well in case numbers one seven dash five eight six four and one seven dash six zero zero one the united states of america versus decline davis and united states of america versus lamont fortune oral argument is ten minutes for each defendant twenty minutes for the sentencing and in the reason why i point that out is because you know this point this raises an issue that is of a great deal of debate even today in terms of sentencing reform and that is if the government is only evidence is it will in this war defendant who at best was reluctant to plead guilty to a story that that will always be able to point to he pleaded guilty to it and the problem with that is that there is no evidence there's no evidence over the lab or drug operation mr davies had no money they didn't recover any assets the only thing they have is his pleading guilty and we locked it at that to the to the to the the alleged evidence in this case which is that he had it he got a particular quantity of drugs and that over a period of time he sold a particular amount of drugs and the only reason why i bring that up as well is when you look at the district court to enter the judgment and the government points out and terms of the fact that the district court didn't want to enter a money judgment on the into of judgment but you also you also notice that the judge entered that mr davis should anyhow the only thing you have this mr davis is police which the court actually had to only schedule because he was reluctant to police guilty and the other case we've got the video of the traffic stop and high speed chase by the code of do we not you do have the government alleges it and the government's argument in that other case this was his route that he picked this is the code of yes that he picked up the to to make sure there were no sentencing disparities if you can easily get around it with the with the police the district court wasn't fully comfortable with what the government  at the evidence in terms of making the assessment and we want to make sure that there is no sentencing disparity that's not to say that every and every defendant who police guilty that there shouldn't be an up and in this in this circumstance m r davis is case that was was entered on the plea there is no there is no independent evidence and the right to own in terms of that he got actually possessed issue which was on mr davis is reluctant to plead guilty and that is the government makes the argument that his his first ration was with the with the particulars in terms of what was used in the continued because it was more than four stories mr davis was reluctant to kohut add actually we schedule it and tell the parties that they needed to get together and this was beyond just simple illustration  argument i'm sorry yes i have three minutes please my apologies subject to the court's redirection with its questions mr fortune's hoping to address the rule for a four b argument and then the reckless endangerment argument scuse me the government sought to admit a videotape and the videotape showed mr fortune being pulled over and of aiding arrest flight  the objection was made that the the video tape would be extremely evidence prior bad act and should be excluded if it mid that it its potential for unfair prejudice would substantially outweigh any probative value the district court first concluded that it was related first because of t that this occurred during the conspiracy one of our arguments on appeal is that's not enough there is case law that says that's a good factor in support but that we haven't found any cases that say just because it's at the same time a conspiracy that it's enough to show that they are related and just to highlight going through the courts three factors from heywood that's how it would with that's the second factor whether they're related the first is is there evidence to support that this prior bad act occurred obviously if what that prior bad act is is the evasion there's no question that the government has met that factor we're not arguing that he run but in fact that i think that helps show why unnecessary certainly that worst for the government but if the government's going to ask to show this evidence if needed  all is it relevant and the question is ok if if if he is flight relevant to the existence of a conspiracy and if so how is that not unfairly prejudicial we obviously don't want to convict defendants based upon what they've done in the past and evasion certainly can prejudice the minds of the jurors we cited some case law and some research about juries when juries he prior bad acts and make jump to that conclusion there's no limiting its direction that could possibly on do what the jury has heard in that conclusion that they've made this is a person that would run from a police officer he's a criminal he's more likely to have committed the charged defenses we argue that when it comes to whether the the flight was related to a conspiracy at best the government's evidence isn't evidence of seeing someone throw drugs or finding drugs it is a claim of two coconspirators motivated by their cooperation agreements saying that the defendant mr fortune bragged about throwing drugs that's not that's i thought the co defendant's testimony was this was the route he took when he picked up cocaine and he brought it back and here he was stopped and then he after his flight he shows up and doesn't have the cocaine that he normally has when he does this route and therefore he's stopped actually in while he's doing the the  of the conspiracy he's on his normal route it's part of his modus operandi