good morning may please the court michel and on behalf of the united states this airlock a tory appeal concerns whether the government should be allowed to permit to miss the mit evidence that samuel with previously committed and plead guilty to a prior vandalism involving racially charged language in a prosecution that involves a crime they includes a racial animus element the district court's order refusing admission of this evidence reflected a fundamental misunderstanding of the crime charge and that is that what thirty six thirty one a requires the government to prove and that fundamental misunderstanding led the court astray at every stage of the four four analysis to be clear the problem in the court's order is rooted in the fact that thirty six thirty one egg requires the government to prove to motives to but for causation motives involving one  victim was of a protected class in this case race and two that the defendant acted because of interference with a protected housing right in this case the fact the victim was the defendant's landlord the dish or court focused only on one and presumed that the defendant could only act with one motivation and that led the court to get burned fail to analyze the probative value that this previous crime had with respect to motive and lead the chorus tray and other aspects of the floor for b analysis to start if i can with motive the district court made this finding after hearing zero witnesses and only considering a small subset of the government's evidence that the defendant in this case must have acted because he was just a victim from the apartment but the twenty thirteen crime evidence is acted with this required racial animus the proof though in this case show that pretty much i'm sorry your honor doesn't the proof show that he had some racial statements so for the ri incident against highly religious amish people and that in that case the court held that just because the beard cutting itself was highly symbolic of their religion a jury doesn't have to held that this but more and i understand it's just a different context might have some different sure it does play into the probative value of this evidence that the defendant would be entitled to say that just because the crime  in the briefing of the motion some comments you know some of the substance of the facebook comments were discussed a little bit but there was no submission of the records to the bishop court yet and the district court didn't hasn't said it's not in the civil and it's not part of the for for being motion would be something that it took into account under the abuse of discretion and redo the balance and it directly could but in this case where the court ruled the district court didn't even mention argued by the government at all in the four four b motion the defense did raise it as a possibility but there's a key difference here and that's because the evidence of the twenty thirteen crime is far more probative of committing an act with racial animus then a casual comment on a facebook post the twenty thirteen crime shows that this individual has previously been so motivated by racial animus that he's been driven to commit criminal acts and that is far more probative in a case where the government is required to prove beyond a reasonable doubt that it's a but for motive with the face book evidence issue need to be decided to eventually at trial and on appeal pending on how events transpired presumably yes the district court will have to consider it but it's strange to suggest to substitute weaker evidence this more tenure weighted evidence of racism and granted universally across the board every case i've been able to find in four for b case law involving a crime that involves a racial animus element even evidence suggesting casual use of racial epithets such as this would be made so the facebook evidence would be probative but it's a much weaker compared to the actions that defendant previously taken has taken and admitted to plead guilty to and so it's no substitute when the government has this burden of proving a but for causation menu for your argument they can be starting with your strongest argument with those other arguments that the district court relied on like the identity which i step back and look at broader commonality between the two offenses and here you have not just swastikas but you have the spray painting man or the methods you have other racially charged language the n word was used in both the twenty thirteen and twenty sixteen offense you have other this kind of generically you express so that lanham us so it's it can be generic in that those are common but the question for identity is are there enough some malarious between these two offenses the jury could infer that they were committed by the same person and given that they were very common in both in the methods and the content and less than a mile apart that given the risk commonalities a jury would certainly be reasonably able to infer that they were committed by the same person and knowing that with pleaded guilty to the twenty thirteen crime allows them that it could only be introduced the ruling only applied to the case in chief you but use it it cross examining the defendant if you took the stand that's what the court suggested but the problem with that kind of limitation it course is that racial animus is an element of the government's burden of the government's case in chief and so the government has to provide substantive evidence in its case of chief suggesting that witt not only committed the crime but was motivated by this racial animus for the reasons in miller where they said that it doesn't seal the deal that the incident itself suggests racial animus the government's burn is quite large and it has to be permitted to introduce prior acts of racism and that's what the district court's order here stands alone that literally no other district or circuit court i've been able to find has kept evidence of rhesus previous activity out when the government has this as an element of its case in chief even if we agreed with you that the evidence was probative mode wouldn't we need to determine the four of three balancing and decide whether or not there was a danger of unfair prejudice and why isn't there a danger of unfair prejudice given the emotional salience of these kinds of demonstrations of racists behavior sure so in this case i'd say that there's a couple reasons why there is no danger first that the charged offense itself because it's so similar and has these and cindy eerie racial overtones  found that the defendant himself as racially charged beliefs that's a necessary basically element of the crime and he has to keep in mind that the dish of court did no be real balancing here because it zeroed out the probative value because