may please the court howard pincus from the federal public defender and i represent hobby are a mentor florus although he was not offered a qualified as an expert agent wrote plays gave testimony that only an expert can give he told the jury that matter flores said happened was not consistent with what he had seen in other drug cases in what the district court recognized was not a strong case this court should reverse mr ahmed or floors as conviction for as said that this was not consistent what with what typically happened in the fifty or so drug cases that he investigated and the typically there is such an offer only if the drug trafficker has dealt with the person before in a drug related context this is not late testimony is not testimony that will a witness could give under james river this court decision in james river knowledge derived from prior professional experience squarish fall squarely within the expert testimony rule and so outside of the late testimony will as judge hart said in his concurrence in rarely an opinion based on police training and investigation fall squarely within james river so mr h robel is comparison with what happened in other cases in the fifty or so other cases he investigated was not something a lay witness could testify to no lay witness could make that product that comparison only somebody with prior professional experience like agent robe lace could do that the government in a twenty  position in united states versus one seventy one f second or fifty two and i'll leave the response to the government's twentieth which was filed a couple days ago or submit my own this court said that testimony about guns being a tool of the trade in in drug trafficking was expert testimony and that's precisely the kind of testimony we have here we have i mean if this was because we just apply our own common sense and that is whether or not this conclusion is with can the layman isn't that what we do know because agent probably didn't say based on what he had seen in this case whether something made sense or not that actually wouldn't be admissible testimony of any kind because it wouldn't be helpful to the jury but certainly he could compare this i mean other papers in this context is that why does this have to be so unique to the drug trade why can't it just in the business that you wouldn't trust somebody in a transaction of significance if you hadn't tested them before well again that's that's not what he said what he said is he's comparing this explicitly to fifty other drug cases and what he's seen in all of those other drug case that he's drawing a conclusion about what drug traffickers do based on what he had seen he wasn't giving his own personal opinion he was saying my professional experience tells me this in addition what he was doing but we don't judge it necessarily by what he preface that don't we just judge it by you know is this a common sense conclusion that draw or that a layperson could draw no i think the fact that he does make this comparison makes it something that a well any juror could not a lay person could not do no lay person could make that comparison and he was asked to do this and he turned him down he said i had no knowledge of this i didn't do this i wasn't involved in this conspiracy this was a rebuttal to his testimony based on what or his statement based on what the agent had seen in other drug cases and it falls squarely within james river as judge hart said in barely and it doesn't actually matter whether other searches treat it differently what matters under cases like wolf name is what this circuits law is and this circus law says if what you're testifying to is derived from your own professional experience and it explicitly was here then it is expert testimony and not lay testimony was because of a from the sale of savile the agent said that this was not typical of what would happen in drugs in drug cases and he explained why so again this is a rebuttal to mr ahmed or force a statement based on what the agent had derived from his experience in other cases and under this circuit's precedent it was derived from his prior professional experience it's led it's expert testimony it can't be admitted through a lay witness for whom no notice was given and for whom no reliability determination was made why were those wh was that testimony particularly prejudicial in light of other evidence that was that well it was a particular petition for a couple of reasons one is how important it was to mr  florence's defense he's saying that other people said or at least one other person to make his morale's girlfriend was saying that he was offered to do this drug deal  he's denying it ok that is critical to his defense and the key part here is that the district court said that this was not a strong case in even insufficiency context when it did not the rule twenty nine motion and said to the prosecutor you've got a lot of work to do in your summation so we have the district court on the spot giving its assessment of the case based on the witnesses it saw which this court doesn't have the benefit of and the district court didn't think it was a strong case in fact mr ahmed or flores was not involved in the actual transfer he was not any the not and any of the recorded calls there's no evidence that he had any prior drug dealings with  morales the drugs that were found out that are on his property were either small amounts of methamphetamine or they were found in the truck the one pound of meth and paraphernalia was found in the truck that belonged to his girlfriend who was a meth user and who was involved in the actual transfer if anything was connected to her and not to him the government relied heavily on a stockyard receipt that was in the monte carlo in which the drugs were transported to mr to the property but that receipt was from twenty one months ago there's no indication that had anything to do with the charge conspiracy or showed him to maybe he was in there at bats but again again we're not of course on sufficiency or we're talking about the strength of the evidence there's nothing in that receipt that connects him to the monte carlo anywhere close in time to the charge conspiracy the most likely time when that was left in the monte carlo would have been twenty one months ago when mister when the receipt was issued and it was from the stockyards could well have been for a saddle as mr commodore flora said you can he can't be convicted based on or certainly not strong evidence based on his failure to remember that he may have been in a monic harlow almost two years for the charge conspiracy there was no objection a trial to