we have a couple of cases on the docket for the afternoon the first is cause number fifteen that's four one six three seven united states of america versus valentyn mun of records but basically well you had an issue that was all going just before trial in essence and that was whether or not his personal use of cocaine should be admitted against him in a cocaine smuggling case basically what pester him when he said was well i was tricked into driving this car across the border that had cocaine and also methamphetamine and that i did not know that i had been asked by these people to do other favors for them and so it was allowed and so that's the reason i did it and that was  there was never any direct evidence of his knowledge of any knowledge that there were drugs in the car that he was burning cross it wasn't his car and one of the that it was going to introduce that evidence in no i don't believe in why didn't you object but i did file real one zero four motion to exclude you know and i did you waited until your reply brief to raise this they didn't file the proper notice and that's generally too late to do that and you didn't and there is no world for be notice in the record i don't know why there is not testified you went into his drug use as well you call him into the you call him and he does find his but his drug use under the government introduced it so that cuts against it's not being harmless era i don't i don't understand this for all four be procedural  i did not realize that it had not entered in the record i tell the court you know i'm not raising the issue of the failure of notice i didn't realize until they wrote their brief that it had not noticed had not been given because i had knowledge of it but i was once they laid that out there that's the reason i raised i feel like i say you had knowledge of it what is it you had knowledge that i knew i knew that his functional use of cocaine was an issue in the case while well because they gave me discovery where that was the emphasis that the agent had made in the discovery and the agent testified before my client and so he got discovery that they had to give you with him his statements they gave you the statements and then you say in the pretrial your honor there is no notice issue on the hundred four b that's correct that's as close to notice as you can get well i know that judge and i don't that's part of the reason then don't you go morning say we agree it's relevant to motive you tell the district court i'd like an instruction that it's limited use to motive only yes but that was not of the mission that it was relevant to motive judge i've maintained throughout that does not show motive that was subsequent to the determination that it was going to be  had been found against me at the real one of four hearing before trial i had objected to it and have been overruled you know agent had already testified to it and that was that stage that i w needed the money but that's not this case and so i would urge you to talk to the trial judge about that case aardman you said the one case they get up to talk to the trial judge about that yes i did that i brought it up when i was arguing to the trial judge not to admit this so it was your view that cocaine use if relevant at all would have been relevant on the motives and the motive is to get the money to people sell drugs is to get money out so low so where did the notion of originate in this case that use of cocaine was relevant to the motive with the motive being to make money on buying the drug well i was trying to  would ask for a living structure and the fact that it should be admissible based on a finding of motive and you go on to say soley for the issue of motive in this case court gives it that's at record six forty four last the five i was trying  can stealing money to feed your happen so motive is a frequent reason this comes in you're saying that motive was never urged by the government here that's correct but what they did urge and they urged it very clearly at closing was this man  admitted he had a personal use who was his supplier for personal use fernando who introduced him to the smuggler fernando introduced him to mario inclosing they tied that nahla relevance how did he know the conspiracy was charged with the guy that he said gave him drugs for his personal use introduced him to the guy the last him to smuggle that sounds like knowledge well that makes a connection but not knowledge  client admits to him that he's getting drugs from the nando your client is introduced to mario the smuggler through fernando and then the jury acquitted on both the conspiracy may have but that doesn't mean you can work backwards and say it's not relevant to knowledge with and then they do often find harmless error but most of them involve other acts or other crimes that as were discovered you are describing it forward to the  girls in a sex trafficking cases all of them and one of them was an earlier transport of ammunition one was other false tax returns they were either identical of fance or something a different kind of diversion where the drug dealers are not necessarily users at all they're in it for the business and then we've got not you're not saying per se rule never admissible you're saying here very little relevan to motive arguably as little as to knowledge substantially outweighed but you can't you can't give us a case where a circuit court has reversed on that second prong i would just well i think be which  yes yes well and in that case he had to his defense was that this cohen that they found on the one they had planned in his defense was that he was going to get around turning it in and at the same time they discovered that they discovered credit cards in his walk that had had to have been there for eight months or more so that on demand zero out all the stuff that i shouldn't have i'm going to get a round to turning it in so i didn't mean to keep it so i made a lot of sense and beecham then to admit the evidence of his possession of the credit cards which is evidence of another a prior bad act that seems wel i'm having trouble connecting relevance up and in this case which i guess you are not that's been my view from before trial it's result try to keep up maybe i'm not apparently i was not articulate enough for the trial judge to get there but but it's a different kind of animal we've got mr mo nice of ever a did they say at the trial that they when they wanted that admitted for purposes of showing that the motive was to make money to buy more drugs you know this theory mr stary was that it should be admitted because the possession of cocaine is another crime someone who will