and that involves the jury instructions for the aiding abetting charge and the great way to the evidence on the conspiracy charge i think the government has all but conceded that the jury instruction was  it failed to instruct the jury on the advance notice provision in the aiding and abetting and as the trial attorney i have to mention that had we been allowed to argue aiding and abetting had roseman come out prior to my me was this an objection that was preserved or is this something that where the case the supreme court case came out later yes if it came out they were in plane air land right yes ok plane plane are right and i think the published at that time and the henry case it was you know the i'm spinning here which you know just as you wrote in written it hadn't come out the temper trial but had it i would have argued advance notice in my opening throughout the trial my closing and i would ask the instructions and i think the court certainly would have complied with that request would you have said in response to the pinkerton theory so the pinkerton is i would argue that the issue the court the jury needs to look at the totality of all the instructions the government chose to choose to charge with both aiding abetting and a conspiracy but we were entitled as a result of that to the instruction on advance notice because it wasn't given the jury never heard that instruction it would have been one of the instructions provided in addition to the peter to instruction as for purposes of the appellate issue argument is that as relates to mr adnan the government failed to prove that it was recently forseeable we have to remember this was mr edmund had nothing to do with the carjackings he wasn't present it in supplying the firearms he had no advance notice he would have a preference for expensive cars with keys in them he did and that's the government's theory but like a pawn shop where you bring in jewelry you say hey i want to sell you my jewelry and they sell it over suddenly even if you have a craving for dispenser jewelry doesn't mean it's recently forseeable that i would have stolen it in fact mr and was acquitted of one of the one thousand foresees and there was even the witnesses unequivocally said these were spontaneous acts of criminal activity certainly they could have gotten and i think in one case the office of l a they were planning just to punch the belly grab the keys the fabs in and press the buttons to find the cars so would what those are and that's fifty five years right there just so least i could argue and i think i did and within two totality of the instructions mr admin is facing these nine twenty first accounts because the government's arguing that well it's really foreseeable that in every case you would have anticipated a stolen car with a would have been the result of a carjacking with a firearm and we maintain that that was consistent with the facts i mean he's in a pretty normal i mean i mean i know not carjacking is not normal but then seen that exceptional to me to have carjackings with firearms well yes that would be ninety nine percent of them potentially yes it could but the ideas could chew up teen a car with the father without committing a carjacking a valet that is the question i think is whether it's reasonably foreseeable that when you're you're at this end of the conspiracy you have this role in it and there's a huge preference for swipe those keys and you can get those cars that is because there is a way that you could do it without using firearms it's not reasonably foreseeable that a firearm would be used yes not only is it recently for it not only is there could a way but these the witnesses testified that was a plan that they were going to do that they were going to get one case in what the one of many when in fact they started by not even doing carjackings the witnesses said that they grew into this later that they would he would run and jump in the cars it was a certain term that they use but the recipient of the cars all they need is the fabs in fact if there was a carjacking without a fab it was according the government's theory it  worthless so it's the fog in the car together that made it a valuable commodity and the argument is is it reasoned forseeable that if you come into my store and you've got a jewelry or car that i could have foreseen that you would have stolen it i mean it's a high end car i enjoyed maybe don't look like someone who might have been able to purchase that it gets into a discussion about what is foreseeable and you have to remember these witnesses said they had little  contact with mr edmund there's no indication of his plans or that there was a there was any advice and you know the instruction is that you have to commit it or caused or aided there you have instruction were one possibility a liability one possible reason for a conviction is been proved wrong by a later case but the other instruction is still legit to  one bad instruction one good instruction it's plain air land and someone says that's plain air what's the bet what's your best case for my case we're sorry oh dia's it's fifteen years old which makes it even more important because even predates roseman five defendants convicted of aiding and abetting in a carjacking resulting in the victim's death conspiracy to commit carjacking each defendant appealed they got two life sentences the first circuit out of puerto rico reversed the aiding and abetting because there was insufficient evidence that the two defendants possessed the requisite for knowledge that the carjacking was to be committed and that was a similar case there and it was predates predates henry and i think it's a significant type of analogy that i would just score to use i know i have just a few seconds and i just want to just touch very briefly on the other issues that