it's number seventeen two five one for united states of america versus james wigan's argument not to exceed fifteen minutes per side miss just go into you may proceed for the good morning your honor or send me a please the court jessica when terrorist for the appellant james wiggins i would like to reserve four minutes for rebuttal with the court's permission at this case is an appeal of mr wiggins conviction for aiding  abetting a carjacking and his subsequent sentencing to one hundred fifty one months incarceration it arises from the eastern district of michigan with the honorable stephen murphy presiding i raised three issues for reversal in the briefing before the co however this morning i would like to focus on only one of those issues and that being the denial for the appellants of the appellant's motion for mistrial the prosecution in mr wiggins case relied heavily on the testimony who is mr way against codefendant and the only witness at trial who identified mr wakens as having participated in the carjacking mr doral was a high schooler at the time of the crime he was directly asked  the prosecution during his testimony at page eleven seventy seven of the transcript of the record whether he had ever stolen cars with mr wiggins on a prior occasion and he answered yes to this question it's our position your honour's that this testimony provided mr wiggins jurors with the foothold they needed to climb aboard the prosecution's bandwagon and ride it all the way that conviction with the apparent belief that because he did it during the lunch break his trial counsel went to the chambers of the judge and told his assistant that he wanted to make a motion for mistrial and the judge said well we're about to go back in the jury's waiting for us let's take it up at the afternoon break so trial counsel was in a position where he had to cross examine mr doral and then only later did the trial court consider the motion for mistrial during the afternoon break the trial counsel explain that he didn't believe a limiting instruction or an objection could cure the prejudice which is why he made for a mistrial and stead so at the afternoon break the court didn't really rule on the motion for mistrial he deferred to get again until the next morning and then at that time he denied mistrial counsel for wiggins bring this up later as well yes your honor he is not weird i mean doesn't that make him counsel responsible for making it worse right most honor the i mean that seems like a dangerous precedent but your honor that is a very good question and as i was stating before after having been denied to hear the motion for mistrial during the lunch break he had to come back and cross examine the witness and find out that he had in fact disclose the prior car thefts to the lead prosecutor who was aware of this interview with law enforcement and did not disclose the information to the trial counsel for mr wiggins focused on the mistrial yes y honor of course in the trial court actually is clear error at all says in determining whether or not a mistrial should go for because the trial counsel did not make a contemporaneous objection to the testimony and the trial court actually found that the evidence was marginally admissible under for a forby and the question of whether or not a limiting instruction would be given was kind of kicked down the road until after trial and then it was only given at the end of the jury instructions so if we're looking at first of all whether the testimony was improper i think we have a clear case that it was because it was directly elicited in violation of a court order holding that it should be excluded and then when you get to the zarin factors that you have to balance to determine whether any later curative instruction is going to ameliorate the prejudice the defendant you have to ask whether the question testimony was directly solicited whether the prosecution's line of questioning was reasonable whether the limiting instruction was clear forceful and immediate whether there was evidence of bad faith on the part of the prosecution and then finally whether the testimony was only a small part of the prosecution's case against the defendant and i think that in this case all five factors way in favor of a finding that the prejudiced with so that if it was so strong that it couldn't be cured here with regard to the first factor the testimony was in a mistrial granted in upheld where the defense counsel went back to the same topic and therefore exacerbated the prejudice and gets rewarded with a mistrial that ever happened i haven't been able to find a case  so if we're looking at the first factor i think we have clearly that the prosecution elicited the testimony on the second factor at the question of whether or not the prosecution's line of questioning was reasonable we have the prosecutor's own admission to the court during the hearing on the motion for mistrial that she didn't have a proper basis for eliciting the testimony under the rules that there was no proper purpose that it was just an and everton mistake and so that goes to whether or not the line of questioning was reasonable and she admitted that it was not now we have the government's argument on appeal that the testimony was elicited to explain to the jury by mr dural is having a hard time testifying against mr wiggins but i would submit that the timing of the question belies that assertion because what happened was is this question was asked at the end of the government's questioning of mr dural and almost immediately before a lunch break at that point mr darrelle had already testify regarding his friendship with mr wiggins and had explained that the friendship made it difficult for him to testify he had already testified extensively about the crime and about his plea agreement and the timing of the question was that the result of which was that the jurors left for lunch with the testimony that mr wiggins and mr darrelle had stolen cars together previously and the forefront of their minds we said make your honor that this is a clear case of governmental overreach if your view of the trial transcript in its entirety it becomes clear that this was actually a close case and that the prosecution knew that they were relying on tire reader all to carry the day here and it's apparent from reading his testimony in full that he really didn't struggle on the stand and that he didn't perform as well as the prosecution believed he might and this