[00:00:27] Speaker 03:
Good morning and may it please the court, Hanny Fukuri on behalf of Ural Precop.

[00:00:32] Speaker 03:
I'll reserve three minutes this morning for rebuttal, your honor.

[00:00:37] Speaker 03:
This court explained in United States versus Charlie that bad character evidence is, quote, said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge, end quote, in a criminal trial.

[00:00:54] Speaker 03:
And that's precisely what happened at Mr. Precop's criminal trial.

[00:00:58] Speaker 03:
The district court erroneously allowed the government to admit bad character evidence in the form of two, or in two forms.

[00:01:05] Speaker 03:
The first is evidence about Mr. Precop's prior criminal conviction out of the Eastern District of Michigan and a prior investigation related to Swift Trucks

[00:01:16] Speaker 03:
And second, by admitting erroneously evidence of 19 out-of-state fires allegedly set by Mr. Precop, which served no purpose other than to suggest that Mr. Precop was a bad man who should be convicted.

[00:01:31] Speaker 04:
Well, can we start with the first one, because doesn't it go straight to motive?

[00:01:35] Speaker 04:
I mean, it just seems like the reason this person may have a motive to set swift trucks on fire was because they had investigated him and turned over evidence and secured a conviction against him.

[00:01:47] Speaker 04:
Why isn't that just classic motive?

[00:01:51] Speaker 03:
Well, generally speaking, Your Honor, motive evidence is generally inadmissible in a criminal case unless motive is an element of the crime or it's relevant to prove a material element of the crime that's been charged.

[00:02:04] Speaker 03:
And in this case, motive was neither of those things.

[00:02:07] Speaker 03:
So starting with whether motive was evidence, was an element of the crime, for Section 844 I, which is the statute Mr. Precop was charged and convicted under,

[00:02:18] Speaker 03:
That crime does require the element of malicious, so it does require a defendant maliciously set a fire, but the term malicious just means that the defendant set the fire intentionally or with a reckless disregard that the destruction of property or a potential risk of injury.

[00:02:38] Speaker 04:
So if he had ill will towards Swift, wouldn't that make it more likely that he intentionally started a fire?

[00:02:44] Speaker 03:
I suppose it could marginally add to that.

[00:02:49] Speaker 03:
The identity of swift is effectively irrelevant for the statute.

[00:02:57] Speaker 03:
So it's not like the hate crime statute, for example, which requires a specific race-based motive to pursue violent criminal conduct towards another person.

[00:03:07] Speaker 03:
I suppose it's marginally, there's arguably some marginal relevance to that.

[00:03:13] Speaker 03:
But even if the court accepts that as a permissible reason for the admission of that evidence under Rule 404B, it still has to kind of weigh the potential for unfair prejudice with that evidence versus its probative value.

[00:03:29] Speaker 03:
And I think in the circumstances of this case,

[00:03:32] Speaker 03:
the unfair prejudice far exceeded the probative value of that evidence.

[00:03:36] Speaker 03:
Because at the end of the day, the government could have focused and cabined its case on the way the fires were set to prove that they were set intentionally rather than accidental.

[00:03:48] Speaker 03:
And there was evidence in the record.

[00:03:49] Speaker 02:
Yeah, but I mean, so if you're just a regular person, you know, and you're in a jury, and you're told this one company got a bunch of their trailers set on fire,

[00:04:01] Speaker 02:
And they happened all over the country and this person happened to be who is a truck driver I think.

[00:04:07] Speaker 02:
So, you know, in theory you say, well, I just happen to be driving all over the country myself as a truck driver.

[00:04:12] Speaker 02:
But he happened to be in those locations.

[00:04:14] Speaker 02:
That's your evidence you got.

[00:04:16] Speaker 02:
Doesn't your mind just...

[00:04:18] Speaker 02:
You're just like thinking, I need one more piece, like why?

[00:04:22] Speaker 02:
Why would this guy have done that?

[00:04:23] Speaker 02:
And then since the, you know, if you say, oh, by the way, they also like secured a conviction for him for having robbed their trucks earlier.

[00:04:33] Speaker 02:
It just, you know, it just fills in that.

[00:04:35] Speaker 02:
It seems pretty important, right?

[00:04:38] Speaker 02:
And so, because it seems like your argument is really, you kind of started by saying it's not relevant.