were raised the failure to appoint a handwriting expert the sentencing issues i think they were properly preserved they argued the case involved the identification of mr edmunds and finally at sentencing we argued that the court should at least consider the significant sentence for the one twenty four c's in deciding how distance him for the charging you know the question there's no other questions i was there two minutes for a bo may please the court daniel bradley on behalf of the appellant frank harper and like mr sherman i would like to reserve two minutes for a bottle and we were a several issues in our brief and i'm happy to focus on any one that's of the most concern to the court given our time restrictions but if there's no preference i'll just launch into our first issue which was the evidentiary one is the issue here is that the district court allowed it the government to introduce evidence of a december thirty first two thousand and ten drive by shooting that was not a part of the charge conspiracy conspiracy was a conspiracy to carjack fear calls and this incident was different it wasn't even a car theft it was frankly an act of wanton violence so i'll begin by saying the government is correct when it says that the case their various counter looted formulations have expanded to the point where they become little more than a roadmap to circumvent will for for be cases like this one where it's clear that the government is using these exceptions to justify introducing evidence that at least in part is intended to standard of review is sort of multimedia step so there are legal questions involved here and then ultimately when you get to the real for three step there's a discretionary component but the threshold question for example of whether th drive by shooting was an other act for a rule for a for b purposes or is somehow intrinsic to the charge to fans as a question of why this court of used to know so questions about what tests should apply and how that test should apply those questions of law if ultimately gets the rule for three balancing again that's a discretionary component but your main argument here is a lot legal one that it's not intrinsic is that your main point well there are several components to argument first is that it doesn't appear and then tossed in the words for a for b without really clearly articulating a justification according to the three prongs of the circuits test so that right there is an error failing to clearly apply the test that's an easy one we also believe again yes that the evidence was not an extra couple or did not fall under a exception doctrines that's a legal argument and we further believe that if it came to a rule for three balancing there would be an abuse of discretion here now to expand in some more detail as i was saying the circuit is not formally abandon the doctrine at issue but has been rightly cautious about its application is simply put to the test cannot function the way the government wants to use it in this case the government's position essentially boils down to the proposition that evidence is believe the phrase is part of a common scheme i'm sorry part of a single criminal episode or part of a continuing pattern of illegal activity the government seems to think that means  continuing pattern of illegal activity committed by a person so the test is a fine with reference to a person or person such that for example any commit criminal activity committed by stratfor newton and frank harper together is necessarily relevant to an inextr later criminal activity committed by those two individuals but that's just propensity evidence by another name and it's well established in every circuit that these documents can't be used to circumvent the goals of rule forty four b so the connection there in a carjacked car so they just taste on the car they're going to use that car for another carjacking and then the gun that's used is a gun that's used in a carjacking one of the big issues in the case was whether you know the one twenty four charges you have convictions for in terms of regional weather treason foreseeability whether the guns were part of the carjacking that's right your honor to say i don't know i mean don't seem crazy let's put it that way to think that th testimony from stratford that frank knew the car was stolen the government believed that he knew but they didn't prove it so that can serve as a foundation for the introduction of the evidence likewise again there's no evidence that frank knew stratfor newton's gun was being used in carjackings at this time so all those arguments that tie this event to the greater conspiracy that existed at this time are sort of red herrings sure and may have been excessive acceptable proof of the existence of conspiracy some people were involved in but it was introduced to prove the specific the charges against frank harper and it was not admissible for purpose and i can continue on this issue if you like but i'd also like to say a few words about the knowing introduction of false testimony issue and i'm  simple one the testimony needs to be false needs to be material and the government needs to know that it's falls the first two components that test frankly don't require a lot of overthinking in this case the testimony was self evident way falls and aside from the sort of direct evidence that comes from agent started articulating understand things that are physically impossible there's a lot of circumstantial evidence as to means motive and opportunity for why you would do that to borrow a phrase a prosecutor's like to use he said through stratfor noons testimony he knew what the problems were he knew how stratfor newest credibility had been riddled and he came up there and filling his sword now i think the trickier component is whether the government knew the