or knowing or having reasonable cause to believe the firearms were stolen gives me mr dillard asked the court to look carefully at the time line the development of what the government asked to present what the district court authorized the government to present how the government gave its own limitations conditions president and how far it would go into questioning and compare that to what was actually presented at trial the government's trying to brief said it would seek to introduce testimony that if dillard's defense was all i ever did mr travis robin robinson their own star witness nine non criminal activities with mr dillard they thought the government presented there would be a criminal association relevance so if dillard had a particular defense it would be relevant to show that mr robinson and mr dillard committed crimes together that was the government's theory the district court responds by not saying yes it's ok to go into the crimes of stealing together instead what the court says is it described as admissible quote situations where mr robinson stole items of value and it goes on to describe some of them and then back to the quote and then and that he then would bring them to mr dillard to help move these items into cash that in it is in my mind clearly illegitimate for a for b purpose that's page id number eleven forty three that's not evidence of stealing the other the government responds by saying ok we will limit o questioning to quote why did you trust this person that's page id eleven forty one quote i think that probably would get me to where i think i'm allowed to go but that's not what ended up happening at trial at trial the government asked mr robinson i can find that quote my apologies what type  how did you know mr dillard his answer is quote because we've stole stolen things together before that's page id six thirty seven and the government didn't stop as it had suggested it would by asking that question and getting out even though the response isn't limited to travis robinson stole things and brought them to dillard it's instead we committed crimes together the government didn't stop it said or what types of things have just stolen with the defendant so mr robinson gets to talk about dirt bikes and scrap metal and copper defense objecting all along to these not it not a trial i i can find the page idea for the original abduction trial i'm sorry isn't the key what happened at trial i would submit that because there's a little bit of a a change in in the testimony that an objection here would have been better i don't know if trial counsel was simply relying on the two earlier objections both to the trial brief and then at the pretrial hearing saying i object to that evidence coming in it would have been better to have an objection here  judge as granted as not being that the crime itself and when the judge gave the i mean what do you mean how can you show a planner's team without showing what the prior crimes were about  because if the testimony was as the district court described mr robinson stole something and then the scheme is once mr robinson steals he brings to mr dillard to help unload that's a common scheme or plan that's admissible that's the prejudicial value there is so low what the district court said sure go ahead and did allow that to be presented to the jury that's not mr dillard committed crimes therefore he he's a criminal and acts in conformity there with and that's the danger so if the district court is saying you're saying the evidence came in that was broader scheme or plan that the district court allowed but then there was no objection to the fact the testimony was broader than the rule that's correct what was i'm sorry so we were due for a point there yes sure what was the defense i thought the defense was i didn't know these things were stolen that's correct i did not know they were still well isn't the fact that they had stole that they had disposed of stolen goods before relevant to his knowledge that what he was dealing with here was also stolen yes and that's what the district court authorized that's not the same as well installed well wouldn't it still be admissible to prove knowledge that those were stolen goods we don't have to you know we if we can  can come up with a good reason for letting it in we're not bound by what the district court let it in on your honor but i think then we have to go back into the four zero three balancing on different well you know  i think they've got me here frankly that i think is difficult for you to overcome i don't know anything about m p five machine guns but i'm given to understand that they are not so your local gun shops and they're worth about thirty thousand dollars and what happened here is it's clear was not an equal deal and it wasn't sold as if it might have been a legitimate possession you see what i mean yeah and that in the jury was in the position to judge credibility and decide based upon fair and not fairly prejudicial evidence whether that type of circumstance meant that mr dillard necessarily knew they were stolen that was up for the jury to decide but when we have testimony before a jury that someone's committed crimes in the in the past the studies show that they did the the jury makes up their mind in a millisecond hearing but you and i just agreed that that would be relevant to his knowledge of whether it was stolen goods or not correct all right thank you i see that i'm in my dillard's prohibited personally came to that prior conviction i don't know that we have six circuit direction here and i think that's why the district court judge turned to the seventh circuit and the lead case but turning misguided lead has no connection to this case on material facts lead is an easy case to decide who could argue with lee yes if you're a felon at the time you commit the offense and right before you go to trial you get it expunged that does not change that you were a felon at the time you committed the offense that's the easy question the hard question is if a defendant is in a plea deal where the terms of the accepted by the trial judge are if you successfully complete probation you will be judged as committed a misdemeanor that is in writing the problem is when the clerk enters the judgment the clerk forgets to change it from a felony to a misdemeanor after mr dillard dillard successfully completed probation was he as a matter of law then a felon at the time of committing the offenses and therefore gets a two level increase under two k one point two we submit lead does not say otherwise and that the answer is no he was not a felon assuming that you're right on that is there not a nother problem for your client that he admitted drug use in that that would qualify him as a prohibited person that's what my notes say my next point should good  i don't think you authored that one too yes yes i would say that there's a difference between someone admitting to the probation officer an unsworn statement without your attorney of regular use with admitted periods of abstinence does that rise to a preponderance of the evidence and we submit that it's not the same and that it does