that make this case unique and different than your ordinary felon in possession case the first thing is there are two young men driving in a mercedes in stockton on a sunday afternoon an officer officer morale us sees the driver go to through a stop sign come to a rolling stop and signals for the two to pull over the driver of the card to nano more is on parole from a violent felony he doesn't pull over he takes off at a high rate of speed in the car ultimately crashes your client was a passenger my client was the passenger most people in the car two people in the card to not only warn the driver antonio smith the past and i take it you don't induce case challenge the the officers there's no there's no formal motion to suppress or anything that deals with the stop that's true your honor in the reason for that was did not know more was driving the car he had borrowed the car according to the officer it was not a more that i'm not questioning your reasoning i just did there is no there's not a case in which you're saying he had they were stopped illegally and therefore there are fruits of an illegal stop the reason why it didn't proceed that way is because mr smith didn't have standing to challenge the stop he wasn't the driver the bag didn't originate with him he was a passenger and so there is a high speed chase according to the officers and i know you've got limited time but i'm not sure there's any dispute about the essential initial set of facts in other words mr your client leaves the car here out of bag in his hand holds it for some short period of time and continues to run he's eventually apprehended and after the crash takes place in the facts of the court just stated are all accurate the cases prosecuted in san joaquin county this all happens on march sixth two thousand and sixteen a few weeks later on april thirteenth the same officer officer morality is involved in the shooting death of an unarmed black suspect two days later on april fifteenth two days after the shooting the case becomes federal it's an ordinary filling in position case in san joaquin county it then becomes federal the defense counsel for did not own more of the driver through his own investigation finds out about the shooting and immediately counsel for both defendants say this case should go back to san joaquin county they they're entitled to discovery on the officer shooting send it back and so while the government is apparently considering sending it back to not only wars council has a conversation with the government fortuitously in the government promises a dismissal to do not a more is council it happens to be the friday before labor day as soon as smith's council learns of this smith's council says my client is the passenger this guy was the driver this guy took off he had the bag send both of them back to san joaquin county at which many ability to review any of that excuse me we don't have any ability to or any of that well this is not a case we're not argue but you might well i understand you are going to be should have been allowed to try to impeach is it left the passenger mr smith literally holding the bag both holding the bag and left to go to trial the government declined to dismiss against more in the court enforced a promissory estoppel theory the only reason smith was still there guy that took off and he's the guy who had the bag with the check again we should get back to this ok this is not your client wasn't charged with running away from the cops now he was charged with being a felon in possession of a firearm yes so let's focus so the third thing that makes the case unique is that smith then goes to trial and the police report the contemporaneous report of officer morale us was that the driver passed the bag to the passenger car crash the passenger drop the bag and flat that was it and there's no other corroboration although he was wearing a body camera he didn't activate it officer morale us several of the things that he testified to were undermined by  police report as well as the dispatch call and so ultimately the jury hung in the first case against smith the issue was whether smith had knowledge of what was in the bag when he dropped it there were no fingerprints no d n a so really officer morale is testimony was his credibility was pivotal and the jury didn't credit his testimony the second trial comes on december fifth the first jury hung on october twenty fifth so it's barely over a month later and now officer morale us is more determined and he basically obstructs counsel at every turn his police report is inconsistent with the testimony he gave in the first trial it's inconsistent with the testimony he gave in the second trial but he refuses to acknowledge it in fact he did he so he's a terrible witness he refuses and it looks like a terrible cross examination too as i doubt is he is he willfully misrepresent well i mean i think i think that it's clear that he is for several reasons officer morale is first of all he denies he doesn't acknowledge his own report although it does it previous learn never quite gets around that the police officer jousts with them as they write as they're trained to do that's out is he really well yes your honor because the if you look at the reply brief in fact as a supplemental excerpt of record the entire police report is submitted and the fact is that there was one report it was marked as governments exhibit twenty the same report was marked as defense exhibit f same report it's bait stampede just thirteen to eighteen it's a total of five pages the government produced it to the defense in a redacted version the redactions were always the same there's no waiting out no blacking out this report was shown to morale us in the first trial showed him the second trial there were no additional in two he blurted out