my name is jesse cancer may it please the court i represent andrew harris to understand the errors in this case i think we need to categorize the charged offenses into three groups the first group pertain the first counts that target mr harris for controlled heroin purchases and that would be count ones and count one and two from twenty fourteen the second count or the second category would be the charge offenses related to the hotel room and that would be counts three four five and six and then the final group would be count seven which relates to the firearm count from the storage unit and the killed that i want to focus on is the firearm count from counts and that's because it sets the stage it sets the stage for singling mr harris out as being the only one who is a convicted felon of the group it sets the stage for singling mr harris out as being a convicted felon right after the trial judge made specific findings that such evidence would prevent mr harris from having a fair trial  judge remove count six pretrial from the jury's consideration that left count seven with absolutely no commonality with the other counts so what we had here is the trial court judge pretrial making findings that the status of mr harris was a convicted felon would prevent him from having a fair trial hence bifurcation and the judge made that clear in the record pretrial we then renewed our motion for summary it's because at that point count seven absolutely no commonality with the remaining counts in there isn't have it had the same problem didn't it i'm sorry didn't have the same problem it is now it's sense you have precisely the same problem because what now we have is the jury now having a count that labels mr harris as a convicted felon which was precisely the type of evidence that the trial judge wanted to discuss conflate prejudicial with relevant you know unfortunately that's your client yes so you know you can't always scrub everything to the point where you want it so it's it's there's nothing untrue about it well the problem that i see here is that we when we have a trial judge making a decision that look it's bad that the defendant is being accused of being a drug dealer with a firearm but it's much worse when you are accusing this defendant of being a drug dealer with a firearm that's not in his was a possess a firearm in the first place because he's a convicted felon with the trial judge specifically said was with that in mind let's remove count six from the jury's consideration and when we do that then we don't have to worry about the jury hearing this additional evidence that otherwise would not be admissible specifically the evidence of mr harris being a convicted film and that's what the judge was troubled up we know that because the judge also denied the government's motion to introduce the four hundred four b as prior history under four four b in the judge did that because again it came down to prejudice so then when we get to the question of well what do we do about the felon in possession of a firearm counts what the judge specifically focused on and it's at e r thirty three the court concludes that the degree of prejudice under four hundred three would prevent the defendant from having a fair trial that's manifest prejudice that's what the judge is saying if we look at the definition of manifest prejudice and then and the judge went even further because then the judge trial judge considered the old chief stipulation and just a still not good enough all right then the government moved to read new or really reconsider bifurcation and the judge said no we're not going to reconsider i'm not going to allow that because again you're missing this whole concept of prejudice and that's in the record and then at that point that's when i then asked the judge ok well if you're not going to to to sever all in the alternative we need to bifurcate under the same logic that you used to bifurcate count six then the judge asked for a response the response was well you need to bifurcate counts you need to england touched on previously a lot of times when you're looking at things when a court doesn't have to do something and you're looking for an abuse of discretion a lot of times i would affirm a district court either way they have bro discretion to make these type of decisions since so and i might add in a different way completely but by the same token it's i'm having a hard time saying why  if someone doesn't do something exactly as you would have them do when they have the broad discretion to make those things and it seems to me really actually prevailed on quite a few things but not everything well a couple ways to look at that you're although it's just sort of like you're saying like we gave me almost everything that you want and then it becomes inconsistent because you didn't give me the last thing i want with respect to the first assignment of error which is the rule it's the novo review so the this court has the ability to now consider if once we remove count six from the jury's consideration is there a rule a violation by keeping count seven in and i would direct the court to pay attention to that to the terry dishes a decision the judge wara decision that says you have to when you're looking at that and allies analyzing that that that question you have to look at the face of the indictment the government's going to argue that we don't there's plenty of overlapping evidence when we look at what happened at trial but that's not the correct analysis and in fact terry even specifically says what happens a trial doesn't really matter what you have to look at is is the commonality discernible from the face of the indictment and when we look at the indictment it's a bare bones indictment when we talk about accusing mr harris of the felon in possession is absolutely nothing to connect count seven with anything that was different that's a counsel wait a minute excuse me just for second count seven was there every going to be items that were found in the storage locker correct yes yes and one of the items found in storage locker was maybe your fifteen the commercial version of the m sixteen correct that was one of the firearms yes and when you went to the hotel room and room eleven twelve one of the things in addition to the methamphetamine and the heroin that was located there was work around which is a point two two three round which is exactly the type of ammunition that would go into your fifteen that was evidence that and heroin and everything else that