[00:00:02] Speaker 03:
Our first case is 23-3128, United States versus Paterban.

[00:00:10] Speaker 03:
And Judge Hebel, would you give a little... Thank you.

[00:00:15] Speaker 04:
In this first case, a jury convicted the defendant, Portobin, of conspiring both to distribute methamphetamine and to possess methamphetamine for the purpose of distributing it.

[00:00:28] Speaker 04:
He was also convicted of kidnapping and using a firearm

[00:00:32] Speaker 04:
in furtherance of a drug-crapping crime.

[00:00:35] Speaker 04:
In this direct criminal appeal, Portovin asserts that the district court abused its discretion in admitting trial evidence of other methamphetamine deals that he hadn't been charged with.

[00:00:50] Speaker 04:
The challenged evidence consisted of several text messages unrelated to the charged conspiracy, but arranging additional

[00:01:02] Speaker 04:
methamphetamine transactions involving apparently portabine.

[00:01:06] Speaker 04:
The trial court admitted that evidence under a rule in America called Federal Rule of Evidence 404.

[00:01:15] Speaker 04:
That evidence generally allows the prosecutor to put on evidence of other crimes as long as they're not admissible for the purpose of proving a person's character, that is to show that the person is inclined to criminal behavior.

[00:01:32] Speaker 04:
But under that rule, evidence can be admitted for other purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, and lack of accident.

[00:01:49] Speaker 04:
So you can see there are a number of permitted purposes as well.

[00:01:53] Speaker 04:
The question in this case is whether the government introduced that communication of another crime

[00:02:01] Speaker 04:
for a permissible purpose or an impermissible purpose.

[00:02:07] Speaker 04:
Mr. Kumar?

[00:02:15] Speaker 06:
Good morning, Your Honors.

[00:02:16] Speaker 06:
May it please the Court, my name is Kevin Kumar, and I represent Mr. Pottervin in this appeal.

[00:02:23] Speaker 06:
The indicted events took place over the course of just three days, and then there are text messages

[00:02:30] Speaker 06:
three to five months later between Mr. Potterbent and an unknown person who has nothing to do with the underlying case.

[00:02:38] Speaker 06:
The government alleged that the text messages showed Mr. Potterbent engaging in other drug transactions and therefore was relevant here to show knowledge and intent of the underlying conspiracy.

[00:02:51] Speaker 06:
But there was never even an arrest, let alone a conviction relating to those other drug transactions.

[00:02:58] Speaker 06:
that took place over five, or up to five months after the charge conspiracy time frame.

[00:03:04] Speaker 01:
You don't contend that there's any problem with these acts being subsequent to the offense conduct, right?

[00:03:10] Speaker 06:
No.

[00:03:11] Speaker 06:
That's not what we're saying.

[00:03:13] Speaker 06:
It's more so that this has nothing to do with the, it is outside the time parameters of the underlying conspiracy.

[00:03:21] Speaker 06:
It's dealing with an unknown person who has not been identified.

[00:03:25] Speaker 06:
This doesn't relate to a conviction,

[00:03:28] Speaker 06:
or an arrest even.

[00:03:30] Speaker 01:
So there's... So is it not relevant?

[00:03:31] Speaker 01:
What is your position under Huddleston?

[00:03:33] Speaker 01:
What's your best argument for why there was error here?

[00:03:36] Speaker 06:
It's irrelevant and its probative value is substantially outweighed by the prejudicial value, if I were to sum it up.

[00:03:44] Speaker 06:
It's irrelevant because, again, it has nothing to do with the case.

[00:03:48] Speaker 06:
It has

[00:03:49] Speaker 06:
the person involved, other than Mr. Potterbent, is not even tied to the underlying conspiracy that's involved in this case.

[00:03:56] Speaker 01:
My concern here is that the irrelevance actually bolsters the harmlessness case, and you didn't address harmless error in your reply brief.

[00:04:03] Speaker 01:
Can you speak to why the government hasn't satisfied its burden on harmlessness?

[00:04:08] Speaker 06:
Well, our position is that

[00:04:13] Speaker 06:
Once that evidence got presented to the jury, we believe that it's sufficiently inflammatory.

[00:04:22] Speaker 06:
You can't unring the bell through the use of the jury instruction, limiting instruction.

[00:04:26] Speaker 06:
It was so unrelated to the underlying case.

[00:04:30] Speaker 06:
And also, the drug conspiracy that's involved in this case is not unique enough in relation to those text messages and those drug transactions.

[00:04:40] Speaker 06:
The government makes it a point to reference the ounce

[00:04:44] Speaker 06:
that was involved in the drug transaction.

[00:04:46] Speaker 06:
That's not unique enough.

