time is to talk about whether or not what i contend are other acts were enix inextricably intertwined with the project that scheme alleged and i think the reason why i want to spend some time on that as it permeates all that one of the issues that are that are presented this court is has held that to be in its strict inextricably intertwined it either has to be part of a single criminal transaction like selling cocaine and methamphetamine in the same transaction or it's necessary for a coherent and comprehensible presentation of the  evidence these other acts kind of come into categories actually like the way the government separated them in their briefing and that was you have a set of x should be able to my client where he makes a recruit more likely to be accepted into the guard aren't all of these acts provides context for the overall scheme no not at all because the scheme the context for the scheme is that there's a g rap program guard recruiting assistant program and there's a there's a war there's a conflict and we need we need soldiers so much that we're willing to pay recruiting assistants the fact that my client who the record reflects is a car salesman when he's not a soldier the fact that he's polishing the hubcaps quite a bit in saying you know don't mention the surgery don't mention your child that's his character that's who he is and that's the trial he got was a character trial these in fact the in the government's closing argument during the trial excuse me they called these witnesses the nominees that came in and testified with these vignettes they called them quote unrelated objective potential soldiers that was the closing argument they are unrelated that was accurate the other seems to me that it falls under the exception to bar or to that it was in this a ball to show purpose plan and preparation motivation intent that he you know he had two routes toward making an application more likely to be accepted as a recruit and one of them need to state it to both his recruiting numbers and the other when he was helping other people so that they can split it and sensitive incentive award well if i think i heard two different and like yours too yeah they do you well even two different legal arguments when one is he could be doing it for the other meaning they're not inextricably intertwined they're not if you can extricate one of them and that it's because he's trying to make with crude more recruitable more and listable but i thought i heard you say for a moment they couldn't these been provided for the exception of four for we can't go back and now say they could have been for a limited purpose because the government came into the motions in limine me and said we're not presenting for all for the evidence that for for be evidence requires notice if you're going to use it she provided notice that they weren't going to use it and then it wasn't used for a limited purpose the jury was allowed to consider it so we can't now go back and say well it could have been for a limited purpose it wasn't so we can't go back and justif comes and if it comes in and are inextricably intertwined and it and it does not i mean that i think that the only thing the only way the government has is inextricably intertwined and that doesn't work because it's an independent it's not an extra couple intertwined you can argue it's intertwined but the word inextricable can't extricate it doesn't it doesn't apply all right said the next question then is ok that came in anyway ok but the hurdle is the hurdles met and here's why all the other evidence comes from the three convicted felons who testified against him for a benefit you know the government complains well davis he that's only because davis insisted on cash only that's only because davis insisted on no electronics no text messages no e mails but those assertions come from the cooperators themselves the state cooperators who say davis is the one who created no evidence i didn't want to hit an important part of the nd category it's much more tricky and that is some of the there were two witnesses there was a recruiter lowery who testified that he had an arrangement with jason herr a recruiting assistant separate from this fraud scheme and that my client opined to him allegedly said you should have made hair split the money with you that part of a fraud scheme with jason hare sarah naturists brian caps and legibly my client but this other thing was definitely an other act and what the government should have done is said look we're going to offer that incident under for all four b two to prove that he knew about a fraud scheme to show knowledge but they did they didn't do it that way and what's particularly perplexing or not perplexing but disturbing is that with this is the government's answering group not from the trial for answering bruce when davis learned that fellow recruiter low given here the personal identifying information of a potential soldier to be claimed in g rap the fact that davis response was to say that lowry should get a cut of the fraudulent proceeds tends to make it more prob considered it appropriate to engage in geographic fraud that is absolutely pristine example of character evidence they're saying in their answering brief that the relevance of that evidence was that it made it more likely t requires reversal here is because it does reduce the confidence in the justice system when a person repeatedly volunteers himself in combat for his country and then his country gives him a character trial that's that that's not going to come back to whether or not that was pure character when he says usually split it can't we were god that is to talk about is when it when is it appropriate ok we have air it's plain what does it take it takes showing that it's going to reduce the confidence in the reputation of the process it's very it's very disturbing that the most credible evidence that came in from people who did not have a horse in the race came from was all character evidence but the but we less credible evidence the more troubling the ones where people are it's and the thing that they're testifying to get a reduced sentence over their head right there that's the evidence that was the direct evidence of the scheme charged and it does reduce the confidence of we're going to have and it was a it wasn't just twelve dollars or three witnesses there was a parade of these witnesses that came picture here but it did put a dire picture of his of his character i in my brief i list them out there must be seven or eight instances where you know i'm not suggesting