they please the court and you're out there from the federal defender's office on behalf of tiree roberts in this day long felon in possession trial the district court admitted twelve of mr roberts thought prior firearm convictions for felon in pos convictions seven armed robberies and one aggravated assault with a firearm the point we want to emphasize here is this once the district court admitted the fourth nonviolent felon in possession convictions rule four zero three barred the district court from going further and admitting eight violent firearm convictions those convictions were unfairly prejudicial because they portrayed mr roberts as a serial violent and dangerous man and the case was otherwise nonviolent he was charged merely with possession furthermore those convictions were entirely cumulative and served only a propensity purpose because the nonviolent felon in possession convictions gave the government everything it could have possibly sought and more with regard to mr roberts as knowledge so the unfair prejudice and the cumulative value of those violent convictions substantially outweighed any minimal probative value those convictions might have had so we believe that a straightforward application of rule four  is the easiest way to control this to resolve this case what's your best authority for the proposition you're advancing well the two cases we've relied on heavily our old chief and this court decision in green they both support general propositions under rule four zero three that we think are helpful and old chief establishes to one of that when you are faced with two equally probative forms of evidence you've got to go with the not prejudicial version and it establishes that the name and nature of the defendant's prior convictions is prejudicial green establishes that even a reference to multiple prior convictions without even reference to the name or nature of them is prejudicial here we have the combination of both of those things happening we have eight violent prior convictions in an otherwise nonviolent case and so we just think that there's no justification once you have the four nonviolent felon in possessions that come in there is no legal justification for admitting eight what if it had been for violent if the first four were violent then then it's a slightly different case you may have been able to get in one maybe maybe two that's that might be up to the discretion of the district court but when you have nonviolent options available to you in a nonviolent case you've got to go with those first and once the district court decided to get  for n and i'd also point out that once she decided to do that the district judge offered what establishes that you have to go with the less serious we think that old chief supports that and simply common sense application of  three and the government and the district court have not offered any explanation for why what probative value these additional convictions serve in this case this is an extreme for a for b case we have never seen a case this bad the government cites no authority from this quarter or any court for that matter to uphold the admission of this many violent convictions in an otherwise nonviolent case we see no reason why the court should should break that new ground here and the district judge on pages eighty one to eighty two of the trial transcript this is this is how it it happened she admitted that for nonviolent felon in possession convictions she said well it's the fact that he was convicted of possessing a firearm that's relevant so i'm going to allow that the defense counsel said well what about all of the armed robberies your honor did district court say well government you wanted those into government says yes she says the court says ok well i'll admit it there is no explanation there's no rule for three analysis in this case there's no recognition of the highly prejudicial nature of these convictions there's no recognition of cumulative the cumulative effect of these of these convictions and so at the very least we have a procedural problem here too with that one prior conviction be relevant material to prove knowledge right when you agreed to that the more convictions you have the more likely it is that you did not mistakenly possess that's only through propensity reasoning though your honor that is that reason is well he's done it this many times he's got a bad character he has a tendency to do it he's done it twelve times in the past he's more likely to do it at thirteen time that is propensity reasoning so so while we have admitted under this court's precedent that one would have been ok we don't even think that the four f possessions was all right but we don't think the court needs to decide that here we think all the court needs to say is once the court admitted to for nonviolent ones that was it then four or three comes into play and it limited the discretion of the district court to go further and introduce eight violent convictions in an otherwise nonviolent case so so you know the jury is only human here when they're confronted with twelve priors eight violent they're naturally unavoidably going to be thinking that mr roberts is a dangerous person he needs to be locked up he's done it twelve times in the past he's done the thirteenth time that's propensity reasoning that's unfairly prejudicial district court gave the limiting instruction of course your honor that it did it was a boilerplate eliminating instruction and we acknowledge that's a relevant factor but it cannot trump an otherwise egregious rule for a three violation otherwise the rules of evidence would lose any independent force and again the court is required to the limiting struction and in agree just case like this where you have twelve priors eight violent the jury is only human they're going to be looking at those priors they're going to be seeing him as violent and no limiting instruction is going to  cure that so it's not going to affect the overall four zero three imbalance that we see in this case so the only other government the argument that the government really advances here is that our case was super weak the defense case was strong so we really needed these convictions so we acknowledge that the limiting instruction for a minute is there any authorities saying that it makes a difference that the convictions were admitted at the beginning of the trial and then the limiting instruction was much later i'm not aware of any instruction but i do want to emphasize the fact that the government began with these prior convictions that introduced them in it's very first witness and and  asked for limiting instruction earlier no the district court gave one on its own i believe but again i mean that's that can only go so far we start authorities on pages ten to eleven i reply brief that make this clear that the list limiting instruction is not a panacea i mean this is why this is the case that shows why we have rule four zero three this is the exceptional case and limiting instructions cannot whitewash these egregious rule for three violations otherwise again there would be no point but back to judge prior question about beginning the trial with these prior convictions you know the government's arguing that well we needed these this was a close case well we agree it