case of united states versus by ye the court my name is as representing addle on by as the appellant mr baez's before this court challenging the admission of other acts evidence in this gun possession in sale case because armed robberies prior gun possession convictions and a prior gun sale had little to no bearing on any disputed issue the district courts are erroneous li allowed evidence of other acts that shows his propensity to engage in the very activity he said he wouldn't have engaged in predisposition under branch dine can be shown by an existing course of criminal conduct that the crime was already planned and a willingness is shown by ready response let's start with the armed robberies there's no way that the government can argue that the armed robberies are similar to the gun sales or the gun possession it's the word armed to mean anything to you your commit armed dangerous armed robberies of drug stash houses which are heavily fortified when he has no nothing like that in his record he was likely  puffing as shown at trial by the testimony of the dea agent who testified that he didn't follow up to see if there was in fact a robbery crew as mr baez stated to  the c i on this morning is that part of the narrative inextricably intertwined with the charged offense is a part of the story that needs to be told your honor respectfully  robbery story was part of the complete story of the crime on trial that you make that finding i don't i don't have that on the top of my head your honor  assuming assuming that he did i would respectfully submit that he was mistaken in that this is a very simple drugs sorry gun sale and gun possession case that does not require the inflammatory evidence of armed robbery and what about the government's argument that the discussion of armed robbery spree tween your client and mr moore might be  together to do an armed robbery suggest they're both experienced criminals and that he would know that mr murali was unreasonable for him to conclude if he did that mr murat was in the new jersey county jail for a traffic violation for example is and there was mr morals testimony that he had told mr baez in the new jersey jail that he had he was coming out of a five year bed rather than just a traffic violation there being offered for a proper purpose and its relevance but you mentioned four of three in only in passing and mentioned the prejudicial effect only in passing and did not counsels that this court look at the strength of the case the prosecutor's conduct with respect to the case the importance of the wrongly admitted evidence and whether such evidence was cumulative on those two steps two and four can we talk about one first i mean mr baez admitted after he was arrested tape that he possessed the tech nine before he met it's in ways in favor of of finding no harmless error however for steps two and four are way heavily in favor towards plane air which is that the prosecutors conduct with with the prosecution's conduct with respect to this evidence was to make it a motif and to show that well to invite the jury to convict on the basis of taking a dangerous armed robber off the street which just wasn't the case and the evidence was cumulative with that route with respect to the armed robbery there was of other evidence other much less inflammatory evidence to show that the that mr baez had knowledge of mr morel status as a as a felon your honor as i see my time is up if unless the court has any questions did you have anything further and further focus point ok we'll hear from the government then mr answer good morning your honor may please the court i represent the united states in this appeal as i did below at trial the record here shows that judge woods carefully and thoughtfully assessed the relevant factors under rule four zero three and rule four zero four b before coming to the decision that the challenged evidence was appropriately admitted he did not abuse his discretion his analysis was thorough it was thoughtful it was detailed and to the extent even if there was any alleged error it certainly was harmless but let me ask a question please it seems that there was a transcript of the first recorded conversation call and we did not submit it with the brief if your honor has a specific question about it i certainly can try to answer that question ok well i just was that you know since you're looking very closely at each aspect of their interactions in light of the entrapment defense i was interested can you say from they record who initiated the conversation about the collaboration on armed robbery is that to the record make that clear i was it was unclear to me i think it does if you look at the testimony of mr morale morale the informant said that he had a drug supplier and proposed the idea of committing a robbery and then the defendant  excitedly said that he was interested in doing that that he had firearms equipment and personnel that could be used to perpetrate that robbery and that meeting that was initially discussed was a meeting where mr morel the informant and the defendant discussed the sale of the tech nine for the first time it's a meeting where the defendant said that the tech nine was for sale the second time they discussed the arm robbery was the actual meeting where the sale occurred itself so i think it is fair to say that the discussions about the armed robbery were part and parcel intertwined with the story of the offense the relationship between the informant and the defendant they were important for the jury to understand the context of how the relationship evolved why the defendant trusted the informant enough to sell him a technology and out of the back of a trunk in manhattan  it was highly probative on the question of predisposition both in terms of the fact that the defendant said he had firearms that he presumably obtained without any government inducement and also his  excited willingness to commit a crime with with the informant demonstrated that he it flew in the face of his testimony that he had no idea the informant was a felon when he sold the weapon and also the notion that he was actually just trying to solicit investment from the informant which was his claim to the jury well that's a lot there are you saying that the story was so in his extremely intertwined with the story of the offense that's charged that you would have introduced it even regardless of an entrapment the fans we we would have judged we did seek to admit it on that basis and what a judge would find that point judge was at the final