he took money from a driver at a traffic stop and denying he saw anyone approach him at the traffic stop were sufficient to establish the federal crime of obstruction of justice the parties agree that the standards set forth in the supreme court case of united states versus valor controls this issue but we disagree on whether the proof at trial met the standard now requires that the government show that there was a reasonable likelihood that mr kostopoulos his statements would be relayed to a federal officer and the government failed to meet this burden why isn't the testimony that local police departments refer potentials criminal civil rights violations to the f b i and then as i understand it the f b i screens the referral to see if it has merit why isn't that sufficient to make it reasonably likely that the information would make it to a federal officer because that testimony was just general testimony there was no specific testimony in this case that any local or state officer relayed any information to the f b i f b i or would likely be relaying information to the f b i the local all of that if the local officers work together with the f b i on a regular basis why wouldn't that make it reasonably likely setting aside whether it actually did make it to the federal officers there was no testimony in this case that the local officers worked with the f b i it was only general testimony that the f b i has a task force and that they work in general with local police officers but not in this case no local officer testified to that in a federal officer testified that they did the testimony the general testimony that you're talking about did that tie the working together specifically to criminal civil rights violations did your honor but it did not tie it to this specific case or the specific civil rights violation there was no testimony of any connection between the homestead police department or the miami dade police department with the f b i where in the record is that is the general testimony that you're referring to  general testimony is the testimony of f b i agent cast anita and that's found in docket entry to thirty four pages three through twelve and if you look through that testimony there is nothing specific about this case except to say that the agent became aware at some point that there was an f b i investigation but he didn't say how it came about didn't say specifically when it came about and he didn't justify about any routine or procedure by which it would assure be assured that this information would be generally your honor if you look at the other cases in less there's a link all you are left with is the fact that there's a that there's a federal case and if it's true that in every federal case that that establishes a link that that would be in contradiction to what fowler said which is that the government must show that it's reasonably likely that there has to be a link there's really it must be reasonably likely that there be a connection otherwise but you agree if there were a working relate a continuous working relationship you wouldn't have to show that it was reasonably likely that this case did did apply and was met by the government and the reason it was found to be met in that case is because in that case the government showed a standard practice that the standard practice existed affording information from questionable shootings to the i and that a massive investigation resulted in each time the shooting occurred we simply don't have that kind of evidence in this case as a police officer was kostopoulos aware that the police department had a working relationship with the f b i there was no testimony to that your honor there is no testimony to that at all at the time that his statements were made there was no evidence at all that any local officer intended or expected that the statements would be conveyed to the f b i and that includes pamela jackson from internal affairs at miami dade which is a department that mr kostopoulos work with and remind me what was the time gap between when the when the state officers got involved versus when the federal officers got involved officers became involved in october of two thousand thirteen and the f b i did not become involved until december of two thousand and thirteen so if no direct evidence is required and no standard practice evidence is required or anything like that which is what the government seems to suggest then what we're left with is a possibility standard and that's the standard that the fouler case rejected by the supreme court i thought that casts an ada testified that the f b i ran a public corruption and civil rights squad in miami which included members of federal and state law enforcement as he did generally testified to that your honor yes but he did not give any specific testimony about this case he didn't even identify the local person the branch person from the f b i who was who would have been in charge of this case he gave no testimony about that at all and the local agent in holmes the branch agent never testified no one from the f b i testified except cast media and his job was just to generally minor monitor all civil rights cases but he said that he had no hands on information and that he really just didn't give much information at all in this case three hundred thirty dollars is at issue is there any testimony in the record as to what the standard was when the when the federal officers would get involved whether it was a dollar amount whether it was every time there was a police officer involved in a public corruption was there anything that indicated what would trigger federal involvement no your honor there wasn't if there had been that could have certainly like been lent itself to a reasonable likelihood analysis but there was no testimony about that at all these were misdemeanor theft cases and there was no testimony about becoming that would be conveyed to the f b i at all yes casting to testify that generally they look at all kinds of civil rights cases but there was no connection that's what's missing here there's no connection between the task force and what happened in this case as needed to not even testify that the task force became involved in this case it's just that he monitors everything that happens you know i guess he's advised of whatever happens but there's we don't have the connection showing