connor you may proceed thank you your honor my name is carrie conner and i'm here today on behalf of michael thomas the defendant we have challenged mr thomas conviction for male pride based on this case as we know with mail fraud and the mailings that issue must be closely enough associated with the cond so as to show further and that scheme in this case the four counts that were charged all relate to insurance checks for checks that were sent based on a fire that that occurred on april th of two thousand and thirteen at michael thomas's home  indictment very broadly included allegations of fires in twenty thousand and forty four fires in two thousand and ten and an additional fire in two thousand and thirteen january and includ polluted all of those too broadly defined the scheme in order to allow for their admission now the government has suggested that defense counsel trial counsel waived this issue below by not appealing a decision of the magistrate court regarding his initial motion sunder four o four b and under surplusage i do believe that the government incorrectly suggests that the motion was filed only under surplusage but in fact the attorney below did file a motion under for a court be challenging the entered option of all of these fires other than the april th two thousand thirteen choir that motion was decided by the appellate by the magistrate court it is correct that that decision was not appealed by the by the defendant however later district court specifically took up two of those issues one of them being the fire that occurred in two thousand and four which also occurred on the defendant's property and an allegation question by the defense counsel again regarding the interaction of two of the four fires that incurred in two thousand and ten so common it is yes i was just going to start with those two thousand and ten fires because there was a theory of relevance which was that they had been set to muddy the waters more or less so it didn't look like it was always mr thomas's properties that were were burning that there was some mode of operation that there was a common practice and the two thousand and t within the scope of the scheme that the district court judge chief judge giulio recognized so these these decisions are assessed under abuse of discretion standard explain to me how that's an abus discretion and seems like a plausible way of looking at things you know i don't think it's implausible that if you allow for the introduction of the two thousand and ten fires that belonged to actually  were related to the thomas family i don't think that there's an abusive discussion necessarily on that theory but the but the problem is that the two thousand and ten fires him in an all because as  vip the problem is is that this jury may very well have convicted mr thomas because they believe that he was involved in the house arsons of two thousand and ten however the two thousand and ten arson which were distinct and completed acts before there was any possible discussion or thought about starting a fire in april of two thousand and thirteen assuming that that was an arson because it is very very scant if we isolate that fire alone so that the issue becomes not simply the decision that the district court made about allowing in the nd two but that the st two in two thousand and ten should not have come in at all your honor and i i wanted to emphasize the importance of the fact that if you take the mailings and the only fire that they connect to are april of two thousand and thirteen if you remove the april two thousand and thirteen fire you have no connection to the counts of conviction that's why it clearly is not a duplicity argument but a forum for b argument the jury is being asked to rely on evidence of two thousand and four evidence of two thousand and ten and evidence of january of two thousand there teen to reach the conclusion that mr thomas has a proclivity for starting fires and therefore that the fire in april two thousand thirteen which is the d only fire that connects to the mailings is in fact the basis of conviction which is kind of a salute legal for a b let me yesterday tell you what's confusing me a little bit as you are you're very eloquent your argument is well articulated here's what confuses me though is i understand the appeal before us you're not challenging the legal sufficiency of the indictment so it's not as if your client moved to dismiss the indictment that was denied and that's now appealed nor do we have a challenge to the legal sufficiency of the evidence to establish the elements of mail fraud correct and other was correct we don't have that goes said issued a jackson versus virginia issue here ok and so that is correct but so much of your argument sounds to me in in mr thomas saying because these particular checks in two thousand and thirteen connected to a different fire there is something there something legally in firm about either what i was charged with or th sufficiency of the proof on the crime with which i was committed or convicted but that's but in that you know it at other times you're saying no no this is just a straight up judge to julio never should have admitted this evidence so can you can you just address what person what precise issue do you think is in front of us on appeal your honor i believe that the precise issue for you on appeal is that the six other fires that were included in the indictment that were not struck by the surplusage motion