[00:04:47] Speaker 06:
That's actually fairly common.

[00:04:49] Speaker 06:
And it was based purely on speculative evidence that's not relating to a charge or a conviction or an arrest.

[00:04:57] Speaker 06:
There was no lab testing done.

[00:04:59] Speaker 06:
It was purely text messages.

[00:05:01] Speaker 06:
And the government put on a witness on behalf of the FBI making speculative statements and interpreting what those text messages meant.

[00:05:11] Speaker 01:
How should we be thinking about the fact that this evidence was presented on the fifth day of trial and it was presented after other particularly damaging evidence for your client?

[00:05:24] Speaker 01:
How should we be thinking about that both in terms of error and harmlessness?

[00:05:27] Speaker 06:
Sure.

[00:05:27] Speaker 06:
I actually think that goes to the heart of why this is so harmful.

[00:05:32] Speaker 06:
Even after the fifth day, or until the fifth day, the government sought the need to introduce evidence that was very speculative, that was tangential, and it had nothing to do with the case.

[00:05:44] Speaker 06:
So it was a Hail Mary move on the government's part.

[00:05:48] Speaker 06:
And so that piece of evidence, those text messages, I believe led to the conviction.

[00:05:54] Speaker 04:
The government says it introduced that evidence to prove two permissible things, to prove knowledge,

[00:06:02] Speaker 04:
That is that this wasn't just unknown what this defendant was doing, and intent.

[00:06:07] Speaker 04:
He intended to do drugs on the charge defense.

[00:06:11] Speaker 04:
So my question to you and then to your other opponent is, was knowledge and intent put at issue?

[00:06:19] Speaker 04:
Did the defendant say, oh, I didn't know it was drugs, or I didn't intend to do drugs.

[00:06:26] Speaker 04:
I had some other intent.

[00:06:28] Speaker 04:
Were those two issues

[00:06:30] Speaker 04:
put at issue by the defendant in this case?

[00:06:32] Speaker 06:
Yes.

[00:06:33] Speaker 06:
They were.

[00:06:34] Speaker 06:
They were at issue.

[00:06:36] Speaker 06:
However, those text messages don't actually go to intent or knowledge, is our position.

[00:06:45] Speaker 01:
Why not?

[00:06:46] Speaker 06:
Because it was outside the time frame of the underlying conspiracy charge well beyond.

[00:06:54] Speaker 06:
Again, the conspiracy charge, the time frame was only three days.

[00:06:58] Speaker 06:
These text messages were three to five months later involving a person outside of the conspiracy completely.

[00:07:05] Speaker 06:
And again, the text messages and the drug transaction that's alleged to have taken place there is not unique enough.

[00:07:12] Speaker 06:
There's no unique characteristic that really ties in that subsequent drug transaction with the underlying case.

[00:07:20] Speaker 06:
And so it's really not relevant at all.

[00:07:23] Speaker 06:
And I think the probative value is substantially outweighed by the unfair prejudice as a result.

[00:07:28] Speaker 06:
So any discernible probative value, even if it is minimally relevant, which I will give you, I can say it is minimally relevant, but that minimal relevance is substantially outweighed by the unfair prejudice.

[00:07:41] Speaker 01:
So was the district court, and this is I guess in the pretrial ruling when the district court's considering the 404B objection,

[00:07:48] Speaker 01:
And she says, for sure it's not intrinsic to the conspiracy, but if there's a real issue about whether this defendant was supplying methamphetamine to the house and was somebody that dealt in certain weights, then this would be relevant to whether, in fact, he had the intent to distribute.

[00:08:01] Speaker 01:
Why is that wrong?

[00:08:05] Speaker 06:
Because the text messages, there was no proof offered that those text messages were even related to a drug transaction.

[00:08:13] Speaker 06:
a witness on behalf of the FBI put on interpreting the text messages.

[00:08:21] Speaker 03:
But they were interpreted by an expert familiar with conversations and drug deals.

[00:08:28] Speaker 03:
And the expert's testimony interpreting that conversation indicated that that conversation related to a drug transaction.

[00:08:40] Speaker 03:
So Mr. Piterban,

[00:08:43] Speaker 03:
at that time, a few months later, definitely knew it was drugs and intended to sell it.

[00:08:48] Speaker 03:
Isn't that the purpose of introducing that?

[00:08:51] Speaker 06:
That may be so.

[00:08:53] Speaker 06:
Again, I think it's purely speculative that it relates to a drug transaction, but even if it was expert testimony relating to their experience and based on their experience, yes, this is a drug transaction.

[00:09:06] Speaker 06:
That is not relevant to this case, even if he did engage with other drug transactions, because there was no scrutiny applied to those subsequent acts.

