[00:00:00] Speaker 03:
All right, our next case is 24-6189, United States versus Jones.

[00:00:07] Speaker 03:
Mr. Rose.

[00:00:13] Speaker 00:
Thank you, Your Honor.

[00:00:14] Speaker 00:
May it please the Court.

[00:00:16] Speaker 00:
My name is Kiefer Rose, and I represent Mr. Jones.

[00:00:19] Speaker 00:
Your Honor, there's a lot going on in this case.

[00:00:22] Speaker 00:
There's a lot of moving parts.

[00:00:24] Speaker 00:
But I submit it's best organized into three reasons why a prior firearm conviction

[00:00:30] Speaker 00:
was improper after Mr. Jones truthfully admitted to a different drug dealing conviction.

[00:00:38] Speaker 00:
First, is the district court never engages in a Rule 609 or Rule 404b analysis at trial.

[00:00:47] Speaker 00:
Second, the government stated purpose was to give the jury a complete picture of Mr. Jones as a

[00:00:54] Speaker 00:
violent felon who was knowledgeable about firearms because he's committed this exact crime before.

[00:01:00] Speaker 02:
Where does the violence fit in, just from having a felon in possession?

[00:01:05] Speaker 00:
It doesn't, Your Honor, and that was part of my confusion with the government's assertion because Mr. Jones doesn't have any violent convictions, but I think the issue here is the stated purpose by the government was

[00:01:20] Speaker 00:
They were wanting to show that he was violent and had knowledge of firearms.

[00:01:24] Speaker 02:
I'm probably mistaken, but I thought you were arguing that this evidence of a prior felon in possession showed the defendant to be violent to the jury.

[00:01:34] Speaker 02:
And I'm not sure I follow that.

[00:01:36] Speaker 00:
No, Your Honor, and I tried to clarify this in my brief, and I probably didn't do a good enough job.

[00:01:42] Speaker 00:
I submitted that Mr. Jones is not a violent felon, but the government

[00:01:48] Speaker 00:
tells the district courts they should be able to admit this evidence to show he's a violent felon.

[00:01:52] Speaker 00:
And that is the problem, is the proper evidence by the government is direct propensity reasoning and improper under both rules.

[00:02:01] Speaker 00:
Under either rule, the district court's reasoning fails both procedurally and substantively.

[00:02:07] Speaker 00:
Both 609 and Rule 404B have different standards that are pretty heightened to protect against the admission of character evidence for the improper propensity purpose.

[00:02:18] Speaker 00:
The fundamental question of Rule 609 goes to truthfulness, while 404B deals with admitting the prior bad act for a proper purpose.

[00:02:31] Speaker 00:
Here, the district court never really engages in either standard.

[00:02:34] Speaker 00:
It holds that it finds that the relevance of the firearm prior increased because Mr. Jones mentioned that he was convicted of the drug dealing prior.

[00:02:47] Speaker 00:
Apart from engaging any of the rules, it doesn't even go through a general prejudicial analysis on that prior.

[00:02:55] Speaker 00:
Further, the court sides with the government ultimately, which indicates that it adopted its stated propensity reasoning, and that creates even more of an issue.

[00:03:08] Speaker 00:
What's worse, the district court dealt with this exact prior conviction pre-trial on 404B motion.

[00:03:16] Speaker 00:
And it held that it doesn't even pass the less stringent 403 test, noting this is extremely prejudicial because it's an identical prior, and also pointing out that it has serious issues with the age of the conviction and with the fact that the government didn't put forth any specific facts.

[00:03:34] Speaker 00:
None of these concerns are addressed at trial.

[00:03:36] Speaker 00:
The Court just held Mr. Jones admitted truthfully

[00:03:40] Speaker 00:
that he has a separate drug dealing prior, therefore the relevance increased.

[00:03:45] Speaker 00:
But it was more than that.

[00:03:46] Speaker 02:
He said, I have a marijuana conviction.

[00:03:50] Speaker 02:
And a juror might not think a marijuana conviction's a real big deal.

[00:03:55] Speaker 02:
And so once the defendant says that, then doesn't it open it up?

[00:04:02] Speaker 02:
In other words, had the defendant not said that, none of this would have happened, right?

[00:04:06] Speaker 00:
No, Your Honor.

[00:04:08] Speaker 00:
I don't know if this would have happened because I would put forth that the record shows the government was waiting for any opportunity to get this evidence in after the court denied a pretrial.