[00:04:43] Speaker 02:
I think you're kind of conceding, well, maybe it's a little bit relevant.

[00:04:46] Speaker 02:
I'm pushing back a little bit saying I think it's a little more than a little bit relevant, but it's pretty important, right?

[00:04:51] Speaker 02:
I mean, if you're a regular person, that immediately clicks and you're like, okay, this all makes sense.

[00:04:56] Speaker 03:
Absolutely.

[00:04:57] Speaker 03:
I agree with your honors characterization that a jury could find it important, could find it compelling.

[00:05:04] Speaker 02:
But that's it and not and not and you're about to say because they're bad could make some a bad person But I mean yeah, they could they could that's true But they could also find I'm making the point that they could find it important as to like why?

[00:05:16] Speaker 02:
It makes sense that he's the one that did this right the identity of so I mean, why is that not true?

[00:05:23] Speaker 02:
You're about there.

[00:05:24] Speaker 02:
You're I think you're about to tell me that well They would find it important, but for a wrong reason, but identity is not a wrong reason, right?

[00:05:30] Speaker 03:
Well identity and motive are two separate things you're right

[00:05:32] Speaker 02:
And so to your... Well, not exactly because you say, why is it that this one person would have done all these?

[00:05:40] Speaker 02:
And you say, well, because... So identity and motive are kind of tied together.

[00:05:45] Speaker 02:
This one person is the person who they got a conviction for.

[00:05:48] Speaker 02:
So I'm not sure that, at least in this case, they're independent of each other.

[00:05:54] Speaker 03:
There's a lot to unpack there.

[00:05:55] Speaker 03:
Let me try to take them one by one, Your Honor.

[00:05:57] Speaker 03:
So I agree that, so I started by saying as a general manager, identity and motive are somewhat separate issues, though I agree with Your Honor that in the context of this case, they're probably a little more linked together.

[00:06:10] Speaker 03:
You were right to correct, to anticipate that I was going to counter your question by proposing that this is actually part of the reason why these sort of, I'm using the phrase character evidence or bad character evidence,

[00:06:24] Speaker 03:
why it's there's caution is raised when this evidence comes in because it is in fact very compelling so I think the fact that a juror would sit and think yeah that makes sense to me

[00:06:37] Speaker 02:
Suggest you know what we're really trying to avoid is having it make sense due to some impermissible We want to avoid that but I'm just not sure that the problem So what you have to do is you have to wait the district court judge had the way like but how if it doesn't really do much for sort of completing the puzzle of why it is this guy would have done these things and

[00:07:00] Speaker 02:
then yeah, then you say that prejudice outweighs.

[00:07:03] Speaker 02:
But here, what I was specifically getting at is why is it not true that for an average person, for figuring out that this guy did, you know, was convicted for having set a bunch of Smith trucks on fire, when you add that to he was there and it's all Smith, Swift, I mean, Swift trucks, it just seems to like the whole puzzle clicks and not for a bad reason.

[00:07:25] Speaker 02:
It could also be for a bad reason.

[00:07:29] Speaker 03:
but for a good reason which is okay that makes sense why this guy is setting would be setting swift trucks on fire so your honor said a second ago that that it could be for a good reason it could potentially maybe even a little part of it be for a bad reason and if and I think that's the problem but that's always going to be case and it seems to me that the rules are set up I mean

[00:07:51] Speaker 01:
the district court has to balance it.

[00:07:53] Speaker 01:
I mean, it's like you're looking at a puzzle and you're trying to take some pieces of the puzzle off the board and then ask the jury to still figure it out.

[00:08:00] Speaker 01:
And the prosecution's like, wait, this puzzle makes clear.

[00:08:03] Speaker 01:
And you're like, I can't use the puzzle piece because it would be too prejudicial.

[00:08:10] Speaker 01:
That balancing happens.

[00:08:12] Speaker 01:
And the district court looks at it and says, that's highly probative.

[00:08:16] Speaker 01:
Yes, it's also

[00:08:18] Speaker 01:
potentially prejudicial, you seem to be, I mean, if you were saying this isn't relevant at all, you'd have obviously a better argument.

[00:08:25] Speaker 01:
But I think that's the debate that we're having here is on a scale of one to 10, this is more like a seven, eight or nine, not a one, two or three.

