indiana here asked this court today to overturn the convictions for armed robbery and branch a firearm because those convictions are based on the admission of tainted propensity i'm sorry based on the admission of that's the evidence th c bank in fort wayne indiana on february fourteenth two thousand and thirteen during the trial the government introduced evidence that one month later on march thirteenth police responded to a call of men behaving suspiciously near another bank it turned out to be the three rivers credible credit federal credit union and the ensuing search of the area recovered a mask that contained mr seals d n a that was other a for four or four be briefing prior to trial that yes ok the d n a evidence and the mask itself was admissible that is mission of the concession perhaps was ill advised as it may well have been propensity evidence however because truck counsel conceded to it i'm here today only challenging the admission of the circumstances surrounding the recovery of this and the little tof to complain about the circumstances of the recovery when the masks are admissible otherwise it's just a mystery to the jurors what's going on i don't see how one can concede to the admission of evidence but not but object to how the evidence was got that well your hon it was possible to inform the jury about how the mass was recovered without introducing the details concerning the fact that there were masked men in the woods who were behaving quote suspiciously  near another bank it would have been possible to tailor those details more narrowly to exclude those facts and those are the facts that a challenge now an appeal is that the district court allowed one of the government's witnesses  officer you know that that's what what worries me is it sounds like you're saying the district judge should have kept out those details that made this evidence relevant because without the details about how the evidence was got by it wouldn't have been relevant in this prosecution well your honor in fact what not i don't think so in fact what the prosecutor argued in the form of for be briefing and what the district court held was that the  mask was relevant in the d n a it was relevant because a similar mask was worn in the p m c robbery it's not necessary and so that i guess you're i would go to the issue of identity someone's wearing a and in fact the prosecutor conceded that i believe both that the mask itself and the circumstances surrounding its recovery were not evidence of a modus operandi i believe the government's argument in the district court was that because the mask was similar in this show that mr seals owned a mask that was used in the p and c robbery or one like it it was admissible that is distinct entirely different from introducing the fact that it was recovered when the police were responding to a call of suspicious behavior near another bank and even though it probably would have objected to the admission of the mask in the first  e it would not have been difficult or it would not have been necessary to include the details that was recovered in the woods near another bank when men were behaving suspiciously had the district court as merely said that the map police were called and found a mask in the woods sometime later the details of this but suspicious behavior and being near another bank may not have come in and precisely what reference reference however this was a short trial and well let me answer your first question the the details that came in were in the testimony of christina or said when police officer and that's found  first she confirmed that she was dispatched to a suspicious persons report she can confirm those reports of some individuals in the woods wearing masks and then later on in the colloquy with the prosecutor she confirmed that she was called in the vicinity of a bank and she was that was near a bank and your honor that's in the trial transcript day two pages fifty three to fifty four now the prosecutor did in fact cut off his arm said that was because miss arms it was going even further than what the district court allowed in its pretrial ruling and it has arms it also said that the individuals had been low crawling towards the bank and may have mentioned some other details about the individual's behavior that however doesn't change the fact that she still testified to what the district court expressly allowed which is that the police were called in response to a reports that suspicious behavior of men in the woods burning mass near the three rivers federal credit union which she  merely as a bank in her testimony now your honor back to your second question it is also correct that this was a the relatively brief reference however it still would have cost central precious in this trial one the trial is relatively short and so the relative time of the reference to the other testimony is larger than otherwise might be second it's a simple issue in a simple trial the question seales one of the perpetrators of p and c robbery or was he not and so it's not as if there's a bunch of moving parts here for the jury to weigh third your honor is this evidence may have received ample play in the jury's deliberations and that's because mr seals had an explanation for the rest of the government's evidence there were two competing interests is our conclusions that could have been drawn from the ep and present in this trial one is that mr seals was in fact one of the p s u robbers and the second was that mr seales was the brother of one of the robbers charles seals and so he was present in your charles seals when various pieces of evidence were collected in the round and that would explain a number of details in the government's case because of that the fact that the jury heard that mr seals had participated in something that may have been suspicious near another bank another alleged possibly attempted bank robbery that may well have influenced the jury's decision to choose the government's conclusion over mr seales conclusion in that way your honor this case is not only united states v owens in which the defendant image the jury was faced with two competing stories and indeed two competing stories in which the government like this case had physical evidence of fingerprints in its favor and ultimately this court closing argument the government mentioned again that the mask was recovered in the woods in response to a call of suspicious behavior and then it referred to the mask as a bank robbery mask there is no such thing as a bank robbery mask there is a mask