testimony was false and our brief should be read to attribute any sort of malice or ill will to the government but it has been remembered that there's a should have known component to that test if the government knew or should have known that the testimony was introducing was falls in an error has been connected they have known because it was physically impossible and because the government for the record sat with the agent and reviewed this these three are two years and many many occasions prior to subsequent witness interviews prior to the trial certainly proud agents of its testimony so it's it's  extensively and they weren't nothing one of them for example went to whether frank harper was even present at one of the three carjackings he was charged or participated in so the agent comes out on the stand a few days later having sat through stratfor news testimony and testifies that he has suddenly realized that there were mistakes he called the mistakes in the three or two and that those mistakes needed to be corrected so the prosecutor in the age of mediation or colloq we were went through the three or to identify these mistakes and explain th careful and i'll finish this question should i real quick questions if all of this came out at trial how is it prejudicial i mean in other words it sounds like the adversarial process worked the way it should was an interesting point and i think the timing component is important so for example the government sort of defense for this or the reason why it was harmless is they want to say there is this is all on on the up in up these are corrections to the reports that came out during trial but think about it this way if that's true and if these were just legitimate corrections to the reports that he put it agents came to the realization of when years preparing for trial then why did the government agency others sit there throughout defense counsel extensive cross examination of stratfor newton on these inconsistency is and say nothing and sit there and functionally allow defense counsel to clown themselves based on false discovery materials provided by the government there's really no right answer to this it's either a false testimony issue or it's a brady violation so i've been out of time and i'm going to take a seat but i'll speak more about  morning and for the record robin frankel i'm appearing here on behalf of phillip perper a i'm going to do my best to not repeat what some of the other arguments have been raised by co counsel but i do want to speak briefly to the pinkerton rosamond issue because in a sense it's a single issue even though i understand there are two theories of liability here of culpability here one is a conspirator as a coconspirator one is an error in a better i think we all agree there was no rosemon instruction given roseman didn't come out until after the case was filed the difficulty is when you read the jury instructions as a whole they're entirely convoluted nobody says making a different point that the package of instructions yes even given that they didn't know about roseman the package of instructions poorly put together hard to understand if my memory is saying if that's the point you know did someone say that the judge should try to get them approved i believe if my memory serves me right now i don't have the page in front of me that frank harper's trial attorney did in fact objects to the pinkerton instruction by arguing that it was so complicated that the jury would be confused and that really is the difficulty when you read the instructions the judge instructs initially and conspiracy then instructs on one twenty four c as a coconspirator then jumps into the substantive offenses of carjacking and then says and i'm paraphrasing and for all these crimes that i've explained to you the defendants may also be convicted as an aider and abettor and every time you go you go back and reread a brief before you come in here you think of new arguments and things you wish you would have said and i apologize for the bouncing on the thread here you're so you're saying there's not only a problem on the a t m but instruction you're saying for frank there's also a claim that the pinkerton instruction was wrong all of the defendants at the time of the instructions joined in frank harper's objection stating that the pinkerton instruction should not have been given because it confused the jury it was it did not it wasn't appropriate for the circumstances of this case and the reality step outside this is not a conspiracy is that the point of course it's a conspiracy but the difficulty is that that we have these two different theories in the theories are inconsistent for lack of a better better term if the criminal law is all about personal responsibility then you're looking at an eating in a betting charge about you have to have advance knowledge of the presence of a weapon you're talking about in terms of a conspiracy you need to have it needs to be reasonably forseeable but there is still a level of personal responsibility of the defendant what is the difference why should the mens rea a for aiding and abetting be so far afield from a conspiracy theory why is it that to be convicted as an intern a better you have to know that there's a weapon but to be convicted on a conspiracy where you don't know i don't think it over ruled it but i think that there is an open question that hasn't been addressed and whether or not it limits pinkerton now i know in other circuits pinkerton has been limited and i think it was mr edmund in his br when you're reading through everything you think this doesn't mean clubs they don't you can't we have one and that the others the pieces of the objection to the pinkerton instruction i don't have it word for word and i would have to go back and look at it mr according to your brief it was