[00:04:18] Speaker 00:
But to your point, Your Honor, yes, the admission that this was just a marijuana drug dealing prior certainly may soften the sting of it, which is why

[00:04:32] Speaker 00:
defense counsel solicited it, because they didn't want the government to impeach them with it.

[00:04:36] Speaker 00:
But that's not the question under either of these rules.

[00:04:39] Speaker 00:
Opening the door is more of a rule 404A, and it requires the defendant to put forth his character, and that might open the door.

[00:04:49] Speaker 00:
Here, dealing marijuana does not make somebody more credible.

[00:04:54] Speaker 00:
No reasonable jury hears, oh, this guy's a marijuana dealer?

[00:04:57] Speaker 00:
He must be an honest, upstanding man.

[00:05:00] Speaker 00:
And that's the question under 609 is his character for truthfulness.

[00:05:06] Speaker 00:
And secondly, Your Honor, both rules 609 and 404B deal with prejudice to the defendant, and it's made to protect against this character reasoning.

[00:05:16] Speaker 00:
The government stated prejudice in their case was he didn't disclose all of the facts that we would have disclosed.

[00:05:24] Speaker 00:
And nowhere does that have a basis in the law.

[00:05:27] Speaker 00:
In fact, if defense counsel solicited that he had knowledge of prior arms, multiple convictions, and all of these other things, I would probably be arguing an ineffective assistance counsel motion instead of this motion.

[00:05:41] Speaker 00:
The point is that Mr. Jones's testimony

[00:05:44] Speaker 00:
was entirely truthful.

[00:05:46] Speaker 00:
He does not claim he didn't know about firearms.

[00:05:49] Speaker 00:
He does not claim he's never possessed a firearm.

[00:05:51] Speaker 00:
He doesn't even talk about firearms.

[00:05:54] Speaker 01:
He says he didn't possess a firearm in this case.

[00:05:57] Speaker 01:
Well, correct.

[00:05:58] Speaker 01:
Which was when the government said, all right, then under the Moran case, we're going to seek to admit the

[00:06:09] Speaker 01:
prior firearm conviction, right?

[00:06:11] Speaker 01:
Isn't that what prompted it when he testified, oh, that gun wasn't his?

[00:06:16] Speaker 01:
And that it actually said it's his, referring to his passenger, somebody else's gun.

[00:06:24] Speaker 01:
Isn't that what made it relevant in coming in under 404B?

[00:06:30] Speaker 01:
Isn't that when the government sought its admission?

[00:06:35] Speaker 00:
No, Your Honor.

[00:06:35] Speaker 01:
That reconsidered, or what point was that?

[00:06:38] Speaker 00:
That was certainly the issue pre-trial, which the court denied the government's request.

[00:06:43] Speaker 01:
Right, I understand.

[00:06:44] Speaker 01:
But the court made it clear that it was subject to reconsideration, depending on how the evidence came in.

[00:06:52] Speaker 00:
Well, Your Honor, in the trial transcript, the court does mention that.

[00:06:57] Speaker 00:
But when you look at the 404b motion pre-trial, it's pretty definite.

[00:07:02] Speaker 00:
But the bigger point, Your Honor, I don't want to get lost here, the bigger point is that this comes in

[00:07:08] Speaker 00:
not after Mr. Jones asserts his general defense that he didn't possess the firearm.

[00:07:13] Speaker 00:
It comes in immediately after he testifies to this drug dealing conviction in both the district or in both the United States attorney and the district court connected to that.

[00:07:25] Speaker 00:
The court states, because he admitted to this drug dealing prior, now it's more relevant.

[00:07:31] Speaker 00:
So the analysis is all centered around this conversation.

[00:07:36] Speaker 00:
And further,

[00:07:37] Speaker 00:
Again, the district court denied this under the Moran general knowledge idea previously.

[00:07:43] Speaker 00:
And there's no explanation or there's no engagement to indicate that they changed their mind because they don't address any of the issues that they had in that motion.

[00:07:54] Speaker 02:
The defense counsel approached the court and say, here's what I'm planning on asking, and I want you to stop them right now, motion and limiting.

[00:08:03] Speaker 02:
from bringing up the felony in possession so that the court was on notice and wasn't scrambling to make a decision?

[00:08:10] Speaker 00:
Your Honor, I'm not 100% sure on that, but I don't believe that they did.