and were included as evidence in the trial where violation a rule fluoro for b and therefore when we take the rule for all four  evidence away leaving the fire in april of two thousand and thirteen we have we certainly have have sufficient evidence that that error was harmful one of the issues with the sufficiency of evidence your honor and in analyzing this is that because the jury was permitted to rely on those other six fires to reach the conclusion about whether or not mr thomas had committed the april two thousand and thirteen fire they were permitted to be part of the evidence that the jury heard so the reason that we had you think analyze would have swayed by this proposed in your view that this is all just propensity evidence he's  isolate that april two thousand and thirteen case from the other fires is we have an ex wife we have an ex wife who's testifying very scantly in fact she says very little about that fire other than she recalled him saying something about removing her items from the house now she makes that sound nefarious but we have to remember that within days of this incident she had actually left him and moved out of the house and then we have nissen who says that he was asked to move the motorcycle which ultimately was he did not so the evidence of an actual arson on the premises is limited to the findings of mr sumpter which are quite quite scant even in the isolette in isolation because we have with mr sumter he never took any tests he never did any kind of analysis he doesn't follow protocol and court here on behalf of the united states of america your honour's if this is just a four or four of the cases mr thomas is now saying it's important to talk about what's actually in front of this court in terms of preserved objections  under federal rule of criminal procedure seventy and to strike paragraphs to through eight and ten through eleven he says that they violate for a for b and that's a reason the court should dismiss them as prejudicial or strike them excuse me as prejudicial but this is a motion to strike a surplusage and he's proving on to the rules of criminal procedure not the rules of evidence even if this court is willing to give him the benefit of doubt on that motion so he does not appeal that decision from the magistrate to the tester court at any point in time and when we're talking about the two thousand and ten fires your honor what he actually moved in lemonade to exclude evidence of is there for five fires that issue in two thousand to two properties mr thomas owns and then one of his garage is then there are the two properties that are unconnected to him in any property interest way shape or form to cover up fires it's the cover up fires that the mood moved to exclude in front of the district court so we aren't even dealing with the properties that he has an ownership interest in the two thousand and ten those were never raised to the district court and then i do think because the district court considered the issue of the two thousand  fire is before the district court i'm sorry is before this court ultimately the rule for forby is not implicated in this case because each of the fires are charged as part of a scheme to defraud numerated they're listed as open for you to make the four afford me showing i thought that one was you didn't prevail on your honor what he did is he said that it wasn't relevant as part of the scheme to defraud question and whether it's part of the charged actor or not and i think maybe i'm splitting hairs with the point with your honor i think he says that it's probably not considered part of the scheme because it's true temporarily removed and so it's not relevant  part of the scheme there was no challenge to the accounts in the indictment there wasn't real twelve motion to say that this is actually a separate fraud so the issue wasn't in front of the district court and as we said in our brief  for a for be evidence to show identity it's not as mr thomas claims is it's opening brief in occurrence that any married couple would experience as to what's going on here as these are five fires within a very small community where a volunteer firefighter of twenty six years says yeah i've only seen three other fires like this in this community before in my life it's five fires where mr thomas gets an insurance effect and within i want to make sure i get this exact the right within thirty days each time the residence is burnt down and we have an insurance adjuster who says they've done six thousand dollars claims in their life and they've seen it three or four times where within a month some house burns down when the policy goes into effect happens five times mr thomas there's another insurance adjuster down the road in the trial that says listen we consider recent casi to be within a year of a fire and that's twelve times longer than what we have here we then have instances where it's fires to mr thomas house or a residence in which he has a property interest and then he files a claim within three days each time if this isn't  specifically addresses that also the honors i i would suggest that you are correct in what was indicated that in document number fifty seven dollars judge to julie o does in fact specifically address the two thousand and four fire and concludes that it is not part of the scheme but that it can come in we we believe incorrectly under rule porro or b and finally this was not a new policy it was a renewal policy on april two thousand