commit that crime will commit a smuggling crime that's what it is and to me that's just pure character sounds like mean please the court on this case is about motive mr munis wasn't exactly an ordinary the ordinary person we see in a drug trafficking case he had been gainfully employed for many years as a welder in fact that's one of the things he told the agents at the bridge to give himself a lot more believability that he was a welder at the port of brownsville so motive really was at issue here why would a person with a great job be involved in drug trafficking and of course he said from day one i did not know the drugs are in there motive is sort of intertwined with intent and knowledge in this case and if you look at the kitchen case which as i later so the need for money was very much at issue here again this was the facts and circumstances here are a little bit different and also his i mean that was a sort of a one of the cornerstones of his defense of theory is i'm a good guy why would i ever agree to bring drugs over i was just doing a favor for my friend who bought me breakfast i'd only known him a month but and so that was his defensive on relevance and the case you were about to start talking about kitchen is the single case that you really gave is there kanchan khinjan is a prior conviction case it's conviction and it's also his admission that he sold drugs through but this in this case the agent is describing to the jury that the man has physical characteristics that show that he abuses drugs or act on his own admission when they ask him well that's but that's very different and they are getting very close to bad character evidence and if you're saying it's relevant to motive what can you quote in the government's closing that limited the use to the motive did you ever even say you heard evidence that shows motive very narrowly what it's relevant for this permissible and then in closing you can't stray from that you can think well we've got it in now we can use it to dirty the guy up i agree your honor and k so here isn't it true that in closing get the prosecutor said you heard that he lied to his wife about being a drug user himself i don't think he said he lied to his wife what what they were talking about is the jail costs and she's wife said take a test yes and then have any closing her said you heard me uses drugs so he couldn't do it his wife wanted him to i don't think that's what he said here on and off what he said was if that is what he said would you agree that that would be impermissible for a for b indicated as you heard his testimony that he quit in early july about two months before this happened and yet you can see for yourselves what the agency that evening that's a reference to the video it trevino's restaurant that they went and got and don't want it to not annotate force just keep waiting with the governments are ok with them to keep going here you see for yourself what the agent saw that evening that was a reference to the video and why the agents and ask him about it something that he himself hadn't even told his wife his wife h pleading with him hey take the anti doping take the anti doping that comes from the jail calls your honor that comes from the jail calls between your energy dating again but go ahead ok well i'm just trying to explain where that comes from you didn't make that up when does the government ever say you prior drug use and that shows motive to commit the instant crime i don't see the word motive in the closing argument i know it was and i guess that's what concerns me because other then the the other side i don't i don't remember counts and i'm not missing that he brought it up to exclude a theory about motive which apparently had not been introduced i'm trying to figure out when the government ever connected prior drug use to motive and motive he was motivated by his prior drug use to do to sell drugs to get money to buy more drugs i want i'm trying to connect all this up to some motive that makes it admissible and i'm trying to figure out when the government connected it up at trial to convince the judge to admit i think weeks and as i understand it at closing the government didn't mention the use in its opening closing argument the defense counsel brought it up in his closing argument and then  and that's when the government addressed it again and at the very end yes link him with one endo yes correct so and of course the things that the agents were just a few hours after his arrest or that was contemporaneous so  concern here what are we not leaping from here i'm sorry what are we not leaping from here isn't the why isn't it a leap it's just a step well what's the step i think the concern in mcdonnell was we didn't know he said it was in the past we don't know when that occurred here cocaine well again it's evidence that you have an expensive habit that you can't pay for when you're laid off and you're getting unemployment public assistance but that's the financial motive argument that's not knowledge now you're back  government every restricted it to the that's true your honor but again i think that motive intent and knowledge are all intertwined in this particular case what would be your limiting principle th t if the if greed always allows prior use to come in in any charge of any nature will prior use under your theory always be admissible you know shows that i don't think so and i don't think what's the limiting princip unset i got notice i'm not contesting mobile again is just this is an area of vital importance in frequency prior drug use or convictions really admissible or not under four for b it's a hugely consequential issue yes and unless you may or may not know there's a circuit split other circuits tell describe us as allowing it as if in lieu of that i'm not sure that there are i think we have several cases that i've cited where where this court said that might not have been proper wasn't proper but then went on to the harm analysis i don't think that would you know law no i didn't say harmon now harmlessness is a totally separate issue other circuits have said that the fifth circuit has a bright line rule that it's admissible at least that's what other circuits have said you may shake your head but it doesn't help when there isn't any briefing before and you're sixty two page brief gives us one paragraph on relevance but it's an slightly different circumstances there but it was a prior cocaine possession and prior cocaine use and this court's just kind of said well if we were to find the error and they just kind of skipped over into harmless enough but i don't think that's i don't think that's a bright line rule could