fifteen fifty two thirty seven united states of america versus leicester barnes oral argument not to exceed fifteen minutes  thank you may it please the court my name is emily copeland i represent laster barnes i have this morning reserved ten minutes for a bottle so i'm going to get to the meat of what i think the most compelling issue here and that's the improper admission of for a fourth be evidence it really was propensity evidence and how do we know that we know how it came out at trial you'll recall this case arose from three controlled by on march seventh march thirteenth and march twentieth of two thousand and thirteen jessica hold of confidential informant purchased about twelve pills from mr holt the search warrant was executed on march twenty second two thousand and thirteen private trial the judge announced that he was going to allow in evidence of some jail calls from september two thousand and thirteen between lester barnes and a woman named susan and the jail calls are to the effect of something like to jericho gets to white ones give fran for green and two blue ones and there is some caution not to mix it up with blood pressure medicine and the earlier of the two calls i believe these come in under the bases of intent this is what the finding is that they go to his intent this the september two thousand and thirteen calls possess with intent to distribute pharmaceuticals are march twenty second of two thousand and thirteen that is the basis for admission the government does not mention these jail calls at all and it's opening statements they come in through a an employee of the jail an investigator of the county sheriff's department testifies or inmate calls they start off this is an inmate call so you know it's an inmate call they're called the jail calls throughout these are admitted the judge gives a limi instruction i'm going to tell your jury you can only consider these on count four possession with intent to distribute on march twenty second two thousand and thirteen only on the issue intent you can't consider this for any other purpose judge news that same instruction to page three hundred of the transcript in the final instructions this is what the jury is told flashforward what the government argues in its closing argument the government doesn't mention this at all and it's opening statement so at page two fifty nine of the transcript the government outlines the count for evidence against my client mr barnes and makes the statement page two fifty nine the only question for the jury in this case is whether or not the defendant intended to distribute so in this category of how we know according to the government the government that mr barnes intended as tribute he talks about the control by jessica hold on three prior occasions they talk about pill bottles being everywhere they talk about money found on mr interestingly enough the jail calls which were in mid solely for the purpose of intent on this march twenty second two thousand and thirteen transaction jail calls are never mentioned in the itemization of the evidence that the government has to show his intent instead the government argues this at page two sixty five of the transcript in fact these are the last words of the government's first part of its closing arguments finally the defendant's own words to me the most conclusive point he was distributing drugs in september of two thousand and thirteen when he was in jail and he was distributing drugs in march of two thousand and thirteen all he talked about on those jail calls was making sure that his customers got those drugs the defendant's own words they all point to lester barnes they point that he is guilty of all six counts in the indictment thank you that's how the government heard objection and there was not your honor the defense trial counsel did not object did not move for a mistrial there was no objection instead defense counsel gets up and says listen i think the got the defense counsel really focused in on the nine twenty four c count and so i think the government's got a number of these facts wrong you know that the gun wasn't found on the headboard the swat commander was just incorrect you know the government is incorrect about this mostly focuses on the night twenty four c so the government gets back up and in a closing argument that i think spans from two seventy four to seventy six the record makes the statement the bottom of page two seventy five to the top to seventy six we have heard tons of testimony about how everybody was worried that the pills would be stolen the jail calls do you remember he said i'm glad you put them up put the stuff up they were worried about the pills because pill addicts are desperate and desperate people will do anything to get their pills that is why you have to protect the pills and the drug money with firearms the defendant did it so again this does not go to  and to precipitate your question judge givens and unfortunately my colleague didn't object to that statement at closing argument either your honor based upon these statements this purely was propensity eviden my client was in jail he's talking about drugs this is months after the fact these involved people that aren't even mentioned in the march transactions we know it's propensity evidence because the government when it details evidence it hasn't ten account for mentions nothing about these calls and instead argues that these calls really go to all six counts of the indictment the jury had twice been instructed that it could not consider the evidence for the purposes argued that the prosecutor you know and i think there's some case lot of the effect that jurors are presumed to have followed the court's instructions i mean i'm not at that i mean while probably the court would have renewed its instruction again and perhaps stricken that argument you know with no objection i'm not sure that the court was required to spontaneously object to it instruct the jury  and that's not argued so i am a little puzzled as to i mean agri with that the government did argue that the evidence pertaining to elements and calles other than those which the district court to determine but i'm not sure without an objection at the end of the day i'm not sure how you can benefit from that the jury was twice instructed  