that there was a constructive amendment of the indictment that is one of the arguments that was made but that's not the one i hear you make no that's not specifically what i'm what i'm what i'm trying to focus on there was a statement or objection made by frank harper's trial lawyer that the pinkerton instruction was not appropriate under the circumstances of this case it was not fleshed out more than that to my recollection so that doesn't really function as an obstruction objection to the instruction how's the judge posed to proceed on that to correct the well he didn't want the pic of him stretching given i mean there was an objection to giving pinkerton because it did not work with the circumstances of this case it operated to confuse the jury if you read these instructions from beginning not beginning to end but from the conspiracy instruction through to the end of the aiding and abetting instruction as a lawyer i can't figure out what i can convict these guys of and i'm what basis and at one point the judge tells you which needs to be more specific i mean you're you agreed already that a pinkerton instruction in the abstract was appropriate wrecked ok people make mistakes they didn't anticipate rosamond that's just the way it goes but picture to most appropriate what what exactly should have said differently i think that there should have been under eighty in a batting rosemond didn't create something new out of whole cloth it still is the idea of personal liability you have to have a connection what's wrong with the pinkerton instruction picketed instruction it was approach was legally the correct instruction at the time of the case the problem is now that we have rosamond it becomes clear that the instructions but hands you're relying on the seventh circuit i thought the seventh circuit was the circuit that's rosamond doesn't change pinkerton that that's brookside i'm only relying on the seventh circuit for the argument that in some other circuits courts have a limited pinkerton's have limited extending the pinkerton liability and in the seventh circuit in  another situation they limited pinkerton's liability which which cases should we look at to make sure we're not creating a splitter were wrong or whatever well i don't know the other circuits i think that the other circuits the second circuit state that perhaps because of rosemond pinkerton liability needs to be looked at in another light perhaps it needs to be limited in one twenty four seat situation that's but that's the point that i'm attempting not very articulately to make before your honor's my time is almost up the only other issue that i would like to address is with respect to the sentencing argument and i understand what franklin says and i'm not contesting what franklin says but what the judge did is he sentenced him on the basis in part on his assumption that the mandatory minimum sentences could be overturned later if a judge shouldn't look at the mandatory minimum sentences in order to determine the propriety of the sentence is the guidelines case then the judge certainly shouldn't sentence on the guidelines case with an assumption that the mandatory minimums are going to be overturned because then what he ends up doing intentionally or otherwise is increasing the sentence on the underlying issue to make up for the fact that the mandatory minimums might be gone it's only a point in time good morning a man please the court for united states a brief sketch of where i'd like to go on the arguments your honour's is first on the rose one issue second to the sufficiency issue then the intrinsic evidence issue and then whatever time i may have on the suppose it intentional perjury issue i'm roseman one thing i wanted to go to first was what the tourney was talking about that last moment i think what the court was getting at is the newman case it's a judge easterbrook decision from two thousand and fourteen and it does the exact opposite of what pill poppers attorney is suggesting and that she's saying that there are other courts that maybe you don't you know he gets right i haven't seen anything like that the four circuits that i've seen who have looked at pinkerton post rosemond in the context of nine twenty four see charges the second circuit third circuit in this circuit all the cases we cited there are two eleven circuit cases both unpublished that went the exact same way i haven't seen your point is yes fine aiding and abetting is different from conspiracy so that's why rosen wouldn't affect the pinkerton conspiracy charge but rosen actually reflects this sentiment of the court to be careful about too lightly charging people for you know who are at the fringes of a conspiracy i guess you might say but not directly involved and you know maybe if you apply that here you should be a little more skeptical of pinkerton convictions in this kind of setting when it comes to that one twenty four c part that's what i kind of take her to be saying and she's probably right about the court they do seem to be careful getting more and more careful about of liability the reasonable foreseeability that attaches to pinkerton legally is different and so if the facts in a given case support the pinkerton theory then i think it's a fine and appropriate charge and if you look at the defendants that it's applied to in this specific case there is a great deal of discretion the government applied it to the carjackers who had the guns in their hands to adman who is a remarkably sophisticated individual and i'll get to the sufficiency argument about adman it wasn't applied to any of the drug addict paper pushers on the other end none of the marginal players who had been involved just in push push jails there's a tremendous amount of restraint in who pinkerton was actually applied to and even on these defendants your