that there was a gang enhanced man on the report and that's in essence why we're here that's the issue of all the things to me what happened when he boarded that defense counsel  counsel for the defense immediately objected and what did the district judge do the district cook court called the sidebar ok and at the sidebar i think there was shock going around from the government why is the u s doing this three judge i'm not asking for people's person this is the district judge didn't make a ruling the just did not sustain the objection and didn't offer a limiting objection limiting instruction i'm sorry was one request it the objection was not ruled on and i don't believe illumining instruction was requested at that point i take it you did not write this i actually did you did yes that's why by the way each of us has done a bit cross examining thank you the good will be there the best cross examination is one you think of two months after the trial that is very much true that's precisely what happened but in this instance the gang reference was heard by the jury it had nothing to do with the case and now we've got a case that's pretty thin on evidence there was no fingerprints no d n a no looking in the bag but now we have this gang reference blurted out the objections not sustain there's no meeting one stop shopping and i don't obligation of defense counsel in general under those circumstances must you demand a ruling from the judge to make a record should you ask should should want to ask for something no it's it's sort of a strange that you've got an objection that probably should have been sustained it wasn't over ruled something happened at sidebar that's not recorded apparently it's never returned nobody mentions the closing  so i'm trying to figure out is that sufficiently preserved for us to to rule i believe it is counsel objected at the time clearly the ganger for instance prejudicial under this court's established precedent blurting out that someone's got a gang enhanced meant is prejudicial and i think it goes directly to your question about whether officer morality is lying or somehow in trying to taint the proceedings he doesn't say this report is different he says there's a gang in handsome and that's very specific deliberate and prejudicial and i think that it's bolstered by the fact that on direct examination from the prosecutor there's a series of questions asked about what does it mean to have no record on file when you run the plates and their morale us to the government's question blurts out well the car is likely in the area to burglarize there's no evidence of that what was mr i don't know the answer to this was what was permitted yet and the government made it a big deal about absolutely and i think that's one of the most crucial issues in this case in the first trial which is just a matter of a month before the second trial the defense gives notice of an expert witness a different one a different expert witness correct on the issue a flight a social science context for why young black man might flee from police for reasons other than guilt the government moves in lemony to exclude the flight expert and the court denies the government's motion and indicates that it will allow a daubert hearing to allow that expert to be tested by the government unfortunately that expert is is not there and this trial of a motion women it can be for many reasons which is i want to hear the guy first right on the then i'll decide whether or not to limit testimony i want you to allow my right testify is filed the judge says two things page thirty three of the transcript he said as the motion in limine they won't be allowed because it's late and there was a there was a credentials under seven and two i think it would you would review it for an abuse of discretion but here i believe it's a de novo review because what happened was under rule sixteen the defense was required to give notice of the expert the second trial was confirmed trial confirmation hearing on november twenty second on november twenty third a day after the trial confirmation hearing the defense gave notice to the government of their intent to call an expert they gave a c v and a summary of the experts testimony the defense was completely in compliance with rule sixteen and discovery rules the motions in limine the deadline was set for november twenty eighth on time on deadline the defense filed a motion in limine e to allow this expert to testify it wasn't necessary to file that motion in fact at the first trial it was the government moving to exclude the expert testimony at the second trial the government didn't move to explain exclude but the defense filed a motion in limine to allow the expert to testify that was unnecessary but the defense captioned it motion in limine to allow expert testimony and mistakenly filed the same for a four b motion so in other words it was correctly caption notice was provided but the wrong document was filed on the docket realizing the error the night before trial which was december fourth counsel sent an e mail in a letter to the government saying we gave you notice timely notice we misfiled the motion to include we're refiling it the morning of trial the judge said this is so late as to be ridiculous i'm not going to consider it the judge did not consider the merits  good morning on it's me please the court matthew morrison represent the united states and you start with where your colleague ended with the expert issue yeah and here's it's a procedural mass i'm trying to figure out who's obligations were met and whose word in the ordinary course the only obligation to rule sixteen is to provide you with notice a summary of the report it  sixteen no nobody says nobody says to the trial judge wait a minute they haven't complied with rule sixty that's