involved in a conspiracy over a couple of years charging be when a weight in about a year later or ten months later the trial date is set for march of two thousand and eighteen it's eleven days before the start of trial that the superseding indictment is filed adding two charges one of which is a marijuana charge which is ultimately not pursued so in view of the timing of the trial counsel i was not you know challenged the jointer st under rule eight a and ultimately the government relied on the prong of a day that says joined us permissible when the crimes are of the same or similar character not that phrase or something out you know is not really very flexible i think the parties agree that the nd circuits analysis uses the terminology that similar charges include those are somewhat alike or of a general likeness to each other and our position is that even under that flexible standard these you know the that the council are alternately charged  joined which is the coke a cocaine conspiracy and then a single sale of coke are not sufficiently similar if you really look at them and i guess part of what i'm saying is we start with the premise that it's not conspiracy is really a large sprawling conspiracy and enterprise in the bronx where the isolated sound volves at the time where the the senate is let you make a single sale to coworker and but the other filed or for some type to cause damage and i have not found cases that specifically talk about fat bad faith with little eighty eight but i think that the logic is the same i think it's a valid consideration and even if it's not considered under a day it should be considered to the defendant not because of the you know that they didn't have the evidence but because they were there the superseded was brought as a way to introduce evidence that otherwise would not have been in the civil i'm assuming that my three minutes is just about  i'm making a guess here maybe the prosecutor can give me their answer because i think that this would have been briefed differently and i would have come up but but anyway i just don't see what the specific rationale for admitting this evidence would have been of that sale it's there was no you know the sense was not was never going to challenge knowledge for example or mistake those were some of the bases that the government said that they could have said it was not about mistake but that was not it was never going to be a theory in the sense so i certainly agree that that is that a lot of stuff comes in when we lay people or people are not familiar with federal law wouldn't expect but they still have to  identify something and and it's true the government did present kind of a like i said a laundry list of possibilities of how to be admitted but i just don't see which one makes any sense here you know so  as far as the harm the harm here the problem is that you know the defense was really relying on the argument that there was no evidence that on the conspiracy count that he ever personally was found in possession of drugs or personally handle drugs it was all tape recordings and so to have another account come in where he is doing exactly that personally handling the drugs that really see how the drugs being sold in the same city in the same time period the same drug would not meet the standard here which is the same or similar character or someone like you know any cases where a case which i did not cite frankly is a case called joe or a from the th circuit again that's not narcotics but what they do in there is that they do discuss kind of this difference brothers say there's two crimes but they're not really joinable because they're not similar enough so i don't have anything i can say is really on point here i don't think that the government come up with something that specifically excludes the possibility there but  please the court my name is daniel boone and i represent the united states on appeal as i did at the trial below i'd like for briefly clarify one thing about the proceeding below which is that the government did provide oral or  helen falls far short of showing substantial prejudice for at least three reasons st the evidence on each count was independently strong and it doesn't appear that that is seriously disputed here  the parties agree that the evidence with respect to each count was to stink as explained in werner that cuts against prejudice that reduces any danger that the evidence will be used cumulatively the jury can easily distinguish between the supporting each count and more easily follow the judge's instructions to consider each count separately for as i already mentioned the evidence would have been admissible under four o four b but there was less prejudice here because in fact joins the government did not make for a for the type of arguments at the trial before the jury the main argument here seems to be that the government acted in bad faith but this circuit has recognized as appropriate  is also common place which is that the government can continue to investigate and supersede additional charges to strengthen an indictment before trial i capture all of the defendants criminal conduct and that's page sixty seven x three thousand one  two particularly in this case there was nothing improper about the timing of the indictment trial was in march th seen more about cruise was the primary witness on count two and as reflected in his testimony at the appendix and eighteen the motivations of the government really only come into play when there is independent evidence that the original charge is weak as was the case in jones but for which there is no evidence here it's cases like paid for there was a super felon in possession charge before trial paid distinguished back east from joan where there had originally been a trial on another charge that ended in a mistrial with ten jurors voting to acquit and where there was actually a failure proof with of the defendant's criminal conduct under page that is unquestionably proper with that i'm prepared to answer any of her questions whether about rule eight of seven or jointer or different judge celebrated you have any questions be the hand to hand the substance of what became the substantive before the superseding indictment you just cited i think you do a part of the record that relates to the post indictment  i don't remember specifically what was in the defendant's opposition to the four hundred and four b i think it was ultimately mooted by the fact that the counts were joined and they filed their letter opposing jointer and to the court overruled that motion ok and counsel referred to cases in other circuits i would just point to united states versus turner nine hundred and thirty three thousand and seventy six dollars and that's out of the th circuit where the court held that charges are similar where they are of a like class or the same type and categorically similar rather than evidentiary similarity and that makes sense because this portion of rule eight has to carry a meaning separate and apart from the other stuff portions of rule eight where for example the charges are based on the question about whether the conspiracy and the distribution in fact overlapped and missed they didn't and the court still found the trying to read proper but here the substantive counsel directly within the alleged timeframe of the conspiracy between two thousand and fourteen and something that the courts you know could be addressing and looking at these these kinds of motions because this does come up very very frequently in this district where you know there are super cedars added and defense counsel fiel in maybe there are cases where there hasn't been for forty notice and feel somewhat on blind sided and and here the judged did not address that aspect of the argument other than