your honor i'd like to reserve three minutes of my time for king bible please the court john show on behalf of mr francis i've got a senior defense theory at the trial was that the government's evidence was insufficient to prove beyond a reasonable doubt the mr ogata was the individual the package to erroneous rulings a trial denied him the right of a fair trial and led to him being convicted prior to trial the defense moved to exclude evidence as for a for b both the shipping labels and a prior drug conviction those those issues were litigated and both of them dissolve unfavorably for mr o god and we review for abuse of discretion abuse of discretion on the and evidence your hearing was held and the u s attorney representing the government told the judge that there would be a police officer from the white county police department come to court and knows what the mistake was and she now understands the facts and isn't ruling based on on the truth of the matter she is at the ruling she says this is not for a form of address this is fruits of research and correct that she gives what happens the trial though is we won through all the witnesses and because we're finishing the judge then asked when is this police officer going to come in and at that point in time now that i've had a chance to do all this i realize that there is no police officer and there were no labels found a trial i object to their admission the judge says he waived out of jackson because you didn't object when they were offered through the postal inspectors interesting that the judge says when we discussed this as that she chooses to expected this to be tied up i thought point in time object because there's no cross examination that that out there was no evidence that the packages had anything to do with the defense that they had anything to do with mr added that in that they really were not very relevant you had a pretty extensive cross examination on that point  i believe or did your honor even more important was that by the time mr ogata even began to live in the residence in november five the packages would have already been delivered so there were only three packages that could have been could have been even delivered when he was they were what was found in the in the post office but they're completely irrelevant because they have no nexus to mr ogata and the judge should strike them from the record so it would not potentially since this is a question about relevancy i guess that's fo relevance but the this record thought they were relevant that there was a proper foundation for them so the question has if we agree that they need to very low bar for relevance then what was wrong with admitting the package because crystal got it testified that she didn't so i guess there's a question about the relevance of the four zero two elephants ruling but is the act is that really the focus of your argument record in the reason i believe this is this is a now to answer your question your honor this is a circumstantial evidence case and any evidence that's improper in this matter i believe will lead to prejudice to mr a god it can lead to a conviction in the fact that they have now been able to portray eight other packages being delivered it were likely to contain methamphetamine and crystal ogata testifies that she wasn't the one received him by inference mr ogata was and you have the distinct likelihood that the jury was prejudiced by that evidence coming in and be painted as other crimes committed by mr o it a different way be i witness identification by the postal inspector was was tenuous at best she had never seen mr got up before she was shown what we know is a picture of what w and he is wearing a baseball cap and sunglasses when she sees him be testimony from the two police officers that are sitting over two hundred feet away looking down an alleyway are able to say that one is one hundred percent certain that fake methamphetamine was found in registered constructor no your honor it was a rental car and he had rented it i don't believe it was under his name i mean it was a residence or trial rented there was a rental car freeman there was admit goddard had never driven it before and whose name was on the rental contract convictions were admitted and were found to be erroneous because the connection was not tight enough to show for the intent or knowledge prong here this wasn't mr ogata saying i didn't know what was in the box the defense was someone else picked up that package it was not mr i've got it for this evidence of a prior drug conviction to come in not necessary because we're not challenging knowledge in intent we're saying it wasn't him it would prejudice the jury to see that this person had once before been involved with methamphetamine albeit there were two street level distributions as part of a larger conspiracy where he was alleged to distributed twenty grams and now we're talking about a pound of methamphetamine in a in a rather complicated and complex postal scam evidence by the other eight package other aid packages for the last year have been sent to the post office thanks to the postal scam conviction to show his familiarity with drugs as well as these other aid packages that are now being tied to him were likely and might in the defense's belief to result in the jury convicted him on what we believe was a rather rather let me ask you a question is your claim here really in effect i mean i don't i don't need to cast dispersions is it really an ineffective assistance claim as opposed to a plea agreement claim that it shouldn't be that effective systems crime but i mean i don't is i can your honor and i don't believe that it is in effect i don't think that's it i'm just trying to figure out if we don't have a real agreement that anybody said or agreed to that and i'm not i'm not sure the only other way to attack it is to say somebody should have got me one of those  i believe i have and that's what i know and that's why that's why i asked the question gingerly so tell me where you think the agreement was the agreement exist on the days question i'm not sure the exact date when i call the assistant u s attorney handling the case and i'm told look if he'll plead deep grief give us the name of the person that did get the drugs we will not file the fifty one i sent an e mail right after that conversation to  s attorney and the the