precedents it's plain based on james river that this is derived from his professional experience it's plain from judge hearts says said very clearly in briley in his concurrence your opinion based on testimony based on training and experience with a hundred other cases is fits exactly within james river it's clear from  says guns and drugs guns being tools of the drug trade is expert testimony this seems less obvious than than the drug dealers use how you know whether somebody would trust a friend who they had dealt with to do a drug deal as opposed to guns being commonly involved in drugs but yet this court is dumb ass he said that because it's based on the agent's experience is the kind of testimony that is expert testimony and it can be offered through a lay witness on the issue of plainness does it matter and there were some comment by the district court about whether or not the door was  or florists denial of being involved in or eliciting on testimony that he had denied being involved in in drug trafficking doesn't open the door to inadmissible testimony or expert testimony on that topic there's nothing improper about what mr ahmed or flora's did and the opening the door concept applies to allow the government to respond to evidence that wouldn't otherwise be admissible what mr  flores brought out through the officer was that his statements in his statements he denied being a drug dealer that they hadn't investigated things like that that's got nothing that doesn't allow an improper expert opinion if the government had  became something other than there just because the door well the door wasn't open there was nothing in permissible about the questioning by mr commodore florists it didn't allow the government to respond would say with was impermissible was you know i mpermissible open the door but but you're you have to open the door to some to testimony that would otherwise i mean the notion of opening the door does require that you've explored something that makes something else relevant government what the government responded with was a comparison of his whether his statement made sense in light of other investigations that's not permissible is nothing that that that's not an appropriate response to what mr ahmed or flor if there'd been an objection a trial could this evidence have just been brought in under him montoya now because they did not give notice that agent montoya would have testified to this that they had an expert disclosure f but this wasn't part of it and that's my point if the government had wanted to get this evidence in it is expert testimony they should have put it in a notice of some witness properly qualified him as an expert and they didn't do that and in of him what the district court recognize was a close case a weak case something that goes directly to mr ahmed our floors his denial of being a participant in drug trafficking both of these issues both of these examples of improper all they're going to do is what the experts call to put this in so doesn't that reflect upon the fourth prong here now this court has never looked at the fourth problem that way we have to look at what the is something going to be different if it's retried we'll know whether it be whether the outcome would be different is third prong there's there's two main reasons why this is the fourth prong is met one is the importance of that the district court would relieve them from their failure to give a proper disclosure but it's also possible that the that that it we don't know whether the witness would either agent or age of montoya would be qualified to give this test case but because you can do that he loses on the second third and fourth problems fairly easily and so i think this is a fairly straightforward case the evidence in the case is not weak i think the word the judge wanted to use was circumstantial evidence this was a circumstantial case it was based on circumstantial evidence the jury went out at nine thirty nine and came back with a verdict at eleven fifty three they didn't stick around for lunch it was a straightforward quick verdict from the jury that the question on what would have happened if he had of objected and this goes to the reason for playing our review so what happens if he objects rule sixteen and this  he's complaining about the essentially that this is a rule sixteen notice rule sixteen has a remedy in it for these types of things when they are objected to have a party fail to comply the district court may order sanctions including issuance of an order it can gran continuance it can exclude the undisclosed evidence it can do anything that it wants to as long as it's fair and just i'm better under i v the court has to impose the least severe sanction that will accomplish the ends of its goal so if have objects the government can say ok we'll just wait till we get to a gym onto it ask those questions if we assume it's expert testimony which we don't concede that that if you look at the government's disclosure of expert  about the way that drug trafficking or to organizations move money and talk about money if you look at the actual statements themselves you know i can i can come up here and say you know in my training experience the sky is blue that doesn't make that expert opinion testimony i can come up here and say you know in my professional experience comparing i know that judges wear black robes and they're remarkably good looking compared to normal people  that maybe in my professional experience but a normal person can come in and make the same observation and provide the same type of those pieces just because those words are used doesn't make it expert opinion testimony if you actually look at the actual statements record it at two thirty four did you find that question did you find it consistent his statement about the may fourth call from price offering him you know two thousand to you know do the deal in place of while doing his malice do you find that to be consistent with what you typically see in these types of investigations for someone who is never involved in drug trafficking cancer no and could you explain why answer yes you know typically when a drug coordinator or a drug trafficker when he's looking for whether it be a driver or couriers if you goes to them for that it's more likely that because he's used them before especially have dealt dealt with on a regular basis first that's fairly promptly testimony second that is obvious everyone knows that drug traffickers don't go to church picnics and rags only ask people to do one hundred  thousand dollars drug transactions this isn't a stranger at a church picnic i mean this is