motive at issue during trial because the defense never did place motive issue the admission of this evidence was improper is toyline did the defendant place motivate issue by denying the question posed by the prosecutor no your honor and that question asked by the prosecutor was the prosecutor placing motivation opening the door themselves the defendant prior to that had never indicated that they were to denying that motive might be an issue that the defendant might have a motive for possessing a firearm meant to think you think you're on to the other three it is instances of the government points to also were not enough to place motivate issue st the government pointed to the defense's opening statement where honor not necessarily unless the defendant has placed motive in their share but we have to do a general balancing of probative versus prejudicial weight and in this case one of the things that made and met this evidence important was the fact that the defen themselves during trial had placed motive in an issue so here the defendant had claimed and already stipulated to the fact that he was a prior alan so unless he was specifically denying motive this was not going to be probative as to whether the defendant might have for why he posed the question the jury's out of the room the prosecutor states and i met page forty four winds six through eight i don't know how we can dispute at this point that a motive for a firearm is not an issue at this point and then at the bottom of page forty four the transition the defense attorney says i would stand on the motion i would just stand on the motion that i made regarding the other criminal activity but  by the prosecutor they went to sidebar and it seems to be the discussion of whether or not this evidence should come in and the defense attorney does say i stand on my militia and meaning his motion in limine a so we think that this is enough of an objection to still trigger convictions since shortly after the government question mr or about the defense attorney said to the judge that i would stand on the motion and i made regarding the other criminal activity referring we at least see to mr or aspire can still hear the district court's claims it wanted to admit this convictions make mr or seem less believable or to color his testimony his crime was not one bearing directly on credibility such as perjury are for and mr had already stipulated to being a convicted felon in general that's the only additional purpose that the prosecutor could have had in laying out the particulars of his conviction was to paint a detailed picture of mr s criminal history specifically as a drug dealer and this brings us back to the motive and f stand but i guess i had always been under the impression that for impeachment purposes a conviction could be used at least with the date in the main aim of the crime  serves no impeachment value so mr or had claimed that he wasn't dealing drugs if he had claimed that he was how to even have just a great character in the defense attorney was claiming he's a great guy that might serve some harmless approximately two months after mr oras trial it became public that judge brinn is having gage an ex parte communications with members of the united states attorney's office for the central district of illinois as a result of these heartless to determine whether a judge's violation of the federal statute is harmless error this court looks to three factors outlined in little bird breast health services acquisition corporation turning to the st factor the risk of harm to the public's confidence in the impartiality of the judiciary in both the united states the atwood and united states v williams this court focused on the amount of discretion exercised by a judge to determine whether this factor favored the defendant or the government and at what this factor favored the defendant because judge who has exercised ample discretion in sentencing in williams this court found that this factor slightly favor the government but that it was quote a close call in analyzing this factor the williams court specifically focused on the lack of substantial discretion in judge bruce's rulings in that case in fact the court specifically indicated that it could reach a different conclusion in a case where a judge exercised more substantial discretion and whose rulings had a significant impact on the outcome of the case and that's exactly what we have here in this case  judge bruce exercised more substantial discretion than in williams these a discretionary decisions had a significant impact on mr orr's trial because they lead to the admission of evidence that was essential to the prosecution the jury undoubtedly relied upon this evidence when coming to its decision whether the government proved its case beyond a reasonable doubt turning to the nd factor the risk of injustice to the parties and united states  that the risk of injustice to the defendant outweighed the risk of injustice to the government because judge bruce's discretion in sentencing invited the risk that his personal biases will influence or appear to influence imposed contrarily in united states the williams this court promise factor favor the government because judge brinn is did not exercise the same amount of discretion as an atwood the civically of the court focused on the fact that judge bruce made minimal rulings before and during trial neither of which either party challenge on appeal this case is more akin to atwood than williams because judge bruce exercised a substantial amount of discretion before and during mr or his trial and these discretionary decisions had a significant impact on the outcome of that what type of impact does rasha do you believe those decisions on your honor in this particular case and judge bruce made a number of pretrial decisions as well as issues and during mr or his trial for example judge bruce denied mr or his motion to suppress drug evidence and granted the government's motion in limine a to introduce evidence se during the search of mr ward's residence judge bruce's discretionary decisions here lead to the admission of advocates regarding mr or his drug use as well as evidence regarding his participation in the controlled drug buys during trial judge bruce made the discretionary decision to decide that motive had been placed at issue which allowed the government to introduce the evidence of mr or as drug trafficking activities in addition judge bruce allowed to the government to introduce evidence of mr or as prior convictions and the specifics of those prior convictions and the jury undoubtedly relied upon this evidence when deciding whether the government had proven its case beyond a reasonable doubt because these decisions involved a substantial amount of discretion and because these decisions likely impacted the jury's decision to convict mr or mr or is entitled to a new trial in this case is rashad would there be any the argument you're offering certainly your honor appellant does not contend that every exercise of judicial discretion warrants and new trial or even judge bruce is exercise of discretion alone warrants a new trial what's important here is that the judge's discretionary decisions st rely upon his substantial judicial discretion and nd that these decisions have a significant impact on the outcome of the case and this sufficiently narrows the class of litigants who would be entitled to iran maybe under the federal recusal statute if judge greer's had for example denied a defendant's motion because the statute of limitations had expired well that wouldn't be the type of discretionary decision discretion and where we know it that the result of those decisions was the introduction of evidence that favored