properly i have kind of a compound answer that first of all the i will acknowledge that the jury is instructed both in the preliminary instructions and the final instructions what you hear the attorney say is not evidence the jury was instructed they can consider this evidence about the jail calls only as to intent as to the possession with intent to distribute charge and count four but there is case law in the richardson case says the basically a limiting instruction isn't a panacea if the limiting also where however the government treated it what's the logic of arguing it's not probative of been to already occurred five and a half months after the actual possession with intent to distribute charge it occurred well past that time understand that six circuit cases in the past have considered subsequent acts but the cases cited in the government's pretend to go to signature crimes like bank robbery if you rob a bank in a in a cowboy hat every time for instance this had to do with people who were never mentioned in the first go around in march this had to do with apparently some unknown act involving two white pills to jericho and four and two to fran that had nothing to do with the prior ones everything had gotten seized at the march twenty second so to me that they are they are far apart in time and they are simply not related you know that's a really good argument but i'm concerned with how it fits here it's a really good argument if the evidence that you're putting in does not have to has to do with completely unrelated conduct which was kind of where you think to be heading at the end my concern is that this was you know under our belt case if it's part of the same drug distribution skin or if it uses the same modus operandi as that charge crime we don't even hear i'm struggling with what it means since it's not just that it's the same method it's that it is the very skinny isn't it offered to show and what wasn't there other evidence that that this gentleman had been distributing to people sometimes holding their actual medicine bottles and and was distributing drugs to them and isn't this part of that skin that you have a call that says here's how many pill hugo to teresa and here's how many pills you give to joan oh she's really having an awful time you need to get the white pill to her why is that not evidence of intent related to this very skinny as opposed to unrelated other conduct that you're trying to say want to drug dealer al honor bell was certainly the basis of the district court's opinion for finding that this was all relevant are simply just again the temporal difference the difference and the players and this was not an ongoing scheme this was a possession with intent to distribute that occurred on a single date in march this occurred well after it with different players possibly different medications it's not even really clear from the call exactly what's going on what the two white ones are what the four green ones in two blue ones are there's a concern about blood pressure medicine indicated in in that call and it is just it is it is difficult to argue that this was in middle when the concern a minute the pre was look all the government is going to do is try to make mr barnes to see like he's a bad guy he's distributing drugs from jail he's a terrible person and that's exactly what happened what is our understand it's an abuse of discretion does the judgment a clearer fact or does he make an error of law and that's how it judged abuses its discretion my time is up and i'll dress my other points in the bottle thank you and now she is asking basically that the government's word should be believed by the jury over what the judge actually instructed the court and in she mentions the fact that i did not bring it up in my opening and then i didn't reference it in the opening close and these were because the evidence was overwhelming the defendant's guilt i simply neglected to mention it because there was so much evidence of this defendant's guilt the thorough for big question she also talks about the fact that it was several minds subsequent there is no rule that only prior bad acts are admissible subsequent bad acts are also admissible in this case it was extremely probative because it was the exact scheme he was distributing pills he argued that he was simply holding people's pills he put on various testimony from jericho holt that he was holding her pail and and in fact the she argued i'm sorry good defense attorney argued that it wasn't the same actors the jericho who testified at trial was the same that the defendant was distributing pills to on the gel calls the september jail calls in the defendants were if she also argues that this was a huge difference in time it was less than six months and  court this six circuit is held that there is no specific time with regard to the bad acts it can be as long as four years it can be as long as three years and so the fact that it is and it was it was used to show that it was to rebut his argument that he did not intend to distribute when he was arrested and it was in the record that he said i had these there were only my own pills i k shelley held for other people but i did not distribute and so by his denial of that it went so late to show his intent because he was in terms of not that you had to parrot the district court's instruction but it's unclear from what ms  closing argument that i believe i was referring to all the evidence the defendant had a lot of words in this case because of the recorded transactions that he had with mr holt there were three recorded transactions and then he made a statement to law enforcement also and so often when i argue did it in his own words i wasn't only referring to that jail call in fact that jail call i felt like was a fairly moderate minor piece of evidence i wish that i had not mentioned it in the rebuttal close when i was talking it but you notice that i didn't even reference to on direct and so as i said i wish that i had not referenced it with regard to the nine twenty four c but at trial that was the entire trial the defen attorney simply was arguing at every turn that the nine twenty four c should not be found and and in my rebuttal i did refer to the him in the jail call saying be sure to put the drugs and