[00:09:19] Speaker 06:
There was no arrest, there was no lab testing, there was no conviction.

[00:09:24] Speaker 06:
You can bring in anyone then, and you can bring in my mom, and you can ask her about any acts that I've done, and it goes to propensity to commit the same crime over and over again, which is exactly what 401E disallows.

[00:09:38] Speaker 03:
Do you disagree that if, even after the transaction for which he's charged, if later there's a transaction that was

[00:09:51] Speaker 03:
The jury could find was a transaction in which the defendant intended to sell this drug.

[00:09:59] Speaker 03:
That reflects on a claim that a few months earlier, he didn't even know this was the drug and had no intent to sell it.

[00:10:09] Speaker 06:
I think if it was sufficiently similar, if it dealt with the same parties, if it was within a reasonable time frame, if the quantity of the meth was such a unique quantity and it was the same quantity, or if the price was the same price.

[00:10:28] Speaker 03:
Why not just show the fellow knew what methamphetamine was and was willing to sell it, was interested in selling it?

[00:10:36] Speaker 03:
Why is that not probative that

[00:10:40] Speaker 03:
to claim that the trial, the defense of the trial, that he didn't know it was methamphetamine and didn't intend, is not truthful.

[00:10:49] Speaker 06:
Well, again, I think it is probative.

[00:10:53] Speaker 06:
I think it is probative in a situation like you just highlighted, that hypothetical.

[00:10:58] Speaker 06:
But I would think that that would still be outweighed by the prejudicial value.

[00:11:03] Speaker 06:
Because that's other acts.

[00:11:05] Speaker 03:
It has to be substantially outweighed.

[00:11:07] Speaker 03:
Right.

[00:11:08] Speaker 03:
And we defer to the judge's determination of whether it's substantially outweighed.

[00:11:13] Speaker 03:
Correct.

[00:11:14] Speaker 03:
That's a heavy burden to reverse on that.

[00:11:18] Speaker 03:
So you're saying it was unreasonable.

[00:11:20] Speaker 03:
What you have to be saying is it was unreasonable for the judge to think that the prejudicial value did not substantially outweigh the probative value.

[00:11:31] Speaker 06:
Yes, Your Honor.

[00:11:32] Speaker 06:
That is our position.

[00:11:33] Speaker 06:
And again,

[00:11:35] Speaker 06:
As Your Honor has outlined, the evidence came in on the fifth day of trial.

[00:11:38] Speaker 06:
It wasn't sticking, and so they sought to introduce this evidence, and then that led to that conviction.

[00:11:45] Speaker 06:
I think it was highly inflammatory.

[00:11:47] Speaker 06:
The jury, in order to consider those subsequent acts, they had to consider it for the illegitimate purpose, for propensity, before we even get to intent or knowledge.

[00:11:58] Speaker 06:
I think that the fact that he engaged in other acts and that evidence being presented before the jury

[00:12:04] Speaker 06:
was a heavy odis on the jury, and I think that clouded their judgment.

[00:12:09] Speaker 01:
Can we go back to harmlessness?

[00:12:11] Speaker 06:
Sure.

[00:12:13] Speaker 01:
What is your best argument for why this evidence, we shouldn't be looking at this evidence as playing a minor role in the context of the entire case?

[00:12:22] Speaker 06:
If I were to sum it up, Your Honor, it would be that, again, it came in late in the case,

[00:12:29] Speaker 06:
The government relied on it.

[00:12:33] Speaker 06:
Otherwise... They didn't mention it in closing, right?

[00:12:35] Speaker 06:
They did not mention it in closing.

[00:12:36] Speaker 06:
That's correct.

[00:12:38] Speaker 04:
Why did you say the government relied on it when it was not used in closing argument at all?

[00:12:46] Speaker 06:
I actually think saying nothing in a situation like that speaks

[00:12:51] Speaker 06:
more volume, and it's higher volume, and it's more impactful than actually emphasizing the point.

[00:12:56] Speaker 04:
So it's damned if you do and damned if you don't.

[00:12:57] Speaker 04:
If you talk about it, you relied on it.

[00:12:59] Speaker 04:
If you don't talk about it all, that's proof you relied on it.

[00:13:02] Speaker 06:
Well, the evidence should not have come in, Your Honor.

[00:13:04] Speaker 06:
That's our position.

[00:13:06] Speaker 06:
I got your bottom line on that.

[00:13:09] Speaker 06:
But we believe that it was definitely a harmful error, and the district court erred in refusing to grant a new trial.

[00:13:19] Speaker 06:
So respectfully, we ask Your Honor to reverse and remand for a new trial.

[00:13:24] Speaker 06:
If you have any questions, I would like to reserve the remainder of my time.