question almost seems like a last ditch effort to rehabilitate him and explain his equivocating testimony with regard to the third factor whether the limiting instruction was immediate clear and course full here we have an instruction that's not given until the end of try well it's briefly mentioned in the jury instructions at the very end of the recitation and that diminishes its forcefulness ineffectiveness and the fourth element whether there is evidence of bad faith here we have a motion to exclude any reference to mr wiggins haven't stolen cars previously in response to that motion lemony the government says we don't intend to introduce any evidence of the defendants per criminal acts we have a court order that says  reference to the defendant's part criminal act shall be excluded from the prosecution's opening statement and case and chief and then we have a direct eliciting of this information by the prosecution from its main witness  trial i would submit to your honor's that that is evidence of bad faith and in fact this court in u s versus forrest it seventeen f thirty nine sixteen specifically held that bad faith does exist where testimony is elicited in contravention of a prior court order and in that case what happened was prior to trial the judge said ari no one is supposed to bring out evidence of the defendant's park criminal acts and he told the prosecutor he was like be sure you tell your witnesses that and the prosecutor dead but during the trial the witness just contemporary spontaneously blurted out the information regarding the prior criminal acts now and for us the court did find it believed there was an issue of prosecutorial misconduct and the trial court dead acknowledged that the government had indicated it would not introduce evidence of her criminal acts during the motion in lemony but there was never a specific you know factor one factor well i think of us prejudicial because this case involved a carjacking which is the theft of a vehicle and you have the prosecution actually the only witness who is able to identify mr wiggins as having engaged in this crim and he tells the jury yeah mr wiggins has stolen cars to with me before and so you know you're dealing with a crime that involves the same act stealing a car and you have the prosecution's main witness the only person who identify mr wiggins as having participated in the crime telling the jury that he had done it before and this court has discussed in many occasions when there is testimony that would tend to lead a jerk to believe he did it once so he probably did it this time that's inherently prejudicial may please the court intra gets for the united states a bottom the defendant is challenging his carjacking conviction based on one isolated snippet of testimony and objected to testimony that the prosecutor order did not cover the testimony here and the judge three times found that this prior order did not cover the testimony here it was not covered by the government's response to the motion eliminate and it was not covered by the court's order but at the order say th and this the order referred back to the government's representations and said i think that's a fine position i'm going to adopt those representations so was on the record nine thirty one thirty two of the transcript the district court basically adopted the government's representation those representations had three categories to them three specific categories criminal history resolves are considered under haida the homes useful training act that's not this the second quote the second category was if the defendant testifies and that's a condition precedent if the defendant testifies that didn't happen criminal history under federal rule of evidence six zero nine six zero nine deals with criminal convictions not bad acts so that's not this either then the third category was a reference to the defendant quote unquote being in the system again that refers to the criminal justice system that's not this and if the court looks at it i direct it to page one two two eight of the record of a cure i mean this is helpful information but out of curiosity i mean when you look at the motion women a and the argument is it is it fair for them to have thought that which you just read you're right it ends on the it covers it  but when you look at the motion women in the conversations about it would have been fair for them to think it would cover this no in fact the district court found that it didn't cover it and found it three times that's what page one two two eight the district court says and this is  direct quote this was not the subject of a prior defense motion or court ruling as a direct quote and then one page earlier that just reported also said this was this testimony in this is another direct quote doesn't specifically go to the motion in the criminal history that mr pickering meaning defense counsel sought to strike with twice after the motion for mistrial where the court said that this didn't fall within the order and that's the crux of their bad faith argument here they spent a lot of time accusing the prosecutor bad faith and it may have been thoughtless but it was not bad faith and it did not violate that court order and the district court here found that it did not violate the court order and i direct the court again to page one two three one where the district court again says and i'm paraphrasing here that it was not grounds for a mistrial based on the violation of a court order so the district court who reviewed the motion with me and who reviewed the government's response and who ruled on that order found that it was not a violation of court order that takes a lot of the wind out of the sails of the defense here trying to hinge their bad faith argument on a violation of a court order that never happened i don't even know how this works in criminal trials but emotion women they always goes to the district court judge it wouldn't go to a magistra that motion before him now judge not to answer your question defense counsel not only use this testimony but actually used it pretty effectively to damage the credibility of the government's cooperating witness because he used it to show that the defendant hadn't stopped the cooperate in witness had not disclosed this information earlier and had not been forthcoming that fit the defense team that this cooperating witness had not been forthcoming that was the the heart of their process cross examination so this not