[00:08:14] Speaker 00:
I think everyone, correctly or not, my impression is everyone was operating under the assumption that the pre-trial 404B motion meant that nobody could talk about the prior felony possession conviction for either purpose.

[00:08:32] Speaker 02:
Was the drug conviction what led to the previous felon in possession conviction?

[00:08:40] Speaker 00:
Your Honor, are you asking if that was the basis felony that led to that?

[00:08:47] Speaker 00:
I honestly, I don't know.

[00:08:48] Speaker 00:
I'm sorry.

[00:08:48] Speaker 02:
OK.

[00:08:51] Speaker 03:
But he had stipulated to having a prior felony, right?

[00:08:57] Speaker 03:
So the only issue at trial was possession

[00:09:02] Speaker 03:
firearm, right?

[00:09:04] Speaker 03:
And once he testifies the way he did, the government's entitled to test his credibility.

[00:09:13] Speaker 03:
And that's what the 609 impeachment rule is all about.

[00:09:18] Speaker 03:
I mean, what error did the district court make in allowing that limited testimony?

[00:09:26] Speaker 00:
Your Honor, you're asking under 609 specifically?

[00:09:29] Speaker 00:
Well, Your Honor,

[00:09:31] Speaker 00:
The district court made multiple errors.

[00:09:33] Speaker 00:
First is they don't engage in the correct fundamental question of Rule 609, which is character for truthfulness.

[00:09:42] Speaker 00:
Everything that's asserted is this knowledge of firearms.

[00:09:45] Speaker 00:
He's got a character to be violent.

[00:09:48] Speaker 00:
He's got character to

[00:09:50] Speaker 00:
commit the same crime before, which are all explicitly rejected purposes that I know this court talks about some of those in the United States versus smalls.

[00:09:59] Speaker 00:
These are rejected propensity purposes.

[00:10:01] Speaker 00:
So the fact that the government or that the district court seemingly adopts these shows that this was admitted for an improper purpose.

[00:10:10] Speaker 00:
Secondly, Mr. Jones's admission to being a drug dealer, like I said earlier, doesn't make him

[00:10:17] Speaker 00:
substantially more honest with the jury, even if it is marijuana, and introduction of the prior firearm conviction.

[00:10:26] Speaker 00:
When we look at the smallest factors, which is what we're supposed to do, four out of five of them favor inadmissibility, something the government doesn't even dispute on their briefs.

[00:10:36] Speaker 00:
So this wasn't about truthfulness.

[00:10:38] Speaker 00:
This was about a propensity purpose, which is explicitly rejected.

[00:10:43] Speaker 00:
So for those reasons, Your Honor, that's why the district court abused its discretion.

[00:10:47] Speaker 00:
If I could quickly move to harmlessness, two quick reasons why this decision, this error, was not harmless.

[00:10:56] Speaker 00:
Number one, the government relies on flight and proximity to argue that the evidence was overwhelming.

[00:11:04] Speaker 00:
But based off this court's precedent, both of those pieces of evidence have minimal evidentiary value.

[00:11:12] Speaker 00:
And secondly, the prejudice of improper character evidence

[00:11:17] Speaker 00:
And the way it was introduced was extreme and unfairly tarnished Mr. Jones in a pure credibility case.

[00:11:25] Speaker 00:
The government cannot meet their burden to show this is overwhelming, because this court's precedent, namely on flight, it's United States versus Samoa, which states, defendant's flight has little, if any, persuasive value to the defendant's knowledge of a firearm.

[00:11:42] Speaker 00:
And on proximity, this court's decision in United States versus Roach

[00:11:46] Speaker 00:
which said that in a conclusively possessed area on a constructive possession case, which is what we have here, the court makes clear that proximity alone is insufficient without a significant nexus connecting the two, which was not presented.

[00:12:03] Speaker 00:
Even if this court disagrees with Mr. Jones' sufficiency of the evidence argument, it seems like a giant leap to then call this exact evidence overwhelming.

[00:12:12] Speaker 03:
What do you do about his statement about the gun?

[00:12:15] Speaker 00:
Your Honor, the statement about the gun goes directly to it being about the passenger.

[00:12:23] Speaker 00:
And it fits into his narrative, which is consistent with why he ran.

[00:12:27] Speaker 00:
He's driving down the road in a stranger's car, just started doing this.

[00:12:32] Speaker 00:
Three cop cars come.