[00:13:28] Speaker 06:
Thank you very much.

[00:13:29] Speaker 06:
Ms.

[00:13:32] Speaker 03:
Hardenwell Davis.

[00:13:41] Speaker 00:
Good morning.

[00:13:42] Speaker 00:
Natasha Harnwell Davis on behalf of the United States.

[00:13:44] Speaker 03:
Why don't you begin by giving your account of what this evidence was and what it shows.

[00:13:53] Speaker 00:
Sure.

[00:13:53] Speaker 00:
So the evidence was that Mr. Potterbin was... The evidence being challenged.

[00:13:59] Speaker 00:
Yes, the text messages, yes.

[00:14:01] Speaker 00:
So they were, Mr. Potter been using his phone to arrange drug deals about three to five months later in the same neighborhood for similar quantities of methamphetamine as the charge conduct.

[00:14:12] Speaker 03:
No, he doesn't say this is meth with this quantities.

[00:14:15] Speaker 03:
You need an expert to translate.

[00:14:19] Speaker 00:
Correct, Your Honor, and I think that actually goes to why this evidence was not as prejudicial, which is that it wasn't obvious to the jury that it was a drug deal.

[00:14:27] Speaker 00:
The agent had to interpret the fact that oranges meant methamphetamine.

[00:14:33] Speaker 00:
It certainly showed that Mr. Poderbin was very knowledgeable about drugs.

[00:14:36] Speaker 00:
He's discussing the quantity of supply, the pricing.

[00:14:40] Speaker 04:
Did he use the same slang or code words that were used in the charge defense as well?

[00:14:47] Speaker 00:
Not that we see.

[00:14:48] Speaker 00:
We don't have access to many of the messages.

[00:14:50] Speaker 00:
We don't see the coded language.

[00:14:52] Speaker 00:
The coded language simply goes more to the knowledge as opposed to the similarity.

[00:14:56] Speaker 01:
So what is the similarity?

[00:14:58] Speaker 01:
Because it seems that there isn't any similarity other than the same defendant.

[00:15:04] Speaker 00:
The similarity is he's dealing the same type of drug.

[00:15:07] Speaker 00:
Different quantities.

[00:15:08] Speaker 00:
Similar quantities.

[00:15:09] Speaker 00:
But different quantities.

[00:15:11] Speaker 01:
Substantially different quantities.

[00:15:13] Speaker 01:
What were the quantities?

[00:15:15] Speaker 00:
Well, so in the charge conduct, there's testimony that he was dealing an ounce to Mr. West via Mr. Carr.

[00:15:26] Speaker 00:
Here he's discussing dealing ounce quantities of methamphetamine.

[00:15:29] Speaker 00:
So you do have, I submit, similar quantities in the same neighborhood during a similar time frame.

[00:15:36] Speaker 00:
In this case, it's very- Later time frame.

[00:15:38] Speaker 00:
Later time frame, certainly, absolutely.

[00:15:39] Speaker 01:
And the individual with whom he was communicating has nothing to do with the underlying, with the charge defense, right?

[00:15:45] Speaker 00:
Correct, you're right.

[00:15:46] Speaker 00:
And I think that's a really important point in this case, which is that if this were evidence of the charge conspiracy or involved the same participants,

[00:15:53] Speaker 00:
we would be discussing this as intrinsic evidence.

[00:15:56] Speaker 00:
So that does not get this evidence, that does not resolve the question in this case.

[00:16:02] Speaker 00:
We're still in 404B, but if we were talking about the same David or the same conspiracy, which was actually charged much longer, it was a month, I think, March 2019 through April 19th.

[00:16:15] Speaker 00:
So it wasn't just the case.

[00:16:16] Speaker 01:
We're still outside the scope of what was charged, right?

[00:16:18] Speaker 00:
Absolutely.

[00:16:19] Speaker 00:
And if we, in the counterfactual world, we would be talking, excuse me,

[00:16:22] Speaker 00:
about intrinsic evidence.

[00:16:25] Speaker 01:
But we're not talking about intrinsic evidence.

[00:16:27] Speaker 01:
So doesn't the person with whom the defendant is communicating go to the lack of similarity that you need under Huddleston to establish a proper purpose and relevance and so forth?

[00:16:40] Speaker 00:
It was certainly a different person, but I think this case fits very comfortably in cases like Davis, like Tennyson, like Kelly, where you have the subsequent conduct occurring a year later in a different state.

[00:16:52] Speaker 00:
Here we have the conduct occurring much closer in time.

[00:16:55] Speaker 00:
We have in a similar neighborhood.

[00:16:58] Speaker 00:
So they talk about the Argentine neighborhood, which is where the trap house was located.

