the counsel of samuel kaufman that hearing from mr brown i'm going to focus my comments just this morning on the issue of the limiting instruction and way in the trial courts they are to give the instruction council's failure to request it what the court has fairly before here is the difficult situation where there are two separate crimes two separate and distinct crimes that have been joined for trial and the issues inherent in that jointer what i would like to address is how this case fits within that framework in the difficulties that are faced with that the trial court faces in determining whether to join those cases together and  with two separate crimes and the trial court found that they had similar circumstances although one of the crimes was substantially i would submit more aggravated than the other the trial court determined that the cases  joined primarily because they shared the circumstances however when the case when the evidence came in and after the arguments there was no limiting instruction given the court in the ninth circuit in versus called case a case where the court's actually involved a prior act of didn't involve a jointer case you have a you have a prior act that the court rules is admissible for a specific purpose and the court gives a general propensity instruction you can use this evidence for whatever you want my circuit says that violates due process submit that this case is very similar to garceau in the sense that i think although the court didn't give a propensity argument the court gave her propen instruction the court gave no instruction so the court said to you in this in essence by its silence said you can use this evidence for whatever you want and the reason why this is problematic is you go back to being me and you look at those problems inherent in joining these two cases for trial and the interesting hurdle i think i think at least in my mind you have to get over except in all of that i think that your argument is that the argue that's correct in indeed the being court said these in joining cases for trial where defendant is presumed innocent yet you're basically saying this this person is presumed innocent by you know here's another case to look staff that the state court decision quietly did clearly establish united states supreme court law that's correct in the supreme court has never said that the limiting instruction of the kind due process violation what follows from that principle is that improper prejudice from the joinder that is not sufficiently limited can also be a due process violation you don't have a supreme court case and then sitting specifically those words but there is a logical relationship to that if there is no case how can it be released well i believe your honor that that there doesn't have to be a case that can or the jury can properly consider evidence for some purpose what you have is a situation where there can be a fair trial a due process violation in the way that the court instructs the jury or the with the court does not and in this case the court did not instruct the judge and it's particularly important just relying on being again to look at the some of the same circumstances and again being merely articulated those things that the courts have to look at in t of whether there's unfair prejudice things like whether there's a disparity in terms of the strength of the cases that's one of the most important things in this case you you did clearly have a disparity in the strength of the state's case so those are those situations when you have a although you could they could be used that is evidence could be used for some purposes where there is such a tendency to to use them for improper purposes that's a due process admissible the evidence of the the only issue i think and the second offense the more aggravated offense where the woman was seriously injured the only real issue at trial was identity of the defendant and the identity evidence relating to the circumstances of that offense tied directly to the evidence connecting defendant with the other offense he used the same car  signature crime where you have exactly the same act in that part of the offense but i think that the jurors had to look at those those the circumstances as a whole and what the defendant did was preying on women who were working as prostitutes pick them up make a deal then engage in some sort of sexual activity with them and then then in some way the defendant the first woman all he did was shop or out of the car and take her money the second time he struck her off an overpass nearly killed her so no i'm not signature crimes in the sense that of every offense were present in both circumstances but the pattern is the same and that's why the evidence was relevant including the fact that he used the same car the victim in the i think that would be patently improper it's a small propensity it's never at issue in a criminal case i think it's fair to say often times prior acts are well meant to prove that a person actually did  in in one k i witness this confession and d n a in one case and then unrelated case involved a different victim or the victims that this happened but the state's evidence is  other offense but here we're not talking about character i don't think there was any risk that the jurors conclude that strictly because it's mr brown was identif positively identified as the attacker in the first offense that he has the type of person who would engage in the same type of behavior in the second offense at least not  in the absence of all the other evidence connecting him to to the crime in this case the instructions that were given described each if not separately required the jurors to find the beyond a reasonable doubt that defendant committed each of france i instructed them as to the offenses involving each victim and i simply don't