how this came about or why it would be reasonably likely doesn't doesn't  decision indicate that you don't have to have proof of a federal investigation that was ever initiated or that was ongoing at the time that's correct trying to you don't have to have proof of that but you do have to show that there that it's reasonable that the statements are going to be relayed to the federal government in some way and that's what's missing that's what's missing here in this case mr kostopoulos also raises another issue in this case which is whether the district court erred in allowing the introduction of charts and summaries of the money in his bank account that he shared with his wife in order to show a financial motive for theft i have two questions for you about yes your honor i don't want to take all of your time but did you ever ask for a limiting instruction on the interdiction the financial information but there was a it in the the court reversed and remanded because there was evidence of marijuana use and it specifically indicated that was the reason for the reversal that's correct but the but the court and even even the government can has conceded that the read case is binding precedent on this court and it seems that that that is the standard that's been established that in order to show any kind of financial evidence there has to be an imminent financial burden or there has to be a dire consequence and that's just simply not present in this case so you have two questions let me ask one of  overdraft protection that that makes it that tends to make it more likely than not that they're going to go in and commit thefts that they're going to become thieves and start stealing just because they use overdraft protection is that mean they're more of a prudent person than the than the person that would not use overdr protection well but the way that that was presented to the jury it was the fact that this was the motive this was the motive for why these steps took place is the fact that he had overdraft protection and that's just simply not it wasn't reasonable for the jury to make that analysis or to make that connection and that's what was improper in this case and that's why it was prejudicial to mr kostopoulos because that's what the government argued that the fact that he had overdraft protection meant that he must be a thief and that that's why first of all wasn't relevant and second of all it was highly prejudicial and should have been excluded because it definitely had a juror had a tendency to mislead confuse and prejudice didn't mr kostopoulos make it relevant by saying i make a high enough salary i have no reason to steal or something along those lines but the moment he said his salary was high enough that he wouldn't be a thief doesn't that open the door for the government to introduce evidence of the financial records i think only using the reed standard your honor it would only be that would that  only be opened if they had evidence that he was facing a dire consequence or an imminent financial burden and the fact that he uses overdraft protection is doesn't simply doesn't rise to that level i times  the on the obstruction count on count four and on the the evidentiary issue for several reasons first the district court properly admitted the financial motive evidence i just kind of like to start with that is that was the ending point of my my friend here and i want to make clear that the motive that the government introduced evidence on was not that he was guilty because he had overdraft protection  what we put forth was that there was an imminent financial burden which was evidenced by his bank statements that showed that he was consistently at around the time of the thefts out of money at least a week before he was expected to get his next paycheck so that meets the imminent financial burden test to the extent that it is a test and read and the the idea that this language of dire consequences should be so inflated to create a new test is is not accurate because if you look at the reid case that was a case where the evidence of the government put into effect the evidence the government put forth was a bankruptcy that had already happened and so at the time that the defendant committed the crimes in that case he was no longer facing bankruptcy the bankruptcy was already in process and so this court said bankruptcy is meant to relieve a financial burden so it left there is some evidence here that you know on the  paychecks that he's getting from the bankruptcy court he could not you know make a living on that then we don't have an imminent financial burden so what we have here is exactly that type of evidence where although this defendant was not in bankruptcy he was living on a certain salary and he was a very high salary one hundred twenty thousand dollars and not able to make ends meet on that salary let me go back to judge branch's question to your opponent did mr kostopoulos open the door to this evidence yes your honor he absolutely opened the door his one of his main defenses at trial was that the government had failed to prove that he had a motive that he would not do this he was making one hundred twenty thousand dollars a year he had no reason to steal three hundred  thirty dollars and so this evidence was important and highly probative to counter that let me state it for a moment because prior to trial you had provided notice under four four b that you were going to introduce this evidence correct and so you had this hearing about we did definitely notice that we were intending to introduce this evidence that it was not a rule for a four b motion i'd actually came up on the defense motion and lemonade to exclude tent landlord tenant issues so there was actually other evidence of the government had intended or possibly to put forth before we expressed any intent the defense looking through the discovery made a motion limited to limit what we could put forth and then after discussion and a hearing with the court we came back and said instead of going down that road we'd like to put forth this limited statement testimony and statements and then again there was a motion to exclude that and we had a hearing in front of a district court in the district court determined that only a limited amount of what the government wanted to put in could come in the four months directly surrounding this of these