[00:12:35] Speaker 00:
He's like, what do you got in this car?

[00:12:36] Speaker 00:
You got something.

[00:12:37] Speaker 00:
And he panics.

[00:12:38] Speaker 00:
And clearly, he acts irrational.

[00:12:40] Speaker 00:
But a statement that, hey, the passenger had a gun

[00:12:44] Speaker 00:
doesn't hold much evidentiary value, especially assuming that he possessed the gun, which I'm not conceding.

[00:12:54] Speaker 00:
But he would have known he grabbed it and ran.

[00:12:56] Speaker 00:
So why would he say the passenger's got it?

[00:12:59] Speaker 00:
It has little evidentiary value.

[00:13:02] Speaker 00:
Your Honor, if there's no further questions, I'd like to reserve the rest of my time for rebuttal.

[00:13:06] Speaker 03:
Thank you.

[00:13:06] Speaker 00:
Thank you.

[00:13:19] Speaker 04:
May it please the court, David Nichols on behalf of the United States.

[00:13:24] Speaker 04:
I'll first start by saying this court did not abuse its discretion in allowing what was essentially two questions by the government to be asked of Mr. Jones.

[00:13:34] Speaker 04:
There are two things going on that Mr. Rose already talked about.

[00:13:38] Speaker 04:
Yes, there's the 404 situation that happened pre-trial.

[00:13:42] Speaker 04:
What is relevant about that for this court to consider is that pre-trial, as the district court ruled in its ruling disallowing that evidence, we had a stipulation in place per old chief and I was instructed not to talk about it because the stipulation was more probative and less prejudicial than talking about the prior conviction.

[00:14:00] Speaker 04:
The only thing to change were all choices made on the defense side.

[00:14:03] Speaker 04:
So by the time we come to the government asking that question about the one prior conviction, by that point Mr. Jones had chosen to testify.

[00:14:11] Speaker 04:
which as this court's already talked about, is what puts his credibility in issue just like any other witness.

[00:14:17] Speaker 04:
He chose to lay aside the stipulation and ask a question about one prior conviction.

[00:14:23] Speaker 04:
I would submit to the court that trial counsel asks questions for a reason.

[00:14:27] Speaker 04:
Why would the trial counsel ask about that case in particular?

[00:14:32] Speaker 04:
Skipping over the felon in possession, which is a more recent case than the drug possession that they actually do talk about.

[00:14:39] Speaker 04:
I would submit the reason they did that is specifically to paint a picture of this person sitting on the stand, not as a person who gets in high-speed chases with police and runs from police and tries to dump guns as they jump over fences, but rather a person who 10 years ago might have dealt the least offensive type of drug possible in this modern world that we live in.

[00:14:58] Speaker 04:
That is painting a blatantly inaccurate picture of him as the person who's trying to tell his story to the jury, and so the government

[00:15:09] Speaker 04:
Yes, in the first instance before trial, we wanted to admit, per the mayor's case, the prior conviction for felon in possession to go to his knowledge element in the current felon in possession.

[00:15:22] Speaker 04:
But at the point he chose to take the stand and misrepresent, I would argue, his priors, the calculus changes, which is what the district court is wrestling with in that moment, which if I'm

[00:15:34] Speaker 04:
To be candid with the court was a surprise, I would suspect, to trial counsel as well as the district court that they would ask that question when they have the stipulation in place.

[00:15:43] Speaker 04:
General practice, I would suggest, is that if you have a stipulation in place, no one talks about your prior convictions.

[00:15:48] Speaker 04:
That's simply how trials play out.

[00:15:51] Speaker 04:
So to choose to talk about that one in particular, I would submit, was to paint the inappropriate picture.

[00:15:56] Speaker 01:
So let me be clear.

[00:16:00] Speaker 01:
Basis for you didn't seek to admit the prior conviction until basically as impeachment evidence then After he discussed the marijuana conviction.

[00:16:10] Speaker 01:
Yes, your honor, but he'd already testified He'd also testified that the gun wasn't his he had and so but you weren't seeking to admit it under Moran and

[00:16:22] Speaker 04:
In retrospect, I could have.

[00:16:24] Speaker 01:
Well, that's the first argument you make in your brief.

[00:16:26] Speaker 01:
And I'm a little confused as to what your position is here.

[00:16:29] Speaker 04:
The brief actually reflects what was argued to the district court also.