this didn't hurt the defense it helped the defense and you want to raise of another good point which is the defense counsel can't complain about something that he or she exacerbates especially when they do it strategically here to undercut the credibility of the government's witness they can't then say oh well not now that i've made the problem worse supposedly that should also be grounds for a mistrial they can't do that  and even if this court were to assume or conclude that judge morphy was incorrect that this testimony was admissible and we're not conceding that that's true it would not be grounds for a mistrial this was one line one question and answer worth of one objected to testimony during a three day trial the prosecutor here immediately cabined that testimony and said that the previous process had not involved carjacking and had not involved the use of a firearm the court gave a limiting instruction yes the court did not give one immediately but that's because defense counsel did not take up the court invitation to give that limiting instruction mediately the district court offer to give the instruction immediately and defense counsel never said that he wanted it and that limiting instruction when it did come was adopted from th and getting through to the harmlessness point defense makes some hay out of the fact that there was a split verdict here the reason for the split verdict was that weakens as per participation in the carjacking was corroborated by other evidence besides darrelle is testimony we can see as use of the gun which was the subject of the nine twenty four c acquittal was not corroborated by any additional information weakens was the one who had the gun that explains the jury's verdict not this one line of unobjective two testimony would like to direct my address the assertion that the testimony regarding mr reagan's having stolen cars previously was not included in the motion and lemony and as the government noted the court did refer back to it statements on the record in a later written order as being the basis for its ruling on the motion and i would like to read from the transcript to let you know exactly what it was that the court said at the time the court said that the the reference to stealing cars previously wasn't and within the scope of the motion and lemony so i just wanted to clarify that and the court characterizes the motion lemony as a seeking exclusion of any of the defendant having been in the system before or having quote a long criminal record of stolen cars close quote and this is what the court says the government indicated in their response that they don't plan to enter dues any evidence of the defendant's park criminal history or statements about him being in the system or having a criminal record of stealing cars previously just just to be clear what you've said so far are any of those in  which one of those statements covers what happened because i thought he was describing carjacking not getting caught mr darrelle was describing stealing cars with mr wagons on a prior occasion so that would be evidence that way against all cars previously right but what i'm trying to figure out is what youth which words you've just said cover that he wasn't referring to prior convictions and i thought ok your honor i understand the distinction ok right ok unless the defendant opens the door to any sort of cross examination attack by taking the stand and testifying and possibly quote unquote opening the door to such testimony i think that's a very reasonable and appropriate response under the law and i will therefore prohibit in the government's opening statement or case in chief any reference to the defendant's prior criminal history any homes youthful training at disposition any reference to this defendant being in the system before or a long criminal history so that was the ruling on the motion and lemony i don't understand where you're disagreeing with the government on this well i see the distinction you're making your honor and i admit that it is a valid one th being between a criminal record of having so on cars previously and simply having stolen cars previously and i do understand that distinction you said that the court said it was going to prohibit was a war criminal history cars and then that portion of his motion in limine was granted counsel and this is at the point where the they were having the exchange with the judge about the mistrial and at that point counsel said  while i didn't really know all about all this these stealing cars and if i had i would have put it in the motion in the mini so did he or didn't he put it in the motion for a minute right your hour and you raise an excellent point that i wanted to address and i was worried i wouldn't have enough time or reason that he did not put in his motion and lemony because this information was never provided to him in the final pretrial conference in this matter the court directed all parties to exchange pretrial information by may eighth and then the trial began on august eighth and part of that pretrial information would have been witness interview notes where mr drought's whole prosecution that he had engaged in this parker theft activity with mr way against that information was never provided going now right and argue did you develop this in your briefs yes your honor and it was actually also raised by appellants trial counsel or did you develop this in your briefs i mean as i just want to make sure we're not is a whole different remedial scheme rajar but that is a question you know the questions i'm going to ask so i want to ask them what you know i apologize no no i'm not i'm serious ok to say so i want you to deal with it ok i was trying to resolve the issue of why it wasn't in the motion and lemony and i feel like we've gone down a rabbit hole but it wasn't in the motion and lemony because the trial counsel did not have the information and during the motion  asked why we didn't more directly deal with this in the motion women a we didn't have enough information yes your honor which would also explain why the district court judge didn't directly address it in the motion with me yes your i believe in a situation where it's hard to say you know harder than you might like but the fact of the matter is the system would work very well but for the work that the c g counsel do and we appreciate it very much thank you so much very much appreciate this opportunity pierre appear before you today thank you