two thousand other than the fifteen month period that the government wanted to put in and so here there's clearly not enough use of discretion because the district court was narrowly limiting what could come in and really looking at this for a three analysis so instead of this being under four a four b is under will four zero three and the standard of review on that is looking at it in the light most favorable to admission maximizing its probative value and minimizing its danger of unfair prejudice and i would note even here today that the defense has really failed to explain how all this evidence was really unfairly prejudicial now it may have been prejudicial because you know it was it was some evidence that he may be guilty but there's nothing in the fact that he is overdrawn on his account that he needs money that is asking the jury to make a decision on anything besides the evidence in the case use that as substantive evidence of his guilt in addition there were statements that officers testified to from the defendant where he mentioned a robbery and said he had no reason to commit a robbery before anyone had mentioned a robbery in his presence so there was clearly overwhelming evidence of guilt here unless the court has any further questions on that issue i'd like to move to the fifteen twelve b three issue so the government put on sufficient evidence that it was reasonably likely that a relevant communication would be made to federal authorities now i wanted to correct a couple of things one is in the record there was specific evidence that in this case that there were officers from not only state local officers on the task force with the f b i but there were miami dade police department officers on the task force and agent cass a native testified about that at docket entry to thirty four agent cassidy to testify to whenever police officers are abusing their authority and so all that amount of money here may be small the issue is much larger than that because we have a police officer who's you know roaming around homestead largely unchecked and taking advantage of some of the most vulnerable members of our society who are unlikely to report him you know people who are here illegally who are living on a cash based economy and he's just taking their money so i think the f b i here found a much greater interest than just the dollar amount here in why to take the case is there evidence in the record as to there's been we've talked about in the record i think reflects the f b i was monitoring cases and would get involved in certain cases is there any evidence in the record of what what standards were being employed to make that decision not exactly your honor so agent cassadaga testified that there were thresholds for whether a federal case would be  brought not quite sure the page but it is in the documentary to thirty four his testimony is fairly short but on that that was brought up in the very initial of his testimony and then on the redirects clarified with educated that even if it doesn't meet the if a case doesn't meet the threshold to actually go forward with a prosecution there's still a full investigation into the allegation to see whether it should be taken and so the fact that there is that investigation at all is showing that the communication would be made to the f b i so the f b i would get the information about us having committed these these crimes and then would have to determine are we actually going to prosecute if they decided not to prosecute that still reasonably likely that the communication would be made to them i guess that's that's what i'm focusing i'm focusing on fower and i'm focusing on how is this more than just a possibility how is this a reasonable likelihood that this is going to happen and so are you you're pointing to cast in a goes testimony is there any other place in the record we should be looking for whether the fowler standard  officer who did testify that he was aware of the f b i investigating civil rights cases in miami dade that was officer dale johnson and i'm sorry i don't have that cite here for me but that just shows that other people were aware but because the defense has pointed out homestead i want to just make the point here that this is not a case where the only way that it could have gotten to the f b i was through the homestead police department miami dade police department was also involved their internal affairs department were involved and agent gaston ada testified that a lot of the referrals that he receives are through the internal affairs department so the fact that miami dade was actually on the task force the fact that their internal affairs was involved and the fact that the case did make it to the f b i in this case and was prosecuted those are all facts that this court can consider link that for me the how is miami dade involvement going to suggest that there was more than just a possibility of the feds getting involved yes well your honor a possibility is a very low standard right a possibility could be any time anything happens it's always possible that the f b i could somehow find out about it and that's why to be a reasonable likelihood to be more than the possibility standard has to be more than remote outlandish or simply hypothetical so here the fact that there is a task force and the f b i has a unit specifically working on civil rights and public corruption cases here in miami dade county and not only that they have a good relationship with locals including miami dade police department and work on a task force together on these types of cases just makes it more likely than just happenstance that someone on the task force or the internal affairs department finds out about this case and refers it to the f b i or even just mentions it to the f b i when they're talking about the of cases where police officers are abusing their authority in their district don't point the court to the johnson case that we mentioned in our brief which is the ninth circuit case obviously not binding on this court but the ninth circuit in that case found that the government had not put on any of it and about the reason let me hood but in saying that it mentioned there were several types of evidence that it likely could have proven the reasonable likelihood with and those included that federal officials were in contact with the local police department there