not did did the statement by your client to regular use with periods of abstinence did it specify when the abstinence was my memory is that it was when he was trying to complete  of probation and comply with a court order but i'm getting at the time that the that the possession of the firearm occurred is there any indication that the abstinence was at the same time or not unlike jarman and unlike clark no there were not those with the testimony didn't show hey it was during this period or this period all we know is that this was years before when he's he's making statements that many times over the course of years absent but i keep going back but no we have nothing to say to match that up with the time period for this the two federal offenses thank you thank you police the court jennifer mcmanus and they have united states i would like to begin first just on a factual issue concerning the four a four b issue my friend on the other side suggested that the testimony that came in was broader than what was allowed by the district court and the part that was focused on earlier was the was the original admission colloquy with the district court as to the admission of the full four or four beat evidence but a few pages later and page id eleven fifty four to eleven fifty five there is a clarification by the government as to the scope of the forum for be evidence that it was asking to  introduce based on the subsequent colloquy about other fora for b evidence there was concern that the district court might have been under a mistake apprehension as to what that evidence was going to be so the government clarif so your honor is aware the testimony that we anticipate will be elicited is both that mr taylor participated in the thefts and participated in the in the same subsequent sale of the stolen goods the district court said and page i eleven fifty four i see all right you were saying we both had the common role in stealing it and moving it the district court then went on and engaged again in the role for three balancing and said i understand now what you're saying that it just isn't just that mr dillard had a role in moving the merchandise but he also had a role in stealing it and the district court said as long as robinson says the goal was to steal to sell for value the fact that he would also say dealer was involved in that that may make it a less neat fit but still i think within the overall theory of the case the court was very clear in saying that i'm permitting th evidence and i'm committing it for the purpose of showing that there was this common scheme and it went directly to show mr dillard's knowledge that the merchandise he was moving this time as in the prior theft was in fact stolen so then there wouldn't be any need for the defendant to object at trial if this had already been ruled in the pretrial hearing that's correct if they if because the evidence was the  same that was permitted to the extent that the defense had a concern or objection to for example the form of the limiting instruction that was given that needed to be made at trial that was never made below and hasn't been argued on appeal but the evidence that was permitted with the evidence that was brought in it was very limited very much not prejudicial in the larger scheme of the case and we submit there was no error in its  is highly prejudicial to show that somebody was stealing property before but you're just saying it's not unfair approach that's correct it's not unfairly prejudicial and i think actually in the scheme of for for be evidence that the courts permit it actually wasn't very highly prejudicial here because the kind of thefts that were occurring were tests of some scrap metal and some dirt bikes it was it did not necessarily lead to the inference the  inference that we're concerned about with four or four be evidence that this person has a bad character has a propensity to commit crime because he's engaged in these bad activities before it was a very limited amount of testimony about the fact that he'd stolen some scrap metal with this guy before i don't think it was very prejudicial and certainly was not unfairly prejudicial and that's the core has any other questions on the role for a for b issue turn to the sentencing issue then the prohibited person two level enhancement was properly applied really and both bases i think there's more question about you know sort of the fundamental fairness of applying it in terms of the basis that the defendant was a convicted felon on the date that he possessed the firearms it was an error in our view for the court to apply for that purpose the court's decision the seven circus decision in lee is not at all for us with the circumstance but it is helpful it's helpful in the sense that this guideline enhancement is intended to apply where somebody where there is a concern that somebody is possessing these very bad firearms the ones that are have to be registers or that are listed in the statute and there is some serious question about whether these people should be having this should be in possession of these serious weapons it is therefore it is therefore not unfair to require that a person who is going to be possessing these weapons make sure that they are not a prohibited person before they possess them so in this circumstance there's no dispute that the defendant was in fact convicted of a felony at the time that he p firearms whether or not that disability should have been removed is an open question the district where i thought that the facts were that he had completed probation and that and that that meant that this was no longer to be treated as a felony but was to be a misdemeanor and that the only thing that hadn't happened yet was the correction of the record am i wrong on the understanding of the facts i think it's a fair inference that that is in fact what happened based on the records that were provided to the district court the day before the sentencing hearing the district court was provided with the order that was amending the conviction the district court was not provided with  discharge from probation order presumably it said as well as it said in the pre sentence report that mr dillard successfully completed his probation and presumably there was just an error in that the court had not actually reduce that to a misdemeanor either there was an error in the discharge order which should have done that or there needed to be some further action that wasn't taken i think that is a fair reading of what happened so then how can we say that he was a felon if under michigan law he wasn't a felon except for the fact that there hadn't been this clerical correction based on the records that were provided there needs to be there needed to be some further action taken and the discharge and probation order had to be amended it wasn't amended the state court never meant to do it ventilated just before sentencing but originally and it's not clear to me if they were supposed to do that and didn't do that and it was a truly a clerical error or if some further action needed to be taken for them to do that time of  important in our view for purposes of that