and not only was a very little connection but i'm here to say that my point is that it was completely and totally unnecessary to the case so i want to i would understand your argument is if you're making a fo three argument origin yes but also with the constitutional overtones because this this evidence was so inflammatory i submit that he did not have a fair trial i guess that's my question you're making up for this for for be just his says how certain evidence can be used the judge instructed the jury could only be used for the for if we for b purposes so your argument is that the prejudicial impact of this evidence substantially our weight it's probative value right i'm sorry no i don't want to interrupt you i want to understand i understand the evidentiary point i'm trying to understand the constitutional point what's the constitutional argument that you make that he didn't have a fair trial  numerous cases from the scored another court that talk about how gang evidence simply swamps the jury's mind i understand that this was a one tiny point that i wanted i don't want to monopolize here but we were  abuse of discretion and you may well be correct that this this evidence is so inflammatory that it was an abuse of discretion to let it in trying to understand whether or not there's a separate constitutional argument that you think we review admission of gang affiliation evidence violating for all three is only a non constitutional or in the end that could therefore they need only thus need only show that it did not materially affect the going with our most are now says i guess i'm just trying to make sure you tell me why vera doesn't control i think every case is in its context i cited numerous cases that that talk about get evidence has to or you're really going to answer my question why doesn't vera control because it's it's in its context well it was the same context as here it was the admission of gang affiliation evidence but but if it if i had best it would have violated for all three there's effort at best in vera gang evidence that that promote the government is legitimately and tired title to make is one thing this case was extraneous gang and it would just a minute let's go back to that if we're talking about of the admission of the gang evidence what's my standard your view on that just the mere admission their admission is evident air evidentially are still it's abuse of discretion there right yes and at that point i guess what i'm looking at is doesn't need any of the things that would allow it in exactly so then the first question is that intertwined exactly as a second question why isn't it intertwined intertwined with what it explains nothing well explains well as i understood the whole effort of this was that it was allowed in because  supports the inference that the defendant and witnesses joined forces to sell math had common backgrounds and common interests but the evidence was sufficient strong that they had that they sold meth together but the honest truth is why doesn't this provide a context for the relationship which was formed in prison defendant's protection of the witness while in prison the witnesses agreement to sell drugs for the defendant and why he was afraid of the defendant if he didn't sell the drugs but but the gang is all that could be admitted without any kind of connection to the gang  test of four zero three in four zero two is not whether the case can be proved without the evidence the question is whether or not a the evidence is relevant and it seems to me judge smith has laid out at least a scenario under which it has it makes it more likely than not that your client committed the crime and then second whether it's prejudicial value is substantially substantially outweighs its it probative value and so i'm not sure what why it's a good answer to say they could approve the crime without it so tell me tell me why it meets a fort why why do those circumstances assuming it has some probative value that it's prejudicial  the harmless error and also sure the evident trait and else us and so do to answer that more precisely what the the gang evidence established is that he had a bad trait of character and in this circumstance he was likely to act the church instructed the jury in accordance with four four b that he couldn't use the character trait to show that he committed the crime but merely to show that he had the motive intent it said or so but so and except for a woman judge smith scenario that we know it and under relevant scale the wrist some relevance to this it shows why the two associated with each other and what their motive was so focused on now and why if that's  true the prejudicial impact of this evidence was so great in the context of your case that we'd have to find reversible or the black hand of death the modus operandi was assault and murders the political climate in the summer where crowds were chanting build the wall build the wall and the leading presidential  there was an expert witness that testified for half a volume of transcript about just how dangerous and generally horrible the mexican mafia  was eighteenth street right and he testified that he was a member of that gang of eight hundred he didn't say the mexican mafia but that he was a member of the eighteenth street gang that that the coconspirator was eighteenth street and that my client was arizona i'm right  was just focusing on the whole conspirator said he was a member of the yes three yes ok i just but he did not say in response to judge fisher's questioned it anybody was a member of the mexican mafia back and in fact  membership did you have for the question fischer i didn't want to interrupt you i thought you were on a roll no i don't fly and i just wonder confirm those introduced mexicans and mafia into the course of the testimony all right then let me ask you a question if i'm going to prejudicial did the court do anything to try to reduce the just a minute didn't they allow the defendant to probe the potential jurors on the issue of bias due to gang affiliation if you read forgery there's not a word about it well just a minute whether your client whether the lawyer suggested or not it was my understanding reading that reading what went on that the judge