found in a duffel bag that it was his duffel bag or that it was some other substance or that the only defense was whose was it who had knowledge of it who constructively possessed it and so with that we analyzed the three evidentiary rulings that they have raised and and so feel the first is the forum for be evidence and the government was allowed to introduce evidence that sixteen and a half months after this incident mr deval was found in the house where there was drug paraphernalia i submit this is pure propensity evidence it fails two of the four criteria for allowing for b evidence it was supposed to prove a material point in issue and as i just explained the only material point in issue was the knowledge of this cocaine in this your defense in this case or that the that is the issue in this case is whether or not somebody else put the cocaine in his bag correct i'm not somebody who distribute to possessors cocaine somebody else must have put it in my bag and a year and a few months later he's arrested in somewhat similar circumstances in a place where there's some drugs not a lot or some residue but this paraphernalia and other things he had does not  sixteen have months later doesn't shed any any light it's true that later recurring events can be admitted but they it's not like the lows annele case where something that happens ahead of time  puts knowledge in the defendant's mind here what happens after the fact doesn't put any knowledge you know it's not knowledge so much as i take it the argument here is really much more along the lines of mistake he mistakenly thought i was the person who i don't think he presented a defense of mistake or you know they can there's the government can defend against a mistake in other words the argument is use a mistake you got the wrong guy wasn't my  there some relevance to i would submit know that it's first for the absence of mistake it's like that the defense of mistake has to be clearly presented and i submit that it wasn't a mistake that was that was the defense that he committed a mistake in the government's theory that it belonged to him i think it is this incident sixteen half months later shows nothing about what was going on mr newman was head thoroughly counteracted i mean it's you know there were other possible people that could have possessed this cocaine and that defense was presented but it wasn't this evidence  counteract what could you just clarify for me and i believe with the golem why is that the second yes subsequent location yes when they found him there they found him in a bedroom right correct and  did they find any of the drug paraphernalia in this particular group i believe what did they find there they found some residue they found cocaine residue right there's a lot of marijuana looking at i see your i think it's one forty they found in the bedroom a cd taste with a razor blade on it in the bedroom in which he was found in that razor blade there was cocaine residue and then the other drug related again and he didn't contest that he's not familiar with drugs and with cocaine the issue is this if this double bag were other people could have put it into it he's not saying i don't know what the first president correct correct so is there is a very limited defen saying you know i'm not saying this isn't even an intent to distribute a level if this is cocaine you found cocaine in my bag my defense is very limited the other two people were the ones that constructively possessed it but he's  well i think it's a propensity argument he was in around people that were there was no it wasn't clear that this was his bedroom but he was found in it but there wasn't even a bed in the room so there is an inference that he was around people that were involved with drugs that is a given but that his possession is not there i would like to move on to other pieces of evidence the hybrid testimony the court the u s the freeman chase makes clear that instruct as to the hybrid nature of the testimony really hurt your client at all because even if the even if the officer was viewed credible with respect to the percipient park that part wasn't really contested my question what was found there i think was not contested is that correct correct so that when they found the cd with the right with the residue all right so we're not saying they didn't find that right so it sounded so even if the officer was given und he ended up saying that we seize these items because that's what a drug dealer has so he's basically allowed to give his opinion mr ball was a drug dealer and you know well he and the other officer absalom it went over the bounds the other other officer morse stated that we didn't test this for fingerprinting which is the big defense is that fingerprints we don't know who they are we didn't do this because we knew who they were we knew where they belonged to so he's you know their credibility is advanced and officer moore wasn't an expert he was a late witness but he but later when this is also can't testify as to the ultimate issue since court was just discussing a moment ago the issue of knowledge i think is certainly addressed by the four of four b evidence presented here different depending on the claims to two criteria that the four for be evidence fails on the one would be the remoteness and we didn't talk too much about that before but the first being failure to prove material point and i think the fact that sixteen months after the defendant is found next to a bag with cocaine found in the house with not just the cocaine residue on the cd case but also in disha of drug trafficking and specifically cocaine trafficking you'll recall that they found a nice  powder there which is specifically used for cocaine cutting is the testimony revealed so that's specifically related to the fact that he had knowledge of that cocaine or tended to prove that he had knowledge of the cocaine in the bag next to him at the at the sorry we have consistently held that evidence of a defense prior possession or self arcot excess relevant under four for be issues of intent knowledge motive opportunity absence of mistake or accident prosecutions for possession of importation of and intent to distribute narcotics i think that really goes to the heart of the issue let's not know ecus the same the same idea so just goes to show that he has knowledge that he may have knowledge of what is cocaine but i believe it tends to prove that i mean someone could and you could hear that and draw different conclusions but ultimately i think it tends to prove that and i think that's what merriman ash and was on are getting at when you're discovered around drug trafficking items or in possession of drug trafficking drugs that has a specific bearing on whether or not in another instance where you found your drugs you may have knowledge or an intent to distribute those drugs and so in that instance i think i think this is sort of x x explicit or specifically what the courts  me and i think if that was the extent of the record i'm i may tend to agree with you that wasn't my my view the extent of the record i think what we see is testimony that he was found in a room full of the test difficulty was for for be evidence is in many cases how unnecessary a case here we have a defendant caught with a lot of cocaine in a bag that he owns with his stuff in it he's got the implausible defensive i didn't know it was there and we're here arguing about out of conviction because we have four or four b evidence or sixteen months later it's just i'm not it's not just not so clear to me why those who are for be evidence was needed  t wasn't mine somebody wants to stock it there it's the sort of here because the defense was like i didn't know that cocaine was in my bag or someone else rented the room in the twenty seconds or so for knocking the door and also the fact to be fair to the government the defendants also said what in your fingerprint the bag and there were other tests you could have done so i understand that it's sort of you know you've got to come back and respond to it but so i reset a couple of other nations yes on what you want to hear but can you do with a hybrid because our cases seem to suggest that the district court has even in the absence of where in the other precautions the courts the court set out that we need to take so we need to bifurcate the testimony for instance you should buy a ticket testament you should not allow the witness to speculate or testify to hearsay and absent cautionary action which did not happen and there was other evidence apart from the problematic testimony or contested testimony and as a result the court said yes there were there is a lack of instruction but ultimately it should not be reversed because everything else here was was fine our case the same way there was no there transmission of the testimony so i guess my response is this i think in the context of a drug case officers are all should have to have some room to provide context for why they're seizing what they're sea so just to ask the witness officer johnson did you search this residence yes what did you find that usurps easy thing yes that the funny thing of significance yes i found out or was that significant to you i think that question is appropriate otherwise the jury really expert based was the testimony on drug pricing and then distribution quantities and i think that a non expert can say i sees this because i've seen other drug cases i think and that's really the extent to which he that's right as far as he w think he sees for example the compound because it's often used in drug cases i don't think it is expert testimony but i think his testimony is if this proves the issue these things together the indicia of early every drug distribution operation is surely expert testimony and i think that that is a pretty isolated incident there is one comment that he said he made these things together or suggested drug trafficking i don't think that undermines the fact that he did at lay an testimony and the evidence presented about giving way itself i think is enough for a conviction and of itself one final comment i think if you the jury received the instruction for expert testimony and for just how to how do you a regular testimony if you combine those two instructions they almost mirror ninety five percent of the circuits model instruction for doro to dual role testimony so ultimately they got the bulk of the instructions from my mind in my view at this point for an academic distinction because combine it with one of the things they want to guard against is that officers should be allowed to speculate and here we have the speculation and we have the loose sort exaggerations about you know this is this is what a drug dealer doesn't and this is we