good morning me please the court my name is ray sheets i'm from cedar rapids iowa and i represented mr harry at the district court level this morning i want to start with the forty four b issue  the district court allowed for for be evidence under the exceptions of intent and knowledge now intent and knowledge st of all it's important to note that this evidence for for  and i say that because every case cited by the governments in that court dealt with convictions this case was no chart and nothing charge nothing a tried and nothing convicted it was to cooperators or three cooperate as coming in and providing testimony secondly the important thing to note is that this is not a conspiracy case this was simply charged as a possession with intent to deliver and i note that because the case law from this circuit is clear that in conspiracy cases intent and knowledge are almost always an issue and in this case the intent of the defendant the knowledge of the defendant was not an issue the only issue dealt with possession who possessed it did the defendant possess it or did the other person the owner of the truck who is sitting right next to the defendant possess that counsel couldn't it be that his mill state is it is you even if he initially it made it it was his when the police made the stuff we do and he talked about why he made that admission and we have corroborating evidence of the reasons that he gave such as the significant evidence showing that my client owned his own vehicle in which he could have driven we have evidence that my client was a mechanic of motor vehicles and easily could have fixed any car so there are there was significant evidence pointing to who possessed it the issue of intent was never placed an issue either by the defendant's testimony when he testified at trial wouldn't wouldn't his knowledge be at issue if there was an intent to distribute now no the only issue and and i cited the a circuit case i go stand that discussed it was at page twenty six of my brief that knowledge goes to if a defendant objects to the knowledge of the type of substances it  is and in that case i believe it was judge richard all it's the judge indicated that if existence the defendant's defense is that he thought the cocaine in that case was foot powder or some other substance the fact that hit previously possessed cocaine that goes to knowledge that that eggleston case which is still good law goes to quote the defendant's theory  only issue was again who possessed it there was no just always your theory of the case and that certainly was an issue if it wasn't isn't he wouldn't be able to be charged but that wasn't i don't see how that makes it the only issue in the case well i believe your honor that it was indeed the only issue of the had significant other evidence in front of it such as seven months after this incident the same passenger mr tool was stopped and found in possession of a significant quantity of methamphetamine in the same truck you know that i think went to show that our defense had a basis the thing that we were not allowed to get into was and that's our rd issue on the appeal was the fact that this same passenger had several methamphetamine related convictions that we were not allowed to introduce into evidence so that you reversed for zero for b r d that's correct so in this case we had the situation where the government was allowed to introduce evidence of uncharged untried unconvicted conduct into their case but the court did not allow the defense to present tried and pled initial argument was look he was sentenced to ten years end of story and the government comes back and says well obviously didn't serve ten years because he was convicted two or three years later so i mean who's got the burden on that particular issue and if it falls on you  did you meet that burden well we would in our reply brief your honor we clearly indicated that we believe that the government has that burden to show or not not the government but when when the proponent of such evidence and we submitted all of the charging dot sensing documents to the district court at the time that clearly show that mr tool was sentenced to ten years on the conspiracy to manufacture methamphetamine charge with an additional two years consecutive on two additional possession of methamphetamine charges once that party submits that evidence then it is up to the other party whether it's sometimes  defendant or other times in this case it was a government that has the burden to show that that prison time what was not properly included we  argued we and we do continue to argue that if the district court had taken that into consideration that these prior methamphetamine convictions would have clearly came in as a reverse for for  so in this case yes the proponent of the evidence made its initial we made our initial showing then it was up to the government to rebut that which they never did and in this case it was particularly critical because we have again consistent with other types of evidence again the fact that the same passenger mr tool that would be something that occurred after the fent yes yes occurred nine months after the the arrest in this case so when the district judge you offered various things for four or  law enforcement interviewed him in regards to his activity around and another methamphetamine manufacturing site we presented a witness in regards to that so there was significant evidence concerning the the culpability of mr tool my point is the district court didn't just wholesale exclude the evidence he sought to introduce it examined  found some relevant admissible and others to remote or some other yes but it were excluded from the defense perspective i think it would have been certainly more probative and more convincing to have  i'll start i think where mr sheets left off with the four of corby definit was charged with possession with intent to distribute when a charge is made and you have go in front of a jury the government has to put evidence on all of the elements of that offense whether the defendant says well if they don't stipulate to an element it's got to be proven by legal and competent evidence so intent and knowledge are clearly in play in a possession with intent because knowledge goes not only to the knowledge of the substance but a knowledge to the possession is you have to knowingly possess the substance with the intent to distribute  so that knowledge and intent was limited the form for be evidence was offered for a law