korea issue that's where i will also be again as this articulate it sound rational reasons for not accepting mr simpson the defendant's clean to the drug charge st the district court was concerned that statements the c e possession of a firearm in furtherance of drug trafficking count and this is because the facts of this particular case are content and one incident this is not a scenario where for example there was a long term drug investigation with multiple controlled by and maybe there's a search warrant executed on the defendant's house where law enforcement seize firearms in this case on one evening at the same time in the same location during the same arrest the same law enforcement officers recording their body him arrested the defendant here with a possession distribution amount of drugs on his person and a firearm that was found in close proximity to where the defendant fell in his attempt to flee from law enforcement the district court considered again in its rational orders reasoning as to whether to accept the plea or not whether the scope of the evidence would change at all if a partial preview was accepted and recognizing the unique condensed nature of the facts of this case the court said in its own words that the entire natural case should move forward to trial and i think it's also important that in the district court order denying the defendant's request for a new trial and renewed motion for acquittal that's one of seven than just your court after having the benefit of presiding over the trial said there is no way the evidence in this case would have been any different and that the final creature conference the defense conceded that if the scope of the evidence would not have changed there would be no prejudice i think it's also important to recognize as the defendant as a defense noted the government did have some concerns about the district court's rejection of the defendant's partial plea which we expressed at the final pretrial conference having said that though there is no constitutional right to a plea and as i just discussed looking at the record as a whole the district court here did not commit reversible error because he articulated sound reasons for rejection however even if this court worked as a guide that the district court erred in not accepting the plea any air here was harmless because it did not affect the substantial rights of the defendant specifically even if the defendant had only gone to trial on the firearm count don't occur supreme had been accepted he would not have received a controlled that group scoring for purposes of guideline calculation therefore even then the police had been excepted the impact of that plea would not have affected the defendant again analysis as to whether to accept this plea or not there was no harm in accepting the plea because even if the plea had been accepted the scope of the evidence would have remained the same  here the district court excuse me the government still needed to prove that the defendant was a felon in possession of a firearm assuming that the guilty plea the partial reach of the drug trafficking count w accepted an element of the nine hundred and twenty four dollars c count is the possession with intent to distribute charged in the drug trafficking count here numbered as count two so specifically the government would still have introduced evidence of the drugs being on the defendant's person the quantity of those drugs the value of those drugs that all would have been relevant information for the jury's an proximity of the firearm that the defendant has asked to the drugs six that he presents the value of those drugs would have been important for and relevant to the jury to consider whether the defendant possessed his gun to protect himself and his value to street the body camera footage also would have been admitted that showed the defendant removing the drugs from his person and as well as the defendant trying to flee from police and falling to the ground before he was able to make it very far i think actually the added ensure he realization that the scope would not have changed underscores the district court's concern that it articulated in finally deciding not to accept the plea the facts of this case and the evidence of this case are condensed because they arise from the same arrest incident unless the court has questions i will turn specifically to that testimony especially jump on the drug trafficking expert turning to the issue of the testimony of the drug trafficking expert special agent  again there just your court did not abused its discretion and admitting this testimony the home mark expert testimony is specialized knowledge and that knowledge can be derived from a variety of ways including education skills experience and training this court has routinely applied that standard to law enforcement officers who testify as drug trafficking experts in cases similar to this one  here the special agent who testified as a drug trafficking expert was not a fact witness so he only testified as an opinion witness and at the outset of his testimony the district court gave the jury a caution or instruction indicating that the testimony of this particular witness was opinion testimony and they could accept all non or some of his testimony and that instruction was again repeated during jury instruction again the district court here found that the government made a proper foundation and that this individual special agent pond was qualified to act and testify as an opinion  witness in the field of drug trafficking special agent hahn had over fourteen years experience with the drug enforcement agency five years of local law enforcement experience you testified that he'd been involved in hundreds of drug investigations including domestic drug dealers and the agent testified to information about as i talked about in the police analysis issue be quantity of heroin that the defendant had here over eight grams how much that would be worth in western michigan at the time the special agent was assigned to the kalamazoo michigan post of the he testified that heroin is a highly addictive substance and he talked about the street term dope say and how that means what it talks about customers opioid addicts are craving heroin and the instability that that can cause between a drug dealer and their customer base and he explained how tools of the drug trafficking trade including how drug dealers communicate with their customers using cell phones and they often carry multiple cellphones as well as in his experience  traffickers carry firearms for their own protection as well as intimidation this is the type of information testimony opinion testimony that this court has routinely held charge possession of a firearm in furtherance of drug trafficking and also in currently as i mentioned even in the plea of the partial creamy had been accepted in this case as special agent hans testimony prove the trend the trafficking charge it would have been specifically relevant to prove the trafficking element the nine hundred and twenty four dollars c charge that the government still needed to prove as well as  the value of the drugs that mr that the defendant here had hit on his person and how in his experience drug dealers who operate a cash business and had valuable illegal narcotics on their person and deal with customers who are unstable so again maybe describing the dope sick street language that he talked about in this case why those specific pieces of evidence in his opinion and his experience lead drug dealers to possess firearms to protect them to me just give me this hypothetical let's assume that you have from the from the get go if you say a drug traffic in charge and there was no gun charge in the end night man you're saying that a judge would still allow an expert to come in and talk about how drug dealers routinely carry guns and and you know it would never be the implication of this prejudice versus probative kind of thing where you have a drug trafficking charge with no gone charge in the indictment i think that in in your head that that a call that would be a different situation because what we had here is an outstanding drug again important that the district court did consider that in its order denying a new trial and the renewed rule twenty nine motion after having the benefit of sitting through the trial again decided that there would be no way the case evidence here would be any different and i do think that's because at that unique factual nature of this case as well as court of course the intersection and the intertwined that as a district court put it that drug trafficking have discretion what would you say about to end i would say at i absolutely disagree that that case controls because we're talking here about specific rights as they relate to individual against as opposed to the rejection of an overall plea i have not found and i have not seen cited a single case that says a defendant is denied the right to plead guilty to one count as opposed to others in fact we cited authority to the court where in fact councils in the twenty dollars to fifty five dollars context councils failure to understand that they is very persuasive and i think harlan cited at age ninety of my brief is if you were to ask me point blank what's the authority that you're you know digging in on those two all that more no no your honor and i think the reason is because i can't find a case where defendants ever been treated this way and words gone up i mean this is so common to offer to individual counts i i don't have occasion to because i don't think it's ever happened this way it just doesn't happen in the district courts so i see that my time's up and again i think