well argued case on the calendar today we have one motion to argue to hear before we may please the court my name is jeremy gutman and i represent appellant james bayfield on this application for bail pending appeal the government does not suggest that mr bayfield is a risk of flight or danger the only challenge they make to our showing is on the question whether we are going to raise on appeal a substantial question is that term is used for purposes of the bail ongoing negotiation process is something reviewing his designation to that institution there is not at this point depending on the outcome of this acts taken more than four years after the bank fraud that was charged in the indictment and that involve the filing of a false deed by mr bayfield in order for that to be admissible under rule for a four b there has to be a connection between that act and a contested fact it has to serve to rebut a contested fact the government's response to our motion makes very clear there is no such connection the government offered a theory that mr bayfield opened the door word to that evidence by in his cross examination of a cooperating witness named  real bell who with a group of other people engaged in a series of mortgage frauds the did not involve mr bayfield ten or more that were entirely independent of mr bayfield and mr bell one of his roles in those was to prepare false documents including w two the question on cross examination was in order to prepare a false w two that misrepresents information about the employee do you need the permission and involvement of the employer and he said no you don't need it the only the only suggestion by that is a fairly uncontroversial one that it is not necessary to have the employer involved in the w two and that because mr bayfield was an employer as to apple the applicant the there was an implication he could have here and i'm glad it's not just in my in my head the only implication was it wasn't necessary for mr bayfield to do that in order for these fraudulent applications to have been done the government the broader suggestion was not part of that cross examination and not introduced otherwise there was no dispute that mr bayfield had a connection to these properties that he in fact was going to live in one of the properties that he  had lived in it before the sale and continued to live in it and there was independent evidence of that there was testimony there was a photograph of him so this went to a much narrower were point that could have raised a reasonable doubt not as to whether he knew anything at all about the sale did you see four of four be limiting instruction when the evidence when the judge concluded that it should come in i know i waived that really based on fact that we very strenuously argue that this was inadmissible and that the government's theory was what puzzles me about the same you just made about what the defense was and what the cross examination went to is isn't this really all a question of intent that is it's clear that you know one might say there's something funny about this because they feel continues to live in this place even though it's probably been sold to someone else and in the  whole case is really about did he intend anything wrong for their did he engaged in some kind of fraud isn't that what the issue is as you say it's not about whether he played some role or participated or was generally aware the transactions it was did he do this with some sort of fraudulent and one of my missing well but but it gets back to what what what is proven by the four hundred four b that relates to something that was contested if we're talking generally about a very generalized intent the problem with rule four of i mean four hundred four b recognizes that propensity the thing about the deed though this is not understanding situation correctly this is not some extraneous bad act that mr bayfield is alleged to have done on some other occasion involving some other property that would show  see he's a bad guy and therefore he must have and did something fraudulent here this is in connection with the same property it's in connection it is but what it does it doesn't really prove anything about what he knew or intended four years earlier it right it's by the government's position a fraudulent fraudulent document so it doesn't prove anything about what he actually knew or what the actual facts were and then the government suggestion that it proved he was really going to be in control of this property all along but they had other evidence of that the only thing this particular evidence added is that he would it would be logical to have that factor into your decision about whether it's more likely than not that he participated in a fraud four years earlier but that's exactly what four zero four b prohibits friends from this  steal the property or it would lead a reasonable person to think that he felt entitled because this was supposed to be his will and but that was not in dispute and in fact the other cross examined that the government points to was a question about didn't about mr bayfield renovating this property and putting a lot of work into it and taking pride in it it was actually nothing nothing that was raised by the defense disputed this idea that this was going to be his property so the notion that we need a separate crime a false deed in order to rebut a position of the defense today in the context of a bail application we don't have to convince you were ultimately right but certainly the case they rely on carbone e very strongly emphasize that it was th uncharged act in the charged act occurred very close in time to one another there is no case that the government can point to where there's a four year gap and it's still considered in extra couple intertwined thank you please the court mark beneath the united states and i represented the united states along with two other a u s a's in the district court the government requests that this court affirmed the district court's ruling denying bond on appeal or excuse me that this court unpeel as the district court also denied that for some of the reasons of that that the district court set out because the defendant has not raised a substantial issue concerning any of the issues that he's raised with  believes it was properly admitted at this point in the trial because as the district court providently in their motion in limine and this is a page thirteen of the appendix set out in their decision that the government's motion in limine a is granted to the extent of the government introduce the proffered evidence in line with a rule for all four b if and when it any point during trial they feel disputes his knowledge or intent with respect to the charge crimes and at this point when this was admitted at that point the defendant now had challenged the primary government witness a cooperator who fingered the defendant as being part of this fraud scheme in at least two ways first by attacking or suggesting that the false documents regarding employment w two statements could be generated alone suggesting the defendant bayfield had no involvement in it and second by indicating that the defendant had rehabilitated properties including this one hundred seventy fourth street property and so the government's position is that  this line of questioning certainly put the defendant's knowledge and intent at issue and so it was the court the district court was correct in permitting the government at that point to admit the evidence in addition besides a four hundred four b basis government believes that this was in fact direct evidence that was in extra quickly intertwined because as your honor pointed out this related to the  directed by the defendant and the fact that when in december of two thousand and twelve miss supriya as came out in trial tried to because her credit had been ruined tried to  adversary pointed out to have an extra completely intertwined bad act that is so far removed in time i mean most of the case is more like stealing the getaway car to rob the bank absolutely it certainly was it's after the charged conspiracy however it was dated for a period within the conspiracy and that's where again and i think the judge did tell ya no in setting out in his decision i think that's one of the reasons why  he indicated both in his decision on the motion in limine and the trial that he was going to admit it under rule for a for b and i suggest that even if it's not direct evidence because of that time lapse as your honor points out it is so closely tied that this is not propensity evidence is as your honor noted this doesn't have to do with some other transaction or it was not put in to show the the  defendant is just a bad guy and here we're going to talk about something that doesn't relate to this case and in fact i would also argue your honour's that any error was harmless because there was a mountain of evidence as as defense counsel notes there was a picture of the defendant coming out of this same property which had been fraudulent lee transferred in the days before trial so many years later they continued to live there and in fact there was evidence including multiple cooperating witnesses who placed the defendant squarely in this fraud scheme and as a result this small piece of evidence was did not change the outcome of trial here and in fact the government noted only once in summation and briefly in rebuttal and so for for all of these reasons your honour's the government would ask you that because there's no substantial question raised by the defendants appeal that bond be denied pending the appeal thank you both for your arguments will take the matter under advisement that concludes the calendar this morning so i'll ask the clerk to