excluded third because the court excluded no questioning of a key government witness on his most his most substantial source of and finally because the modus operandi evidence was admitted to show  to show that the defendant had a character or propensity for committing this crime which which was not an appropriate use of that happens i want to start of the matter you should start with why this instructional error the board carelessly should not have been used the way it was i think that's pretty clear but why is that not a harmless error in light of the very strong evidence in this record about mr carson situations with these women and that's indefensible that and that you know as to the three older not they're not that old but the with the three that are above the age of eighteen that even if you know on day one you may not have seen coercion the statute covers maintenance i mean he's it looks to me like an overwhelming evidence case and as the age of this seventeen year old there's a huge amount of evidence that the reckless at least reckless disregard the correct stand if not certain knowledge  is there we've got on that one and richardson's testimony telling him about her age we've got that comment well i guess you have to stay below the radar which i don't think helps mr carson very much can there be any question about his knowledge that the victims are being coerced when he thought the coercer if there is such were your honor there is the defendant had romantic and sexual relationships experts about what people who are coerced and beaten down and trafficked do that i don't know the love letters that's a lot to say if the but the question isn't isn't the effect on the women the question is possible someone doesn't know that removing cell phone batteries to control communication hiding she keeping with being a knave to name just a few examples that's not or anyone i would know your honor i think that this is ultimately a not not a black and white case the women told him that they wanted to be paid in drugs rather than cash except for the one woman who said she want to be paid fifty fifty who was that the women all four of them left and returned a first points of time the underage woman testified herself that she had lied to mr carson about her age i'm sure she had he that evidence the evidence it's not admissible this is a criminal proceeding involving alleged sexual misconduct and evidence offered to prove that a victim in gage and other sexual behavior isn't admissible he needs to put in evidence to prove that they engaged in other sexual behavior before he can say and therefore i thought that i wasn't coercing them it's a it's an essential predicate for his state of mind argument but rule four twelve takes that evidence off the table he cannot use said evidence it's being used that is the fact he needs to prove before he can make the argument he wants to make your honor i'm not sure i agree that it is it that without that evidence which is indeed very significant and the most significant evidence that he had that that the jury could not have found that he the representative ryan i can't imagine that this case did go to a jury and i don't think there was any error in keeping out the evidence of their prior i mean course underlying causes of their prior prostitution it is common sense and not unreasonable for someone to think that you know what went through and when a woman tells him i've been a prostitute for six years that the fact that the woman is continuing to be a prostitute despite having out a violent and and and difficult personal relationship with the person who's her business partner that she is continuing to follow that i can't i actually can't believe you're saying that certainly i mean you know the happy hooker idea is is not something the facts in this case support and if it was really so consensual why is he beating them why is he showing them photographs of so i don't agree that the evidence is overwhelming and i think much of it can go both ways that the issue there was only one cell phone battery that was taken and that was when someone was about to call her mother to bring her brother and and threatened to kill his former lawyer he said it trying to some people said it said it to his girlfriend said it and you know it recorded cole said i know this girl calls being reported but you know i you know this is what i want to do ask her to arrange for that for the defense attorney to be killed and what the court in houston is that on a cold record it is difficult for the court of appeals to determine definitively whether there is no possibility that a jury could have found that the state of mind of at least reckless disregard but that this jury did find dad and the question i guess that maybe we've circled back to is whether the iranians inclusion of the word carolus in there or under any rational look at this record was an error that satisfies the harmless error standard so your honor farmer versus brennan requires both both awareness of recklessly disregard the fact when he is quote aware of what consciously or carelessly ignores facts and circumstances that would reveal the fact so all the jury found is that he was generally aware of what was going on and that it that what happened would indicate to someone else that there was a substantial that you know that that that it would that distinction might matter to the harmless error analysis if it was somebody else who was doing the abusing and there was a  serious question about his knowledge of that here there was that can be no serious question that he knew what he himself was doing to the us to coerce them so