[00:08:36] Speaker 01:
And once you get to that, so let me come back.

[00:08:38] Speaker 01:
What's your best case?

[00:08:39] Speaker 01:
I mean, obviously we have cases that say it's abuse of discretion and you can't say it's prejudicial or you can't admit

[00:08:48] Speaker 01:
you know, prejudicial evidence that has no probative value.

[00:08:51] Speaker 01:
What's your best case for something that is very relevant, has been rejected because it's so prejudicial?

[00:08:58] Speaker 03:
So, Your Honor, I think the best case I could think of is there's a case from 1992 of this court, United States versus Daley, which is cited in our briefs, and it's a case where

[00:09:11] Speaker 03:
A defendant had engaged in basically a shootout with police officers.

[00:09:17] Speaker 03:
He was then arrested.

[00:09:18] Speaker 03:
And he was prosecuted for being a felon in possession of a firearm.

[00:09:24] Speaker 03:
And in that case, the district court allowed.

[00:09:31] Speaker 03:
So this is a case allowing this kind of evidence.

[00:09:33] Speaker 03:
And I'll finish this example and give you a case where evidence was excluded.

[00:09:38] Speaker 01:
This is allowing the evidence?

[00:09:40] Speaker 03:
Correct.

[00:09:40] Speaker 03:
OK.

[00:09:41] Speaker 03:
this kind of evidence would be allowed.

[00:09:43] Speaker 03:
And in that case, they said, well, the evidence of the shootout is necessary to provide context to how this defendant was approached by police and found to be in a firearm, found to possess a firearm, and was then being prosecuted for being a felon in possession of a firearm.

[00:09:59] Speaker 03:
In contrast, in another case that I think shows exclusion of this kind of evidence is Vizcarra Martinez, which is a 1995 case, also cited in our briefs,

[00:10:10] Speaker 03:
In that case, this court found that evidence of a defendant's possession of personal use quantities of drugs, it was methamphetamine, should have been excluded in a case where he was being prosecuted for possessing precursor chemicals used in the manufacture of methamphetamine.

[00:10:34] Speaker 03:
So Daley said, look, these are so linked together, it's got to come in.

[00:10:40] Speaker 04:
Viscara martinez said these really have nothing to do with each other both of those seem right I mean so it's it's something about a probabilistic determination I think like how likely is it that somebody who possesses individual use quantities of methamphetamine would also have precursors for cooking methamphetamine those don't seem all that correlated but here we've got somebody who was convicted of

[00:11:08] Speaker 04:
You know misconduct with regard to swift and now of a sudden swift trucks are getting started.

[00:11:13] Speaker 02:
It just seems more closely linked Let me add to that in some ways of your two examples I almost in my intuition is that this one is further than in your example that you said was fine because they

[00:11:24] Speaker 02:
This is more like where if somebody had previously shot at somebody, right, and didn't get them, and then you want to, and then the question I think would be whether the police had probable cause to stop this person they knew had previously shot at somebody.

[00:11:38] Speaker 02:
And you're like, well, yeah, they do because they know that this person had previously shot and this person's back speaking at a second place or something.

[00:11:48] Speaker 02:
You would say, well, that's prejudicial to say that they previously shot at somebody.

[00:11:51] Speaker 02:
Yeah, it is, I suppose, because, you know, a jury might draw from that that they're a bad person, but it's also very probative as to why, why it would be, why this person was the, and that seems very akin to this.

[00:12:04] Speaker 02:
He previously robbed the Swift trailers.

[00:12:08] Speaker 03:
Again, Your Honor, I think that the key is there has to be a balance.

[00:12:11] Speaker 03:
It's not so much that anything that is probative comes in.

[00:12:16] Speaker 03:
We agree with you.

[00:12:17] Speaker 01:
Yeah.

[00:12:18] Speaker 01:
But where does the district court not do that and how does this... I'm just... And share balance or like not an abusive balance, right?

[00:12:24] Speaker 03:
Well, our position is that the balance here was not met and that ultimately too much of the trial was

[00:12:35] Speaker 03:
became a trial both about the prior conduct as well as the out-of-state fires.

[00:12:40] Speaker 03:
I had wanted to save us a time for rebuttal, so I think I'll leave it at that, Your Honor, and I'll end on that.