for the conspiracy and he's just you know he's stopped he's caught and that's why  if he flees and i mean we have a lot of case law that flight is evidence of guilt it can be excluded if it violates for all three prejudicial value substantially outweighs its relevance but why isn't this really relevant to the conspiracy the way the conspiracy was committed because it opposed to another bad act other prior other bad acts are acts that are not related to what is charged and here this this goes to the heart of why he's charged he's going in his car to pick up cocaine and he's doing this on a regular basis the judge griffin other then your statement that he was on the route that he happened to be on the route that he was on a street that could be shown in the route everything else you just summarized came from those code conspirators claims you say they don't have credibility but the judge is the assessor of their credibility and let's assume that that credibility is correct under under that cloud of them being housed in the same jail and having an opportunity let's assume that that's it that's not that's not all about a bit though isn't it i mean it  ties it up it would show that if if he's if they're credible this really is relevant to the conspiracy i mean i mean you can see that don't you yes but and then so then the stretch is that it of videotape of flight is that even let's talk about the pro put that probative value isn't that substantially outweighed by the prejudice of the jury see is that the tape or the fact that you would allow both the evasion the videotape makes it worse but it's of age and shows that there is conscious evidence of guilt by this codefendant of of what the likely picked up the cocaine got stopped and he took off because guess what he knows he's got cocaine in the car i mean there was also waste that's a reasonable inference anyway and then for it's could also be that he was caught with marijuana had a record and he was found eating the marijuana that i mean that there can be other reasonable inferences but to say that it shows it's not related to the conspiracy i think is kind of a stretch because it certainly may be related if your honor in the court concludes so we would go to the argument that it's substantially outweighed by the danger of unfair prejudice because juries hear he's a guy that runs from the police look at the videotape now it's like an episode of cops it gets a little bit more  again today about whether these facts support or don't support we're different than that why we have the jury your honor it's the pillars of our system but but we also have to realize that we're humans and the amount of studies that  once a jury member hears that someone has done something in the past that's criminal or your argument really is intrinsic or extrinsic because the extrinsic you may win the intrinsic you good morning your honour's may please the court bill roache for the united states i'd like to briefly address one issue on davis and then i'll spend a majority of my time responding to mr fortune's arguments mr  davis is counsel mentioned that somehow this plea agreement suggests that the united states was trying to go around the fair sentencing act i just want to be very clear that there's no evidence in the record to support that claim davis admitted to being personally responsible for distributing nine thousand grams of crack cocaine which is thirty two times the limit officers to his apartment after he had told them some facts regarding the conspiracy and the officers recovered over four thousand dollars in cash and forty five grams of crack cocaine in his apartment so not only do we have davis's admissions in the plea agreement which of course the district court confirmed at the change of plea hearing we also do have physical evidence in this case and the just to add some context to the to the two plea agreements here i don't i'm not aware of any evidence in the record of the court suggesting that the parties get their act together or come up with a new nuclear agreement this was simply a case  of the first plea agreement the parties had bargained over it had crossed out a number of paragraphs in that plea agreement and for the sake of clarity the parties entered a new plea agreement much cleaner without the paragraphs that were crossed out  so i don't think there was any at least the record does not reflect any encouragement or suggestions by the district court judge that the parties reach any new agreement this was a plea that was bargained in exchange just between the parties and unless the court has further questions on dave's argument i like to spend the rest of my time addressing mr fortune's already so with respect to this video the probative value of the video here was high the video corroborated both lawful ease and bargains testimony not only that fortune had or was driving to north carolina to pick up crack cocaine the video also explains why fortune lawfully and davis that he tossed crack cocaine from the vehicle so fortune comes back on may second to this gathering at that lovely house loughlin dargon both testified that every time fortune had come back from north carolina what they look for they just couldn't find it i mean somebody somebody probably picked it up that well it did quite possible your honor you know with the video unlawfully and darkens testimony in addition to the testimony of the officer it was tossed out somewhere between mile point of why an additional factor of why the video is probative here we have off former officer deputy bottomley who testified that he did not see fortune tossed