[00:16:32] Speaker 04:
The first part of what we talked about in the bench conference before the district court.

[00:16:36] Speaker 01:
In pre-trial, right?

[00:16:37] Speaker 04:
No, in the actual moment when we approached the bench and talked to the district court, it was talking to remind the district court of its 404 analysis.

[00:16:45] Speaker 04:
But truly, the defendant had gotten up there and said this thing.

[00:16:48] Speaker 04:
And so at that point, it said the thing about the prior

[00:16:52] Speaker 04:
2012 marijuana conviction.

[00:16:54] Speaker 04:
So at that point, I think it increased the probative value of the 2017 firearms conviction, which both is more recent, but also helps to counter this idea that he's got a 10-year-old nonviolent drug felony conviction.

[00:17:07] Speaker 04:
And it's true that no one puts violent...violence is not necessarily the theme of it, but I submit that's the exact reason they asked.

[00:17:15] Speaker 04:
The question about that specific prior is because

[00:17:18] Speaker 04:
I would submit in the minds of most Oklahoma jurors, marijuana is a nonviolent offense and especially being removed by 10 years, as opposed to actually 11 years by the time the trial happened, as opposed to, I believe it's six years for the felon in possession, does a couple of things.

[00:17:37] Speaker 04:
One, it demonstrates he's not a felon with 10 year old conviction, 10 year plus old conviction.

[00:17:42] Speaker 04:
He's actually a felon who has a much more recent conviction.

[00:17:45] Speaker 04:
And to the extent he didn't want the jurors to know about that, I submit that goes directly to his credibility.

[00:17:51] Speaker 04:
That's exacerbated by the comment he makes about, yes, but it's only marijuana.

[00:17:54] Speaker 04:
Because again, that is underscoring for the jury that his prior conviction is for something that I would submit they were asking it so that the jury wouldn't have to worry about it because it's a prior marijuana conviction.

[00:18:05] Speaker 04:
It also was asked very specifically of him, you have a felony conviction from 2012 for possession with intent to distribute marijuana.

[00:18:14] Speaker 04:
That brings up the second reason why the probative value of the felon in possession from 20, the later felon in possession prior becomes relevant.

[00:18:23] Speaker 04:
Because to get up there and ask that question, have that answer, say that it's only marijuana, that all implies two things.

[00:18:29] Speaker 04:
One, that it's a nonviolent marijuana and that it is the only one.

[00:18:33] Speaker 04:
Because he has stipulated he has a felony conviction and he's now been asked, you have a felony conviction from 2012 Oklahoma County.

[00:18:39] Speaker 02:
Could have asked generically, though.

[00:18:41] Speaker 02:
You had another felony conviction in year X and moved on, right?

[00:18:47] Speaker 04:
They could have.

[00:18:48] Speaker 04:
There are lots of ways to ask questions, but I would submit that trial counsel thinks about their questions in advance and asks them for specific reasons.

[00:18:55] Speaker 04:
And I think that reason is what I've already suggested, which is to imply that he only had one prior conviction and it was for a nonviolent.

[00:19:05] Speaker 04:
At best, that's a lie by omission, I would submit.

[00:19:09] Speaker 04:
At worst, it is actually trying to describe a situation where the person sitting before you is this nonviolent offender from 11 years ago, as opposed to someone who has this more recent prior.

[00:19:21] Speaker 04:
When we look at the second, certainly the first small factor I would submit, the impeachment value became pretty high based on what Mr. Jones said on the stand.

[00:19:28] Speaker 04:
The second factor having to do with timing, I think it's relevant to the question I believe Your Honor asked in Mr. Rose's portion.

[00:19:37] Speaker 04:
It is true.

[00:19:39] Speaker 04:
the possession with intent to distribute gives rise to the felon and possession of a firearm, which gives rise to the revocation of the possession with intent to distribute sentence.

[00:19:50] Speaker 04:
So while they are separated by a certain number of years, timing-wise, the possession with intent to distribute, he began serving that sentence October 1, 2014, finished it 2015.

[00:20:01] Speaker 04:
It was

[00:20:03] Speaker 04:
The probated portion of the possession with intent was revoked May 17th for the arrest on possession of a firearm, which led to further incarceration.

[00:20:13] Speaker 04:
So they are somewhat separated, but they are separated in large part by incarcerated time, both from the original possession with intent offense or from the original possession with intent.

