evidence that mr pugh committed a robbery armed with a knife this was admitted as a certified copy of conviction under government exhibit fifty four the fact that mr pugh previously the night during a robbery is irrelevant to the crime charge and the prejudicial impact outweight outweighed any puppet of value to the offenses he faced at trial does it matter he also had a gun in his pocket while he had the knife out right so we aren't challenging that officer testimony but there was a firearm found in a pocket i issue is with the certified copy of conviction which discussed the possession of the night than an armed robbery what exactly did it say again the certified copy of conviction stated that just in the general kind of complaint stated that well armed with the night and intending to demand property from the occupants of the residence by threatening the imminent use of force that was the certified copy of mention the knife but not the gun you're saying correct the officer testified  also was carrying your gun yes that's correct so what do you think should happen the judge should have let the conviction in and excluded mention of the knife and allowed only mention of the gun i think the court could have allowed the testimony that a firearm as it happened at trial i don't think it was necessary for this conviction to come in at all if it was to come and at least at the very minimum it should have been redacted to take out that completely irrelevant of the conviction as well as the testimony but on appeal we aren't challenging the testimony at south but it was an all or nothing objection there was a suggestion of rejection there wasn't going and making these kind of now not the n looked to the p s r and indicated that the defendant had served several years in prison but when you look at holland said and in conjunction with the davies case that just came out last friday the fact that mr pugh had served several years in prison isn't think you can take davies to say but we also need to analyze what a defendant would have known and i think what distinguishes the circuit these circumstances here is that mr pugh was a juvenile when he was charged and convicted and although technically in the old chief stipulation he acknowledged that counts as a felony i think it's arguable that could have argued to a jury well he was a juvenile at the time he was charged and convicted so therefore he didn't have the required knowledge that it was a felony for purposes of this statute so i think davi stands for that so we can look at the surrounding circumstances even though in that case he was convicted type of clear under iowa law he might not have known that and so i think that's how that applies here as well no court looking recently to the rehab felony is only mentioned in the trial the trial information the charging document i but nothing else i wish that mr pugh received that nothing establish what occurred at the proceedings in rock island i burden that to show that the evidence was the state of the courts have applied when they're looking at the evidence as whether the evidence presented was overwhelming beyond a reasonable doubt to establish just a minute eviden there for failure to instruct on the element of the offense have acquired overwhelming evidence or even use language proof beyond a reasonable doubt when it comes to these rd and th families of height and is not the right house it does a standard talk i don't we're in a hypothetical world of what would have happened if the dissented objected what the government could have offered you know addition to what was actually offered in figuring out whether the rd and th prongs are satisfied because what you're trial court we had made that argument but this court has since rejected that it's barred by double jeopardy and acquittal is appropriate i say i think it's problematic to kind of think hypothetically at this stage of appeal because who knows what we could have put in who knows what the government could have put in which is why it's appropriate to reverse remand for a new trial over serve the remaining time for abo evidence of his prior conviction for possession of crack cocaine and for procession of a firearm he was convicted in the same trial as mr pugh and was convicted of the same offenses that is a conspiracy to distribute cocaine into question his mental state whether he knowingly possessed a firearm or intended to possess it because he did not admit that she was in possession of the so the facts are that the government had an individual named mr robbins who was doing a troll by from a rd party this rd party made a statement to the effect there goes smurf smurf being a known nickname of my client mr warren i objected at trial that statement to admit it not for the truth of the matter asserted but rather to explain the course of conduct for the witness mr robbins mr robinson then told the police he recognized the driver of a white jeep as being mr warren at trial when confronted with the video evidence of the gas station where these events occurred mr robbins recanted and admitted that he did not have the ability to see the driver of the white jeep was giving the timing of the events shortly after the jeep left this parking lot began to pursue mr roberts the police then stopped the vehicle they twenty seconds of video showing the three individuals in the white sheep attempting to flee one was unable to flee that was mr pugh he was apprehended at the scene the passenger fled but was apprehended the driver fled but was not apprehended detective but changed to the driver of the vehicle but was unable to