was a close case t would you agree with we agree that under this court's precedent that would be permissible of course we doubt not only have more than one we have we have you know just trying to make sure i mean we knowledge that under this court's decision in joining in i mean we don't agree with that decision but we acknowledge that it exists and we acknowledge that is so under that decision at least one now it would be worse if the one was violent there would be more prejudice in that situation so the fourth rebalanced would would be affected by that but most likely i think it would be within the district court's discretion to allow that but here we have of course a totally different case  would please a court frank matter on behalf of the united sates also president counsel table was his trial assists united states attorney mckenzie to wayne i want to start by speaking about the non propensity relevance of multiple prior acts in this case the prior act which they're really six prior acts six things that occurred is the possessing of a firearm one alone is relevant because that tells us that this is a defendant who knows how to possess a firearm knows what a firearm is he presumably knows how to handle a firearm what ammunition is multiple multiple possessions tell us a little something more about this defendant firearms are not simple objects firearms are something that people trained to carry there's proficiency of firearms with multiple possession of a firearm we can say that this defendant is a little more proficient in the carrying of firearms in multiple positions of firearms over a short period of time we can say we can infer that this possession excuse me this defendant knows how to store a firearm knows how to conceal a fire none of that is an issue in this case it's only possession well it is only possession but the missing puzzle piece right there is a defendant who is found in a home and in this home there is a concealed firearm in the kitchen also in this home or four hundred rounds of ammunition so a defendant who merely has a basic knowledge of what a firearm is and how to hold one fits the bill a defendant who has more experience more knowledge with firearms using a firearm concealing a firearm that defend it fits the bill a little more and i think that special that sounds to me like an awful lot like you're saying because the defendant has this proficiency he's more likely to possess a firearm on this occasion which is pure propensity i am not saying that and the reason i'm not saying that is what i am saying is because of what this defendant did ten years ago we can say something about what that defendant knows it's a difference between saying joe blow knows how to ride a bike because he once wrote a bike versus lance armstrong knows everything there is to know about bikes because he was in the tour de france now obviously this isn't that extreme but what we're saying is we're making a statement about what the defendant knows and i think that the multiple instances of his conduct tell us a little bit more about what he knows i think it's also more relevant because there has been a span of time the more significant the experience the more significant the knowledge the less the more likely it is that ten years later that knowledge is with him so i think that is the non propensity basis there is of course a parallel propensity risk but the case all makes clear that every time we have admissible for four b we can almost always articulate the inappropriate propensity reasoning that is not dispositive the most important question is is there an alternative non propensity reasoning and i think that there certainly is a alternative non propensity reasoning here it's the heightened knowledge that we can infer from the heightened experience and the knowledge that we can infer from the ways that those prior acts interrelated that he knew how he is say about the argument of your adversary about violent versus nonviolent so convictions i think there's two issues here as to the prior acts those were just the acts he brandished the firearm and he it was an armed robbery now of course united states didn't get into the facts so in many ways that prejudice is is minimized and the courts have recognized instances where the united states did not get into the underlying facts as a positive factor the mere presence of the armed robbery conviction on the judgments i think that's the issue right there are six prior acts but with those six acts there are twelve different convictions listed so the question is armed robbery the question that we need to answer we need to consider the incremental probative value of each additional act that's introduced right sure once you've got the force for possessions you've shown in the jury that this that you've made the case there's evidence in the record that maybe the fire wasn't the possession wasn't accidental or unintentional so what additional increment incremental probative value do those other acts have that's not outweighed by prejudice well to be clear the ax  selves there was no act that was merely a felony possession act all six acts were the robberies he was charged simultaneously for multiple of these acts with felony possession so there was no mere possession act as opposed to a robbery act well but there were there were mere possession convictions as i understand it that's correct well i do think that you know in this case going back to a defendant with some proficiency fits the bill i do think brandishing and use of a firearm has some probative value i mean that tells us that this is someone who knows how to load a firearm who knows how to safely handle a firearm who knows how to conceal a firearm who knows what ammunition is knew how to unload a firearm the fact that these were a series of robberies related tells us that he's someone who knows how to maintain possession of a firearm there is a relevant difference between someone who happens to be holding a firearm one time and someone who possesses a firearm in their home and maintains custody of far i mean there are firearm experts there are people who get trained in maintaining farms there's courses about how to maintain custody of a farm in your home this is a steep learning curve in this sort of proficiency knowledge there there is probative value here that's non propensity and i think it in this case there was a special need for that this is a defendant who was allegedly found with four hundred rounds of ammunition under his bed and a firearm in the kitchen i mean this is somebody who if he is guilty had some intense knowledge of firearms and four hundred rounds of ammunition for varying farms as is a lot i think also something that wasn't mentioned in keeping on the the topic of special relevancy in this case knowledge wasn't simply at issue because they pled not guilty knowledge was at issue because they opened on the issue of knowledge there was no material fact at issue other than knowledge there was very limited circumstantial evidence probably the best non for for be evidence was the letter found in the bag with ammunition but the defense did a really great job of impeaching that witness and calling into question where that letter had been found and also and i think this is critical the defense theory was an alternative