[00:20:26] Speaker 04:
The third factor, the similar nature of the charge

[00:20:33] Speaker 04:
That is, it's obviously very similar in the fact that you have him on trial for a felon in possession of a firearm federal case and then you have the state prior for felon in possession of a firearm.

[00:20:43] Speaker 04:
However, I would submit to the court, the government's argument doesn't change all that much based on what that prior conviction was for.

[00:20:51] Speaker 04:
It would still be relevant and probative if it were any number of other crimes, both because it was more recent and because it demonstrates that he doesn't have simply one prior conviction.

[00:21:03] Speaker 04:
I would submit that the district court similarly changed.

[00:21:09] Speaker 04:
I mean, the district court makes the reference to, I will start where the motion in Lumine left off, but I don't understand what the... Mr. Rose, I think, points out that there's a murky balancing test being applied, but the district court pretty clearly in the bench conference, which is, again, put in the district court's lap pretty unexpectedly, rules that the probative value based on what Mr. Jones

[00:21:32] Speaker 04:
has testified to of the prior conviction for felony possession has increased over the prejudicial value of it.

[00:21:41] Speaker 04:
As this court has repeatedly said, district courts, when deciding this stuff, have very broad discretion.

[00:21:46] Speaker 04:
And I think it is noteworthy that the district judge, sitting through this entire trial, hearing how that evidence came out, hearing how Mr. Jones presented his answers and questions to the jury, used his broad discretion to say that, you know what, the balance has changed and the rule has changed.

[00:22:02] Speaker 04:
And in my assessment at that point, the district judge determined that the balance weighed in favor of admission.

[00:22:13] Speaker 04:
I would also point out that to the extent the concern with introducing that prior conviction has to do with the forbidden propensity, that's simply not what happened here.

[00:22:21] Speaker 04:
You had a jury, first of all, the government asked its two questions, one, whether you had the prior felon in possession conviction, and two, did you know you weren't supposed to have a gun.

[00:22:31] Speaker 04:
No further mention of it.

[00:22:32] Speaker 04:
Defense counsel doesn't talk about it in closing argument.

[00:22:34] Speaker 04:
Government doesn't talk about it in closing argument.

[00:22:37] Speaker 04:
The jury doesn't go back to the deliberation room and say, you know what, he's done it once before, he did it this time, and make a snap judgment that you would expect from a propensity determination.

[00:22:48] Speaker 04:
Rather, they chewed on it for several hours asking questions about the factual narrative that Mr. Jones had given on the stand.

[00:22:55] Speaker 04:
So clearly, they were doing the work of a jury in assessing the credibility of Mr. Jones.

[00:23:00] Speaker 04:
They were not taking the shortcut that one might expect if they believed the propensity rationale from that prior conviction.

[00:23:09] Speaker 04:
And even to the extent that there was some sort of error, I would submit it falls under the harmless error analysis per Gould.

[00:23:25] Speaker 04:
And for all those reasons, I don't think it had a substantial impact on the outcome of the case.

[00:23:30] Speaker 04:
The case, I would submit, was a powerful circumstantial case.

[00:23:34] Speaker 04:
You have a case unlike the Samora case that my friend referenced, you don't have a proximity issue.

[00:23:44] Speaker 04:
You have a case

[00:23:46] Speaker 04:
By his own admission, Mr. Jones is the one who leads police on this high-speed chase.

[00:23:50] Speaker 04:
He is the only one who jumps out of the car, leaving his passenger in the car.

[00:23:55] Speaker 04:
You have testimony from officers Reidner and Gang Nagle that no guns are found in the car or on the passenger.

[00:24:01] Speaker 04:
The only gun they find that night is the one laying a hand's width away from Mr. Jones on the ground.

[00:24:08] Speaker 04:
dry on a wet ground, even though both officers testify it had been raining.

[00:24:12] Speaker 04:
It was raining enough that one of them slipped when they're chasing him back into the fenced-in area, and yet the gun is laying there dry.

[00:24:19] Speaker 04:
It's also, as this court's observed, noteworthy that the only person who mentions a gun being at the scene is, in fact, Mr. Jones, and he tries to lay it off on the passenger.

[00:24:28] Speaker 04:
So I think that's compounded by the fact that the jury's several questions had nothing to do with the prior felon in possession to demonstrate that they had a lot to work with.

[00:24:38] Speaker 04:
and that there was a powerful circumstantial case such that I would submit that the admission of the prior felon in possession did not have a substantial impact on the outcome of this case.

