next case united states versus squash it my name is peter to mail i represent mr quassia the account defendant in this case you wanted this case presents invites the court to return back to looking at the admission of other act evidence in this case said other act evidence created a suggestion that mr quassia was a member of a robbery ring that extended over ten years while the evidence and so while the charged charges in the indictment only deal with a much shorter period six to six months the evidence you ana of these other acts comes from a single source essentially it comes from the cooperate ing witness who is was free to make up and to suggest that mr quassia had been involved in a number of instances all conveniently against people who would not have reported it to the police drug dealers etc but how would you have had the government put those witnesses on the stand and testify without eliciting the fact of their prior involvement with the defendant for two reasons one is it tells the complete story of their relationship it tells why they would turn to mr quassia in this instance and it also explains why they didn't need to meet and go over their plans for what was a fairly complicated scheme because they'd done it before but the evidence didn't show that there wasn't one single prior act that dealt with a robbery similar to the mermaid's robbery into the second was tried for it so that the judge's determination of what conduct is admissible was based on the charged conduct which included both robberies and i think there was indisputably prior conduct other acts evidence that was quite similar and modus operandi to the those police officer and person nations if they had beards there that is not a unique nature of the crime there is a whole we learn from this case that the n y p d has a whole unit that just specializes in police impersonat cripes this is and all that mr pardo says is they had better is he doesn't say anything more than that and yet he goes over and over and over this again and also he brings up a robbery which had no none of these connections this is the mundo robbery one which the judge definitely should've kept out because in that case the end of it individual was killed the victim was killed by mr p still pretty compelling evidence that he was there right well no because in this case respectfully your honor we have an unusual situation this is not new for parents of teenagers we know they keep their phones tight but this is a group that shared apartment which was then discovered later does that same that same day but your honor that is what happened because and this and we know and the jury accepted that the jury acquitted him of that count if the jury was going to follow if that he was guilty of they had that evidence and i'd be in a very different position in this argument this other fact evidence did not come in to show part of the judge also admitted on the basis of identity he had it doesn't show identity because it's all based on the testimony of the same individual and even if it's rove it you're on the trial court had the responsibility for applying for four three and five four three the and doing and testing the probably devalue against the risk of unfair prejudice he had to flee he obviously did that to the extent that he kept certain things out he told the government that it had to keep its evidence on this issue to a minimum which i think the government did i think it covers only thirteen or fourteen pages in the transcript not to mention i think you reserve judgment on that to trial and did you object on the grounds of trial and trial counsel ya know it was i don't think there was a contemporaneous objection to time because the government did limit itself to what court said it would it would admit if they had gone beyond that i think  words the judge did make a balancing and charge the government with keeping to a minimum the government did keep it to a minimum and there no objection to what it presented so how was there for valid for three argument have you not waived it or at least made it subject to in the crime in which he was convicted no one identified him the victim identified the third robber as a tall black man with dreadlocks and who was clean shaven and yet even the testimony of pocho was that your honor may please the court my name is eric paulson and i represent the government in this matter i'd like just to open by addressing one issue that defense counsel did not appellant did not address in his papers he mentions that the court improperly admitted evidence of a conspiracy that extended too far backwards he spends a lot of time as brief on this issue want to make clear that what the district court did in this case it is made of the evidence under two theories both under four four b and a limited subsection of that evidence as evidence of direct evidence of this conspiracy there was overlap and some of that evidence when it came to the charging decision however the court dealt with everything as four four b it gave a limiting instruction for all of that evidence it said that all of that evidence could only be used for the limited purposes of war for b and so although the district court gave a multiple rationales for that evidence coming in it did give a restrictive conservative instruction when it came to trial and i think there's been no allegation that the government used that evidence as direct evidence i think your honor and in reviewing the papers here will see that the both parties focused on the evidence of the two crimes and use the for evidence for the reason that it should be there to explain the the odd qualities of this case  your honour's brought up some of these the fact that there was this robbery was done with very little preparation it was done with very little planning despite the fact that it was a push in robbery that involved victims hostages that evidence was also useful to explain why  judge chin mentions after the defendant dropped his phone during the first robbery he wasn't radioactive for the next robbery needless to say this was a significant mistake his d n a was on the phone it was his telephone before but if he be evidence showed that they had done robberies like this over many many years this was the first incident like this that would you know cause distress among his coconspirators and as a result i think it was aberrational behavior and they were willing to use him again at the next robbery when they needed his cable equipment or maybe they had to make amends because they borrowed his phone and left it at the scene of a robbery that he didn't participate in an odd way to make amends or honor i will add on on that particular robbery one where he dropped his phone his explanation for not calling the phone to find out where it was that he didn't know his phone number there was a couple of things that were just mentioned i just like to clarify the record and what's the basis for admitting the post robbery similar acts evidence i think there was evidence of a robbery that allegedly took place after the two charged robberies yes or no there was one of the reason that was entered in is that was a robbery which had a similar m o where they used some police gear but significantly they