poem benjamin gray and i'd like to reserve three minutes for a bottle a poem between gray six reversal of his convictions based on an introduction of inadmissible evidence that prejudiced him specifically the government introduced evidence that of a superior court civil judgment for conduct that also formed the basis of some of the charges here the government also introduced evidence of other crimes specifically about a bad check on related to the case here that mr gray of a nissan dealership and the government introduced evidence of the impact of mr gray's actions on his purported victims to address the civil judgment first  hector williams testified that he sued mr gray in superior court and got a judgment in the amount of thirty five thousand dollars approximately the same amount that mr grey was alleged to  about the judgment and the amount were hearsay and it was admitted without any exception to the hearsay rule so it was plainly should not have been admitted that's a judgment but that judgment obviously prejudiced mr gray throughout the trial because it confirmed for the jury at a very early stage in the trial that another tribunals had already found him liable there was there was no mitigation of this in any way there was no limiting instruction and it infected every other witness that came after mr williams  know how do you make it do you make the point there i mean i agree it was clearly wrong but how do you make a pleasure or  if the court is referring to the prejudice from the plane era i think the prejudice is in when you admit a judgment is inherent as other courts have found judicial judicial findings it in particular have great weight for j say they were not told much about this but they were told that there was another judgment for what hector williams was testifying about in another court and frankly that's all they needed to know it's inherently prejudicial  because from the outset the jury has confer that the witness has confirmed for the jury that there was wrongdoing and the jury shouldn't be approaching it with with a bias that there was already  wrongdoing the jury should be approaching it with an open mind and to determine for themselves whether there was wrongdoing when you say it was inherently prejudicial you mean it was an inherently prejudicial in that it was damaging it was inherently prejudicial and that any time has entered its per se plan or no it was damaging i don't think that it would necessarily always be prejudicial but in this case in these circumstances when it's when there's not much daylight between what the witnesses testifying and the judgment that he says he got for the actions that he's test the part testifying about it was damaging for mr gray in these particular in  specific case so in that sense it was impossible to separate out the prejudice from any other analysis of the evidence in the case  mr gray was also prejudiced by the other crimes evidence specifically that he presented a check at a nissan dealership that had insufficient funds to person purchase a car at the dealership and this evidence was  was irrelevant to the charged offense it was not a separate scheme but it was just an act of bad character but an act of dishonesty at it if if if you credit  but that was the implication of the testimony there was no allegation of mr gray passing a bad check here for trying to get something by passing a bad check here there was the exact opposite mr gray was offering to sell cars and taking money and the allegation was that he was not then providing the cars so the passing of a bad check in a completely separate incident wasn't the same bank account plan that it was  was the same bank account it was the same other yes right it was his business bank account right that's correct so it wasn't completely unrelated doesn't show intent to use that bank account least well it certainly shows his intent to use that bank account but that's exactly why it's so prejudicial because what does it show about his use of that bank account that every time he uses that bank account it's fraud that that he's a person that is a f well that's propensity evidence that that's precisely the purpose for which this type of testimony is is forbidden that's what for forty prohibits so this is evidence of just like the evidence in the civil judgment should have been excluded should have been excluded under four for b i think the district court's initial impulses in the pretrial hearing were to exclude for four b that was similar of similar acts by mr grey but the district court ultimately allowed the government and i would submit that by allowing the government to choose which of the five other it i'd say that it's prejudicial in the same way that the civil judgment and this although mr gray didn't testify this turnage his character and if the jury was to have any doubt about the evidence that the government had presented  the purpose of this was to tarnish mr gray and the jury sitting there would logically there may be many innocent explanations no innocent explanation was offered by the defense and the government didn't elaborate in order to offer it in order to allow for an inference of an innocent explanation the only explanation the inference to be drawn from this testimony was negative  actually go to knowledge intent or absence of mistake so to to the extent they got a living instruction that said you were only to use it for this purpose and this evidence didn't prove any of those things the instruction had no effect on it and the natural impulse again this is why for for be as is so damaging the natural impulse which would be to  assume that because mr gray was was a fraudster or in the government's words a con man they should believe that any actions he took in this case were fraudulent the i'm going in reverse order from appellants presentation the issue with mr with the dealership i'll call it the chevy chase dealership we disagree that it was not probative if you read the record there what brown says is that there has to be a substantive and a temporal connection and in order for it to be to meet the threshold level of similarity we posit that the testimony meets this that test in this case it was the same exact as the court pointed out the same exact entity that was at issue with the charged counts and the indictment was the same timeframe so as with substantive and temporally related and it demonstrated that is a reasonable inference for the jury to make that if this account had been closed a year before that he knew that it was closed and he knew that the planet cars which was the false the fake entity was not a legitimate business and so it tended made it more likely that and the other instances this is the use of the same you know fake entity to perpetrate these frauds against these individuals it was shown to be a fraud through other means but it was involved open planet cars banks that have bank accounts so i don't understand i just don't understand that argument so by the merits of whether it was relevant sure i guess i would have a couple of responses first