goes in and to say to those are completely separate that's going to be the biggest coincidence in the world isn't well the reason i'm saying that your order is because in this circuit as i read that your opinion we don't take a modified approach to determine whether there's a rule a violation we don't consider what happened at trial and what you're mentioning your honor is evidence that was presented at trial not evidence not facts that are discernible from the indictment there was nothing that links those firearms with the firearms in count six or the other drug counts from the hotel room from the face of the indictment therefore we don't take this modified approach unlike some suspect but the factual issues that you're talking about there are they are intertwined and for the purposes o determine what should come in or not jointer of these cases is generally preferable because it is a judicial economy of nothing else and from what i've read in your papers it appears that you want the you wish the district court to have  process to deal with these cases when in fact your client is a foul in possession of a firearm and there are a number of connections that are going back and forth here and there are sales of methamphetamine and heroin and packaging and scales and everything know that that's not an issue because the judge bifurcated count six we had a bifurcated proceeding on count six that lasted minutes that would the only one struck the only question on count six was the status of mr harris as being a convicted felon now with respect prejudice is going to be this inherent question of whether the status of the defendant is going to unduly prejudice the defendant and therefore counsel does that mean does that mean that whenever there's a nine twenty four count that it must be bifurcated if there is a drug case range or a type of criminal activity going on because obviously if you're looking at and i'm twenty four you're saying you are a felon in possession so there are is that your argument that it has to be bifurcated every time because it is so prejudicial relevant with respect to the nine twenty four c count that charges possessing a firearm in furtherance of drug trafficking and i'm not saying in all cases but certainly the courts encourage in all cases that the districts the district or i'm sorry the opinions we cited encourage the course to consider alternatives such as severance bifurcation and sometimes a limiting instruction in this case that's exactly what the trial judge did the trial judge considered the prejudice made a finding that if the felon in  possession count is joining mr harris would be to the night a fair trial hence bifurcation with respect to my second assignment of there what i'm saying is that well if you're going to do that with count six why not do it with count sumit and the judge and give a reason there's absolutely no reason the real prejudice seems like you're saying like of so much charged with murder that you should just let the jury know that the person got shot and then you would stipulate later that they died so if the jury believe that they shot him and it was them or you know it's kind of like you can't clean certain things that well i'm not bifurcating the issues i'm not bifurcating the issues like i'm not asking the court to bifurcate the issue of whether he's a felon or the whether the issue of whether he possessed a firearm i'm asking the court to bifurcate account altogether for when we look at it the judicial economy is not really a big deal because again the only thing that we were concerned about was the status as a convicted felon that would take minutes and this is this is where oh i want to really focus on in terms of the prejudice because with respect to the hotel room counts mr harris was never an actual possession of a firearm he was never an actual possession of drugs several people occupied that hotel room several people had constructive possession of the drugs in the firearm mr harris was the only one that was singled out as being a convicted felon and that's prejudicial about count two hell two was from the year prior and kill she was different because that had a w with up but if it's not miss joined well if it's not ms joined then it should have been bifurcated what sort of seems like but when you mention what happened on the various counts it's not like this jury decided ok because you have again i'm going to right the ones that i have a problem on or the want the counts that have the weakest evidence where you have several people occupying this one hotel room the first two counts quite frankly surprised me because you have an informant coming in to testify that i purchased directly from mr harris why the jury hung on that i don't know the second the last two counts the dope in the in my client's backpack our defense was going to be that was for personal use anyway the jury agreed we have the fundamental problem with them in the middle counts the ones in the hotel room where several people occupied that hotel room were some even admitted to being drug dealers themselves where there was testimony that this place was a trap house and that's the weak evidence i think would push the jury or push my client over the cliff so to speak good afternoon charlene kosky for the united states and i will start with count seven as well so in this case you have to have manifest prejudice in order for these arguments to succeed and i'm happy to is discussing at year sixty six if you look at that in concepts of the arguments the defense counsel was making during that hearing his decision to make a little more sense and i do think i'll discuss that in a moment but i also think that one thing that the record is pretty clear on is that it's reasons for that the district court was concerned about that and i think the fact that they made that argument after he decided to bifurcate six and still the judge said no there's prejudice on six there's not on seven and that makes sense if you look at its decision or it explains the reasons for its decision when it says it's discussing the nature of the four for b evidence that might come in it talks about ok we have the drug crimes on that but then we get to the firearm adjacent to drugs and i find that that's overly prejudicial and that's because the count six and he just stood here and said that in the end it didn't take very long to try count six but when he argued it it was assuming that if my client if i testify on six and all this evidence comes in to impeach