honour's we didn't even apply it for each of the substantive nine twenty four sees only the ones where someone was directly so there was a restraint showed by the government factually here but legally there's no problem on any of the circuit cases that have looked at the interaction of  point i want to make is we're not conceding that the actual instruction we gave here as a suggested instruction in that the court gave was in era it actually requires more than what rosemont said aiding and abetting needed roseline said you needed advance knowledge what the government put in there was knowingly caused which is a stronger standard we had we knew rosen was coming down the pipe we put this language in we didn't know what was going to happen but this is definitely a higher threshold even though one circuit who has looked at language that similar the young decision the second circuit case the language they had in there was just encouraged and they found that that didn't violate rosemond because it required some kind of for knowledge so here causing is certainly a stronger standard than simply encouraging so i believe we did satisfy in one case that i think is important for us as henry when henry discussed the rosemont instruction the concern in henry a three seventy five was that that instruction just said crime it could amend any particular crime but here are specific aiding and abetting instruction said knowingly caused someone to carry a firearm so to address is the concern and henry and that's why i think our instruction is not a problem that there is no error with aiding and abetting struction as a threshold matter and then once you get under it our our next arguments are that it's harmless even under richardson and henry it would be harmless the next argument is that it's definitely harmless under pinkerton is every circuit that's looked at it would say the same thing and then the fourth thing which i want to address first because the court brought this up and it's a good question is what is the best case let's assume worst case scenario that our ro an instruction even though it required this higher threshold was erroneous and we had the pinkerton instruction which they've conceded is not erroneous and then we have this aiding and abetting instruction what happens when the jury is presented with those two things the best case that i think that addresses this is current to in chrome into what the court was saying is if you have an inroad is instruction and then you have an accurate instruction and the government makes the erroneous instruction front and center in their closing that's a problem that's the exact opposite of what happened here in our closing the government i mentioned conspirac sixteen different times i referenced aiding and abetting one time and the example that i gave of aiding and abetting in the closing was someone bringing a firearm to the  carjacking so even that one example that i gave them in closing would have easily satisfied rosemont in abetting i'm sorry why did you even do the aiding and abetting i mean it's just if i must say it frustrates me it just seems like piling on just keep throwing options out there to the jury you have to admit they're pretty close pinkerton and aiding and abetting i just i just i must say i don't care for that  and retrospect think that it may have been easier in cleaner just to do the pinkerton theory and i think the evidence absolutely satisfies  even on the most difficult case under pinkerton arguably would be mr edmunds case but i disagree with the way his counsel described the testimony mr edmund knew no later than the december thirtieth carjacking that they were carjacking these luxury vehicles he actually used that for knowledge before  anything about the vehicle to negotiate a lower price they knew that they were carjacking you're saying in the sense that guns were being used to get the keys that's according to stratford newton's testimony that he he had hundreds of vehicles that had gone through this process he had specifically requested high end vehicles that have advanced key systems where you need to were going to need to get them from the person on them and then importantly when david gerritsen testified he said that his conversation with mr adman show that mr edmund knew it not that he discovered it or that he found it out or that he was somehow surprised he specifically said that bernard admin knew these were the cars he was getting he knew these carjacked vehicles were the ones he was requesting and he even specifically ordered one of them what about this shooting incident i guess this relates to frank counsel the other side said that you know that was even before he was involved in the conspiracy and so it does seem gratuitous to things that that's not the actual testimony newton testified at least on one or more occasions that he had been doing push deals which were part of this conspiracy while before with frank harper before they had been doing these specific carjackings so he had been involved and was charged and convicted of the conspiracy which covered two thousand and nine all the way through two thousand and eleven so he was absolutely involved  with the conspiracy before the january twenty fifth carjacking that he was involved in but the other thing is that incident is important for a number of reasons the first one is that it's part of a conspiracy and i think under adams this takes us into a different landscape this isn't a freestanding fip case it's nothing like gibbs where you have a felon in possession of ammunition and then you have this massive temporal leap a month later after the story is completed and you're just trying to pile on with this kind of prejudicial unrelated information things in this specific incident are even more connected than the the facts that the court already