[00:24:51] Speaker 02:
And for that reason, I would ask... Does the record reveal whether the district court admitted the conviction under 404B or 609?

[00:24:59] Speaker 02:
Can you tell?

[00:25:01] Speaker 04:
Yes.

[00:25:02] Speaker 04:
I don't believe the district court says, but I do think that the

[00:25:07] Speaker 04:
And I can't quote the district court as I stand here, but I believe that in that bench conference, first of all, the district court says, I'll start at the point the motion and limiting went off, left off.

[00:25:17] Speaker 04:
Then he thinks about it for a few minutes, and he comes back and says, I believe the situation has changed.

[00:25:22] Speaker 04:
And his ruling is that he, based on what was said, he finds the, I do have an actual quote somewhere, finds the probative value of the prior conviction and what it

[00:25:36] Speaker 04:
The situation changed.

[00:25:37] Speaker 04:
The probative value of what the 2017 conviction was for and a simple description of it outweighed the prejudicial effect.

[00:25:44] Speaker 02:
So which one was it?

[00:25:45] Speaker 04:
I would submit he was ruling under 609, which is also amplified by the fact that's the instruction he gives.

[00:25:52] Speaker 04:
Also, the vernacular of probative value outweighs the prejudicial effect.

[00:25:56] Speaker 04:
There's no substantial prejudicial effect or whatever the 404 language is.

[00:26:02] Speaker 04:
But certainly by the time we get to the instructions and he's instructing them on 609 impeachment as opposed to 404, I would submit it's obvious that he submitted it.

[00:26:11] Speaker 02:
So we shouldn't consider affirming under 404B?

[00:26:14] Speaker 04:
I don't believe so.

[00:26:15] Speaker 04:
I will submit I think the district court should have admitted under 404B in the first instance, but I do think his ruling was based on 609.

[00:26:23] Speaker 01:
So your argument in your brief about 404B, we should just set it aside?

[00:26:29] Speaker 01:
That's your primary argument.

[00:26:31] Speaker 04:
I would submit the primary, I talk about a lot about it because that is most of what the district court analyzed before, in pretrial.

[00:26:40] Speaker 01:
It's also what... But when you actually raise the issue with the district court, it's after he's testified about his convictions.

[00:26:49] Speaker 04:
Yes.

[00:26:49] Speaker 01:
Marijuana convictions.

[00:26:50] Speaker 04:
And admittedly, in that bench conference with the district court, it was less than clear which one we were proceeding on until the very end, in my opinion.

[00:26:57] Speaker 04:
404 occupied most of what the district court thought about the issue, but I do think their final his ultimate ruling was under 609.

[00:27:05] Speaker 02:
What help is the what additional help is the felon in possession conviction as far as attacking his credibility?

[00:27:16] Speaker 04:
I'll circle back to the fact that he has just told, in that context, he has just told the jury that I have one prior felony conviction from 11 years ago for possession with intent to distribute marijuana.

[00:27:27] Speaker 02:
Which was true, what he said.

[00:27:30] Speaker 04:
It is true.

[00:27:31] Speaker 04:
And it is a lie by omission in the sense that he is isolating it to one thing.

[00:27:34] Speaker 04:
And it is not true that he has a felony conviction, in my opinion.

[00:27:39] Speaker 02:
He answered what he got asked.

[00:27:42] Speaker 04:
He did.

[00:27:42] Speaker 04:
But I would submit to the court that

[00:27:45] Speaker 04:
the defendant and their defense attorney, they think about the questions that are being asked in the same way the prosecution thinks about the questions being asked.

[00:27:51] Speaker 04:
So I would submit that was a calculated risk that they took to ask him that particular question to get that response.

[00:27:57] Speaker 02:
Well, here's how I understand the credibility.

[00:27:59] Speaker 02:
The criminal conviction is

[00:28:03] Speaker 02:
for the jury to consider, oh, this person may not be someone who tells the truth.

[00:28:08] Speaker 02:
And so when he says that that wasn't his firearm, we should be even more skeptical because he's a convicted felon.

[00:28:16] Speaker 02:
And I don't see how that additional felony gives much of anything on that side of the equation as far as that firearm that's there.

[00:28:27] Speaker 04:
I would humbly suggest that in him testifying to that, and I know I've gone over time, but thank you.