that was used in the robbery of the p and c and the government did not use those words even though now claims what it meant to call this mass a bank robbery mass the government now sorts that its intent was pure when it said this and it actually meant it was  c i'm sorry this is the sevenths of the circumstances surrounding the mass near the three rivers federal credit union to be admissible the had to satisfy this court's two part of alice's united states v gomez it did not first the government in the district court on the record had to identify any non propensity reason for the evidence there was not the government now asserts that it was the the circumstances surrounding the recovery of the mask were relevant to three issues identity to provide context or complete the story or to avoid confusion the first identity as we've discussed already may arguably have applied to the mask itself but not to the details of suspicious behavior near another bank the second context and to complete the story is a reason for admission the score is expressly done away with in the united states v gorman and criticized heavily and i stacy taylor and short under four a four b completing the story is not a proper basis for reason for invading evidence and the third of wardens of computing the government sites to one case for that case does not actually provide it with authority for that being a reason for horror be evidence that again is united states v taylor but in that case as was pointed out in our brief the this court ended up not even using that as a reason for admitting for be evidence and ultimately conclude that the the proper remedy if there was some confusion to be had about why the police are in a certain they were in a certain area was for the judge to instruct the jury that it was lawful and there was nothing to it was not a question for them to consider counsel if the if the mascon d n a evidence had been admitted without any explanation as to how and where the police obtained it wouldn't have much probative value would it mean there would be certain i would think that there would at least be questions that could be raised in the absence of the chain of custody for example about whether the d n a might have gotten on to that mask through some other activity in the investigation mishandling of the evidence for example ruling in some hypothetical world to argue that there is a chain of custody problem but it did not make that argument and given that the issue was not actually in dispute gomez tells us that it doesn't that doesn't make the issue relevant for for a not propensity purpose second your honor it is also entirely possible the mask could have been emitted with some further evidence of a chain of custody with again not not adding the details that was recovered under a colleague's suspicious circumstances near another bank the second part of the gomez test is prejudice is weighing the probative value of the evidence against the unfair prejudice it causes and here your hon and such findings but the district court didn't make them but no your honor it in fact if it's not clear from the brief i apologize but the evidence does not support those findings either couldn't possibly however the trial counsel did make an objection to the sufficiency of the evidence for the findings notwithstanding the fact that she did not raise the fact that there were other issues beyond him that being in the car that should have been thank you may please the court your honors my name is nothing anyway and i'm here in the after united states the district court did not abuse its discretion in admitting the testimony surrounding the discovery of the mass mr seals has waived the sensing arguments but if this court disagrees it is not plainly erroneous to apply them i'd like to talk about the best evidence for a second i think judge easterbrook and judge hamilton your questions get to the heart of the matter which is defendant mr seales conceded at the district how the authorities came upon it how the jury could believe that this mask that looked like the one used in the robbery was worn by mr seals at the time of the robbery mr seales makes a lot of the purported prejudice that came from this testimony but there was no evidence or testimony that anyone attempted to rob or was investigated for robbing the credit union and i think judge palmer to raise the issue about the closing argument i think that's basically where mr steele's prejudice argument lies he says that the government asked the jury to draw a reasonable a propensity inference by calling it a bank robbery mass with all due respect there is such a thing as a bank robbery mask it's a mask that someone uses to rob a bank and that's what we had here there are two references to a robbery massacre bank robbery max and there are pages thirty seven and forty of the fourth page of the transcripts the fourth page of the trial i'm sorry fourth day of the trial the first is that the government summing up the evidence and says his d n a is on the gun that was used in the robbery i'm sorry this is on page thirty seven his d n a is on the robbery mask and he knows an awful lot about the robbery that didn't come from the news that's in reference to his statements during the interview with authorities that he learned about the p and c robbery from the news you know looking that robbery with the p s c and then calling it a robbery mask i think the only we were asking to draw and the only reasonable inference the jury could draw is that it was a mask used to drop the p and c it wouldn't make sense to say that this was the robbery mask in relation to some alleged robbery of the credit union because the jury didn't hear any testimony that there was a robbery or attempted robbery i think had we made that argument it would have just confuse the jurors similarly on page forty we call it a bank robbery mask say well we've got three bank robbery masback christophers the d for this one is for another day talking about the one found in the infinity and then we can run that testing can continue the investigation that sort of thing but we've already got christopher steele's bank robbery mask because he left it behind in the woods out there on  you know it was in the course of the government summing up all this evidence explaining how christopher seal's was the one who robbed the p s c the government's asking the jury to find that that mask found on bluffton road is the same one that he wore inside the p n t and that was our theory of relevance it's a stocking mask it kind of goes