is that if it's the same business entity that he was using and he used it in one circumstance and it was open but he used it in a fraudulent manner if he used it in the second one and he used it in a fraudulent manner or if there was a reasonable inference that he was using it in a fraudulent manner that the jury can make i think it makes it more likely that he and he knew that the planet cars was not a legitimate business and took you know t and so it sort of is now neither here nor there that the account was closed versus the account was open the issue about it being closed for a year just demonstrates that he knew when he wrote the check that it that planet cars was not a valid business into traffic that isn't connected to this case which involved the use of open planet cars account and i had understood the road the argument district court to be the fact that this had a close to count showed the credit cards was a fraudulent entity and that just didn't make sense in light of the evidence that was put in the case other frauds well i mean i think i again i think i would go back and say that it was it was made it more likely than not that he was that mr gray was willing to it automatically come in just for the show as he does bad things with that account i think if it showed that he was willing to portray himself as a car dealer using this specific hardware shipping of the car purchaser in the chevy chase and trying to sell cars acquire hard for someone else that was actually quite a different it was just just buying a car without the money to pay for it which is quite different from what the type of fraud is that was going on with comes to these kinds of crimes these fraud crimes proving intent the difficulty of proving intent means that under for a for b there's a low threshold i think they call it a liberal policy and it's our position that got to be more than low or not it's got to be enough to make sure that we're not just shell on this person's a fraudster with bank accounts and it seems to me that's closer to what was going on well even even assuming that there was an error in  under four a four b it's the government's position that it was harmless and any event as we point out in our brief virtually every aspect of the government's evidence was undisputed and it was as your honor position that the it was brief this was a you know this witness mr coleus you know was fairly brief in terms of the overall presentation of the evidence in the case it wasn't a focus of the opening and closing it wasn't so dramatic as to rivet the jury's attention those are all the sort of phrases that you think of when every think of harmless i also just want to very quickly point out that with regard to this was clearly trying to figure out the way that these additional pieces of evidence for example the chevy chase dealership you know how did it fit into what was the relevance and i think that the court said ok well now that i understand the relevance you know i'm worried about there being too much for a for b so pick two so i just wanted to point that out and i did want to respond briefly to this issue about the default judgment even assuming  i actually i'm just going to just read the three lines of transcript that came out there were three lines basically in this is from the transcript the sixteenth line to sixty six to sixty seven so when he sued the defendant what happened to that lawsuit i received a judgment question did the defendant come to court no and how much was that judgment if you remember approximately thirty five thousand dollars and some interest or something like that that's it there were three pieces of evidence over the course of any one of the car and the jury just conclude from that that you know he didn't come to court because he was guilty he got a judgment of thirty thousand dollars well i think you know to hem on both sides of the line which is to say that both found you know necessarily that the the superior court found that he was guilty of the civil fraud but also you know there was no instruction to say what he full of judgment was up maybe that that's a lot to assume the jury would understand without any structure well i think that your honour's point makes one of our points is that there was no instruction because there was no objection is you know inclined to think that it was error despite the cases that we cite we'd it's our position that it can't be a plain error this court as i said has never made that kind of a ruling ok there was no request for an instruction or an explanation  it wasn't even mentioned in closing i understand it was mentioned in opening the lawyer's arguments are not you know evidence that for the jury to consider and i believe that there was the standard instruction that the jury was you know informed about that point and  jurors are presumed to follow those instructions and again this wasn't dramatic or inflammatory as i read just a moment ago this was three lines of testimony it wasn't mentioned again in the closing at all and so it's it's hard to say that that would rise to the level of affecting someone's substantial rights or you know in fact of the integrity or the fairness of the trial of the overall proceeding so it's our position that he can't meet planar standards or the plan to review either the jury did not know much about the default judgment here except that there was a judgment and that it went to the same amount that the government was alleging mr gray defrauded mr williams of in this case where the facts are so closely related and the jury has has basically been informed of the identical  i suppose the court could still do a more fact based analysis in this case regarding whether the government medicine burden of proof  beyond a reasonable doubt separate from the civil judgment and in this case we do know that  bertilsson filled out three loan applications in the span of thirty days and act behaved in a way that or testified that she didn't really know what was going on and she had left it all  the defendant's hands but but there was reasonable there was a reason to doubt that because common sense tells us you don't fill out three loan applications at the same time that when you sign your name on legal documents you make sure that what you're saying is true and there were misstatements on those documents whether she directed it or she testified mr did i think that there was still some room for the jury to doubt there but when the jury is told that mr grey has already lost in very similar circumstances against another victim in civil court that room to doubt what they've been told as specifically with regard to mr burleson vanish type of testimony that that the defendant has already lost sure it doesn't have to be long you come in you say he already lost and therefore he should lose here too and i think jurors are become more because he was guilty during i mean that's right whether it's a default judgment or a judgment you know those niceties are probably lost on a jury or what they hear what they translate hear is he lost before in a court