[00:28:34] Speaker 04:
I would humbly suggest that him telling about that one prior conviction removed by all those years paints a certain picture of this person telling you the story to the jury.

[00:28:43] Speaker 04:
And it is relevant to the jury's determination and his credibility to know that in telling them that, he might not have been telling them the whole truth, and he might not have been telling them an accurate picture of the truth.

[00:28:53] Speaker 02:
He answered the question.

[00:28:55] Speaker 04:
He did.

[00:28:56] Speaker 04:
That is the heart and soul of

[00:28:58] Speaker 04:
evidence is but the evidence the jury had before it based on his answer to the question I would submit painted an inaccurate picture of him that allowed the prior felon in possession to become more probative to showing the jury that maybe he's not telling them the truth about his criminal history and maybe he's not telling them the truth about not possessing the gun.

[00:29:18] Speaker 03:
Thank you counsel.

[00:29:19] Speaker 03:
Mr. Rhodes you had some rebuttal.

[00:29:33] Speaker 00:
Thank you, Your Honor.

[00:29:33] Speaker 00:
Quickly, I want to go through some of these points.

[00:29:37] Speaker 00:
It's a lot.

[00:29:38] Speaker 00:
The government has now admitted it's under 609.

[00:29:41] Speaker 00:
That should be the only purpose.

[00:29:42] Speaker 00:
That helps me isolate a single issue rather than trying to argue this broad spectrum.

[00:29:47] Speaker 00:
So I want to get a couple points out.

[00:29:49] Speaker 00:
The government's brief on 609 is

[00:29:53] Speaker 00:
about two paragraphs of analysis, and it doesn't go through the smallest factors.

[00:29:57] Speaker 00:
He discusses them today, but it doesn't really go through with them.

[00:30:00] Speaker 00:
I think it just talks about the probative value and the prejudice.

[00:30:05] Speaker 00:
The government's argument throughout this entire process has been that Mr. Jones didn't paint himself in the correct

[00:30:14] Speaker 00:
picture by truthfully admitting to a prior.

[00:30:17] Speaker 00:
This prior could have been used for impeachment purposes and defense counsel's decision was to take the sting.

[00:30:23] Speaker 00:
But the most important point here is that the government is essentially asking this court to reverse the 609 standard to where it applies to them.

[00:30:33] Speaker 00:
They found it prejudicial

[00:30:35] Speaker 00:
that Mr. Jones didn't adopt the narrative they wanted, even though he told the truth, that they didn't admit to multiple priors, that they wanted to pick a 2012 prior versus a highly prejudicial 2017 prior.

[00:30:48] Speaker 00:
That is absurd.

[00:30:49] Speaker 00:
That is not on the defendant.

[00:30:51] Speaker 00:
The defendant has a duty and a right under the Constitution to present a fair trial.

[00:30:57] Speaker 00:
Now, he has to be truthful, which he was.

[00:30:59] Speaker 00:
But in no way does he have to adopt the government's narrative.

[00:31:03] Speaker 01:
Well, he was truthful, but he also

[00:31:05] Speaker 01:
arguably attempted to minimize the prior conviction.

[00:31:09] Speaker 01:
He's asked if it was a distribution of a controlled dangerous substance, correct?

[00:31:13] Speaker 01:
And he says, yes.

[00:31:14] Speaker 01:
But then he adds on, not to excuse it, but it's marijuana.

[00:31:18] Speaker 01:
There was that little extra line there to suggest that prior conviction was no big deal.

[00:31:26] Speaker 00:
Yes, Your Honor.

[00:31:27] Speaker 00:
And again, the defendant has the right to frame these issues.

[00:31:31] Speaker 00:
The government doesn't get to claim prejudice.

[00:31:33] Speaker 00:
But most importantly, that comment

[00:31:35] Speaker 00:
While marijuana may be culturally more acceptable than cocaine, Your Honor, I see I'm out of time.

[00:31:43] Speaker 00:
Rather than dealing cocaine and a jury might go, okay, well, yeah, that's a little better.

[00:31:48] Speaker 00:
It doesn't go to truthfulness, which is the only thing that can be considered under 609.

[00:31:52] Speaker 00:
It doesn't make the jury go, man, I believe this guy because he sold marijuana.

[00:31:58] Speaker 00:
Thank you, Your Honor.

[00:31:59] Speaker 00:
Thank you, Counsel.

[00:32:00] Speaker 00:
Counselor excused and the case is submitted.