perpetrator and they had an alternative perpetrator and they both served that theory by putting in five prior convictions but that alternative perpetrator had been convicted of a whole involving firearms two judgments and five prior convictions so two things are important about that one is in the beach in case the court made clear that order of proof is not really the issue we don't look at order of proof once the defense puts on a case we look at the evidence the ruling looking at the trial in toto so there was a viable strong alternative perpetrator theory and the evidence used was five prior convictions including i believe aggravated assault so similar similar convictions mr roberts argued that the government planted this evidence you argued that not that the government planted the evidence not the critical evidence but that the the note found allegedly found in the bag of ammunition there was a one government witness testified that there was a letter to mr roberts from the department of children and families in the bag of ammunition that was probably the strongest non for forby piece of evidence but they argued that that letter wasn't really found there they said the letter hadn't been crumpled it would have been crumpled if it would have been in the bag they noted that another government witness never testified to the letter otherwise he was pointing the finger at his brother otherwise he was pointing his finger at the brother and  n the prichard case which is a six o nine b case there is an interesting line of reasoning in and the court said when the defendant the defense was able to attack the government's witnesses using strong six o nine b that was relevant to the fact that the government should be allowed to use six to nine be asked to the defense witnesses a little bit of what's sauce for the goose type reasoning but i think it's sound reasoning and i think some of that reasoning applies here where they have this alternative perpetrator defense and there is strongly bolstering that defense with five violent firearm convictions so i think that's particularly relevant as to why i recognize the need for the evidence as an element of the forum for be analysis it can't be the case can it that the weaker the government's case is the easier it is to admit for and for be evidence because then it seems to me that you're more likely that the prior convictions are going to be used by the jury in a propensity light no i don't i think that's correct your honor i don't think as a general proposition the weaker the case the more the government can use the evidence it's a much more nuanced and particular analysis than that and i think what's going on here is that we have evidence that has particular relevance that fits a particular need for that evidence in this case we have only knowledge at issue no other material fact we have knowledge at issue in a case where the perpetrator who foots the bill clearly has some proficiency in fact out there we had in sterling that the incremental probity increases where the government does not have a strong case it clearly does but i it clearly does your honor i think when the government doesn't have a strong case as to knowledge in particular i getting to judge prior's point i don't think it's generally when the government's case is weak we can just start throwing in for four b n it's so you're both right but i think in stirling it's i think they're aiming particularly at knowledge which is the point i'm trying to make i think as to prejudice there's a few points i'd like to make there was the proper instruction there was as the court notes  tepid use i think is the word by the prosecutor it is true that the prosecutor opened with it but all he did was have the witness read the exhibits there were no underlying facts put in which the court spoke about a green and the prosecutor in his closing implored them to only use it for the appropriate reason and read essentially the instruction to to the jury about the appropriate use  also much of his felonies that is the fact that he was on probation the fact that he had been in prison for ten years mr roberts was already in the record so a lot of this risk of then a lot of the risk of the jury calling him a man of bad character was sort of baked in i mean it was already there and i do think that's relevant at the incremental analysis of this for for be evidence and  finally unless your honour's have any more questions i will see the balance of my time adler thank you the violence was not baked in this was an otherwise nonviolent case the eight violent priors created a totally different portrayal of mr roberts than the juries would have otherwise known prosecutorial need to throw to factual points one the government didn't even bother to forensically test any of the items found in the bedroom that would have been a good way to prove knowledge including the bullets including the bags in which they were found second the prosecution did not know this was going to be a close case at the time they admitted the priors the openings portrayed this as an open and shut case because mr roberts left in the bedroom therefore it must have been his they did not know about the brother defense until at the very earl prosecution started cross examining the government's witnesses asking if they had investigated whether somebody else had lived in the bedroom incidentally they had not so this was this was a little bit of a sloppy prosecution and if the government did not think this was going to be a weak case or a close case at the time it admitted the priors the very beginning of the trial we can't base our decision on that again we i think it undercuts the government's need our gate i mean it seems to me the problem with that argument is that what if the government learned of it and then introduces that that makes it ok it would be a stronger case for this need argument because then at the time they admitted the prior argument is somehow not propensity i i don't understand it once you have four felony possessions that shows four times over that he's conclusively possessed a firearm in the past how under that reasoning there would be no limit to the amount of prior firearm convictions the government could put in because under that reasoning well it made him more and more proficient also this case the issue an issue in this case was not whether he was pro fish and the issue was whether he knew that the ammo was under his bed and the gun was in the other point the government has made is that the brother had five prior convictions in fact the the the defense only highlighted the two prior firearm convictions that he had in addition the government talks about there being only six acts the prosecution walked the jury through each of the convictions in the judgments all twelve of them and then on redirect this is on page one thirty five to one thirty six they clarified with the witness that these acts all took these convictions all took place on separate acts at different times that wasn't even correct by the way there were only some of them took place on the same day but as far as the jury knew these were twelve separate acts these convictions were twelve separate incidences  so this business about it being six x i i i think that's a nonstarter at least from the perspective of the jury