allowed the defendant's counsel to do that you wanted that whether the defense counsel did it or not i it is not my question my question is didn't the judge allow it he what it what you're not answering my question for the question you were posing to we it looked to me like he went out of his way excluded the indictment excluded the redacted portions of the plea agreement in two thousand two he allowed you are a counsel for the defendant to talk to the potential jurors about the issue of bias as to gang affiliation he issued precautionary instructions during the trial the social science study is powerful that jurors don't so i'm to go along with this social science study you cited to me rather then we've allowed judges to use these kind of tactics to avoid for centuries yes this court has done that but but there there are times when it's an ringing the bell there's a time when a jury instruction just can't on ring the bell ok regarding testimony about the mexican mafia francisco for go so testified that he was a member of the eighteenth street gang and affiliated with the mexican mafia he said he was affiliated with the mexican mafia he did say he did the lower grimy work for the mexican mafia he also said that mr arias was a member of the arizona merivale and he did not testify that the mayor of ely had a connection with the mexican mafia but he did testify that he knew that mr arias himself had a testimony about gang have an instant a case where the issue is whether or not you believe the coconspirator and obviously the jury didn't i the evidence did help the jury to understand the development of the relationship between mr for go tissue sure your opponent much disagrees about that she says is a strong case i guess my question is at some point doesn't the government have some obligation to temper what he put in a case like this recognizing how prejudicial gang evidence can be i mean just does the mexican mafia have to be mentioned isn't that enough simply to note that they're both or were in prison together and both are members of a gang so the government is allowed to put on a strong case and even when a defendant stipulates to an element of an offense the government is still allowed to put on evidence but not to put in evidence that you that under the four zero two four three balancing go so far as to make the trial prejudicial and that's my concern in general is that i see i see very strong cases in which the government then they had john gave evidence and i wonder whether or not that's really a wise thing to do whether or not it's reversible error is what we have to determine but i say this is a matter of caution and hoping that maybe your colleagues hear it tell you and i understand the court's concern i do think hindsight is twenty twenty it's never clear at the beginning of a case exactly how well the evidence is going to come out how credible the witnesses will be to the jury and that's why the government is entitle to put on a strong case i do think the court engaged in a very careful the district court engaged in a very careful balancing here the court limited evidence that the government could present it gave a limiting instruction to the jury and it also offered that the defendant journey for do your could question jurors about the possibility of anti gang bias the defendant chose not to do that he made a strategic decision instead to use the gang affiliation of mr for go so and mr costs us in an effort to discredit them in front of the jury  this court has said that particularly with a four o three analysis trial judges are in the best position to analyze all the various factors that go into that terminations this court disturbs such rulings only if they go beyond the pale reviewed under the abuse of discretion slighted for preserve evidence sherry challenges the it's the government's position that the objection to the references to the gang task force affiliation of the officers who testified is if the district judge did not abuse its broad discretion in the four three analysis on the gang evidence certainly the admission of the gang up of the officers gang task force affiliation wouldn't constitute plainer it wouldn't constitute an abuse of discretion let alone plain error so the court doesn't really have to be patient if the evidence came in appropriately than a reference to their affiliation couldn't have prejudiced that's the defendant if the evidence didn't come in appropriately then we don't have to get to the r delivered that's correct your honor it was delivered journey the jury instructions before deliberation the defendant will not specifically request an instruction at the time of the testimony and this court house has said that mafia that's correct the defendant did not propose any alternate instruction and the district court noted that you haven't given me an instruction so i'm going to give the general one and i think in light of the defendant's failure to take the judge up on the offer to propose a specific instruction the judge is giving of the general instruction does not constitute error well this is the opening and closing it was a closing instruction yeah i see ok if the court has no further questions will rest on our brief thank you very much you have any further questions judge fisher no thank you thank you very much i'll give you a min over but i'll give you a minute please the court this is extraneous race based character assassination and i think the bench and bar would would profit from this court  ting that that when the government has a strong case they can't just throw in that sort of evidence just to make it beyond any beyond a reasonable doubt because once the cooperating witness a testified it was pretty clear that their evidence was coming in the way i expected it to come in and they just didn't need all of this character assassination particularly  the other two gangs and in response to the government's question for go so that the cooperate in witness who is facing a life sentence said that yes those his gang for ghost those gang did the dirty grimy work for the mexican mafia not that he did but the man that his gang thank you very much case one seven three zero zero two one the united states of america versus aryan it was submitted