that the error here just as a matter of law doesn't make any difference that it clearly was an error in the definition of recklessness but on the facts of this case when he himself is abuser just doesn't make any difference to your art when someone bipolar disorder was a non factor in the jury's well that was actually only diagnosed after the after the case here but i do mentally ill people sometimes lack insight into their condition but there was no mental illness defense here so that's that's right and that's i'm sure if this is a firm that that's an issue that it is you know that that will come up with respect as councils confidence but but there is you know when looking at whether or not on on remand a jury might find that he lacked the the mental state required for this the fact that he had he had these difficult relationships with women  shows that he you know it shows that at the very least he was careless but it doesn't necessarily establish that he himself understood just like in houston that that that his actions were being were causing or were being perceived in that way and on and on on this court record that the court cannot be sure beyond a reasonable doubt that that the others would not have have had that  what's the standard your honor the statute doesn't define reckless disregard but because it uses the common language of criminal recklessness the standard is the subjective standard that this court has many time since farmer versus brennan applied in context of criminal statute and that is a subjective awareness of the substantial risk and conscious just regarded that rose what the juror all the jury heard was that it needed to consider objective way whether someone like him should you know someone not like him but somebody in that position should have been aware and that's not what's being disputed on what's being disputed on appeals whether he himself actually was beyond reasonable doubt where and a jury might found otherwise the state of mind evidence that judge would refer to earlier is is very important here as well because you know his relationships with these women were not very long three four weeks except for the one who  testified that she was his girlfriend and that she had a longstanding relationship wrote love letter to him and so forth and when you're talking about such short relationships that you know that his initial impression that they were doing the prosecution voluntarily and then when they left and then came back to him and continue to prosecute could have caused someone to believe carelessly but not necessarily recklessly ok you're  in this case was overwhelming the defendant clearly knew the facts at issue he knew the circumstances that issue at the very least you recklessly disregarded the fact that his repeated use of force coerced and threats is what caused these women to engage in that because he had some severe mental health problems he may not have perceived a substantial risk that he was coercing the women into prostitution so what is the scandal is the subject of whether a reasonable person would have perceived a error the government concedes that that was there but it's so in error i don't know whether it's because it said or it should have and that it's really too bad the student good cards it is it is too bad your honor and it goes in part to the government's forfeiture argument with respect to the defendant where in the charging conference the defendant argued in general that a jury instruction regarding mark was disregard was inappropriate the government responded that reckless disregard was a permissible man's right under the statute and relied on unfortunately the committee notes to the pattern jury instructions oh wait a second please he may not have objected to the exact language but was i mean another words what i'm trying to get at i guess is is it your position that he has to be more specific does he have to be more specific than stating that the instruction unfairly lowers the burden and eliminates men's ria i think it would have helped if he had been more specific and i think the reason why it would have helped is because when you look at the excerpt from the charging conference transcript and you look at the objection in the appropriate context it it appears that what they were simply objecting to was just the notion of a reckless disregard instruction overall had they been more specific in the instruction maybe we wouldn't be in this place but regardless of whether the court looks at this as a forfeited objection or whether we look at this simply from a harmless error standpoint that the fact remains that the evidence in this case was overwhelming and the arguments that the defendant is now making on appeal are arguments that were made to the jury the defendant stood up during closing argument and argued that these his victims were not coerced that the prostitute themselves voluntarily that they did it in exchange for money or love or drugs these were arguments that the jury heard and the jury rejected in part of the reason why they rejected that is because of the kind of evidence the panel recognizes as substantial i'm talking about evidence that the defendant beat one of his victims after she told him that she wasn't she was too tired to prostitute herself yet again after he had picked her up from one date earlier in the evening and his response was to beat her in the eye and break one of her blood vessels he made one of his victims get undressed when she told him that she was ready to leave the hotel room and she wanted to leave as he told her that she needed to get undressed and that she could walk out the door naked