case number thirteen one nine two eight united states of america versus castle that means jackson arguments not to exceed fifteen minutes or  i raise three issues in my brief i will begin with the second issue which is the decision of the trial judge to exclude evidence of a key witness and in so doing denying mr jackson his constitutional right to complete to present a complete defense and would you object to that consul yes and let me just say i did not do the trial i was appointed after the trial to do the sentencing and the appeal but yes there was a discussion on the record as to whether or not miss page who was the only witness that the defendant had called in his defense and his defense was that the police did find a gun in his co pocket but he put on the wrong coat and did not know the gun was in the pocket and he wanted to ask mr page who was his girlfriend for two years and she was in the car with mr jackson she the defense wanted to ask mr page if during the two years that she had a relationship with mr jackson she's ever seen mr jackson with a gun and whether she has ever known mr jackson to carry a gun there was an objection by the government that this would constitute improper character evidence and therefore it was not admissible at that point was that  you know i'd have to go back and look at the that's critical to this it is critical and i would agree and i'd have to i'd have to go back and and and look at the transcript but i think and i may be wrong and i would ask the court to go back and actually look at that part of the transcript i do think you may be right judge keith that there was a discussion and it's clear to me that the  defense attorney wanted to ask these questions but then when the judge came back and said i think the judge came back and said i will not let you ask the general question but i will let you asked the specific question whether or not during the two your relationship with mr jackson you hit had ever seen him with this specific gun and whether or not on the day and whether or not you've known him to carry this specific gun and my recollection is that i think the defense attorney may have said that's ok your honor in  case i think it's a real gray or gray it's a real gray area whether that constitutes a withdrawal of your motion or not because having tried a lot of cases it's just you know you raise the objection and then when the judge you know the judge makes a decision you're showing good faith deference i think that we accept the judge's decision but i'm not sure that that amounts to withdrawing the objection but again i'd have to look specifically at the transcript tonight and i do think that is that is a gray area i think though that the court's ruling that miss page could not testify that during the course of her relationship she has never seen mr jackson with a gun and has never known mr jackson dick to carry a gun is erroneous and the reason why it's erroneous is one i don't  think miss paige testifying that during the two years that i've known him i have never seen him with a gun is character evidence that's a fan certainly if i was on trial for  possession of drugs or whatever and my wife who's been with me for thirty six years i think should be able to come in court and say during the thirty six years that i've lived with this man i've never seen him with any drugs that took to wanted that down to you know it's my opinion that he doesn't do drugs or i've spoken to people in the community and based on what they tell me his reputation for  possession or doing drugs he doesn't have that kind of reputation seems to me to be under the facts of the you know and the facts of this case that would be in a row and he has decisions so one is just the flip side  of should the government be able to put on a witness that says yes they have seen your client with a different gun at another occasion two years before you go crazy over that when you probably would win this but on the other hand this just the flip side of that on the other hand and i do believe there was a discussion on the record i think the government made it clear that they may in fact they didn't say they had that kind of witness but they may in fact want to put on a witness to say that he has carried a gun but again i certainly would object because it have to offer it for a limited purpose under for  the right that is correct although just and that says you got to have one of these specific purposes and not just for character that is correct that is correct and i would agree that that would make it more complicated in the  resolution of that issue would certainly be complex but i think the bottom line here is that her testimony was not character evidence and shouldn't should have been admitted even even if you wanted to consider it character evidence i think i think it would be admissible character reference if it wasn't and i don't think it was but her her you know her saying i have never known him to carry a gun comes awful close to in my opinion he doesn't carry a gun but anyway it's just it's a very complex issue but but the bottom line is i don't think that it constitutes character evidence and i think the decision of the judge to keep that out was erroneous in fact i think that it was more harmful to have hurt to restrict her testimony to i've never seen him with this gun i think forces the defense attorney into a position where he's asking a witness that question that suggests to the jury that maybe she's seen him with other guns but she's never seen him with this specific gun so i think it goes beyond just denying important relevant evidence but also forcing the defense attorney to frame the question in such a way that i think it's more harmful than then helpful again there's a question of whether or not the error was harmless and i would say given the defense in this case and given that this was his only witness i think it definitely it cannot be said and i realized that we have the you know we're dealing with an evidentiary issue but on the other hand you're dealing with a constitutional issue as to whether or not he was denied his right to to present a complete defense it's not character evidence and what's its relevance oh i think it's very relevant because it's relevant that that she never saw him with a gun so that's relevant as to whether he did or didn't have a gun on this occasion i think so so so so then somebody else saying yes he does normally carry a gun not this gun but some other gun that would be  relevant it all goes to you did it before so you must have done it this time or you didn't do it before so therefore you didn't do it this type of that you can't do let me just say that if the prosecutor in if the prosecutor came forth w the witness who would say i have seen him on other occasions in possession of a gun then i think the relevance of their question becomes she's not saying he doesn't carry a gun she's not saying he doesn't have the character to you know to not carry a gun which she's saying is that i've never seen him with a gun and i've never known him to carry a gun and i think it is relevant