[00:12:44] Speaker 01:
Okay, thank you.

[00:12:45] Speaker 03:
That's what the government says.

[00:12:45] Speaker 03:
Thank you.

[00:13:00] Speaker 00:
Good morning.

[00:13:01] Speaker 00:
May it please the Court, John Baller for the United States.

[00:13:04] Speaker 00:
The two elements that were at issue in this trial were intent and identity.

[00:13:10] Speaker 00:
Were these fires maliciously set and was defendant the one who set them?

[00:13:14] Speaker 00:
Or, as defendant argued,

[00:13:17] Speaker 00:
Was defendant's presence at the scene of six suspicious fires involving Swift trailers just a coincidence?

[00:13:24] Speaker 00:
Evidence that defendant wasn't just at the scene of six Swift trailer fires in Southern California, but at 24 across the country, and evidence that defendant had a strong reason to hate Swift based on his prior conviction was both relevant to and strongly probative on those trial issues.

[00:13:42] Speaker 01:
Can you address the motive?

[00:13:44] Speaker 01:
Their argument is, well, you put this all in under motive, and motive is... I don't think motive is per se excluded, but can you address how motive plays into this?

[00:13:58] Speaker 01:
If it were just motive, would we have a different case, or the fact that motive is tied to identity makes this different?

[00:14:04] Speaker 00:
I think that, I mean, motive does have to be relevant to a trial issue, but I think that it's actually the rare case, excuse me, it's the rare case where motive is not relevant, because of course, if somebody has a reason to do a particular act with which they're charged, it makes it more likely that they did that act.

[00:14:21] Speaker 00:
In the case the defendant relies on from this court called Brown,

[00:14:24] Speaker 00:
That case was a case where this court said that, well, the evidence that was offered, the prior acts, was not actually motive evidence in the first place, but also motive has to be relevant, and motive wasn't relevant in that case because the defendant acknowledged that he did the act that he was charged with.

[00:14:41] Speaker 00:
He just disputed whether he had the requisite intent, and the particular evidence in that case didn't go to the intent.

[00:14:46] Speaker 00:
But this court did say that motive is often relevant to show that the charged act was committed and to show the identity of the actor.

[00:14:55] Speaker 00:
That wasn't relevant.

[00:14:55] Speaker 04:
So that was a case where the person admitted the conduct?

[00:14:58] Speaker 00:
Correct.

[00:14:59] Speaker 04:
So you're saying in a case where someone doesn't admit the conduct, motive would be a relevant reason to admit the evidence?

[00:15:07] Speaker 00:
Correct.

[00:15:07] Speaker 00:
In a case where we have to prove that the act was committed and the identity of the actor, motive for him to have committed the act is relevant and it's highly probative.

[00:15:15] Speaker 00:
Because, of course, again, if somebody has a reason to do something, it makes it more likely that they did that thing.

[00:15:19] Speaker 01:
But we already have case law that makes that point.

[00:15:22] Speaker 01:
I mean, basically the same point here, which is where motive is tied to identity, it can be admitted.

[00:15:30] Speaker 00:
Correct, yes.

[00:15:31] Speaker 00:
And we rely on, again, this court's decision in Bowman, too, where that was a case involving an incident where a defendant previously was convicted of assaulting his wife's relative.

[00:15:45] Speaker 00:
And then the evidence showed that he blamed his wife for that conviction.

[00:15:49] Speaker 00:
And so in a later assault prosecution for assaulting his wife, this court said that, yes, that prior conviction was relevant to show his motive to assault the wife.

[00:15:57] Speaker 00:
because he blamed her for that conviction.

[00:15:59] Speaker 00:
That's an exact parallel.

[00:16:00] Speaker 04:
So how likely in your mind, how likely does it have to be like, what evidence do you need that he committed the other 19 fires?

[00:16:09] Speaker 04:
You don't have to prove beyond a reasonable doubt those because you're not trying to secure conviction on him, right?

[00:16:13] Speaker 01:
Correct.

[00:16:14] Speaker 04:
So is it like preponderance, or how likely does it need to be that he was the one who did the other 19 fires before it comes in?

[00:16:20] Speaker 00:
I'm sorry, I think we're shifting.

[00:16:21] Speaker 00:
So I guess we're shifting from motive to the other fires.