highlighted not just one of the guns your honor was used it wasn't just strafford newton's glock that was used in multiple carjackings but and this is a very important fact the gun that frank harper had on december thirty first was the same gun that newton called him in order to get frank to bring for the january twenty fifth carjacking so it's important because this incident also showed that newton in need of a gun to do a carjacking knew that he could call on frank to get frank's gun that frank brought which was loaded and then again that wasn't the last time we saw we actually saw an ex nineteen multiple photos of frank's gun which was actually taken from his social media so it wasn't one gun both guns that were used on december thirty first were used in multiple carjackings both guns were introduced at trial and importantly it also explained very importantly why newton would have even contacted frank harper on the twenty fifth to let him know we needed to bring your gun frank we cannot even commit this carjacking unless we have a gun bring yours it's a necessary prerequisite before we do this the other reason is it was very important to explain why newton had never in those initial in the initial grand jury and in his initial proffer name frank harper at trial he testified that it was out of fear of retaliation and it was that until frank was actually in custody that newton disclosed his name so it was important to explain newton's credibility which had been attacked to show that they were using the same common tools not just then but afterwards newton's motivation for contacting frank on january twenty fifth and the basis for their mutual trust there are several cases and i think one that's very helpful is gibbs because there are so many different facts between this case and gibbs the concerns that gibbs had for example there was a one person charge this is a conspiracy there was a felon in possession of ammunition case that had nothing to do with the later shooting this is a carjacking that as i said used the same two guns repeatedly use that same crime vehicle the day before the day of and the day after the temporal connection and gives a month later here smack in the middle of all these different carjackings and there and gives the court said the court should err on the side of caution when there's a big they they said it specifically when there's a big temporal gap that's not a concern here this is contemporaneous the next thing is the purpose there was to show danger i said five different purposes that the government uses another important purpose is to show this kind of mutual trust between the parties and that's a purpose that this court has repeatedly recognized including in adams and adams the court allowed as intrinsic evidence vote rigging evidence from a decade in a half earlier was from the one nine hundred eighty s in a case about something that happened in the two thousand just to explain the mutual trust between these two  that concern is gone as wall another thing in gibbs not only did the prosecutor use this temporarily disconnected future incident they had all these other prejudicial things they had photos of the scene with thirty bullet holes we didn't show any of those things we actually showed restraint in that way we didn't put on the victim we never elicited testimony that anybody was shot there were no photos of that incident the government definitely showed restraint same thing gives us concern because there is no nexus between the defendants and their case and again this completes the story but i have a technical question which i there's no reason you would have looked into this but just in case you did be curious the government's position if you've looked at it so on the jury pool argument there is criminal rule twelve question of what exactly the standard is when you know you should have raised something before the trial court in the new rules as well if you didn't raise it before trial you can try to raise it after trial but then you have to show good cause and then the question is if you didn't raise it at all at any point in trial is it just straight up plain error which is what case says but some courts have been saying well no you also have to show good cause and just if you don't know anything about it that's just as well i don't really expect you would but if you did i'd be just curious because i've noticed some courts are disagreeing with this on this and i just wondered if you have any thoughts about it i didn't look outside the circuit but i know you know soto right i know what this court has held that you have to raise it before and then otherwise it's plain air ok another issue that i want to sort of directly address is frank's arguing about the ellen ellen souther testimony couple important things one the way that appellate counsel is describing and characterizing the statement in court and how it was physically impossible is inaccurate the actual site at i didn't realize that it's not a matter of not being careful to marry simply didn't hear him say certain things i simply don't hear it so he never testified what appellant counsel saying he testif that newton said frank harper was president that's not what asian souther testified to agents other testified that he didn't hear it that's why it's not in the report that's his testimony so there is no physically impossible imagining that the witness is doing on the stand that just didn't happen the second thing was the impeached newton multiple times about his pretrial wise we brought all that out the defense counsel repeatedly impeach newton about his pretrial lies and in consistencies all of that helped the defense there's nothing at all prejudicial about that and showing that the government's case agent had mistakes in his report doesn't help the government out either the reason