because she was in the car and i think evidence submitted by the prosecutor that he may have carried a gun or he carried a gun on other occasions is not relevant because it doesn't mean that she's not telling the truth or it doesn't even in peach her testimony that she's never seen him with a gun or never known him to carry a gun and i think under those circumstances that would not be admissible because it is certainly more prejudicial then probative and would be not admissible under four o three so i think given that his denial that he was denied right to present a complete defense warrants a new trial in this matter thank you since that is the one that the pellet has focused on specifically i was reviewing the transcript and i believe the judge keith is correct i don't see an indication there was an objection to the government by the prop of the pro evidence of the defendant's character for non possession of firearms but there was once the ruling was made by the district court i did not see any objection by the defendant at that point and i do think that the the ruling by the district court was correct there was several there were the defendants not character for non possession of firearms and again this is an abuse of discretion standard because it is court has limited the ability of defendants to enter and it's a different circumstance but convictions of third parties in order for defendants to further their own defense in the district court rested on three three  rulings sober which is a case out of the six out of this court where the a physician who is accused of overbilling could not offer evidence of other cases in which he did not overbuilt patients or receive overbilling notices  zero where the defendant a defendant inspector could not bring in evidence from other meat packers where he when he was accused of bribing them when he  he did not attempt to bribe those other meat packers and then also in chan which just basically also states that character evidence is limited to reputation and opinion testimony and kinetic to extend to specific instances of conduct i think that is what the defense what the defendant was attempting to offer in this particular circumstance and i think the court was correct in excluding that evidence the court actually went further allowing the defendant to present evidence of his historical possession of the firearm in question while the defendant considers that more harmful the defense counsel had a choice whether or not at that point given that ruling to ask ask that question at all regarding the historical non possession of the charge firearm or whether to simply ask about his possession of firearms on that day even if that were in a believe it's harmless error because the gun was recovered from the defendant's pocket and beyond that there was  jail calls that were placed into evidence which demonstrated an attempt by the defendant to try to get someone else essentially to take take blame for the firearm and to say that it was his jacket  he and that was actually the furthest with his jacket argument that was that was advanced because at the trial the girlfriend admitted that she could not admit could not remember where the jacket  remember the specific jacket it was put on and also this was after it left her house and she stated that no one at her house ever complained of losing a jacket after that point there was ever never any affirmative evidence presented to support the wrong jacket defense that then leads to the defendant's third claim with regard to the jail calls and that that there was ineffective assistance of counsel failing to object to the jail ca however the same deficiency that caused this court to reject that claim and woodruff exists here there was no aam just as in woodruff where there was no affidavit from the trial counsel discussing the particular decision there is no affidavit from trial coun submitted by the appellant here then going to be the first of the claims made by the defendant the stop and pat down or search of the defendant in this case the defense focuses specifically which to stop the defendant and that on that evening there was the there was the reason specifically cited by the district court which was an improper lane change violation of i believe two fifty seven point six four eight subsection one which we're which is changing lanes which the court found the defendant did by crossing over the lane without signalling that's from the district court's decision also there was the there is traveling in the left lane while not overtaking or passing another vehicle which both troopers testified to that the defendant committed by traveling in the left lane finally the statute that the defense support relies on in its argument is still violated in this case because this case especially distinguishable from gross and freeman engross the there was a it was a stop on a highway where the highway was narrowing there was a momentary straddling of the lanes by the car and that was not found to be a violation of that statute in freeman there was once were one movement of a tire length over a lane and that was on a highway where there's often windy conditions by a recreational vehicle in this case it's much different because there's multiple swerving in also in this case and neither freeman or gross was there a finding or a discussion of erratic driving by the defendant in this particular circumstance there was a finding by the district court and testimony from the officers regarding erratic driving by the defendant which separates it as well there is nothing also in this case that made it impracticable for the defendant to remain in his lane as the as there is no background of adverse weather conditions on the record in this particular circumstance also this case lacks the background that freeman had where there was a background of drug interdiction stops and stops of that nature this is a stop at one fifty in the morning where there's a concern about driving under the influence i think also there was reasonable suspicion to stop the defendant for driving under the influence at that time as well given all the facts that existed this was a stop that occurred at one fifty in the morning it's about the time as is noted on the record when the bars usually close in mission when the defendant was seen straddling the left lane in center lane when that he was first observed they began to follow him he then swerved twice and prior to even stopping the vehicle almost came into a complete stop in the left lane all of those factors together would lead to reasonable suspicion to stop the defendant for operating a motor vehicle want it so under all of those under all of those bases there was reasonable suspicion to stop the defendant  driving under the influence as well as three separate traffic violations that that probable cause existed for with regard to the search there was never really actually a pat down or search of the defendant prior to the discovery of the firearm there was reason there was however reasonable suspicion as found by the district court the time of night that this stop