[00:16:25] Speaker 00:
Yes, so the standard of evidence that applies is the standard in Huddleston in Rule 104B of the Federal Rules of Evidence.

[00:16:32] Speaker 00:
In order for those other fires to be admissible, we have to provide sufficient evidence for any reasonable fact finder to conclude that he committed those other fires.

[00:16:40] Speaker 00:
These other fires were, again, they were only relevant if he, in fact, set them.

[00:16:44] Speaker 00:
And we only need to meet a very low threshold in order to introduce them.

[00:16:48] Speaker 04:
Any evidence such that a reasonable fact finder could conclude... And can you bootstrap the motive evidence from the prior conviction to be your sufficient evidence that he did the other fires to?

[00:17:00] Speaker 00:
We could.

[00:17:01] Speaker 00:
That could certainly play into it.

[00:17:02] Speaker 00:
But then on top of that, we also had the location evidence.

[00:17:04] Speaker 00:
I mean, the location evidence was really, you know, the strongest evidence combined with the motive.

[00:17:09] Speaker 00:
And, of course, this all ties together.

[00:17:10] Speaker 02:
It wasn't just... Is it relevant?

[00:17:11] Speaker 02:
My understanding is he was actually convicted for some of those other fires and other cases.

[00:17:16] Speaker 02:
So there would be... It seems to me there might be inconsistent for a court to say it wasn't sufficient evidence for a reasonable juror to conclude when a reasonable juror found beyond a reasonable doubt that he set those other fires in other cases, right?

[00:17:29] Speaker 00:
So he was convicted in the Arizona case, so he was charged in this case with the six fires he set in the Central District of California.

[00:17:36] Speaker 00:
He was charged with three of the fires he set in the District of Arizona, and he was charged with nine fires that he set in the District of New Mexico.

[00:17:42] Speaker 00:
We went first, and so in our trial in this case, he had not yet been convicted, but he was, in fact.

[00:17:47] Speaker 02:
No, that's not, you know, I knew that he hadn't at the time, but he had subsequently been convicted.

[00:17:51] Speaker 02:
So there just seems like there would be some tension for a court to conclude that there was, that a reasonable juror could not reach the conclusion that he had set those fires.

[00:17:59] Speaker 02:
When, in fact, we know that later on, at least in some of these cases, jurors did conclude he set the fires beyond a reasonable doubt, right?

[00:18:05] Speaker 00:
Right.

[00:18:05] Speaker 00:
As far as the three Arizona fires, he was just a couple months ago convicted of those fires.

[00:18:09] Speaker 04:
Well, had he been indicted already, even if he hadn't been convicted on those other cases?

[00:18:13] Speaker 04:
Yes, Your Honor.

[00:18:14] Speaker 04:
So then the grand jury found probable cause to believe that he had committed those fires.

[00:18:18] Speaker 00:
Yes.

[00:18:18] Speaker 00:
Yes.

[00:18:20] Speaker 00:
So I guess if we're shifting to the evidence of the introduction of the 18 uncharged fires, released uncharged in this case, that evidence didn't violate Rule 404.

[00:18:30] Speaker 00:
First, because it was intrinsic to the charged fires in this case.

[00:18:34] Speaker 00:
And second, because it wasn't offered for the character purposes that Rule 404 prohibits.

[00:18:38] Speaker 00:
Instead, it was offered for the permissible purposes that this court identified in Miller versus Baldwin.

[00:18:44] Speaker 00:
A string of improbable events is unlikely to be the result of chance.

[00:18:48] Speaker 00:
No, these fires were rare.

[00:18:50] Speaker 00:
I mean, this – the jury heard from Swift's security director, who had worked in their security department for more than 20 years, and he said, I've never seen anything like this.

[00:18:59] Speaker 00:
We do see truck fires, but that happens in moving trucks when their brakes catch fire.

[00:19:03] Speaker 00:
It doesn't happen in trucks that have been stopped for more than two hours.

[00:19:06] Speaker 00:
Nothing like this has ever happened.

[00:19:08] Speaker 00:
I called my security colleagues at other trucking companies.

[00:19:11] Speaker 00:
They weren't experiencing anything like this.

[00:19:13] Speaker 00:
And furthermore, after defendant was arrested in this case, they stopped happening.