other court manager for the judge saying i'm going out to the f t c to talk to my client about this plea agreement i get out there that night i come home around ten o'clock at night and i sent another email to the same two people saying we don't need the final pretrial conference we have a deal worked out the next morning quarter manager is insistent on getting a plea a change of plea in before the court and i respond again we need a little bit of time to work out the details of this how about we move it to friday or towards the end of the week a free theater or you know years and then within a couple of hours the fifty one is filed so if you needed try to look for a contractor what was the contract to get if mr oh god i would would give a brief provide the source of the person you're shipping the drugs or who the drugs were going to and would plead the government would not file the fifty one particular assistant united states attorney's office was indeed the fact it in two prior cases i had negotiated the exact same deal there's nothing ever in writing you're told to trust and if your trust in your client comes through you'll be taken care of the the crux of this particular issue is that it didn't get set for emotion here you know whether or not a plea agreement existed and both the assistant u s attorney and the judge sad were to have to have a hearing and if we're going to have evidence and it's going to come from me you need to withdraw because you can't be a witness in your own case we show up at the hearing and there is no motion hearing the judge rules without a hearing deny my client the right of a hearing to prove that there was a plea agreement and it should be enforced let me go back to my question though if you see your position it is that this oral agreement isn't forcible i do so even though it wasn't accepted by the court yes  for drug offense you follow the special information and that's what i always do this is the first experience i've had mr shaw in a drug case but in all other instances if i have a defendant instance would be based on any alleged representation he gave information to the government as a result of that alleged representation now the reason why time he supports it is f now the government in terms of fairness supported the court in its inquiry mr defendant would you like to be good grief now would you like to explore the opportunity to cooperate and provide substantial assistance to the government which would allow you to go before the law the mandatory minimum the government was in support of the no what's what for whatever the reason during the trial occurred only on one day february third two thousand and twelve and so what the government's evidence was is that they had this parcel addressed to somebody else and the defendant was one that picked it up no the defendants defense was it wasn't me i wasn't even there i was told the whole morning and so what the government wanted to admit the labels for was to show that this defendant had the opportunity intent  his picking up this package was an accident and it was a mistake yeah and how does how do these labels help show that only because he says i wasn't there your hand if you wasn't context is important because one of the expected witnesses would have tied everything off make you more relevant was amount that he should call who requested immunity and that was set forth in our brief that she was going to give a completely contradictory statement to what her statement was to police on february third two thousand and twelve so as a result that was cut off what the government was left with was the evidence that we're discussing right now so  what the government's concerned about it was concerned because it didn't want the jury to be misled and so during the course of its closing argument those those labels came up the government brought it up and first of all it tracked the language of the visiting instruction of the court regarding the labels word for word and then to make sure that the jury grasped the concept of hall these labels apply in this case it's part of the record in the poet's excerpts a record volume three on page thirty eight during the closing argument there was a slide had four forty evidence the part conviction and the eight labels and was appointed to the government that those two are next to each other because the representations in the closing argument was pointing to the tables were forward in the closing argument you can use this information in the labels to determine if it was the defendant's intent to gain possession of this some pitched period and to distinguish that from the conviction then i stated you can use that information to determine if the defendant had knowledge of the existence according to the closing arguments the government sure their understanding of how you used that particular evidence and what the distinctions work to ensure that they were not misled relevance seems less compelling white white tell us why the judge appropriately allowed that kind of evidence in front of the jury i mean his argument was i wasn't the guy who picked up this package he had some answer that question i would like to just add two ways the first the first is the context of this case the fact that everything a curry one day what the government had to come back up was it was pieces from here for different witnesses all circumstances to put it together now what they could argue was oh you know what i had somebody else in the car how do we how does the government  used it then obviously you know what you're doing is you're and i now understand we review for abuse of discretion what concerns me cases like this is that you're you've got all of this great evidence and then we've got something that saying this was a circumstantial case based on his identity and because of the nature of that they chose to put in this highly prejudicial evidence that all but guaranteed a conviction and won with the the labels your honor they're going back months before he even got there and not a single person identified him is being associated with this labels any more than crystal go their sister and brother sister and brother i'm sorry as was sterling no got to be her other brother who was living with her the whole time and her two teenage children who had access and where was mr ogata your client living at or earlier prior to november he was