that was admitted for that was part of the jail call that was admitted during the trial and if you look at the nine twenty four see which we argued at length and is a big point of the brief there is ample evidence to show the nine twenty four c count if you look at the maquis factors of the guns that was found the defendant argues that he couldn't have possibly been able to reach that gun however the evidence in the record is all reasonable inferences are for the united states  and the maquis requires that we were just required to show that it was strategically located so that it was available for use and if you look at the magic factors in this case was the gun loaded yes was it what was the top what type of drug dealing the evidence show the defendant committed all the drug dealing from his bed hand to hand and the drugs were located very near to where two of the guns were on the bed and  open say right next to the gun and the time and circumstances there was also the testimony of the officer that when he came in for the search warrant he witnessed mr barnes reaching for that gun there was absolutely no evidence in the record that the defendant was physically incapable of getting the gun the fact that there was a photograph of oxygen and that he attended trial and will chair is simply doesn't make that is disputed issue with regard to whether or not he could reach that firearm and then finally with the third argument which the defendant raises in her brief regarding the sentencing i believe that our brief completely disposes of because the  agency and i think that completely disposes of the defendant's an argument in that case and i did when i read the defendant's reply brief i did search for just in the six circuit i could not find a case that was subsequently for zero four bree evidence longer than the ones that i did for this court but i did in all things search and there are many cases throughout the district's other circuits i'm sorry that i have subsequent evidence of longer than six months and i would direct the court i did not cite this in my brief to united states v and it's  second circuit case six f third one seventy two and it's a two thousand and seven carries again from the second circuit and in this case the second kerk circuit held that subsequent evidence four years after the event was proper to show in tant and that was a securities fraud case and and so that evidence was issued and the district court's opinion thank you ira the government characterizes the jail calls today as a fairly minor piece of evidence but in october of two thousand and fourteen characterize this is perhaps the most conclusive point of evidence that they did and again talked about how protecting the pills and drug money with farms which goes directly to the nine twenty four c charge which is the other ground of major battle in my brief here maggie talks about is the gun radically readily accessible for use in protection the fence all sorts of other things the unequivocal testimony here is that the gun was actually located under a waterbed mattress the agents all testified you have to pick it up or you have to lift it up or it was underneath so it wasn't as boeing testified the swat commander that is between the edge of the when the edge of the mattress itself as he implied the strapping young agents are actually saying we actually pick it up we had to lift it up and we found the gun there one was toward the top of the bed it was loaded and one of the bottom of the bed was not loaded my point is that this gun was not readily accessible especially to this defendant he was using younger man you're sixty one years old but had terrible health considerations pens in his neck two stents in his heart a number days he didn't even get out of the waterbed he was family i thought at several points in time he would die there is an oxygen tank there's a bill in the pictures next to the water baddy you think you oxygen tank at trial and he appeared in a wheelchair get the point that jessica holt the confidential informant had never seen him in a wheelchair previously to this time but he did have a wheelchair oxygen tank is there your honor the other testimony in this case about gun uses simply that mr barnes had a gun around jessica hope the cia apparently didn't fill threatened by that she left her child at the house she would hide the guns when her kid was there but there was no knitting up of this gun with any sort of drug transaction between the confidential informant in the store bar and so on the time and what kind of guns were you know there were all sorts the there was a revolver and the top of the bed it was loaded five rounds two of which had been shot at the bottom of the bed w i haven't actually pick up the waterbed mattress but you know yes it was there it was under the mattress at the head of the bed there was one under the mattress at the bottom of the bed that was unloaded but from the three transactions that he had with jessica hunt that tied up any sort of gun use even remotely with those drug transactions and possession in furtherance is possibly a more stringent standard than user carry not use it is possession correct in furtherance of and the in furtherance of is the part that that i think is is the difficult burden for the government to show simply having a waterbed gun under your water bed mattress  on march twenty second isn't enough to show possession and for them solve the bailey case which is footnoted i think in mackey talks a bit about that how drug agent testimony that there was a gun in the car just isn't enough that the proximity alone isn't you have to sort of knitted together near drugs for the drugs is not sufficient your honor it simply was not readily accessible and with the culture of the math you knew that some of the other things you have to look to the drugs available for use but makee case also talks about the circumstances under which it was found and the types of drug activity that is the fifth and sixth makea factors here it seemed from the transcript it seems apparent that  mr barnes dealt with friends if you will people that he knew jessica holt had been there every day for a six to twelve month period prior to that left her child at the house in fact after her arrest at the dollar tree parking lot