[00:19:17] Speaker 00:
And Swift never saw any more of these fires again.

[00:19:19] Speaker 00:
So these fires were rare.

[00:19:20] Speaker 00:
And evidence that defendant was at 24 of them across the country is evidence that his presence wasn't just a coincidence.

[00:19:27] Speaker 00:
It's evidence that he set them.

[00:19:28] Speaker 00:
Can I ask you about one more thing?

[00:19:29] Speaker 01:
There was also some theft evidence, if I remember, that was admitted.

[00:19:36] Speaker 01:
I don't know whether it was error or not, but it does seem to fall under a different, I mean, that seems to be a little more akin to the Viscar case that, you know, the council was advocating here.

[00:19:48] Speaker 01:
So could you address the theft?

[00:19:50] Speaker 01:
I understand why fires and location and all that, but when it's just theft, help me understand what evidence was admitted as to theft and why that would not be a violation of this rule.

[00:20:02] Speaker 00:
So the theft was related to the prior investigation that Swift conducted.

[00:20:05] Speaker 00:
So the prior incident that gave him the motive to burn Swift trailers in this case was the fact that he had been stealing from trailers across the Southwest for years.

[00:20:13] Speaker 01:
See, that seems to go more to actual motive and less to identity of the

[00:20:19] Speaker 01:
I mean, it's not intuitive that because you're stealing from someone, you're also going to light the trailers on fire.

[00:20:29] Speaker 00:
No, true enough.

[00:20:29] Speaker 00:
But it wasn't just the fact that he was stealing from them.

[00:20:31] Speaker 00:
It was the fact that they investigated him, they gave their evidence to law enforcement, and then he was ultimately convicted in federal court for stealing from them.

[00:20:39] Speaker 00:
That's what gave him the motive.

[00:20:41] Speaker 00:
I'm sure at the time, didn't care that he was stealing from Swift trailers versus any other trailers.

[00:20:46] Speaker 00:
But it's the fact that they were the one who caught him, that he knew that they were the one who caught them, and that he served two years in jail.

[00:20:52] Speaker 01:
And you would agree that that's less probative than the actual prior arsons?

[00:20:59] Speaker 01:
I mean, we'd have to do a different analysis, is what I'm saying.

[00:21:02] Speaker 01:
Like, if the prior arsons were probative, say they were 7, 8, 9 on a scale of 1 to 10, the fact that he

[00:21:12] Speaker 01:
had previously stolen from them is more, I mean, I don't know where you put it, two, three, something like that.

[00:21:17] Speaker 01:
But it's a different analysis, right?

[00:21:20] Speaker 00:
I mean, I don't think so.

[00:21:20] Speaker 00:
I think that the fact that he stole from them, that was inextricably linked to the motive evidence, because that's what led to his conviction that gave him the motive to set these fires.

[00:21:31] Speaker 00:
These prior arsons, I mean, these prior arsons were all a part of the same string of fires that he set after he got out of jail.

[00:21:38] Speaker 00:
Serving time for the fact that he stole from Swift trailers And so I think that the fact that he stole from them that was needed to put the prior conviction into context We had to show why that prior conviction had something to do with Swift and we only did it through a single witness I mean we what if he'd been convicted of stalking You know one of the executives at Swift Would that be relevant and admissible?

[00:22:04] Speaker 01:
uh... if it's a current prosecution were first off and i don't know what what if they were just evidence that he had previously been convicted of stalking one of the executives would you try to admit that as i think that that would have been relevant about it and i mean that that that's the slippery slope we have here i mean what if uh... what if there was evidence that he'd had uh... he felt like he was cheated in a personal transaction with one of the executives with that have been admitted

[00:22:32] Speaker 00:
I think so.

[00:22:33] Speaker 00:
I mean, again, the probative value might vary, but it would certainly be relevant to motive, which would mean it was outside of Rule 404's prohibition.

[00:22:40] Speaker 00:
But I think here, again, it is not just the fact that he previously targeted Swift.

[00:22:45] Speaker 00:
And I think that's the crucial distinction that makes this even more probative and certainly admissible and highly relevant at trial, was the fact that it wasn't just that he previously targeted Swift, but that they caught him and that they were the ones who put him in jail.

[00:23:01] Speaker 00:
I guess I want to move on and briefly talk about the other two issues, if the court has no further questions.

