involving marijuana three of those for possession with intent to distribute marijuana very similar to the count two in the federal case here a great chance exists that the jury convicted m hearing those prior convictions and drawing the inference that isn't permissible under rule for forty and that is that he had committed these crimes in the past therefore he tended to be a person to do that and changes i understand your honor as you know from the brief and as as i think both parties have done a very good job of bringing it down to that standard and that standard is obviously whether it's relevant and then whether it's se was who possessed the guns and marijuana who had access and control that room in the house on the back in the back on the right they haven't showed that mr hall had a shirt if mr hall the night is knowledge if if his defense is i don't know about marijuana being there or he takes the stand and denies it i certainly see the relevance well you need to break down  all right good cat care all testimony for no other reason yes the government made a special point of stating in closing argument here's the reason you need to find that it was harold hall and not possessed the marijuana and the guns and i think the government's brief from pages nineteen and twenty one demonstrate the precise and permissible inference that we're talking about and for a fo beat the argument is it had to be chair it had to be here and not gerald and why it's because harold has these four prior convictions what other inference is there than to say well it has to be one not the judge anderson recognized yes exactly what you're saying if knowledge is contested if the defense is i didn't know that marijuana was there that's obviously relevant but that wasn't the defense the defense wasn't i didn't have any comment on the two comments number one mr mr holmes defense was i was not i was never there it was i was there i occasionally you showed up i'm not denying that someone else may have been dealing drugs and it's they are therefore it's not relevant for the reason judge anderson stated that yet and when we say he had the decision right when he said no that's not relevant to knowledge he's not denying it if he gets on the stand and denies it i'm going to let you have  but i didn't do it because i wasn't there the question then comes in is what is the value of all the evidence with that kind of defense my answer would be number one the government wouldn't be able to prove the middle element and that we would have to rely on the on the undue credit to us that any probative value was greatly outweighed by the risk of undue credit us of the jury hearing this evidence drawing inferences for which no limiting instruction can ever cure judge hamilton and the case we cited in the brief of the seven circuit cites the social studies that say once the jury not to be without this for for be evident you could prove this case and that's not the incident prejudicial nothing means i believe the sub argument of our opening brief does exactly that judge when in our when we point out that this is exactly why the government in closing argument says what we think is the impermissible imprint you have to find harold guilty because he's the one with the record thank you unrelated come concepts absolutely judge all that said i it's our position that by proceeding under a theory even if it's just challenging and strongly challenging the fact that he possessed it by definition if he's and at a minimum if one doesn't possess something it makes it far less likely that one intended to distribute it i mean why is one to prove guilt and that's the thing we have to guard against when we stop that in the which we have to take the position that individuals who have been convicted we don't bring them back and  i think we have established that the case is about the elements and judge floyd when you asked the civil about the similarity of the prior convictions to the count to hear what the jury heard was count two  the elements and possession with intent to distribute and that's the exact elements of count two here and while i recognize that one view and says is that look if there are more similar it's more  relevant we also have a case law that says if it's more similar there's a greater risk of that unfair prejudice and i think judge anderson had it exactly right before the trial start started saying if he doesn't deny knowledge i don't see how this is relevant to the problem i believe your honour's is that in the middle of the case before her eyes this isn't a case where a anybody testified for mr hall and then they it you certainly are you going to be much more hard for us to prove that i tended to distribute one dog on than if you don't intend to distribute something you don't because it is about saying i didn't do it at all and that puts the government in a position where they can say well we're going to introduce these part convictions to show you know what marijuana smells like or we're going to introduce the prior convictions to tell you it was harold not gerald and that statement i just made is nothing but the impermissible inference there  white tells me it's ok as well as long as i read this limiting instruction which is not at all what white as white had completely different legal issues and it's introduced when we've had like three different three prosecution witnesses agents  for agents testify the cross examined nation is he did you see it how far away were you not it was mr hall didn't have knowledge mr hall didn't have intent and yet the and that's when the government decides to introduce the stipulation that's when judge anderson decides now's a good time to go ahead and tell the jury that he's got four prior convictions there was no defense even cross examination of these agents didn't give and inkling of a defense and yet that's when judge anderson says you know the know i can read it as long as i read this limiting struction because that's going to fix any problems but that's not reality that's not the world that's not a human's brain the human brain had decided the second that they heard the information that there was a prior conviction of this exact same thing and there's no limiting no limiting instruction in the world that can undo that prejudice by that point yes it was curious if we agree with the government on this case tried to put the attempt on a particular individual and in many cases where there's a protestation of innocence that isn't that it doesn't come close to trying to pinpoint this crucial element of  narrower proposition and you said oh this is going to open the door every i think judge wilkinson the way you stated it allows me to say as narrowly as possible and a case where the defendant does not do not deny knowledge and wants to place possession and intent on someone else if the government evidence is that he did it because he's done it before we file a did before for his he did it because he's done it