the evidence is dire picture of his character i'm just suggesting that the evidence presented a brother strong picture of his of his guilt the only evidence of his involvement in a fraudulent scheme came from the coopera who i believe the defense counsel did a good job of putting their motives in question the the the parade of horribles that came through from the independent witnesses you know don't don't talk about the surgery don't talk about your child those do paint a picture that's the prejudiced i'm talking about that's why the the the prong in a law no that says i have to show that it could have changed the outcome of the trial i think is actually presented to the sentiment that you're reflecting is that jesus looked pretty grim but what really made it look grim was these very credible witnesses who were doing what they were told answering these questions about my client's character good morning your honor is may it please the court katherine lyon on behalf of the united states i'd like to start with the inextricably intertwined argument where the court spent most of its time in defense counsel and i'll start with the st point th soldiers were the mechanism of the scheme and the statements he made to them to get them to sign up for the guard signed enlistment contracts and shipped to boot camp were still davis playing his part in the scheme so this is to take a step back the scheme was that still davis would get people who walked off the street interested in the guard to sign up for the guard when they signed an enlistment contract docu pack would send a one thousand dollars to one  people exactly still davis didn't get paid if they didn't sign those contracts so still davis did what it took to get them to sign up for the gart that evidence was evidence the government was intitled to present as part of its direct evidence of the scheme the defense might have a point if these were unrelated recruits ten years earlier who had never been to your apt five years earlier  direct who still davis had tried to get up to sign up to get to sign up for the card to meet quotas that's not this case so moving on to the nd point are the nd category of evidence the statements that the defendant made to a nominee potential soldier gregory and fellow recruiter grap lowery about sheet rap those were party admissions at the heart of the scheme and they aren't character evidence tending to prove that he's a fraudster their admissions that prove that he participated in the scheme which is an element that the government needed to prove for this wire fraud trial so the defense in this case was i didn't do it davis claimed that he was an upstanding charged in the indictment when he told brian gregory all slip you one next time trying to get gregory to sign up to be a coconspirator for him basically to play the same role that  pair didn't get paid and the next time that someone came in off the street for lowry and lowry signed that person up to be in the guard he said i'll do a nice thing and give jason hair this person's information so that he could clean and and when he told the recruiter laurie told seal davis that still davis didn't say that's fraud what are you doing which would have been consistent with his defense instead he said did you get cut did you get a share of the money and that tends to show that steele davis had the intent to commit this crime and that he participated in that he participated in the scheme so this isn't entirely permissible evidence within the scope of the we talked a little about playing error if you this was not a credibility contest the evidence against davis was overwhelming it wasn't just the three coconspirators it was all of the nominees who testified that they gave their personal identifying information to one person and one person only and that was still davis it was the timeline that showed that steele davis was the only person who had access to the nominees personal identifying information at the time when those nominees were claim coconspirators it was still davis banking records records from his debit card that showed that he was using his card consistently throughout the month even at times when he was overdrawn but then around the time when  that wire that one thousand dollars payment to his coconspirators and he got that five hundred dollars kickback he stopped using his card for days and weeks at a time this is not a case where even if there had  been erroneous lee admitted evidence which there was not that it would have changed the outcome at all these are small discrete areas and the court didn't focus in its questioning on the small lines of cross examination regarding davis untruthfulness to a c h p officer but just briefly address that that the defendant has the wrong rule here is analyzed under six o nine but it's properly analyzed under six o eight dealing with prior acts of untruthfulness not prior convictions the jury never heard about the conviction for reckless driving and it wasn't about that a conviction for reckless driving would not have been admissible the line of questioning was weren't you truthful to a c h p officer  davis said no and the prosecutor that was struck me was to the prosecutor it was not a question understood i will know that the prosecutor was restrained in his cross examination it lasted three questions and lasted less than two pages so in the scheme of things no actual evidence came in regarding the convictions or should not be analyzed under six or nine at all and the district court was well within his discretion to allow that limited questioning as a specific convictions i really do need to hit this testimony from mr gregory that said where he said that my client davis offered to slip him a nominee for one thing it is another act because it's not part of the fraud scheme allege the government has a very effective exhibit seventy it's in their brief that shows the fraud scheme that they charged and it's it's not this offer of my client to slip gregory a nominee and the government has argued today that that shows he participates in fraud that was their argument and eggs she's exactly right that shows he's a foster that shows his character that's the dangerous is a very slippery slope and words matter and it shows that he's afraid that that's the kind of person he is if it's true because it shows he has knowledge of how it works i give you a kickback you get it knowledge would be under four for b to which they specifically said we're not going to do it shows that it's cut part of this common plan or scheme that's the way he operates common