that i did this and i specifically said it when i started going down this path with him is because the very first time that agents other testified at the beginning of the trial frank harper's counsel got up and crossed him and went over the mistakes in his reports said a number of dates that were mixed up they open the door they telegraphed where they were going to go on some other testimony by already showing that he made mistakes so when i went to it i even as a prelude into getting at a specific mistake and this is right at record one sixty eight twenty forty seven through forty eight commemoration souther that i felt harbors attorney went through these different mistakes that you made in your reports how could that happen how do these mistakes happen so they had already not only opened that door but they telegraphed where they were going to the point of those of bringing out those mistakes was just to bl the cross that was going to come it didn't bolster noone at all and none of those the five mistakes they were about reporting date who was involved in a and charged push till the mix up of omar edmonds description at the first proffer none of those things hurt frank in any way they helped him the court doesn't have any other questions we do not think just like to take the opportunity in rebuttal it's just to take some of the exception to the characterization of bernard admin it having recently forseeable inferences or knowledge of these carjackings because he had later heard about these i don't think that supports the government's contention that these were knowledge that he knew beforehand it's not what he may have heard later in the government says that is not limited but knowledge of the circumstances of conspiracy who played more than a minor part in a conspiracy to avoid the very problem that we have before the court in fact the some of the nine eleven circuits require substantial evidence to connect the defendant to the ongoing conspiracy in derive all cited in my brief and in in their response there was no mention of those cases finally you know i'll conclude by saying this that if  the government just purported to read to this court the relevant transcripts of the false testimony issue but left out chunks of the passage that are rare the testimony actually says agents yes i didn't realize that i had three pages here i actually found want i'm sorry i found one more error or omission actually what's that on january thirty first two thousand and other i note that philip harper glen douglas and bowman had taken a camaro c t s and infinity truck however i omit that frank harper was president why would you omit that i probably didn't hear him say frank if you didn't hear the witness a friend then you cannot possibly have personal knowledge that the emission of the word frank from the report was an error or omission if you didn't hear him say friend in the report is correct based on your personal knowledge and it was demonstrably false for the agent to testify that the report was in error that has the effect on the jury of telling them that stratford newton's testimony is in fact consistent with what he previously said a fact which is totally outside of agents others personal knowledge based on his own testimony that the reason for the emission is that he didn't hear it said i want to move on from that because frankly the falseness of his testimony is self evident and somebody evidentiary issue the government came up here and pointed out which is correct and i believe we mention this in our briefs that stratfor new testified frank was previously involved in push deals before he joined the carjacking conspiracy only cheney working the government didn't charge anyone in this case with a conspiracy to commit push deals because bush deals are not a federal offense this was a conspiracy to commit carjacking offenses and evidence that frank committed push steals is not evidence of a carjacking conspiracy the degree of intent involved is very different and relevant evidence and why isn't it now the point is the government continues to act i'm sorry maritime about them i thought it only continues to behave as though the presence of a conspiracy to commit carjacking between stratford newton his associates in december somehow means that evidence of the opinion and it's very persuasive the point is you can use evidence for the propensity inference doesn't matter if you can list except of all purposes like proving they knew each other if buried somewhere in the chain of inferences you want the jury to draw is is very briefly with respect to the idea of foreseeability and actual knowledge i want to simply i don't know if it's correct or qualify one of the statements that was made by the government this was not necessarily an escalation from push deals to carjacking stratford newton testified was record number one sixty two page id nine sixty one he never stopped to push deals if sometimes there's an auto theft without a gun and sometimes there's an auto theft where somebody pops up with a gun what's the forsee ability that it's going to occur every single time with specifically with respect to the first charge with which philip perper was included in the care jacking it's count two and three at the elysee and that's the first time that he's there and in that particular incident nobody testifies that he has a gun nobody testified that he knew anybody was going to bring a gun strafford newton testified some other guy had a gun during that incident under either standard more stringent standard of pinkerton i'm sorry more stringent standard of rosemont or the simpler standard under pinkerton there's no forsee ability if there's no indication that he knew anybody was going to have a gun system run so thank you very much the case will be submitted to corporate call the next case