identify who he was and then went back later and reviewed very open that i referred to and testified that he identified the driver as the defendant inside the jeep was a cell phone which contained text messages from someone identifying themselves as sm my client's nickname and communicating with someone known to be my client's girlfriend and that is the totality of the evidence that my client was driving the vehicle at trial through counsel he denied being present during the offense because he did not assert the mere presence of friends he objected to the use of any prior bad acts evidence to try to show that he knowingly possessed the cocaine or the firearm he did so in writing prior to trial he did so also at the time of trial so his objections were time we made this court has had occasions to visit the use of prior convictions to prove intent and knowledge on many occasions i would suggest that in none of those cases where that evidence was allowed was there a factual similarity with mr warrants case in many of the cases cited in both briefs there are cases where the evidence has been allowed but i would point out in the leading case jenkins found it was arrested in his own apartment where crack cocaine was found the for you familiar with the faster case this court two double three yes your honor ok that's a general denial case as i understand i wasn't there at all and that when it was admitted right i understood the facts to be that mr foster was arrested in close proximity to a bag of cocaine a bag of cocaine was found in close proximity to his vehicle it was my understanding that mr foster was also president at present at that time and so a essential he said i was there but that's not mine the mere presence defends i thought he said he wasn't at the crime scene lot of an apartment where he did not deny that he had been staying and were controlled substances were found so in this case the court admitted the evidence saying there was some evidence the defendants i den admissions for this kind of evidence otherwise the evidence would lose most of its meaning anyone who goes to trial under this theory would find themselves in a circumstance where their prior convictions could be introduced against  them certainly that is not the intent of the rule in every criminal case there is some evidence that the defendant committed and the rule certainly doesn't mean that whenever the defendant is identified as a perpetrator of an offen his prior convictions would be admissible is a standard here relevance i used the word before and you went along with me on that that that is the st prong is just plain on relevance right the prior conviction y categories provided that is to say motive intent if identity lack of mistake or accident if the proffered evidence doesn't tend to prove those items then it's not allowed under the rule it would then be forty for p one evidence which is propensity of us so there is argument from the united states that it's a rule of inclusion and that is correct however as the case law points out there st must be a proper purpose for the evidence and the elements of admissibility under the rule have to st be satisfied before it could be jury because there's already some evidence of his identity and that is really the fundamental problem here when the jury heard this evidence they in effect heard identity evidence identity evidence can be admissible a prior bad act which tends to show that the defendant committed the instant offense because he committed a prior friends in a similar way a cat burglar who scales the outside of a building  intent of the court the effect is to say to the jury this is the same individual he has a prior conviction for possession of crack cocaine and that's what he's charged with the day you're saying that just the effect is propensity  of propensity of events that were if the effect were identity then it would be admissible for a for b if it were the right kind of identity evidence you're right i would argue that it's not the right kind of identity of the judge let it in for knowledge and and judge  k and the issue of the forty four b she indicates she's not challenging officer gable's testimony about the gun but it sure doesn't seem like she's ignoring it it was the substance of the government's for for be evidence against mr pugh the testimony from officer gable about his response at the house in rock island when he encountered mr pugh and washed a pistol from his person as he kind of tripped as he was fleeing from objection it is part of it is a part of the charging document it is not the word knife does not appear of course in the guilty plea nor anywhere else what do you mean  of force for you to be evidence on the part of the government when it came time to admit that specific part of that proof which is exhibit fifty four dollars the court wished that there be some redactions and so we took some time and it might have been the next day in trial that ultimately that was essentially readmitted in the form that you have it and that form was not objected to well it wasn't subject to the previous objection ye not impact pugh's trial counsel to the point that he objected to its inclusion in fifty four then it is certainly safe to assume that there was no impact on the jury and that is ultimately that follows but i thought you were making preservation argue now that he could or could have asked for reaction now but what the jury heard from officer gable was the presence of a pistol and that was the live testimony that was the bulk of the four or four be evidence against mr pugh counsel most of our states have a document