that limited purpose there's of course no requirement under for a for b that the offense be convicted or take prior history had to his possession of the drugs in this case well the prior testimony of the of the witnesses that testified about drug transactions with the defendant either purchasing methamphetamine from him selling methamphetamine to him the substance involved in this case was methamphetamine and the quantities that they were involved with were also similar intent to distribute level quantities larger quantities of methamphetamine also doesn't why isn't that classic propensity it before so he is going to do it again well it really was narrowly tailored as the court you know the district court did a very detailed order looking at the government's for a for b as well as the reverse for four b i think there are actually two  what was going to happen with that mess if anything that he at least initially at the roadside admitted he had but denied it at trial or the knowledge that this was in that he knowingly possessed it in the back of the truck and it was a message that i mean so really or or was it introduced to establish that he had at what point did he tell me untruth of opposition the initial roadside stop he admitted that he possessed it and then later at trial is when he denied possessing it and said it was mr tool that was involved in the drug trafficking so that would that really was the theory of that the defense theory of the case going in and so putting in that for a for b of us to look at what was the defendant's inten knowledge was relevant even if the defendant admitted possessing it what was his intent and what he was going to do with it was he going to be just a drug user or was he intended to distribute it to others so it became really relevant you know that was a peach mint does the morning your propensity testimony or what it was on the th or b evidence was offered in the government's case in chief prior to the defendant testifying so it was it was offered as you might say it was it was offered to prove up elements of the offense knowing possession as well as the intent to distribute that that quantity of methamphetamine those are elements of the offense that need to be proven didn't talk about the roadside interview that indicated that he admitted he had been had possessed that and said it was his and then later during the course of the trial when the defendant testified he of course said it was mr tools so the  the full world of evidence included both the earlier admission and the later testimony that was not not the defendant does it matter that this testimony wasn't of been admitted in court or convicted in court it really is any evidence that you can prove by a preponderance occurred and the court that just report then is in the is in the position of looking at all the evidence determining whether the government can prove it or the defendant with the proponent i should say can prove that the offense occurred or the conduct occurred and then goes through the forty four dollars b is offered for the correct limited intent you know because you can't do a laundry list under four for b it's got to be or the admission of the or the refusal to admit all of the reverse for a for b because the same analysis applies to four for be evidence under no matter who offers it whether it's the government or the defense what was the district court rationale for excluding them for a for b evidence offered by the defense against mr phoolka tool when i have to get my readers out at some point or learn to write better did not allow the older there was no to be conviction in two thousand and three that did not come in a conspiracy to manufacture meth in two thousand and as the court knows under for corby you look at court but of course that's one of the number of factors under four for b the court discussed in the court's well reasoned and detailed findings and of course didn't get a reversal or get a new trial on this the court to find that the error would be more not harmless error and looking at the evidence in this case we would suggest that if there was any error we suggest there was not it would be harmless beyond a reasonable doubt  would like to talk a little bit about the stop in this case because the united states yes the court does not need to even reach a rodrigues analysis or attempt to come up with a new rodriguez discussion as to as to  e or extension of the traffic stop in this matter first in the reply brief defendant correctly points out that that i when i wrote my brief i shorthanded what the what the c i said and what the totality of the circumstances were on the stop that that's my fault and i shorthanded it and should not have a more detailed discussion the summary of the evidence that that the officers head is at page fifty in the special transcript aug rd twenty seven thousand dollars transcript the detailed discussion of all of the text messages as well as the background investigation and everything else they had is based basically page sixty three through seventy nine  in essence what you had was the c i came forward early on in jail talk to the officers talk the officers when he jail so they have that discussion had a series of text messages on the day of the stop and the officers had done other investigation as well into mr harry and identified mr harry as a large scale methamphetamine dealer with a source of supply either in des moines or marshall town which is about a four hour drive from dubuque so the investigators investigator williams really had a laminated total of investigative activity that they had done the discussion it had with the c i things they were able to corroborate as well as the text message tips council for get to the rodriguez issue what is the record show about the delay if any it's not clear to me my recollection is the magistrate judge suggested there was a over two minute delay the district court found otherwise it's not clear to me what the government's position is on whether there was a delay and if so how long the delay may have been i would read i re read all the transcripts in preparation for this and actually if you look at page fifty over so they arrived simultaneously and williams says i stopped alongside the road with a traffic stop another investigator stop with us i approached the vehicle i did identify scott harry and dennis tool in the vehicle i then assisted deputy carney with the traffic stop as far as processing the vehicle registration driver's license status