pretrial conference did not address whether proof he admitted it for the purpose of rebutting the entrapment defense and showing predisposition and he made a remark that he might have viewed it differently if the defendant had not asserted an entrapment defense so the judge's basis was to rebut predisposition and we think that was appropriate and it was not an abuse of discretion but there certainly were many other bases for admitting it and the government did in fact try to seek it seek to introduce the evidence for these other reasons the relationship of trust the fact that it was intertwined with the story to demonstrate knowledge that the informant was a felon which is something we bore the burden of proving beyond a reasonable doubt and was hotly contested at the trial what are we to make of mr byass argument and testimony that his interaction with morale actually began when they were in prison and that's where the government's inducement  began and really everything every conversation after that we flecked it was a product of the inducement so that in assessing his whether he was predisposed we actually don't have that and you know the the tapes and so on that we have from after their release from jail are kind of irrelevant that we need to look and scrutinize the relationship that began while they were in jail together there is a dispute between the parties about whether the whether morale was working for the government when he was in jail whether the inducement occurred in jail versus on the initial call on august twenty nine but that dispute i think is immaterial for the for the question of whether conduct after the alleged undue dusun is relevant under this court's decision in the case conduct that occurs after the alleged inducement is and can be relevant to whether or not somebody was predisposed before the government contact as long as the conduct was asserted if you accept his testimony at face value he asserted that the informant suggested the idea of of buying a tech nine there was evidence contradicting that overwhelming evidence contradicting it including the videotaped post arrest statement where baez said he had obtained the tech nine before he even met the informant the first call where bias says in substance you know i got some new toys he's the one who raises it on his own initiative suggesting that it's not the informant who is inducing him at all and the if you look at the text messages which were introduced in the record i think i've submitted them in our special appendix  on october third it is bias who first raises the idea of selling the tech nine he he says he initiates the conversation about that and indicates that it's he wants to sell it now because he needs to make room for new toys a reference to new guns that he's obtained so that there is evidence in the record to judge that but the conduct after the alleged inducement and statements that baez makes are highly probative of his pre induce ment state of mind the court consider that under committee and statements white white can be confident that they are independent of the initial inducement so the statement i have firearms in substance when they're talking about committing  robbery mr morale the informant didn't do anything to prompt that statement he didn't ask whether the defendant had firearms to do that that's something the defendant tossed out on his own initiative and that is indicative of the fact that he was predisposed the first the sale of the thirty eight revolver as an example in that meeting in a basement the defendant shows the informant firearms for sale the informant asks about the tech nine the defendant says that he that's not for sale at this time and then tries to get the informant to buy a different gun the revolver the informant initially says he's not interested in buying that and then the defendant morale who had arm twisted the defendant into selling the tech nine he didn't want to sell it at that time and so it wasn't sold at that time it was the defendant who persuaded the informant to buy the other gun suggesting that this is not a situation where he was overpowered into selling it something he wanted to do on his own initiative so although this happened after the alleged inducement when you say the other guy and you are referring to which one the revolver the thirty eight caliber  and i'm referring to the september sixth i'm sorry judge no that's fine sorry let me just ask you very quickly about government exhibit to be two which is the transcript of the conversation i think it's the lead off in your  your supplemental abounded yes your honor and mr baez i got i got the fastest machine gun that's on the market today and that's the mack eleven who initiated that call this is a recording of an impersonal meeting it is not a call it's an impersonal meeting between the defendant the the informant and a cooperating witness called eddie  ok and in terms of the meeting we would say that the with the evidence shows that it was the defendant who initiated this meeting because in the very first call in august twenty nine i see that my time has run out answer answer the question in the very first call the defendant is the one who on his own initiative says you know i got some new toys that prompts a discussion that leads to this meeting so we would say was the defendant raised th  let's say for the sake of argument that moral twists mr baez's arm in jail when nothing is recorded nothing there we can only rely on mr morals word everything after that if it shows a ready response by mr baez doesn't show his print do cement state of mind which is what's relevant under brand i think what the government is saying is that to the extent his actions over our show the ready willingness to participate in these in the transaction and show his initiation of continued relationship about this make it does proceed over five weeks where we have a series of conduct of him initiating discussions about the sale that it doesn't fact reflect it can be used to reflect his or to make a determination about his priyanshu spent state of mind so is that that's incorrect you think i differ with  relevant to to his state of mind putting it's not just willingness though it's that he takes the initiative time and time again after the end of august yes your honor that's that that's correct however  macro level and the best machine gun you can get and all of that and that just arose fullblown like venus out of the half shell after she was induced by the government informant you know it's certainly relevant