[00:17:03] Speaker 04:
How different were the quantities?

[00:17:06] Speaker 04:
You said they were similar.

[00:17:09] Speaker 04:
Tell me again what the two quantities were.

[00:17:12] Speaker 04:
What was the charge quantity?

[00:17:15] Speaker 00:
So for the charge conduct, during the course of the charge conspiracy, there's testimony that Mr. Poderbin was supplying an ounce of methamphetamine to Mr. Carr, to Mr. West.

[00:17:25] Speaker 04:
What was the quantity?

[00:17:27] Speaker 04:
One ounce.

[00:17:27] Speaker 04:
One ounce.

[00:17:28] Speaker 04:
And what was the quantity in the recording?

[00:17:32] Speaker 00:
It was, I think they discussed eight ounces in one of them, and G. David says he had only like four.

[00:17:40] Speaker 04:
Four ounces?

[00:17:42] Speaker 00:
So, and I should say that the government is not limited to that single one ounce.

[00:17:46] Speaker 00:
That is just an indication of the, like in that, in the transaction involving Carr and West that occurs about a week before the Traphouse incident, it was an ounce.

[00:17:55] Speaker 04:
So you don't believe it was introduced to show dramatically that this defendant was a really a big time mover of drugs because you don't think the quantities were

[00:18:07] Speaker 04:
different enough to try to get that message across to the jury?

[00:18:10] Speaker 00:
No, Your Honor.

[00:18:11] Speaker 00:
I don't think the government was trying to say, like, Mr. Poderbin was a large drug dealer.

[00:18:15] Speaker 00:
I do want to address three ways in which I think my friend has waived arguments in his reply brief.

[00:18:21] Speaker 00:
First is that he doesn't contest the adequacy of the jury instructions, so that's the fourth factor under the Huddleston analysis.

[00:18:28] Speaker 00:
Second, I don't think he can test that the court can resolve the Rule 404b analysis through, excuse me, resolve the Rule 33 analysis through Rule 404b.

[00:18:39] Speaker 00:
So this court could certainly join the first and the eighth circuits in kind of wrapping all of this up through Rule 404b.

[00:18:46] Speaker 00:
And I would also submit that my friend did not adequately address harmlessness in May.

[00:18:51] Speaker 00:
This court could certainly find that he has waived the harmlessness argument.

[00:18:55] Speaker 01:
Could we do that even though it's the government's burden?

[00:18:58] Speaker 00:
I think the failure to address it in the reply brief is a possibility of waiver.

[00:19:03] Speaker 00:
It's certainly not the only way of finding harmlessness in this case.

[00:19:06] Speaker 00:
You can certainly run through the merits and I'm happy to do that.

[00:19:09] Speaker 00:
I'm happy to do that now unless the court has more questions on the direct Huddleston factors.

[00:19:15] Speaker 01:
Well, I guess I'll pose the same question to you as I did to the opponent.

[00:19:19] Speaker 01:
I mean, it seems that precisely what makes this evidence potentially, the admission of this evidence potentially harmless is also what makes it totally irrelevant.

[00:19:28] Speaker 01:
How should we be thinking about this?

[00:19:30] Speaker 01:
It's introduced on the fifth day of trial.

[00:19:32] Speaker 01:
it just seems like the government did not need this evidence.

[00:19:35] Speaker 01:
Or, by contrast, maybe you really did need it.

[00:19:38] Speaker 01:
So could you help me sort of reconcile what I see as a tension?

[00:19:43] Speaker 00:
Sure.

[00:19:43] Speaker 00:
So this actually goes to a question that Judge Ebel asked, which is, did Mr. Potter been put intent and knowledge at issue?

[00:19:49] Speaker 00:
So first, following Old Chief, the government always bears the burden of improving the elements beyond a reasonable doubt.

[00:19:55] Speaker 00:
So the government

[00:19:56] Speaker 00:
regardless of what Mr. Poderbin said, had to show that his intent and knowledge were met in this case.

[00:20:02] Speaker 00:
Mr. Poderbin did specifically put his intent and knowledge at issue in this case.

[00:20:07] Speaker 00:
You can see that, I believe, 1388 of the record where the district court makes that finding.

[00:20:12] Speaker 04:
So when we're thinking about the... What did he say that put his intent and his knowledge at issue?

[00:20:20] Speaker 00:
The district court was saying that... No, not the district court.

[00:20:23] Speaker 04:
What did Poderbin say about that?

[00:20:25] Speaker 04:
What was his...

[00:20:27] Speaker 04:
not him personally, but what was his defense on those two topics of intent and knowledge?

[00:20:33] Speaker 00:
His defense essentially was like, I had nothing to do with it.