somebody that they know that he knows really well so so this is someone that he knows really welp but the point that he knows really him well it goes to the fact of guilt  this gentleman mr under floor says home is the mother ship of this drug trafficking organization that lot no drugs were found in in his home that's right so what is found drugs are found at three locations on his property to go to the to go to the drug trafficking event he had to get a ride to work because she was using his truck for we also know that you know if he's in the room while she's counting four to fourteen thousand dollars and that he tells the cooperate witness that he can't go to the whore or the mexican rodeo because he has to make a deposit on the same day the clear inference is he's making that deposit for forty thousand dollars of drug proceeds that's you know the point is  involved and his relationship to party and his relationship to the biggest morality and his relationship to everyone else in this drug trafficking organization is an important fact that shows certainly it's an important fact that he's arguing that yeah i'm friends with all these people i knew what they were doing they wanted me to get him off they didn't get him and if you have the officer testify certainly that gives more meaning to the statement then than if you just had a layperson test market test i think dick you larry when he says based on all my experience with drug trafficking this is my opinion so and i think the answer to that is if you look at the experts testify in the case and the testimony is always the same in these truck driving cases that drug trafficking organizations operated business and because people have knowledge of what is common in a business situation you know the there's a blurry line between where we getting into expert testimony where we still in lay testimony but the idea that he would randomly come up to a friend who has repeatedly told him no no no i don't want to be involved in drug trafficking the day before this isn't a town you know this is this is big enough that they bring a helicopter to do the surveillance it's a big drug transaction means that the weight that gets put on that is not over the top and second i would point out that the fact that it comes in through arguably a lay witness we can bring that testimony in through our expert witness montoya under this under our notice that the you can only do it upon re that you know had he objected and that's the point of playing a review is to encourage him to object had he objected and the court said whoa you didn't notice him up as an expert that would be expert testimony under our notice we can then bring that testimony  someone uses someone that he's dealt with before to distribute methamphetamine i think that's well within our notice they package and distribute package distribute concealed so it's packets distribute conceal and distribute so that includes things like who are the type of people that they used to distribute and they tend to use people who are their associates and who have worked with them in the past well i'm not sure this is dances the analysis  well but but the point is is you know would it have affected the outcome of the trial and if we asked it through montoya then we have the provenance of an expert which is arguably makes the test win more powerful and if we go back on a rematch and you know the question will be ask given the outline of what you said montoya testified so i don't think there's any question he would have allowed age montoya to testify that so that under the notice that we had provided and secondly if he had objected to it at least we could have made that argument the third thing that the court can do because the court has this gatekeeping role is it can i mean the court is able to of why do your agent role is and declare him an expert on the spot what he's arguing is that oh you made this rule sixteen notice error and the courts have broad discretion that like the district present broad discretion on how it wants to deal with rule sixty eight the court has the ability on the spot to why dear and declare him an expert without any kind of notice at all that's within the court's discretion and he's required to do the least  even with the evidence in court so i'm serious doubts as to the way the evidence here so so i mean i remember being there and it was not a weak case i mean we can talk it was a circumstantial  didn't did the district court disagree with you on that didn't the district court say it was not the strongest case they were seeing so that whether or not it was the strongest case that ever seen or not it's the you know the the standard was was did we prove beyond a reasonable doubt and we did and and would we have proven beyond a reasonable doubt without this testimony yes we wouldn't it wasn't particularly important testimony to the case you know it was the type of thing that we can bring in through argument without even in that person said even under the lenient sufficiency test that was not an easy call in this case so with respect the best person to determine where the twelve jurors and they found that he was in fact guilty air we're not here on sufficiency the question is as you know whether or not we'll know the way to your case reflects upon plain arab doesn't it so let's just talk about the weight of the case so the way that that's exactly what we've been talking matter for us manages to convict himself with his own statements so we have him saying that you know there's these two guys i know i know they're both drug traffickers i know they move drugs a lot he says that you know they've offered me they told me to sell an ounce quantities for twelve hundred dollars an ounce you know if he's getting specific detail from these people on what they want him to do he states that they ask him for permission to leave the white car this house that car has trap doors in it we know he's been in that vehicle because of the receipt and it you state that they ask him to store something in his house and he says he thought it was drugs that's his statement that he thought it was drugs he stated that he received a call from price on may fourth  meanest malice doesn't get back i'm going to have to do the gig he also you know he says i've transferred money to mexico on behalf of pisces and he says you know i've sold two vehicles the price of suspecting that they were going to be used for drug trafficking the idea that this is a weak case i just frankly disagree with that assessment that's circumstantial evidence and it builds on each other those are his statements their challenge your confession