name is ryan ray and i represent the defendant in a troy luan this court should reverse mister lew hans convictions and sentences for two reasons both of which relate to an audio recording of an interrogation of mister luanda it was made more than a year after the events leading to the charge offense occurred now the most on appeal which is identity was was not a proper basis under the facts of this particular case and then the rd reason that rehearsal was required is that the district court failed to us supreme court has set out that the analytical approach that the court must apply there are and this court has has said that in many cases as well and really evidence of other those dangers we would respectfully submit were on will display in this case where mister lu han he was a new he's a significant drug user and self and he's speaking about these things more than a year down the road and he simply makes statements about selling to a number of people that in even as it relates to the particular individual the charge him with which was october th the two thousand and seventeen he wasn't charged with any type of ongoing act he wasn't charged with you need type of conspiracy or anything like that but clearly admissible during the course of the trial how the district court invoked every single exception in the rule and those were carried over in instruction twelve to the jurors and that's that's a direct quote from the biz well case but that's that's exactly what what happened here respectfully is when you have you know it's appropriate for zero for be evidence that's clearly admissible well that's that is a broad but even if the court could look past the filter to articulate for syslog in the forum for be evidence before admitting it then really the only thing that's being defended on appeal by the government the issue of identity we respectfully submit that that still think because what you have to have under this court's decision in comanche is you both have to have relevance to a permissible for a for b exception got to be relevant to that but also they're relevant can't depend on and on in any type of inference that the defendant was acting in conformity with with an improper that said these type of evidence of this type of garden variety drug transaction which is exactly what's being described by mister lew hahn to most of these twenty other people and to mister westbrook in selfies he's clearly talking about multiple transactions with mister westbrook is that that these courts have recognized that this is the type of evidence the only relevant through propensity based reasoning  an image didn't appear on the video recording that the transaction in the government need to crew identity of the seller with other evidence as part of its case in chief well certainly they did have your honor they had mister westbrook himself testified right so they there are is there was that evidence of identity and there was also evidence of identity from from these officers  themselves some of whom were i mean they were they were participating there so the question becomes is are these statements about other transactions are  properly admitted to show identity under a propensity for a read then get to to the extent that the government's theory for a four be e is proof of identity and if the evidence offered would tend to show that it sounds more like your argument may be that they should have done it because it was cumulative  that is that what i'm hearing no no your honor no what we're saying is this is the not the type of evidence that can be properly used to show identity and i'd respectfully invite the court to some examples that quality i frankly think a decent example with them for a while case from the d c circuit they they said you know to be identity type of evidence it's got to be something like the the web bandits in the game is home alone movie it's got to disputed but by a defendant not in a way to just say look the government hasn't made it's proof beyond a reasonable doubt or just because i mean i didn't have the is in some sense relevant in every single case but what clearly the cases recognize and this court's cases recognize that in of itself is not enough to just completely open the floodgates to any prior any prior other cr imes evidence that of course could show identity in some sense but are also subject to the abuses that were oath or b is designed to prevent which is has long been a carcass of the common law in this country and was adopted in four b in we also would say that the court did not hear engage in the balancing of the potential of unfair prejudice against against what we would probative value that's required by kendall and required by make they entail in their those cases very clearly say you've got to be specific clear reasoning in the trial record trial oral or the ruling and in fact even excluded part of the interview due to unfair prejudice doesn't that suggest that a far off three determination had been made i would say two things in response to that your honor st of all there is not a clear there's nothing clear in the trial record that that was considered and ruled upon as to the evidence that was admitted and respectfully your honor what we would submit is that is the earliest decision from this court that's directly on point and in those circumstances and we talked about this in our reply brief respectfully i would asst on point panel decision when there is a conflict and i'm not sure if the issue may not have been raised in some of the cases talking about implicit determinations but respectfully it's being raised here and we would have to that was in fact admitted in but what remember correctly that you argued throughout the trial that there was no evidence that the person that hope that's not my question go ahead argue all you want but please answer my question did you argue at trial that there was no evidence that the person who sold drugs to west wrote from the  evidence sufficient to convict him beyond a reasonable doubt as the reason every every case that is there certainly those statements were made but we would respectfully submit your honor that that was not sufficient to justify this particular evidence coming in and expression when that theory of admissibility was not clearly articulated in advance thank you counsel and i would respect your question reserve the of methamphetamine and a half ounce of heroin to that particular confidential confidential informant i this is characterized as a mission where confession throughout the pretrial conference it was characterize trial as the court mentioned earlier the primary argument was identification even with the confession which was argued to not be a confession by the times but defense counsel because of the specific date not being included the issue of identification was raised throughout the trial and opening throughout cross examination throughout closing it was essential and really necessary for the government to approve was because of id and why it was particularly important for the government to establish id given that mister lew hunt space was not on the video and other words it was offered for the proper purpose of showing that it was m prior from cycle hidden rock ruins in rock ruins was the same site where the artifacts were stolen in the davis sense in united states are showing way and that's the same through very similar conduct unique conduct but here these transactions are pretty much just garden variety grown transactions that wouldn't single in particular this was not just the two narcotics it was the same apartment it was the same address it was the same time period for the three or four months that he stole from that particular apartment i think that the  previous recorded phone call concerning the same drugs from the same number from same person was admitted for the purpose of identity and identity in the same way in that case defense was arguing that the that the detective who or the t s a folks that so that that bought directly from mister brooks had not been exposed to mister brooks long enough to be able to identify him in court and i think that's the exact same facts as what we have currently and i do believe that the court properly used its discretion and certainly did not abuse its discretion in that manner misconduct defer for statements made during opening statement as opposed to statements being made during closing argument i don't think it does your honor i think it's whether a in causing certainly it's a reasonable inference from the record but my understanding from you know i don't have a case on hand for this but in opening statements the prosecutors have a reasonable belief that the evidence will present the evidence that will be presented at trial and that's certainly what was presented in opening statement in this case they did they did it had been fully briefed it had in opening statement or in closing statement i just you know i'm just asking because we call we don't call it an opening argument we call it up and it's the only way so i understand your your answer talk i did he it's certainly not in a lot of these courts have recognized this we're just talking about sales of half an ounce of different quantities of drugs that's not the type of unique signature evidence and on the question is a in its intrinsic findings inextricably intertwined those were relied on by the district court they've been subject to significant criticism and even the courts that follow those say it's got thank you counsel to the court case is a bit counselor excuse