right your honor that we at least admitted that that we had received a c v and that combined at least with the motion the night before gives us some idea what it's ok and it's in the context where we write so knew what was coming and then said you didn't cause the problem i'm just trying to figure out why so there's no rule sixteen issue the motion eliminate maybe late but she doesn't have to file a motion in limine a to put on an expert does she that's right or so and the judge the judge says this is all too late you're not going to be able to put on the expert know what i why do why why isn't that just wrong because that's not what the judge said your honor and this is at the ex page twenty seven he says the motion in limine a will be denied because of some timely comma although we'll talk about whether the evidence is admissible so he clearly is making to dividing us into the two things that you yourself divided into earlier there's now but i'm looking at page twenty seven that's why i was asking your colleague about this the court says all right we're on trial would take up motions in limine day the court received in a timely manner three motions in limine a from the government three from the defendant  defendants motions limited four and five were not timely filed in for that reason will be denied and i think what i can't tell is is is four of our four and five one of these you know yes i think that the expert one was four or five i don't recall which frankly ok and then he said all talk about later whether all now that evidence or not that's true and then then you view his statement on page thirty two or thirty three the expert would not be allowed to testify there's no chance this expert would be allowed to testify is is a ruling on the merits i think in light of the statement on twenty seven and thirty two has to be taken in the context of here's my problem with that in thirty two the judge either what he's doing here is saying in the context of a motion in limine a i'm not going to do it because the space be briefed in which case he's already invited on page twenty seven ms russell to come back then in the course of trial and say ok now i'm ready to tell you say i told you i wasn't allowed to testify and so if that's what thirty two to thirty three means then it has to be consistent with his prior statement on twenty seven that he's now making a ruling on the merits of let me let me ask you again this is hypothetical quite different question the same s limited to late no expert presumably it would be and that would be consistent with the finley case where it was and it was sent back to really one of the reasons was purely on timeliness but that's not what happened here because there is this back and forth the first trial there's this extensive colloquy and the excerpts of the record where the judge is talking with ms rusk at the first trial about you're really in a tough position here if you want speculation about mental state you've got a seventy four problem if you want simply to tell the jury you could make inferences and speculate about an inference to be drawn from it now you've got a seventy two problem so i thought in our case it is not simply a it's untimely undermanned motion in limine a schedule and therefore expert doesn't come in that's not what happened here there's there's this extensive back and forth leading up to this moment the judge for both you and i didn't try the case run on a number of the appellate unit the lead prosecutor drafted the brief and i understand he's watching today is just tell you my reaction to the whole case as a former prosecutor this smacks of having lost the case on jury the first time that the officer gets ginned up and overprepared  overenthusiastic and you have all this stuff coming in the record that has no business of being there gang enhancement that smith was involved in a fight perhaps  it just smacks of we didn't win the first time so we're going to join the case of the second time convince me that's not the case well let me address them sort of in orders of what you've talked about the government is not defending the insertion of this mention of a gang and that that was inappropriate if this witness were to ask us how should i address these questions we would not have counseled him to make this kind of a statement the it was an assistant u s attorney correct was present sidebar yes yes did the assistant say to the judge judge i think you should tell the jury to disregard that we were surprised that the officer said that it has nothing to do with the substance of the case please tell the jury to disregard it no your honor neither party asked for it to be disregarded or stricken and i can i'll say this will become anecdotal at this point i can tell you from my personal experience when we get to that point where the bombs been dropped in trial and i suspect you've probably experienced it as well there's a real question as to whether or not you want to draw attention to it or not as we certainly i think the position would take difference in drawing attention to something and behaving as an officer of the department of justice whose job it is to make sure that cases are tried fair square turning square corners and so there's a difference in saying let's just not let this float out in the air and being responsible enough to say to a district judge we think the government is job it is to pursue justice thinks that the jury should be told to absolutely disregard this gang enhancement business you catch the difference absolutely or are and the trouble that we are in though is that sometimes defense counsel don't want an instruction given to the draws attention to what just happened we would have if that had been asked i can assure the court we would have agreed they should be told to disregard that