occurred that the indications of possible intoxication and the placing of the papers back in the car in a manner that was not within the trooper not within the way the trooper told him to do so as well as the repeated ignoring of the troopers instructions to exit the vehicle more than justified a pat down which never actually occurred instead the defendant was taken out of the vehicle at at that point and when he was resisting the officer the he was pushed up against the vehicle and he then felt the firearm which the other trooper then  removed from the defendant's pocket i'm just curious analytically why this is not the equivalent of a pat down under stand your position that it's not the normal thing of stand there spread your legs lean against a car and you for somebody but why does a pat down have to occur by use of your hands versus your two bodies encounter each other and you feel through your hip or whatever it was here that he had a gun  it i'm not sure analytically that there's a difference the reasonable suspicion here had they been patting him down which i would have assumed at the point that they're pulling him out of the vehicle would have been the next would have been the next step they certainly he was certainly seasoned trooper tain pulled him out of the vehicle after he was after his hands weren't visible the trooper cane and he was refusing the instructions to get out of vehicle or human it's going to be there are these for furtive gestures so they dragged him out of the car at that point seems to me they would have had the ability to pat  down i just don't see why it matters whether it was his hand or you're arguing the guy you feel drugs or a gun or something in there no i don't think that it's we don't analyze it under pat down the what what do we analyze it  no i think that i think that the pat down would be the would be the way to analyze it i think that i grew the court there i was the only difference is that factually that's not and i think it's the best way to analyze it wasn't  traditional pat down if your point yes it wasn't a traditional pat down and then beyond that as well i'm i think it would be the i think would be still what would be allowed to seize him so i think it would be the same reasonable suspicion reasonable suspicion there and so i don't think that i grew the court there's not analytically a difference i think that the factual pat down isn't really what occurred because they immediately felt that upon when he was up against the vehicle but i do a group that i do  the same analysis and i think given given what was happening at the time of night the indications of intoxication that there was reasonable suspicion in that circumstance to have the defendant down so for all of those reasons because the district court's ruling was was correct as to the constitutional right to a complete defense and certainly it was not an abuse of discretion and even if the court were to find so i believe it was harmless error in the overwhelming evidence of guilt in this case because the ineffective assistance claim is premature and because there was reasonable suspicion and probable cause to stop the defendant and reasonable suspicion existed to pat down mckeague let me say that i do agree with you that the pushing mr jackson up against occur did constitute a defect though pat down but it would be my position that at the point that they did there they had no reason to believe that he was armed and dangerous they stopped him he got out they asked him to get out of the car which he did he gave them certain paperwork if and this is looking at it in a light most favorable to the court's decision the police gave him some paperwork asked him to put the paperwork in the car which he did then because they felt that he didn't put it down on the seat like other defendants it looked like he was trying to put it into the console or the console area they asked him to get out and he wasn't done putting the paperwork away so they pulled them out and that's when they pushed him up against the car and it would be my position that you're missing is they ordered i forgot in two or three times to stop doing what he's doing he refused  couldn't see his hands that is correct construed that as posing a potential threat just seems to me we have dozens of cases that are almost they don't involve pulling somebody out of a car but it's furtive gestures and a car out of a car putting your hands behind you or whatever you're not sure what the guy's doing so from that you conclude that he may have something harmful on him and you padded out what's out this different than the run of the mill pat down case well it's a it's different because i don't think the fact that the police can't see his hands i don't think in this case it was really a furtive gesture i don't think that because the police could not see his hands and then therefore  weren't sure of the situation is not enough to constitute reasonable suspicion that he's reaching for the council let's assume he doesn't get the council open he's got a gun between the seat and the council that he's reaching for he gets a gun in his hand they they can't drag him out of the car because they don't because they haven't seen what's in his hand that's the whole point to drag him out of the car well i guess my position is you to they asked him to get back into care and put the paperwork away which he was doing and because it took him longer than they anticipated does not seem to be to give them a reasonable basis to believe that he was armed and dangerous and therefore they had no basis to do a pat down under those circumstances let me say that very briefly with respect to argument three the government's position is that the that the issue was premature i would say that it's not the i that there was no i cannot fathom a sound trial strategy why when you're when the government is going to present these telephone calls and transcripts to the jury that you wouldn't redacted transcripts so that the jury doesn't know that he was in jail and it's it's you know even the judge called up the defense attorney and said i think we may have a problem here in the defense attorney just let it go and that's clear on the record and i think the case law in this case especially with issues what biased jurors be harmless error given the strength of the evidence here there's no dispute he had the gun on his person he doesn't even he doesn't argue about that he has this defense apparently that is not his code he didn't know he had the gun the jury heard all of that so how it i'm just curious from your perspective how would the fact that he was in jail at the time of some conversation whatever that was why would that matter well because i think in this case the fact that the jury knows that he's in jail  especially during the pendency of this matter is suggest to the jury that he's a dangerous person and i think given that the defense is i didn't know the gun was in the coat i think that is very prejudicial and i think it would not be harmless error and i think on that basis he would be entitled to a new trial thank you thank you