it focused only on the eviction as a possible motive and didn't even consider the racial animus element that the government asked if the district court didn't do the proper balance things should the remedy be to send it back to the district court to do that balancing under for a three in ordinary case sure absolutely your honor but here given that it's an element of the crime and universal consensus is this type of evidence comes in here with the probative value is so high given that it's an element that the government has to prove and given that there is no more inflammatory language in the four four b evidence compared to what's charged it so when was the motion filed i don't have that for some reason i thought it was in september that sounds here that sounds right that the the hearing on the facebook motion was in september the hearing on the the motion was in january in the order issued shortly thereafter thank  to address that friend i think my previous counsel relies heavily on the fact that the court made it an incorrect decision in regards to motive and i think what he's relying on is the order that was issued in this case but this doesn't represent an evidentiary hearing that was on the fly this actually was filed and the court considered this issue for six months so he had written briefings from the parties on september twentieth of two thousand and seventeen he asked that the record be supplemented in relation to the prior so evidence was submitted to him about the prior offense which included the transcript and the colloquy of mr witt at the time of the plea it included the end interview recorded interview of mr witt and it also included photographic evidence the court took all of that into consideration on january tenth which is the transcript that is before the court today the court heard extensive argument from the parties and actually looked at this issue of motive extensively and this question of propensity versus whether or not it had a permissible purpose and then eight days after that the court issued a decision that this evidence is put into the record that the government can overcome a motion for judgment of acquittal at the close of the evidence that's what that's what the u s attorney is suggesting that without this the case on the second part of th the court to the various portions of the record that record twenty five which is the government response to the facebook motion it's page id ninety three the facts of the case show racial and i apologize if the facebook motion is record twenty six government facebook motion page i d one o six and that you have the facebook return where the government describes statements that were made by mr witt on his facebook page which include and i quote if you ain't white you ain't right and also he continuously used the word nigger to refer to african american individuals so you have that evidence you have the evidence of the case for him or yes your honor the motions were filed simultaneously the government's response is record twenty six which predated all of the hearings on these two motions in addition you have the facts of the case itself the government has indicated at the record twenty five in their response to our motion on page eighty ninety three that mr that whoever committed this crime spray painted the words white power on the walls of the apartment also spray painted the words and i quote die nigger and also spray painted additionally the government recognizes in its response a record twenty five page idea ninety six that this white stick and i quote has served as the most significant and notorious of hate symbols used to display views of white supremacy indeed th acknowledge in their own response that the quote choice of these symbols real revealed that part of his motive included expressing racist ideology so there is ample evidence in the record to show that the government can meet its burden of proving racial animus without introducing this highly prejudicial evidence unfairly pro traditional i know i'm jumping to the last question but if we were to think that it was probative of motive why is it unfairly prejudicial to introduce evidence of the prior crime if the court finds that it's probably to have a motive i think first we have to consider that the standard of review is abuse of discretion for four or three balancing tasks but the district court didn't say it was probative so we don't need to defer to the balancing when one factors in correct doing well i think that depends on what standard of review the court once or adopt if you're going under the  tripartite standard you can do a do novo review of whether or not there's a permissible factor if you're adopting abuse of discretion then you would have to defer to the court and it's not as though the district court didn't recognize motive or analyze identity and just dismiss them out right there is actually in the record and it's not page id one ninety nine of the transcript it's record forty three that's where the court i actually raised this argument to the court below about how the motive was being a victim and the court responded back and said no it's a different kind of motives and it's not a pure vandalism case it's an element of the case it's the animus towards the homeowners and possibly the church etc etc so the court recognized that there was this other potential motive that could exist and simply rejected that because the wires that unfairly produced it's unfairly prejudicial because this is evidence of an actual crime the government side multiple times in their argument that it could find no case where you have to prove racial animus that you can't admit this particular evidence but i would encourage the court to go back and look at every case that cited by the government because all of those cases are a litany of cases where speech related racist prejudicial if in fact he pleaded guilty well it's unfairly prejudicial here because the government's not simply trying to admit the fact that he was convicted of criminal damaging a misdemeanor the government wants the additional facts and that there was spray paint and that there was racial animus and that my client you know committed those crimes and the but also neglects to look at the first step of the four zero four b test which is that the judge didn't even find or the court below didn't even find that mr witt in fact painted status which was the thrust of the government's argument under identity they argued that because the swastikas were sufficiently similar that they should be admitted but the record says that after he analyze those facts and looked at the record extensively for a period of six months he determined that that evidence was not sufficient to even meet the government's initial burden which is showing that the other acts occurred and