it was actually a county jail but that they were in contact with the county jail they had investigated similar incidents at the county jail before or that they had established a policy or a practice of investigating similar incidents in the area assisting state and local officials with investigations into such incidents or sharing information with state and local officials so that's several of those categories to been met in this case with the government's evidence we've shown that there is a task force that they're sharing information that they're working together but they have good relationships that they were in contact with the local police department which in this case is miami dade so the government's evidence here is definitely come above the possibility outlandish simply hypothetical stage in showing this evidence but the government does not get involved in every public corruption case involving local law enforcement correct no it does not so it's making a determination of surveying these cases and deciding what when to intervene yes your hon but to be clear just because the f b i does not end up initiating a case and bring it to the u s attorney's office and prosecuting does not mean that that information in determining whether to bring a case in term in determining whether it means the not a federal investigation ongoing at the time of the statements were made or even if a federal investigation does not end up happening there still can be a reasonable likelihood that the statements will be made to federal  a to testify the f b i received referrals from local police departments about civil rights violations and importantly that the f b i follow at least followed up on every referral yes your honor yeah even though an investigation may not have been standard this was a case that was a twenty to fifty five the case had originally been tried under the incorrect standard before fell or case and this court was kind of looking back to determine was it harmless and so in that i think this court noted that the proof there had more than met this the standard this reasonable likelihood standard because they pointed out a standard practice but standard practice simply cannot be the standard because if officer is incompetent or is trying to hide something and acting themselves improperly or in less something false through the cracks with a standard practice standard that would mean that unless one of those things happens it's definitely going to get to the f b i right it's definitely going to get to the federal officials and that's arguably a reasonable doubt beyond a reasonable doubt standard certainly a more likely than not standard and that's a standard that's too high  said this standard is not as high as more likely than that is not as high as a preponderance of the evidence so a standard practice is more than what's necessary now we look at the only other case that this court has applied the standard and it  also happened before before fall or standard came down and that was the chef in case and in that case the government had presented no evidence so the fact that the only case that has been upheld under this new did not mean to leave that one out isn't published right thank you so with no further questions we ask for this court to affirm the convictions thank you you'll have your full five minutes with respect to the financial issue the government kids concedes that it needs to show an imminent financial burden and there was simply not an eminent burden on mr  in this case judge reeves is absolutely correct that mr kostopoulos had no choice but to address the money issue because of the prieto pretrial matters that came up and because of how the case was presented by the government also the get go the evidence was not overwhelming in this case no stolen money was found in mr kostopoulos his car even though he was stopped just a short time after the traffic stop was made no stolen money was found in his wallet he offered to be patted down and searched they declined to do that but there was testimony from det detective mada that kostopoulos took money from his pockets and ma did not say that any stolen money was found in the pockets gomez the man involved in the september incident he identified another person in the photo spread he identified the person more and more need to introduce evidence of motive when you do have conflicting well the evidence was was so shaky on idea your honor but i don't know that that necessarily means that you then are the doors and open to show his bank records and to show the show that he has overdraft protection that that somehow makes it relevant when there is the id issue luisa bravo the person who supposedly ran up to him at the stop she also failed to identify him at trial so the evidence was not overwhelming in this case with respect to the fifteen twelve issue it really comes down to to judge branch's question which is why did the f b i get involved in this case that's the question and that's the question the government doesn't answer and that's the question they don't answer at trial they did not provide evidence at trial as to why the f b i became involved in this case there was no evidence of any routine procedure practice there was also no direct evidence as to how they became involved they refer to general testimony that a local agents know about this and know about that but in this case the end turning affairs agent person pamela jackson did not contact the i about this case she only became involved after the f b i already had the case so she'd certainly did not get a referral to the f b i to make it reasonably likely that the communications would be would be conveyed all the government has  general testimony nothing specific about this case at best they've shown a possibility that the statements would be conveyed and not a reasonable likelihood the government refers to the johnson case the johnson case the court found that the reasonable likelihood standard was not met in johnson even though that was a case that involved the use of force on an inmate so the only case where the courts have found it sufficient is this court's case of ago where a in that case there was a standard practice which made it reasonably likely that the that the information would be relayed and that's what makes this case different there is no reasonable likelihood evidence in the the record