[00:23:06] Speaker 00:
The sentencing?

[00:23:06] Speaker 00:
Yes, the sentencing and the authentication of the location records for the GPS device.

[00:23:11] Speaker 00:
So as far as the authentication of the records for the GPS device, the district court didn't abuse discretion by admitting the data from that device, even though we admittedly had an insufficient Rule 902 certificate, because the other evidence at trial, I think, unequivocally authenticated that evidence under Rule 901.

[00:23:30] Speaker 00:
Keep in mind that the rule for authenticating evidence under rule 901 is extremely low.

[00:23:35] Speaker 00:
Again, it's just that conditional relevance standard.

[00:23:38] Speaker 00:
The party offering an exhibit need only offer evidence sufficient for a reasonable fact finder to conclude by preponderance of the evidence.

[00:23:45] Speaker 00:
that this item of evidence is what we're saying it is.

[00:23:48] Speaker 00:
And in this context, that means that we had to show that this location data is indeed for the GPS device that we claimed it was.

[00:23:55] Speaker 00:
Now, the jury had the testimony from the case agent who testified about how he got the unique device identifiers for this device from tower dump orders.

[00:24:04] Speaker 00:
We had the testimony from the case agent who said that he served AT&T with a court order to get location data for that device, got the records, and he gave them to Agent Sonnendecker, the cell site expert.

[00:24:16] Speaker 00:
Then we had the testimony from Agent Sonnendecker, who had immense experience with cell site location information, who has reviewed thousands of sets of these records.

[00:24:25] Speaker 00:
And he looked at these records, and he said, yep, these look like these records should look.

[00:24:29] Speaker 00:
They also had all the corroborating evidence from the cell

[00:24:33] Speaker 00:
the cell phone location data on his cell phone that he didn't dispute, showing that his location often matched up with that of the GPS device.

[00:24:40] Speaker 00:
And again, there's numerous other pieces of evidence identified in the government's brief corroborating that these records were indeed for that device.

[00:24:47] Speaker 00:
I think the most important of which

[00:24:49] Speaker 00:
was that when the case agent ultimately searched defendant's truck and seized the device and then turned the device off, the real-time location data that he got as a part of that same court order stopped.

[00:25:00] Speaker 00:
This was unequivocally the correct device.

[00:25:02] Speaker 00:
The jury had more than sufficient evidence to conclude by a preponderance of the evidence that that data was for the correct device.

[00:25:09] Speaker 00:
Now, as far as sentencing,

[00:25:10] Speaker 00:
Defendant hasn't shown any error in assigning a criminal history point for his prior theft conviction.

[00:25:16] Speaker 00:
He didn't object below.

[00:25:17] Speaker 00:
And in his opening brief, he raises an argument that's about an entirely irrelevant statute.

[00:25:22] Speaker 00:
He made a mistake about which state's theft statute he was convicted of.

[00:25:27] Speaker 00:
And his argument in his opening brief just talks about Ohio law when, in fact, he was convicted of theft under Illinois law.

[00:25:34] Speaker 00:
The framework that this issue implicates as set out in Lopez Pastrana requires a defendant to compare the elements and the penalties of his previous conviction and compare it to the elements and penalties for the same state's statute for passing a bad check.

[00:25:53] Speaker 00:
Defendant compared Ohio theft to Ohio passing a bad check.

[00:25:57] Speaker 00:
That's irrelevant.

[00:25:58] Speaker 00:
He was convicted of Illinois theft.

[00:26:00] Speaker 00:
And even as of his reply brief, he has not identified the elements of Illinois theft.

[00:26:07] Speaker 00:
He has not identified what Illinois statute is for passing a bad check, let alone identified its elements or its penalties.

[00:26:14] Speaker 00:
He did not object below.

[00:26:16] Speaker 00:
He raised an entirely irrelevant argument in his opening brief.

[00:26:20] Speaker 00:
And so we think that he has not demonstrated error, let alone plain error, and that he's waived any argument about Illinois law by not raising it in his brief.

[00:26:30] Speaker 00:
Unless the panel has any further questions, I'm happy to return the rest of my time to the court.

[00:26:34] Speaker 00:
Thank you.

[00:26:34] Speaker 00:
Thank you.