[00:20:36] Speaker 00:
I wasn't involved.

[00:20:37] Speaker 00:
I think over the course of trial, the government well established that he was present at the scene.

[00:20:41] Speaker 00:
So his defense had to become a little bit more, well, maybe I was there, but I didn't really know what was happening.

[00:20:47] Speaker 00:
So identity went away.

[00:20:48] Speaker 00:
Identity went away, yes.

[00:20:49] Speaker 00:
And so the district court made that finding and said, you know, I'm taking identity off the table.

[00:20:54] Speaker 00:
And so I think that demonstrates that the district court

[00:20:56] Speaker 00:
did not abuse its discretion.

[00:20:58] Speaker 00:
It was very thoughtful in how it considered this evidence.

[00:21:01] Speaker 00:
It waited to rule on the evidence.

[00:21:03] Speaker 00:
I do want to go back to your question about the difference between harmlessness and prejudice, which is those two are very distinct inquiries in that you're considering them at different points in time.

[00:21:15] Speaker 00:
So the district court is considering the prejudice at the time of admitting the evidence.

[00:21:21] Speaker 00:
And it's largely weighing the prejudicial value of the evidence against the probative value

[00:21:26] Speaker 00:
of the evidence in the context of trial kind of up to that point.

[00:21:30] Speaker 00:
So that's an inquiry both for the district court and it's occurring at a very particular point in time.

[00:21:35] Speaker 00:
When we're talking about harmlessness, that's a question for this court and this court has the benefit of seeing the entire trial play out.

[00:21:42] Speaker 00:
So even though oftentimes the answer either can seem intention or if it's not, if it's,

[00:21:51] Speaker 00:
not prejudicial, then why did the government need it?

[00:21:53] Speaker 00:
But those are going to different points in time for different courts.

[00:21:58] Speaker 00:
So when we're thinking about the prejudice, we're asking did the district court abuse its discretion?

[00:22:03] Speaker 00:
I submit that it did not do so here.

[00:22:05] Speaker 00:
And when we're talking about harmlessness, it's for this court to evaluate in the context of the entire trial, was this evidence particularly harmful?

[00:22:18] Speaker 00:
I would also point out that in cases like Veneno and cases like Radella, going to prejudice, I wanna put a marker in where I am in my argument, going to prejudice, those types of cases show that when the government is offering evidence that's of a similar emotional valence as the charge conduct, this court has said that the prejudice simply is not substantial.

[00:22:41] Speaker 00:
So when the jury is hearing incredibly disturbing evidence, as I heard in this case, and then later,

[00:22:47] Speaker 00:
fifth day of trial is hearing a agent interpret the text messages that are going to pretty generic bland drug deals, it's unlikely that the jury is going to have an emotional response or improperly find Mr. Potter been guilty.

[00:23:03] Speaker 04:
And the court gave a limiting instruction.

[00:23:06] Speaker 04:
Twice, Your Honor.

[00:23:07] Speaker 04:
Twice, actually.

[00:23:10] Speaker 04:
Was the first limiting instruction right after the evidence came in or was there a time delay there?

[00:23:17] Speaker 00:
I think it was actually before the evidence came in.

[00:23:19] Speaker 00:
So I think the district court said, you are about to hear evidence.

[00:23:22] Speaker 00:
It gave five paragraphs of instructions.

[00:23:25] Speaker 00:
It made it very clear that it was limiting this evidence to the conspiracy count and that the jury could not use it for propensity inference.

[00:23:31] Speaker 00:
I mentioned the conspiracy count in particular because in this reply brief, my friend indicates that it may have been offered for the kidnapping count, which is not correct.

[00:23:40] Speaker 00:
It was only offered for the conspiracy count.

[00:23:42] Speaker 00:
But then you can also look at page, I think it's 236 of the record to see the final jury instructions, which again tell the jury you can only consider this for the conspiracy, you can only consider it for non-propensity purposes.

[00:23:55] Speaker 00:
I would like to address harmlessness unless the court has further questions.

[00:23:59] Speaker 01:
I have one more question.

[00:24:01] Speaker 01:
How should we be thinking about the government's position that the text messages can't be unfairly prejudicial because the charge conduct in this case is so much more severe than what was in the text messages?

[00:24:15] Speaker 01:
This sort of relative severity, what is the basis of that argument?

[00:24:20] Speaker 01:
How should we be thinking about that?

[00:24:22] Speaker 00:
You can see that argument in this court's decisions like Benino and Radella, and I think what it's going to is what the Supreme Court talked about when it was talking about prejudice, is we don't want juries to simply convict a person because they think they're a bad person.