once and warrants while deputy carney was deploying the canine on the vehicle so what you have is carney starts to stop williams is there williams then picks up that seamlessly picks up that traffic stop part of it in is continuing to process the ticket while the dog is deployed so you know there is no to right absolutely so there was actually no delay at all other than you know assuming for sake of discussion the only delay could potentially be one officer talking to another saying hey i'll handle the traffic stop a matter of a nd or two and i think courts expect officers to work in teams according talk to one another so that that kind of delay i'd you know the government the defense suggests that we're trying to resurrect some kind of de minimis delay and we are certainly not but courts the courts of appeals have come out with different language attempting to come up with a formulaic approach to rodriguez to give police officers guidance  if two unlawfully prolong a stop the stop the officer must conduct an unrelated inquiry aimed at investigating other crimes that adds time without reasonable suspicion so it's kind of a multilayered approach as an application of rodriguez so comes with to understand you to say that you believe you have an alternative rather than even considering the stop that the base who this vehicle is going to be stopped anyway based on the c r the united states w suggest based upon the evidence that the officers had you know they had him transporting methamphetamine the officers knew it was a large quantity of methamphetamine based on his their own investigation it was about four hours away from dubuque generally in the marsh town or moines area that one hundred and fifty one dollars was was really the route that would bring them there although they had all the highways covered traveling with a passenger white truck you know it was a white single cab truck registered dennet with dale tool all of that was enough to give them reasonable suspicion to conduct terry stop without any traffic violation at all and when you look at that terry stop you're allowed to have the terry stop to be the duration necessary to investigate why you stopped so that point that time and whether there was a traffic ticket being processed or not is irrelevant so the terry stop in and of itself authorizes the stop of the car but then if you do have to go to the traffic violation the probable cause there was no delay in that so the court need not reach the rodriguez issue or really formulate a new rodriguez analysis in this particular  the district court's order excluding it the court the district court made clear that the only reason the only reason was it was the remoteness and time the district court and i it's part of the  to my brief on page six of the district court or the court found that the convictions of the passenger mr toole were relevant to material issues all of his activities involve the presence possession of methamphetamine or drug paraphernalia related to methamphetamine that the court found that there were relevant they found of the court found that these acts were similar in kind to the instant acts with regard to  the rd factor i find quote there is sufficient evidence for a jury to conclude that tool committed these acts by a preponderance of the evidence and th the court found that the probative value was greater than any prejudicial effect bright line rule that thirteen years unless it is coming in and unless there is prison time involved which in this case are clearly was  even convictions over thirteen years old comes in and they didn't in this case because they got to the district court never made that analysis and the government never made that argument they just simply said well that it's the convictions are too old now another point that i would ask to respond to was the intent the government says well intent was something that we had to prove and so we can show intent by presenting this uncorroborated testimony of these informants before one gets to intent there has to be possession and in this case possession was always and  the defense made that clear and in its motion limited so this was no surprise to the government there was no surprise to them at all what our case was going to be and as reflected in our motion lemonade we made it clear that possession was the issue who possessed it with all of the evidence that we had that mr toole put possessed it that was the finding issue in the case and the counsel the government still had to prove intent wouldn't you agree i mean it well hadn't submitted sufficient evidence i think it's a fence lawyer in closing would have gotten up in argued in the alternative that look here's my main defense but the government has the burden beyond a reasonable doubt and they didn't address intent to distribute well that the intent was never addressed by the defense because we knew it wasn't were pure and simple i didn't possess defense yes your argument is the towel no matter how sion cases into account in determining whether he possessed it in this case well in regards to the district court's order your honor i would reference you to page five of the court's order it gave very  short time to in fact if it didn't give any analysis at all in terms of the exceptions of intent and knowledge and that's on page five of the district court's order is simply stated that in drug cases where the government says it's proving intent and knowledge it's coming in this fall for the stuff that's coming in and we have  that there needs to be more than just a recitation and in fact and in this specific case where we have such significant evidence of the other person's possession possible possession i think it was unfair for the defendants differently the district court's instruction no matter how carefully phrase it this aerated your defens that's even more confusing than my original answer so just your disregard for what i said well i'm tempted to say we're not talking about a quantity of drugs we're just talking about possession per does possession was the only issue in th of your defense and according to your argument i guess it was undercut her it is rated or destroyed by the district courts for a four bit order no matter how carefully worded it may have been well it was unfair for the government to be able to present this kind of evidence and at the same time the district court was not allowing the defense to introduce evidence that the court found was relevant but it was sexual and i think