below the neck it has hands cut tiny i holes in our theory was and it was left by the senate some distance away a month later it was it was left i think we were arguing that was left by the defendant but it was less a month later that's just guesswork over and that is guesswork we were asking the jury to infer that that mask was the one that he wore in the p m c to the extent that this court i guess has any concerns about this we argued that the error was harmless the evidence against mr seals w strong we have his d n a on a bullet inside the gun left behind at the robbery we have his d n a on the mask that looks like the one used in the robbery and we have as kind of backtracking admissions during his interview with authorities where he says that well first he identifies the gun left behind at the scene and that's information only the robbers would have known and then he goes forward and he changes the story he says well i didn't sell a gun to mr stevens no i did sell a gun to him i didn't know they were going to rob well they gave me two hundred or three hundred dollars but i didn't know they robbed the bank all right i knew they robbed the bank my role was to be quiet my only role of selling the gun to mr stevens and then i'll write my brother recruited me to rob it but i didn't go through with it is what he says you know he just changes the story events eight other people he thinks could have been the specifically says if a gun is used in connection with the offense what happened a month later wasn't the offense your honor there were proceeds from the bank robbery in the back of the car their little walk the  they had the evidence of the robbery it defense was how it was that in the offense since possession the proceeds of the robbery violates twenty one thirteen c and the supreme court has said that a person who was convicted of violating twenty one thirteen a meant for firearm in connection with a different offense when two k two point one is limited to the offense of conviction judge there were three offenses of conviction in this case there was the bank robbery there was the brandishing during the bank robbery and then there's a ballot in possession the jury had numerous guns in which to base the felon in possession count on one of them was the gun inside the infiniti it was about a month after the bank robbery but add the indictment said on or about february fourteenth i think there were a lot of guns at the jury could have based the offensive conviction on we're not you know dealing with what the jury did we're dealing with the judge  and i wish you would address my question which is since the guideline is limited to the offense of conviction how can there be an embarrassment for what happened miles away a month later because one of the dealing with what the judge judy it's it's so your your argument is that if you're convicted of being a felon in possession then if a gun is found any other time in your life that can lead to an enhancement of hunger to k two point one not at all touch my argument is that this gun supported the felony conviction against here whether it supported the guideline question is whether it was used in the way that they convicted i honestly don't know which they convicted him of or i think there were multiple grounds so so you would if you had prosecuted being a felon in possession of the time of the robbery and a separate count of question i just two convictions for the same offense violate the double jeopardy clause yes it is perfectly normal to prosecute somebody for being a felon in possession of data and a felon in possession and they'd be sure your current attempt to save the sentencing enhanced what seems to be that all felon in possession convictions are really just smirched into one and so therefore the prosecutor could not separately prosecute felon in possession on the date of the bank robbery and felon in possession of the data the traits because they're just want to fence judge i think if we hadn't and that would be an extraordinary thing for the united states to be saying no i don't i don't think that is what we're saying judge and that's not at all what i  and then you've got problems under the language of two two we weren't there are two offenses judge there's the felon in possession on or about february fourteenth and then there's the bank robbery on february fourteenth the honor about allows the government to introduce evidence of a time in proximity that it's not saying exactly on february fourteenth and i think we did argue that there were multiple guns that could support that offensive conviction in any matter in any event mr seales has not raised this argument judge is waived i don't that he doesn't challenge or should there be no your honor i disagree he was asked if there were multiple objections down below during the evidence here hearing on sentencing what the court said is is there anything further that either side wanted to present to the court with regard to sensing issues that we discussed a conference or anything else she's inviting and the judge was inviting him to raise any objection that he possibly had and he said i don't think so judge i don't believe so your hon words she asked the judge asked him multiple times do you have any other objections he said no and i think to the point that you raised i'm sorry i forget which should let me ask you about the tos the one point t amount nor a drug quantity and so it's not part of relevant conduct i think it has to be tied into the offensive conviction for it to be legible i don't think we could introduce that even with the tour particularly relying on do not separate that from any other during the course of one's life not no there is not language i can point to specifically you want to when we interpret the guidelines to deal with the crime of conviction cracked two k two point one makes that l whole looks like it deals with the crime of conviction and i'm having an awfully hard time seeing how things that happened a month later potentially in a different crime getting clued one of the fundamental choices for the guidelines was to have a charge offense system rather than a real defense system where the penalty depended on the charge and not on all the bad things you did in your life there seems to be some transgression here i don't believe so your honor for the reasons i stated you know i don't know what else to say other than there were multiple offenses of conviction one of them was being a felon in possession there were multiple grounds to support that offense conviction