however for us to get you done what i just suggested ny admit this is they could guessing yes or they could have said sidebar your honor let's leave it alone let's throw the bomb outside the courtroom and let's move on and try the case that would leave it up to them you're right your honor and so the i think that the best practice would have been for us at sidebar to have said will defer to what the defense wants if the defense wants an instruction we want to check to it if the defense doesn't want an instruction we're not going to ask for what about the business of smith in in a fight in an altercation th been that was what the both parties expected the evidence to be at the first trial we had met in multiple places in our brief it was incorrect for the prosecutor to say that because that wasn't what the evidence was in closing it was in closing your honor that's right to put it in context it's a twenty four page closing that's fifteen words and was immediately objected to the court's the stand the objection instructed the jury to disregard we acknowledge in the brief again the brief written by the prosecutor who made that misstatement that it was wrong we use the expression wrong error in correct at least eight times and to be clear standing here as a representative of department justice any time that we had set one time that's one time too many but we heard defending the conviction as having lived up to what the law demands not defending this trial as being how we was script this trial out if we could go back to getting mention if the judge had said overruled objection  no your honor because we go back to the question of the standard is does what comes in undermining are actually more more likely than not that the result would been different and so it may have been an and we don't give much credence to explanations of why but he's got a his defense is i didn't know what was in the bag i was in a car with another guy was his car to know was in the bag and and now we have all these little didn't get that information and i know my question is doesn't all this stuff in the aggregate undermine my confidence in the outcome in a case that i think from looking at the record i can tell it wasn't a slam bang case fair that it wasn't a slam dunk case are so upset be clear what we wanted to elicit about that gun didn't come in because the court sustained a series of objections eventually saying to one of the prosecutors i'm going to keep sustaining this until you get to the top of that you're allowed to get to at which point we did so that doesn't come in the other the officers reaction to the no played on file that's raised and that was and i'm going to objection it was sustained i would point the court to that was the exact same answer he gave in the first trial so this is now a case where something that is alleged not to be prejudicial it was sustained and kept out in this trial that came in in the first trial so there's an example of something that was worse in the first trial as far as this litany with the cour s and then we get down to the i think is that as as as many members of the court of said today we always walk away from the saying boy i wish i had done that differently and this prosecutor walked away from his argument saying that there are fifteen words they are that i'm going to now have to try to find a way to to explain in the context of this larger trial the government's position is it does not undermine confidence in the outcome because really what it comes down to is two things it was the prosecution a statement which was immediately corrected and the jury was told to disregard what the prosecutor just said and it was this blurting out of the gang of hands meant which every party stayed away from and of course i understand what the defense is going to stay away from that but the government did to we never went back there on redirect never asked another law enforcement agent to talk about this never mentioned it in closing a rebuttal recognizing that this was not something that we wanted to associate ourselves with because it wasn't something we wanted in this trial now you know that the government didn't object to the expert objecting to whether or not this was an appropriate topic for an expert when it came in in the context of the first day of trial once the judge said he was not letting it in but we didn't raise an objection to it if as i posed earlier if for example ms rusk has interpreted this as an invitation to bring him back later in the case the government actually would have objected at that point but you never objected and you did make kind of a big deal about the flight in the course of the trials and you that was part of our case flight was definitely we argued that the jury could find consciousness of guilt from the flight but it wasn't the only evidence that you know if you read the the transcript of the closing on notice for example also that the government argued there's been this violent a car accident and what's the one thing that this person grabs and takes out of the car it's the bag with the gun in it not the cellphones not the food not the clothes leaves behind everything except the one thing that's going to legal in the car and we argued the jury c interpret that as being evidence that he knew what was in it and was getting the one thing that was going to get them in trouble out of the car and likewise we argued that the flight was was also part of that so it was part of the government's case but on exclusively we didn't rely only on that  him getting short on time or the been a lot of issues that we have not covered i'd be happy to address any of these if the panel has further questions we've read your briefs and if not then i would just ask the court to affirm the conviction thank you and i thank both sides you used up