me that's go prejudice me i count five right don't want to testify and count five now it could be we get to the end of the trial and my client is acquitted on count five then i can still come in on count six and argue that i did not possess the weapon and all that other stuff can come in and doesn't matter because it's a felon in possession charge alternatively what could happen is he could be convicted on count five in which case bifurcation out six is kind of a non issue and what he even says would assume it to the facts or count six because it necessarily would involve conviction for being a felon in possession and he admits that on our sixty five so i think the district court judge sitting there listening to those arguments responded directly to those arguments there is some inconsistency in the record at no point in this district court make a finding that the stipulation itself that the felony stipulation is the basis for his spine unprejudiced on counts and to the contrary the records there said that was not the basis for his finding prejudice icon six and it wasn't necessary left in place we have a limiting instruction we have a stipulation we have evidence strong evidence supporting his convictions and we have actual direct evidence that the court that the jury listened to the limiting instruction and applied it because it acquitted mr harris of the intent on count nine and it didn't reach a verdict on counts one and count eight so that's evidence that the jury actually heard a limiting instruction considered each charge in isolation and did not apply the mere fact that he was a convicted felon when it considered the other charges that was unrelated to i would also just emphasize that at trial the evidence that came in included evidence that mr harris engaged in drug dealing it included evidence that he was known to have firearms it included evidence text messages people asking him for methamphetamine from that room i mean the prejudicial nature of the of the of the of the stipulation was minimal on it on this discretionary the discretion that nder eight a he said no because counsel's argument for if this was an eight if this was a rule issue it would be no dunno but counsel's argument for rule eight is not actually a really issue the counts were properly joined in the first instance what he's argued is prejudice based on things that happened later at trial that's a rule fourteen issue and that's abuse of discretion when that when that court bifurcated count six he didn't alter the face of the indictment it was was a phil that's right and what he says during our going is the other evidence that would have come in impeachment evidence because what he says eighty or sixty four is my argument with recount with respect to count six being the pistol in the hotel room is that  defense is not it's that he had nothing to do with that the defense is not that he possessed the gun but it was never intent to use it for drug trafficking that's not our defense our defense is that he's innocent of that accusation he had nothing to do with the possession and then he goes on to argue that if he testifies at trial with the position of the drugs or the firearm of the count six says his defense was that he that he did not possess a firearm and he goes on to say so if so if he testifies at trial without six being joined then that evidence is going to come in and the jury's going to hear the nature of his prior convictions but i think i mean there's also he did also argue separately about just based on the stipulation that's not what he argued during the hearing that doesn't seem to be what the court was responding to an eye for created but i think at the end of the day and there is no manifest prejudice so whether you can completely follow what happened and the courts reasoning i think there's nothing in the record that suggests you found the stipulated depiction was prejudicial and i also think that there explained that he thought there was a potential for prejudice based on the nature of the four for becoming it just can't count six which he was contesting possession on counts of the firearm and the nature of his of his of his prior conviction was possession trying to look at what he did i think count seven involved only firearms no drugs count six involved firearms with drugs when the court explained what it was doing it discussed the fact that the four of for be evidence would bring in evidence of firearms with drugs and that would be over prejudicial on count six and so and seven with the overlapping nature of evidence we have all these other considerations we don't have and count seven we don't have a circumstance where you have drugs next to a firearm like he did in his prior conviction and i think that's where the district courts had it was when he was explaining that now if you follow that down i mean it's there are some inconsistency there would have been in your view any prejudice if the district court hadn't done any of that no i don't think it was necessary i think the district a which was the one twenty four seat so the jury was going to hear evidence of possession and evidence of a firearm all right and that's but that's that's for purposes of proving up count five in one twenty four c has nothing to do with the question of felon in possession of a fire so if you take away the felon in possession of a firearm it does nothing to the government's evidence does nothing to what they have to do to prove up counts three four and five and we know that because once the case was bifurcate it it was it lasted minutes and i'll what the trial judge said when it came to prejudice while the court agrees with the proposition the court concludes that the degree of prejudice under four three would prevent the defendant from having a fair trial if the evidence from count six i e the status of the defendant as a convicted felon were to come in with the balance of the allegations and i think he was focusing on the nine twenty four c even with the stipulation being that old chief stipulation proposed by the defendant under the circumstances of the volume of charges the nature of the charges and the extent of evidence providing the jury with this additional evidence status as a convicted status as a convicted felon for this particular count is on top and untenable that logic had to also be applied to count seven ok thank you thank you counsel we appreciate your argument on this matter and it's committed and i will be in recess until tomorrow thank you very much