the crack cocaine from the vehicle and so a jury left without that video may have reason to think why did officer why did deputy bottomley not see him if he was trailing him well the video shows that fortune sped away and lost deputy bottomley for at least a couple minutes which would have given fortune enough time to toss the crack cocaine from the vehicle so the vehicle not only does it corroborate lawfully and darkens testimony it also adds context to deputy bottom value here is high prejudicial value if any is very very low all we have here is so much as is video of someone who's fleeing from a traffic stop that does not suggest that the person is participating in a large scale crack cocaine distribution conspiracy it may show that they are breaking the law in some way or they're trying to hide something from law enforcement but it is not unduly prejudicial with respect to the charged offense here were the really limiting your instruction th parties to provide a rule for a four be curative instruction on the first day of trial it's on page nine hundred sixty seven of the record and neither party at the end of trial requested a curative instruction is that issue forfeited then because defense counsel did not request curative instruction well perhaps it should be brought under play in error given the fact that the defense counsel objected in the beginning and then did not renew that objection because he didn't take the opportunity to have a curative instruction correct you are correct that at the end of trial he had the opportunity and then he did not did not follow through with the judge's often respond on appeal to that argument to the say that it just wouldn't cure to the i don't remember right i do you know i don't i'm not aware of anything in their briefs that say that you're on no this really was a world or the that's right evidence then you would need an instruction to play high probative nature of the evidence and the very low prejudicial value so i don't think there's any i don't think there's any way that fortune can show that even if this evidence has some prejudicial effect it certainly does not weigh it certainly does not substantially outweigh the high probative value of this video evidence and for many of the same reasons that that the evidence that the video evidence is admissible here it also supports the district court's judgment on the reckless reckless endangerment unhandsome it shows a nexus between fortunes flight from wall enforcement and the facts the facts of the charge conspiracy so here the more related respect to the eight fifty one information briefly there the there's there's no indication of the record that mr fortune was ever confused about which conviction the united states intended to rely on  apply the enhanced mandatory minimums and in any of it the fortunes guidelines range was two hundred sixty two months to three hundred twenty seven months which is above the twenty year mandatory  five fifty three factors and the judge made a remark at the end of sentencing that after considering those factors he felt that the two hundred seventy two months in its which was closer to the bottom of fortunes guideline range was quote instructions and that impact i didn't go into the case law in the brief when it comes to the rules about the lack of curative instruction not waiving but i think that this court case law is clear that there reasons even if you object to the evidence they're strategic reasons not to then ask for limiting instruction but that does not waive the argument that the evidence should have been submitted a so that's that your argument that it was a matter of strategy not to request the curative instruction that's what tell me what the strategy is why not saying it's the strategy in this case this all is well it is not the strategy in this case what does it matter i mean tell me tell me what the strategy in this case of this is my response to the the strategic reasons not to ask for a limiting instruction of what is that's highlights what was the ok tell me what the strategic reason in this case was not to ask for it here to structure it highlights the evidence that the end of someone's testimony there's a limiting instruction read that gives the jury another opportunity to hear the evidence again when you were hoping that that's why it was not requested here correct also the government mentioned plane air plane air obviously should not apply plane or is meant to apply when there is an issue that the district court judge has not ruled on this is no it's when the issues been forfeited when you have an preserve your objection that's what there are there in it who in that you had an opportunity to preserved here because the lack of a request for a limiting instruction does not waive an objection to the admission of evidence otherwise we'd be forced to have limiting instructions in every case to preserve an argument for appeal when many times there is good reasons not to have the jury hear that evidence yet again the government's brief and then again in its arguments admits that the videotape corroborate lofty and bargains testimony that fortune was a member of the conspiracy and  he regularly drove to winston salem to buy crack cocaine but the videotape doesn't corroborate either of those things it doesn't show that he's a member of the conspiracy and it doesn't show any regularity at all it's just an instant one instance one snapshot of what happened and we don't think that that creates such a high probative value that the government suggests we submit that it's low probative value and substantially outweighed