[00:24:36] Speaker 00:
And the fallout from that is that when the jury is hearing incredibly disturbing testimony, as they did in this case about the beating, the shooting, the stabbing, the jury is unlikely to then hear

[00:24:51] Speaker 00:
is unlikely to then feel this emotional sense that this is a really bad person when they're hearing the 404B evidence that's either of a similar nature or kind of a less emotional nature.

[00:25:02] Speaker 01:
So the relative severity is the text messages against other evidence.

[00:25:06] Speaker 01:
You're not comparing the charged conduct, the offense conduct itself.

[00:25:12] Speaker 01:
Correct.

[00:25:12] Speaker 01:
You're asking us to look at the, okay.

[00:25:14] Speaker 03:
Yeah, yeah, yeah.

[00:25:15] Speaker 03:
Because I understand what you're saying.

[00:25:16] Speaker 03:
The evidence of the crime itself

[00:25:20] Speaker 03:
would have made the jury think that the defendant's a bad person.

[00:25:23] Speaker 00:
Yes, that is what it boils down to, Your Honor.

[00:25:26] Speaker 00:
Going back to Judge Rossman's question, I think you can see that analysis play out in the Veneno case and the Radella case, where this court is comparing the offered direct evidence of the charge conduct compared to the rule 404b conduct.

[00:25:41] Speaker 00:
I see I have a few minutes left, so I'd like to address harmlessness.

[00:25:44] Speaker 00:
Certainly, harmlessness is the easiest way to decide this case.

[00:25:47] Speaker 00:
The government offered two theories of Mr. Potterbin's involvement.

[00:25:51] Speaker 00:
The first was that Mr. Potterbin was directly dealing drugs in this case.

[00:25:55] Speaker 00:
I want to highlight some of that evidence before I turn to the second theory.

[00:25:59] Speaker 00:
You have Mr. Potterbin's confession that he was dealing half pound quantities of methamphetamine, so that's certainly a larger amount than we have been talking about with ounces.

[00:26:10] Speaker 00:
You have Mr. West's testimony that Mr. Carr drove Mr. West to Mr. Potterbin's house to get the ounce of methamphetamine.

[00:26:18] Speaker 00:
You have the testimony that Mr. Potterbin pistol-whipped a person named Smurf approximately a week before the kidnapping.

[00:26:26] Speaker 00:
All of this is within the charge conduct.

[00:26:28] Speaker 00:
And you have that Mr. Potterbin needed the $500 to re-up that evening of April 18th.

[00:26:35] Speaker 00:
The government also had a second theory of this case, which is that Mr. Potterbin was involved in the kidnapping and torture as a way of enforcing a drug debt.

[00:26:43] Speaker 00:
You have his direct confession that he was beating the victim in this case for the principle of it, that it wasn't for the $500, but it was, quote, for the principle.

[00:26:54] Speaker 00:
You have Mr. Carr's statements to Ms.

[00:26:58] Speaker 00:
Vanini that you're stealing our money, we are going to take it out.

[00:27:03] Speaker 00:
You have Ms.

[00:27:03] Speaker 00:
Vanini hearing the second person in the background, and the government established that Mr. Poderban was present.

[00:27:08] Speaker 00:
And you have the victim's testimony that Mr. Poderban pistol-whipped him, beat him, wrapped his head in a t-shirt so that he would have a hard time breathing, beat him with a blunt object, tried to cut off his finger,

[00:27:22] Speaker 00:
Possibly, it sounds like there was something to do with his eyes possibly being glued shut.

[00:27:27] Speaker 01:
Is this all before the fifth day of trial?

[00:27:29] Speaker 00:
Yes.

[00:27:31] Speaker 00:
And then you also have the fact that Mr. Poderbin ordered Ms.

[00:27:34] Speaker 00:
Serna to stab the victim in the leg so that she would be just as guilty.

[00:27:40] Speaker 00:
The other thing that this court can look at to confirm its harmlessness analysis is that the jury did find Mr. Poderbin guilty of the kidnapping count.

[00:27:49] Speaker 00:
It also found Mr. Carr guilty of the very same conspiracy and a 924-C count, all of which indicates that the jury credited the witness's testimony.

[00:27:59] Speaker 00:
So unless this court has any further questions, I ask that it affirm.

[00:28:05] Speaker 00:
Thank you, Your Honor.

[00:28:09] Speaker 03:
Mr. Kumar, you have a couple minutes left.

[00:28:18] Speaker 06:
Thank you, Your Honors.

[00:28:19] Speaker 06:
I'd like to address just a few points that my colleague raised.

[00:28:24] Speaker 06:
The first is there was a mention of the subsequent drug transaction being a different buyer, and that's important because that shows that it's a separate conspiracy.

[00:28:33] Speaker 06:
Otherwise, it would be the same conspiracy.