and then when she tried to do that he grabbed her naked threw her on the bat and whipped her with about this argument the defendant is making an appeal and an argument that permeates all of the legal issues that he's making that this was a close call that yes there was prostitution and yes there was violence but the two were not in any way connected that was an argument that was specifically made to the jury and the jury now the other argument the defendant focuses a lot on his appeal is the state of mind with respect to the defendant's prior sex acts he argues that the defendant that that fact that his victims had previously prosecutor themselves bore on his state of mind with respect to whether they were prostituting themselves voluntarily but the fact is is that the defendant never said that to the district court what the what the defendant said to the district court was i have these reports given to me by the government during discovery reports of interviews with f b i agents criminal history records of the victims and based on the discovery tendered to me by the government i know that for example one of my victims prosecutor to resell for approximately six years before she started working for the defendant and so based on this discovery i would now like to go on a fishing expedition and i would like to ask these victims in front of the jury about their prior sexual behavior the defend never told the district court the relevant facts as he turned as he argues them now on appeal meaning the defendant never said well i knew at the time that i was prostituting these women that they had previously prostituted themselves or i knew at the time that these women had problems at the time that i was prosecuting them that these women had previously prostituted themselves voluntarily that's the kind of facts that perhaps could have opened the door to a limited amount of proffer simply wasn't enough to override a rule for twelve prohibition on the introduction of evidence used to prove someone's prior sexual behavior and so in that sense the district court does not abuse its discretion do not  that the evidence about the other women the one she will are who are not the victims of the charge an act of was not offered to show modus operandi but rather  the charge of crime itself in other words you know the climate of fear the who or she put the limiting instruction that the court gave about that is evidence that is set forth  on page thirty nine of your brief inflator you want to look describes it as being offered and allow for the limited question of the defendant's modus operandi would take you out of four hundred four b altogether or as i noticed that instruction two or is it modus operandi and if it is the latter then what's you doing there this is not a case where you're trying to figure out it's the  an burglar you know this is a case where we know it's mr carson who were after the government's position pretrial and throughout the trial was that much of this evidence was actually direct evidence of the charge crime court in a pretrial ruling found it admissible under for a for be under the modus operandi exception but the district court also revisited that ruling throughout the trial and there are a few instances and i think i've pointed them in the government's brief where the district court in response to a renewed for a for b objection by the defendant during the course of the trial actually characterized it as direct evidence agreed with the government that the evidence being proffered was direct evidence of the charge crime so was that said before or after this limiting instruction reproduced on page thirty nine if you're brief i believe that the jury instruction came later because the jury instruction that's that appears on page thirty nine that the  jury and modus operandi that it's ultimately harmless because it was direct evidence of the crime and could have come in for that reason yesterday the government would agree with that position rather than it was actually made for that reason because the judge is getting at the limit of instructions operandi evidence was not you know didn't didn't just kind of spontaneously appear pose it was evidence really just to show what kind of what was the business that he was operating what were its characteristics what people worked for it that doesn't sound like propensity to me it sounds like you know i'm in the landscaping business you know i plant trees you know i go in most people's lawns i meet you when you're describing a business you are going to describe the people who are involved in what services are offered and so on seem to me that's what this was really doing your honor i i think there's no in that case there's a maybe and purpose of explaining to a jury something they otherwise wouldn't understand not how many jurors have run prostitution business it's probably not that many well but from the four women at issue in the case the jury absolutely would have understood the government argued that that person was a monster and a predator six times during closing argument on the basis of all this collected evidence that was supposed to show his his modus operandi and i think that particularly with the jury instructions which was which encourage the jury allow the jury to carelessness and by the way just on that point i do want to mention that the objection billowed was was made in response to a very short instruction that there was an argument that reckless disregard isn't what will the statute and the objection was  thank you very much and you took this case by point did you not yes your we appreciate your efforts very much thank you