that mr witt in fact was the actor and in that in the prior case there was two individuals who committed those acts so the thrust of the government's races components such as using the word or other things in the prior crime what he admitted to on the tape is he admitted to spray painting a b which was very in brotherhood he also admitted to spray painting the pyramid symbols and there was a discussion back and forth about what gang that was particularly affiliated with and if you look in the facebook record agents of or that they believe that it was affiliated with the cincinnati white boys which is also is getting so that was what he actually admitted to in the records so when the court in the actual order that issued says that you can determine who painted the swastika that's because the record from the two thousand and thirteen convictions is silent on that issue but but he pleaded guilty to that charge that was part of the charge that's correct he pled guilty to criminal damaging but there was no there was no indication that he pled to specific acts the court considered the transcript there that george wright the previous short he was still guilty of criminal damaging gas but i think the district court's nuance distinction was that if the government wanted to have her that he was the person who spray painted the swastika they couldn't even show that because the cases that the government cites to are first out of circuit and second they have to do with facts where a defendant maintains direction or control over the other party who is committing the act if if you look at the case that i cited to which shows whether or not there's sufficient evidence it's the bell case out of this circuit and that case just or the the court of appeals said there was sufficient evidence because it was a prior conviction but also because the defendant was not disputing the underlying facts of that case in this situation there is a dispute as to the underlying facts he doesn't contest that he was convicted of criminal damaging but he does contest that specific acts were committed by him and specific acts were committed by his coconspirator and under crime because he's done criminal activity before and therefore he has a propensity to commit such crimes that that's the that's what we're balancing against that's what we're trying to avoid when we do a balance maybe there's a good reason to admit it but the fear is that that's correct and so that then the question is how how specific can you make that can you say for me can you say we don't want the jury to think that this person committed race related vandalism merely because he's committed race related vandalism before is that right that's correct and i think you can do that but it would sort of just and another not legally educated person would say well that's a very good reason to conclude that but we're not we don't want the jury to conclude that way  but then if it's if you get too specific and you say well there's a reason that spray painting certain kinds of signature race related claims race the person that because it's done in a special way right that's the identity idea from that so a little bit we're looking at that we can look at what they did before to see if they did it but only if our rationale is that it's singularly identifiable if it's just a category of crimes we don't want to admit that we don't want to think that because they did that category of crimes they've done it again is that right well i think if if you look at the record with what the court was balancing was this particular risk to the jury can the jury make this nuanced distinction of we can say he did it once therefore he did it again but we can say it's similar enough to prove identity or motive and i think put simply the district court decided that is something that the jury is not is not able to determine and if you if you are correct if you look at the at the transcript there are multiple places in the transcript and i'll cite you to the pages it's record forty three page id one eighty seven one ninety one ninety two one ninety four one ninety five to ninety six two or three to two or four to five into a way this is where the court talks about that danger and where the court is really struggling with will a jury be able to separate out the nuance distinction that the government is trying to make and put simply the court concluded that admitting this evidence would have been far too prejudicial or highly prejudicial this court's decision and jenkins which is the case where the court vacated the conviction and remained in that case a curative instruction was given it was an exact same fact pattern where prior conviction for possession with intent to distribute was being attempted current charge of possession with intent to distribute i say to the case in my brief but it says when jurors hear that a defendant has on earlier occasions committed essentially the same crime as that for which he is on trial the information i'm questionably has  power and prejudicial impact even when properly instructed to consider the evidence only for some legitimate purpose as the jury was instructed here the danger is obvious that the jury will treat it as propensity evidence instead in that case is this court's decision in jenkins five ninety three federal third four eighty and so for those reasons your honor i would encourage the court to affirm the decision of the court below because it was a thorough and well reasoned decision and was not arrived at lightly by the court thank you thank you if i could just pick up on that last point regarding jenkins powers jenkins is a balancing case where the court in that case it was a drug distribution crime and the court previously before going into the fourth rebalancing said that the probative value of the prior conviction there was microscopic at best very different here where the regional animus is an element of the crime charged and the work or be did the defendant act because he best knew how to harm and hurt the victims or did he act out of this animus which is what the statute requires that he was subjectively motivated and here the evidence of the twenty thirteen crime is far circuit involved use of a prior assault against black men as for for be evidence in a murder trial of black men in this case this court's decision in parenting unpublished though that involved tondo as well as the four for b that was where the defendant had previously accosted a black boy for dating a white girl and then the trial that involved whether he burned down the foundation of a home and for a black family because of race so it actually matters and that's why the it when it's an element it's very important i say that i'm out of time there's no further questions i'd ask the court or first at the very least vacate the