not say it was harmless here we found it was there i do believe it's harmless but the government has very little evidence connecting showing knowledge i the drugs one very well what do you have besides his statements about being a drug user and for of connecting to mario that showed that beyond reasonable doubt he knew there were drugs well judge of no knowledge port of entry cases always circumstantial and what do we have here we have him a lying to agents almost from the very moment he opens his mouth on the bridge he lies about where he got the car he lies about taking it into mexico he lies that his own cars over in mexico being repaired none of that's true he's  just some some improbable accounts for example hit the hundred dollar lot he leaves that out at first and then he says well i borrowed it from ariana who was apparently the main note dealer here because i was going to pay for some c but when they arrested him at the bridge he has only five dollars of that money left he gives fifty to the lady with the car he gives some to his wife so that's just completely implausible this case this court has a long line of cases and say implausible stories are indicative of guilt about working and denying knowing who who had called him at the bridge yes and he they realize this later when they get the phone records he says you know i was waiting to cross over the bridge and ariano cost me on this new and different number that i had never seen before well the phone records belied that there were some twenty one contacts between that number and my niece's  august twenty second which was eight days before his arrest we also have the story about the rental house is also pretty strange and i thought the i don't know if this was brought out in trial or not but i think it's it's something that's relevant as you know they take possession of this rental house on august the thirtieth and they know that they don't live there and they don't do anything while you've got these drugs coming over august thirty first that's pretty convenient timing to also you have his furniture purchase this is a guy who says he's unemployed he's getting benefits he goes down to the furniture store and obligates himself for a big payment his payment goes from one fourteen to one eighty and that that shows that he knew that he was going to have money coming in from this drug deal and all and finally the high value of the drug what kind of an obligation was  it a loan or something it was sort of like a revolving credit account at our furniture store here where he had an account where you don't get to put on your loan application if you don't have the money coming in from the drug sales bill you he already had the credit account it was a matter of i think you had their range or if you wanted to go b illegal money coming in and finally the hype and they wanted to bet it making a payment as they let him have i'm sorry they weren't worried about him making a payment because they let him have the credit didn't they went to have the credit in the past and it just sort of continued and there was a lot of testimony but over the years he just he would come in and he would buy more and he pay it off and he just sort of had a revolving open account so anyway it's been a piece of the puzzle you're briefed us you haven't and at no point have you said this was intrinsic to the  act again i think it's just i think motive and intent and knowledge are sort of intertwined in this case as they often are when you have a a conspiracy you know there's never any direct evidence of what is in someone's mind so we just have circumstantial evidence and if i could just talk briefly about harmlessness this is not the kind of evidence that modern jurors are going to find very shocking or hor e and if this if that evidence had in fact moved them to act irrationally with respect to mr meanies they wouldn't have acquitted him on the two conspiracy charges so and there was be limiting instruction given yes there was the the there was the full formal one given in the written during instructions part a closing argument and then the of course at the time that age a lot as testimony was admitted defense counsel ask for in limiting instruction and judge toggling said you know so given lawyers yes she agreed so yes they had two separate instructions on that i would suggest in one way or were we may misjudge the venue that we're in and council knows the venue but we're pretty socially conservative in many ways and that's not the record is it use of cocaine reflects on character more than anything and what i if you can imagine a daughter brings home a young man and he's got a great job and he's smart and he's handsome  and by the way he uses cocaine it's a deal breaker so it for certain purposes the use of cocaine is going to be extremely harmful and in this particular case we're dealing with a situation he had he gets his loan up to about one hundred eighty bucks he had been a welder he recently left he was getting unemployment they were willing to loan to him and it's revolving credit purchase is that he went and obtained his house for one of his charge coconspirators and i'm sure he would paper the house or something along that line and did he make a down his character i do believe that because i think his character he's buying that he's buying what a reasonable juror could infer as a stash house for the drugs well except that i have the evidence was contrary to that how of the contrary well he understood that he was helping somebody who was not a citizen get a house well that's his testimony at trial and the jury apparently didn't believe it well i think it was pretty believable i would submit to the court is pretty interprets the statements that are made of the bridge were sure certainly ambiguous because his wife got mr money as his wife was over there with so either to tape or give money i mean none of this is a ridiculous story if you cross back and forth boar across the border on a regular basis and the only really false i had was he lived in the landlady and i think that i'm find that puzzling well i hope i'm forgiven for that i wrote it in the wee hours of the morning and i wanted to distinguish between these two types of activities i believe one of  crime as a set of avarice the other one we would confess as a set of gluttony and the motives that there's a lot of for for be law that we've got to make sure works together and that's not discussed the law all the complicated circuit interest circuit law what about that at that point opposing counsel brought up that a particular eyes verdict along with two limiting its structures would neutralize harm i asked for those