also brought in this individual charles sumpter was a very large individual who played a secondary role in the robbery that was the fed it was convicted of part of the reason we wanted the evidence in was to explain again this unusual circumstance that in each robbery they brought in a fourth coconspirator in at the last minute with no discussion among anyone this is that this is again a kind of an odd behavior for people i think would expect a robbery of this sort to be very much planned and so that particular robbery again displayed that that characteristic that charles sumpter came in at the last minute they get used police here and it showed that the the manner in which they had committed these crimes right and just a couple issues pellon had mentioned that there was only a single source things he mentioned that el mundo robbery were murder had taken place had been referenced there was actually two el mundo robberies the murder happened in two thousand and twelve the robbery happened in two thousand and nine murdered somebody in two thousand and twelve at that place the robber he talked about with the two thousand and nine robbery you know these are two different robberies at the same place was there any objection to the reference to the murder there was yes because the cooperate or mr chaika his testimony is that  well he beat the man to death with his bare hands but he had a taser which he also used to shop the victim the taser he borrowed from the defendant the government had asked about that and that was one of the things that the court said we could not bring in based on four three balancing but i meant at trial there was some testimony from the cooperate or about the murder was so was there any objection to that testimony at trial only in so far as in referencing the murder that he would mention that any of the equipment he received was from the defendant but none of that came it no of course not so the cooperative discussed the fact that he had killed this man but it was just as he described his role in it nobody else's there was mention that they had police badges i mean they had police badges they had police vast they had police radios  there was some testimony that their police gear looked shoddy like it was not very professional looking but it was not limited to just a badge and finally there was also reference that there was no four for b that shared the of the the counter conviction now the kind of conviction the the robbers had initially intended to burglarize this house they realized they couldn't do that and so they dressed up as cable men use a defendant to create a cable ruse now one of the four for b these guys had their cable gear they want to use the cable gear to get into this stash house and then would rob them from the inside the testimony was that they say they looked at the area it just looked too dangerous and so they backed off  final issue i'd like to address is the harmless error analysis which we address in our papers now although the the government did talk about several robberies that the van it was involved in the government argued and i would say this is this is true that there was no robbery that was as inflammatory as the count of conviction in the count of conviction the defendant and the two cooperators held a young mother at gunpoint the mother had a seven year old and a one year old with her at the time the seven year old was so frightened she urinated herself that particular robbery i'd say was the most inflammatory and the most egregious of the cases that we talked about the prior robberies i believe were of a similar nature but frankly just not quite that bad and i know the second that the cooperators also talked about it seems although we do not know what the jury was actually thinking it does appear that they listen to the cooperators they listen to the four for b they listen to the direct testimony and exercise some judgment on which which crimes they thought were worthy of we had to ids your honor we had a phone we had some fairly elaborate phone charts we worked very hard to prove that the the the the use of the phone right before the robbery was consistent with only the fan and i called individuals who were the last individual to talk on that phone just to prove that you didn't know who cooperated is were however there was some very strong evidence in the count a conviction i think the appellant has under sold that the one very good piece of evidence which he didn't references the young woman who was who was robbed just before after she called her appointment and she was waiting for time warner she got a call from a blocked number the block number said would you like an earlier cable appointment and she jumped at that we traced that block number to an organ pest control at the organ pest control and one of the defendants best friends worked there we showed that just before and after that call from the block number mr quassia had called this braids she did say he was very thin tall between sixteen and six four which matches the defendant and there was obviously other evidence as well but yes your honor i did believe that we would get a conviction on both and certainly the first now if your honour's don't have any other questions  there again there was no testimony in these few of what was said on these phone conversations we have a group of people who use phones who share these phones and all we have is a tree it is phone with messages going from one of phone to another the government did not call the woman from orcon i don't know why they want maybe but they wanted the evidence to come in to speculate so the jury could speculate that must have just hitting on a couple of the government's points the sequester factor missed a question didn't know the phone number is not that unusual considering that was a business phone was one of his business his employer used to communicate with them and for him to communicate with that he had a second phone which was his personal phone that was not the phone that was dropped at the at the poverty street apartment it was the phone that the government's cooperat criminal ring he lived in the apartment in the basement of his mother's house in queens he worked at various cable places and other businesses and he maintained those jobs up to the time he went to jail in this case he was never viewed as a danger to the community he stayed out on bail until he surrendered in this case this is a man whose conviction is based upon the testimony of m poggio and the litany of crimes which only missed the part claimed he participated in the involvement of mr in terms of that we have long in our brief was extremely limited the reliability or believability of the evidence is not a factor under four or four be correct i mean the fact that the testimony came from poggio doesn't really matter ultimately you have to weigh the problems you want to know you have to weigh to probative value against the risk of one of unfair prejudice if the probative value is of the evidence and every evidence testimony that he participated with the cooperating witness and other robberies that certainly probative is probative but you have to consider the weight of it if the pro if the underlying testimony is that of a