called conviction some of our state it's required  but no conviction you know it says at the top judgment conviction at least in missouri it says those three words had many of our other states it says conviction and such a document was not before the court we have the charge and the plea right you are correct  was quick on behalf of mr pugh spends a great deal of time discussing the knife the knife the knife but really it was a very minor part a small part of the government's for for  was his knowing possession of the firearm at issue and this evidence went right to the heart of that governor gave us testimony was clear the exhibit indicates that he pled guilty to armed robbery associated with that event that is of course why we admitted that exhibit is to show his acceptance of his guilt on that event the guilty plea does not excuse me does not reference a knife either it is just a again a small part of the initial charging document and the facts quite frankly are that he had both on that day in illinois as part of that incident he had both a knife and a gun so they in of that word does not render the admission of this evidence improper and it was certainly not an abuse of discretion on the part of the district court to do so if this court  reason that the reverse would be true that mr rahman saw pew there was clear video proof of pugh's location in the jeep clear video proof of the activities that she was undertaking prior to its encounter with mr robbins which is to say crack cocaine sales from both sides of the vehicle which were captured on the gas station surveillance video you say clear you mean clear enough for a jury to find it it's not crystal clear knowledge right well inten station which shows multiple people coming up to the front both passenger and driver windows of that vehicle in the moments leading up to the minutes i should say leading up to the encounter with mr robbins and there was expert testimony that given everything that was found inside that jeep the crack cocaine the scale the pest all the currency the sandwich bags that those encounters with those pedestrians were crack cocaine sales and mr pugh was present the vehicle for all of that and was in fact  ultimately the jury found that he was protecting those transactions he was the muscle in the back seat quite honestly  the pistol recovered in the jeep but also in his case the knowing possession of the crack cocaine of the cocaine base that was found in the vehicle   he denied being there she denied everything and as such he put those at issue as the district court noted the jury could find the durned one was the driver of the jeep and quite considerable evidence that dan warren was driving that jeep that evidence included mr robbins testimony and disagree that the trial record indicates that mr robbins recan have had cases indicating how how what cell phones mean in our society right now everyone has one they don't leave home without it neither did aaron warren on that day and the fact that his cell phone was on the floor of the driver's seat is incredibly strong evidence that he was in fact the driver as detective said and as robin said and so once the jury finds that he's there then the jury is charged with deciding whether he knowingly knowingly excuse me  cocaine and whether he knowingly possessed the personal and because those are elements that the government has the burden on and those are decisions that the jury has to make this evidence was relevant it was close in time it was close and kind it certainly wasn't more issue i think the hollings should case answer is that i would point out one thing that was not i guess before the court or was not discussed by the quarter miss quick the hollings sh so it's appropriate to look to what they what a person actually served as a result of the conviction when asking whether they knew and in this case it's clear that they did  also both as the courts aware both mr pugh and mr warren stipulated and the stipulations included the word conviction included that they were convicted for a felony were convicted right to be honest now it is a to instruct on an element of the offense requires that there be proof beyond a reasonable doubt that element that was not instructed to the jury so while there is plain error and we have the burden the court should also take into account that this on appeal should it should be considered waived because he didn't raise until later after it was decided he could have resisted earlier other people raising it no your honor i don't believe so under planar review if the law person to raise it properly i don't recall and i can provide the citation i know there's a th circuit case i've cited in other cases and that case it was in fact even a motion to dismiss and it was an immigration case and the defendant had failed to raise a motion to challenging the underlying removal and then also had raised it and their opening brief on direct appeal there was another gaining us supreme court case they filed for supplemental briefing and there was a question of whether it was a vote especially because it was a motion are rule twelve and i generally have to be filed there the th circuit and a kid at that it wasn't waived because it would have been pointless to raise it before this until there was a change in the law i don't remember the case off the top my head but i can provide that to the court down every single circuit and the country had rejected the argument that you needed knowledge your status so i think that because of that reason and that's a context that place in criminal law whatever circuit is rejected at