[00:26:35] Speaker 00:
So defendant hasn't shown any error in admitting evidence in the trial.

[00:26:38] Speaker 00:
He hasn't shown any error in his sentence.

[00:26:41] Speaker 00:
His court should affirm his conviction in sentence.

[00:26:57] Speaker 03:
I'll start by talking about the government's use of the, what they call in their brief, the doctrine of chances, the idea that a series of independent events taken together are unlikely to be coincidental.

[00:27:13] Speaker 03:
The case that the government relies on in their brief is an unpublished Ninth Circuit case called Miller, but even in that case, the court said that

[00:27:23] Speaker 03:
you cannot use a quote character-based inference end quote to reach the conclusion that the criminal act was intentional to trigger this doctrine and our position is that the government is triggering that doctrine by the use of character-based inferences that are geared around the

[00:27:45] Speaker 03:
the prior investigation and conviction as well as the out of state fire.

[00:27:49] Speaker 01:
The problem is you're right.

[00:27:50] Speaker 01:
That's an aspect to it.

[00:27:53] Speaker 01:
But that doesn't get you across the finish line.

[00:27:57] Speaker 01:
You have to say that it was abuse of discretion.

[00:28:00] Speaker 01:
because the character evidence was so high that the probative value is outweighed.

[00:28:07] Speaker 01:
And I just don't know how you get there when the probative value here is high.

[00:28:11] Speaker 01:
Now, the theft, I mean, you could address the theft.

[00:28:14] Speaker 01:
The theft, I'm a little more, you know, the theft evidence, I'm a little more in your camp on.

[00:28:21] Speaker 01:
But I don't think that gets you all the way in this case.

[00:28:24] Speaker 03:
Well, I agree with the court about the theft component of it.

[00:28:27] Speaker 03:
There is another component that, again, raised in the briefs, that in terms of the balance that the court has to strike, or the district court had to strike, even if some evidence of the prior history with Swift was relevant, the way the evidence came in in this case was highly prejudicial.

[00:28:46] Speaker 03:
I'll give you a couple examples.

[00:28:48] Speaker 03:
the fact that the government was able to admit the fact that Mr. Precops served a two-year prison sentence, which says really nothing about Swift.

[00:28:56] Speaker 03:
A second fact is... Well, wait.

[00:28:58] Speaker 04:
I mean, wouldn't it suggest why he's grumpy with Swift?

[00:29:02] Speaker 04:
I mean, the longer the... I don't know.

[00:29:04] Speaker 04:
I'm not sure I agree with you on that.

[00:29:06] Speaker 04:
It seems like if you've gone to prison, that's yet another reason to be grumpy with Swift.

[00:29:10] Speaker 03:
Well, it could have been that he went to prison without getting into the fact of two years, which suggests more than a minor theft offense.

[00:29:19] Speaker 03:
There is also evidence that the government put in at the time of the search back in 2015 connected to the prior conviction.

[00:29:27] Speaker 03:
They were able to elicit evidence that law enforcement sees

[00:29:32] Speaker 03:
Firearm drugs luxury items from the house And certainly that is irrelevant as to swift and my time is up your honor and I can just sum up real quickly our position is that the

[00:29:47] Speaker 03:
The character-based evidence was too strong.

[00:29:50] Speaker 03:
It should have been excluded.

[00:29:51] Speaker 03:
One final, very quick point on the sentencing issue.

[00:29:54] Speaker 03:
The factual mistake made in the opening brief was because there was a factual mistake made in the PSR.

[00:30:00] Speaker 03:
And this court has the power to correct the factual mistake by remanding to the district court for a new sentencing hearing for the district court to consider in the first instance whether the prior theft offense should have scored.

[00:30:13] Speaker 03:
And the government's never said that

[00:30:15] Speaker 03:
It shouldn't.

[00:30:15] Speaker 03:
It shouldn't.

[00:30:16] Speaker 03:
Correct.

[00:30:17] Speaker 03:
Okay.

[00:30:17] Speaker 03:
Without your honor submitted.

[00:30:18] Speaker 03:
Thank you very much.

[00:30:18] Speaker 01:
Thank you.

[00:30:18] Speaker 03:
Thank you.

[00:30:19] Speaker 03:
Thank you to both counsel for your excellent argument.

[00:30:22] Speaker 01:
The case is now submitted.