the government and was essential to the government's case that's the type of situation where the defendant would be entitled to a new trial conversation that you mentioned that transcript forty four in which the court asked defense counsel do you just spew based on the answers that have been given that that's where we are at this point defense counsel said that he would stand on the motion he made regarding other activity a motion in limine a only related to evidence of the control by eyes and drug evidence not in the apartment judge's ruling also talked briefly about the conviction mr or standing on his motion and does not implicate and he sort of preservation of or is in this instance mr orr's denial you are well your honor st of all we believe the door was opened prior to the prosecutor's cross examination of mr or we believe that motive was  bringing out motive just as occurred in schmidt was actually something motive being an issue here was actually something that's somewhat in here at to this idea of a joint tenancy case in which you're looking at constructive possession so not only does the not only do does the government in a constructive possession case just as in smit we believe motive is going to be relevant that was a very similar case in which the defendant a gun was may or may not have been right in his pretrial rule but it was his pretrial rule and then what and what would those were the ground rules upon which the case was being tried  you well know the government doesn't have much of a chance to appeal the counsel and of a trial ruling but those were the ground rules and then with this question from the prosecutor we see basically a one hundred and eighty on this on this problem i got to say if if it if it were without the issues about judge bruce's failure to recuse i probably struggle with this about interviews on an believe there are answers that mr or could have made to the question that still wouldn't render him culpable the question of did you have any motive to to have a gun could have been answered  with a yes you know he had claimed earlier that he is out of the gun outside a dumpster and taken the gun and to make sure local schoolchildren didn't find it he could have he could have said many things and after that he would have just admitted possession right rock i'm on page forty three lines fifteen to twenty one and now you certainly have a good reason to possess a firearm didn't you answer no sir question you didn't have any reason to possess a firearm answer i haven't i haven't touched a now you certainly have a good reason to possess a firearm didn't you is that be damned if you did damned if you didn't answer or are you saying that there are answers that could have been given that wouldn't have  would have a fire could potentially not implicate motive but here even if this admission was in error i think it's important to remember that mr or a substantial rights really weren't affected in this case in light of the strong evidence of his  the the overwhelming evidence that you point to is all as near as i can tell based on what the officers testified to defend them told them which just is another way of gun in the exact location that mr or told them and we think something else important here is in light in light of this evidence overall as this court examines whether motive evidence was properly introduced in terms of the rules of evidence and the existing case law this is a case involving constructive possession where there's lot of evidence was absolutely properly introduced factors gant under six hundred and nine whether this type of conviction comes in the course of look at the impeachment value of the prior crime the point in time of the conviction of the defendant subsequent history the similarity between the past crime and the charge the importance of the has lessened because the government confined its inquiry into the type in time of conviction your honor as you noted this was not a case where the prosecutor went deep into the details of the crime it was a very a limiting instruction here as well so we believe that conviction was properly admitted and even if this were to decide that it weren't again i believe in light of the evidence at trial that there was no evidence that mr or a substantial in times of the appearance of personality issue as i mentioned earlier the government concedes that a reasonable person might question and i judge versus impartiality based on the expert e mails but this court should decline to vacate the jury's guilty verdict because any appearance of sloan ways or mr or his case was even further separated because in williams you had a prosecutor and a paralegal who was to an extent featured in some of the experts in communications who worked on that trial and in mr or his case that was that was not the case  or both found guilty by a jury rather than judge bruce and neither question the jury's impartiality importantly in light of the atwood decision neither defendant was sentenced by judge groups although  appears to be anyway of the trial judge's pretrial decision and that's the both forms of evidence are treated as highly prejudicial they can come in under appropriate circumstances but i'm just really really troubled here we're not talking about the kind of trauma for victims that the retrial in williams might  position is that those discretionary decisions were correct we do think it's important also that even if they were correct if you look at the entire case and the strength of the evidence submitted we believe that even without the evidence of the prior judge conviction in the evidence of these control eyes that the outcome would have been the same and we think that's an important factor here in evaluating sort of the integrity of the jury's verdict and i also since i've kind of discussed it want to just briefly say that we think on the merits it's very clear that the motion was actually denied and we would also hope that given this court's review of those discretionary decisions that is something that could increase public confidence to a measure that these decisions were  boil your time's expiring but i wanted to just ask the following quickly if i could with the patience of my colleagues about the motion to suppress the i was troubled by some of the omitted information about the thank you your honor we would lessen the sky's just three quick things that have to do with evidentiary issue st the government seems to distinguish the standard of review for the two issues based on what was stated in the defendant's motion in limine a and that language from that is actually very general that it relates to any drug related activity which we think would also include prior drug conviction nd well let's just englishman it and just the general idea that constructive possession in this type of case is an the defendant had exchanged large quantities of drugs or the rifle which is much closer connections the drug deals and the rifle and smith than it was here in this case where there was no evidence that mr r had ever carried a firearm during any of we think that a substantial risk question is largely in our favor united states meet the miller is particularly enlightening here and in that sees this court found of the defendants drug convictions were not supported by sufficiently independent evidence despite the fact that police found a scale suitable for measuring drugs and crack cocaine packets for distribution with the defendant's personal pet keepers packaged together and the defendant tried to leave a scene and asked a witness to lie about where he was living in the house recess judges on this case will reconvene in about ten minutes by conference call with that will stand in recess thanks very much