[00:28:36] Speaker 06:
It can still be the same conspiracy, even if it was a separate buyer.

[00:28:40] Speaker 06:
If it shared a sufficient nexus to the underlying conspiracy, it could still be part of the underlying conspiracy.

[00:28:48] Speaker 06:
So the fact that it's a different person in the subsequent drug transaction I think is vitally important, along with the temporal distance between the underlying conspiracy and the subsequent conspiracy.

[00:29:03] Speaker 06:
My friend raised a number of cases and cited to them in the answering brief, including Davis, Kelly, Rodello, Veneno.

[00:29:12] Speaker 06:
All of those cases deal with convictions

[00:29:17] Speaker 06:
or arrests, or whether actual lab testing of the drugs.

[00:29:22] Speaker 06:
We do not have that here.

[00:29:24] Speaker 06:
We just have text messages that were testified on behalf of a FBI witness that was, and the text message related to a drug transaction involving a person has nothing to do with the underlying case.

[00:29:40] Speaker 06:
The government couldn't cite to a single case where the subsequent or other act related to an uncharged crime or a crime that did not involve lab testing or an arrest.

[00:29:52] Speaker 06:
And just to be clear, with respect to Huddleston, our position is that the evidence fails prongs two and three.

[00:29:59] Speaker 06:
That it's irrelevant and that it's probative value, if any, is substantially outweighed by unfair prejudice.

[00:30:09] Speaker 06:
As far as the harmless error rule, we did not waive it.

[00:30:13] Speaker 06:
We raised it in our opening brief.

[00:30:14] Speaker 06:
I did raise it in my reply as well.

[00:30:17] Speaker 06:
And I can go into that.

[00:30:19] Speaker 06:
The practical reality is if Mr. Potterman were found to have been involved in the underlying drug transaction or kidnapping, then the elements of intent and knowledge, which is the government's purported basis for getting the evidence in, were really no issue at all.

[00:30:40] Speaker 05:
if the government had a strong case on the intent issue.

[00:30:44] Speaker 05:
I'm sorry?

[00:30:45] Speaker 03:
But you're basing that on the verdict.

[00:30:48] Speaker 03:
And the prosecution doesn't know what the jury's going to believe yet.

[00:30:53] Speaker 06:
Well, my colleague outlined a number of pieces of evidence allegedly tying Mr. Potterman to the case.

[00:31:01] Speaker 06:
And so the evidence was strong, right?

[00:31:04] Speaker 06:
So then why let this other evidence in, or why seek the evidence in,

[00:31:09] Speaker 06:
if the evidence was so substantial and so weighty and so strong and so convincing.

[00:31:14] Speaker 06:
It wasn't.

[00:31:15] Speaker 06:
It was this evidence that had nothing to do with the case that convicted Mr. Potterman.

[00:31:22] Speaker 06:
The government had inconsistent and limited direct evidence tying Mr. Potterman involved in the case and I think that's why that they sought to get the evidence in and that impassioned the jury to convict Mr. Potterman on all accounts.

[00:31:36] Speaker 06:
And an unbalancing test should not have been allowed in the first place.

[00:31:42] Speaker 06:
I would like to also highlight that the district court was thoughtful in evaluating the prejudice aspect of the evidence.

[00:31:49] Speaker 06:
However, and the district court acknowledges that the evidence was prejudicial, but did not actually go on to state or analyze whether the prejudice was unfair.

[00:32:00] Speaker 05:
And that's in the transcript.

[00:32:02] Speaker 05:
Your time has expired, so wrap up very quickly.

[00:32:05] Speaker 05:
I'm sorry?

[00:32:06] Speaker 05:
Your time's expired.

[00:32:07] Speaker 05:
May I provide the site?

[00:32:09] Speaker 05:
Very quickly.

[00:32:11] Speaker 05:
Okay.

[00:32:13] Speaker 05:
That citation is... Sorry.

[00:32:21] Speaker 03:
Do you want to do that in a 20HA letter?

[00:32:28] Speaker 03:
Why don't you do it that way?

[00:32:30] Speaker 03:
Just give us the 20HA.

[00:32:32] Speaker 03:
Okay, we'll do that.

[00:32:33] Speaker 02:
Thank you.

[00:32:34] Speaker 02:
You were just wanting to get the citation, right?

[00:32:37] Speaker 02:
Yes, I just wanted the citation.

[00:32:38] Speaker 02:
Okay, we'll do it.

[00:32:39] Speaker 03:
That's good, but we don't need that this instance.

[00:32:41] Speaker 02:
Okay, thank you so much.

[00:32:45] Speaker 02:
Cases submitted.

[00:32:46] Speaker 02:
Let's see, counsel.