handsome it is the time period in which he possessed the prohibited items oh i see ok so it's kind of unusual to see what time of the crime that's correct so there's no question that the order had been amended as of that date but there is some question about whether it should have been and we acknowledge that and we did in the district court and we said you know what maybe not apply it on that basis it's not clear to us that it applies but the district court disagreed and it could have a petition the state statement of where things lie in the distance the district court's view it was the defendant's burden to make sure that that disability was removed before he possessed these firearms but moving out because the district court did have an alternative basis for applying the enhancement and that was that he was a regular drug user and i'm really concerned about this aspect what is the evidence in the record that he was a regular drug user that could be relied on by the district court and in the pre sentence report and page id ten twenty three mr diller didn't it it that he and i would get the language exact here marijuana at the age of fourteen and he would only used it three or four times a week until his arrest for the instant offense the defendant noted there were brief periods he was able to abstain brief periods he was able to abstain it went you know to be fair the defendant didn't realize didn't know that the district court was going to rely on this alternative basis until the time of sentencing and there were some objections to using  generally but there was no factual objection to the fact that he was a regular marijuana user additionally in the in the pre sentence report in paragraph thirty nine in forty one and it reflects that he has two misdemeanor convictions for possession of marijuana that essentially sandwich the offense conduct in this case one in two thousand and eight and one in two thousand and fourteen with the offense kind of to careen in this case in two thousand and thirteen there is also even a reference this is not this is less clearly reliable in the kind in this context but frankly all of the people involved in the offense conduct were smoking marijuana while they were handling these guns in the if you know during the offense conduct including this defendant now i want to be clear that there's no real clear record evidence on that but it was discussed in the context of the rule for four big colloquy so for example on page eleven fifty six  of the record there's reference to to that and the government is saying look we're not going to go into that because we have a concern that that that would be unfairly prejudicial for for be evidence and i'm only mentioning it because i think given the record as a whole there really is no good faith basis for this defendant to contest that he was a regular user of marijuana at the time that this offense conduct occurred is that enough to get the enhancement that you're a regular user or do you have to be using at the time of the offense of conviction that's a good question i think that and hansen is framed in terms of being a prohibited person and prohibited person is a drug user so i think a regular drug user is someone we don't want handling these bag guns and that's the concern that underlies the enhancement so my understanding is that this defendant was not found to be in possession of drugs when he was arrested for the did not test positive for drugs am i correct on relevant i believe you are correct and that i don't know if he was tested or not offhand but i don't have any reason to believe he tested positive if he was tested and no i don't believe that that actually in the end matters because i think what does matter is that he was a regular user of drugs at the time he was handling these weapons so somebody who when you point us to paragraph sixty one who routinely use marijuana three or four times a week that that would be enough yes do your definition of prohibited person would be enough and because again the concern underlying the enhancement is that you there are certain classes of people for whom it is worse that they possess these firearms and particularly you know bad firearms and the classes of people include convicted felons and can include people who are generally using drugs that's the panel has other questions sit down thank you don't have eighteen u s c nineteen twenty two g in front of me but is a good place for your honors and your clerks to go directly for the definition of brevity a person and i think that while the government would submit that routinely used three or four times a week would be enough that's not actually what we have here because we've got the cab yat that there are periods brief periods of what does that mean is a brief period a month for a regular user three months we don't know this is an unsworn statement without an attorney and there are brief periods where he was able to abstain so we can we can't say that the testimony is not testimony the statement is that he's using three or four times a week because we have those periods in between dillard was unaware of the mistake when it came to the clerk failing to put in the amended order the or it's not that dillard finished probation and then had a job where it's his responsibility or his attorney's responsibility to petition instead it was his job to complete probation successfully he did the court did the right thing by entering the amended order way before these offenses but somebody made a mistake not delivered and the government says so in the record i can't i don't have this cite off hand but not by his own hand or a phrase like that at sentencing someone at the the clerk's office or the judge fails to put in that amended order and oh by the way in addition to all these things that have been changed it's now mr meehan or he was unaware of that mistake but in michigan the courts peeks through its orders and an action is not effective until the written order is entered direction from the six circuit on on this issue because lee doesn't answer it and lee is of course the seventh circuit i would say to the the question of prejudice and the balance the probative value here  particularly lower when the evidence was not necessary when the governor had other ways to to try to show dillard knew the guns were stolen and we list several of them in in the brief if you don't need to say he committed some sort of crime why say it when the prejudicial value of saying somebody has committed a crime before sitting in front of this jury is so high and finally i'd ask the court to compare what  the government has pointed to at page idea levon fifty four fifty five as whether that really is a clear ruling compared to what it the court had said three or four pages earlier on whether whether the evidence of the crime was admissible and  the balancing balancing between the probative value and the prejudicial the risk of unfair prejudicial inference against the defendant whether that meant yes were were fully supporting allowing the jury to hear that he had committed crimes thank you thank you case will be with a close call the next case