cases one hundred and thirty five thousand one hundred and fifty five thousand six hundred and eighty five and five thousand nine hundred and seven united states of america versus demetrius fields clinton lewis and martin lewis argument not to exceed thirty minutes to be shared by appellants and thirty minutes to be shared by appellees messers stengel mcafee and simmons for opponents good morning your honors mike stengel of the memphis bar here on behalf of demetrius fields he wants the sentencing challenged this is the sentencing challenge great and very simply the current law of this circuit is fairly clear that you look to the plea agreement to determine whether the united states reserve sole discretion on whether to it make it 5k1 or not okay so we have that we have that well i think that that's the issue is whether we have that or not sorry it is i would suggest from reading this court's cases that it's not always easy to determine whether you have that and what's very unique in mr fields situation is that there was a stipulation that mr fields provided substantial assistance to the united states which the district court ultimately at sentencing described as extraordinary and the united states the prosecutor agreed that was a fair description it's mr fields position that once the government stipulated that he had provided substantial assistance that they had an obligation in good faith to either make the motion or prove by a preponderance that there was a breach of the plea agreement well you know this plea agreement bears discretion it didn't say shall or will like we had in lewis case isn't that right that's correct so you know it was always understood that the government had discretion as well as to file a 5k but he got the benefits of the 5k anyway so i'm kind of from a district court judge's perspective i'm wondering what's the point i would disagree that he got the benefits of the 5k didn't the judge say that the cost of this extraordinary cooperation i will depart down to fifty bearing down instead of giving him life imprisonment he did vary downward from the okay so that's what the 5k would've done the 5k didn't bind the judge to whatever the government recommended by paper just give the judge a basis to depart that one that's correct is this a distinction between the word bearing and depart is that what this all comes down to is this a distinction without a difference is that what this comes down to this court may well conclude that mr fields would disagree in part wouldn't you say that it's harmless air to not get a departure to which you're entitled but instead get bearance in the same amount that would be condescending in other words i'll even bring to you to you that it's an error the terms mean different things and they come at different times in the calculation but wouldn't we almost say communist not under the facts of this case in most cases i would say that they would but in this case the plea agreement provided that the government would make a specific sentencing recommendation as to a cap if it made the 5k1 and this was a situation where the court on two occasions knowing there was no 5k1 and finding the court determined that the only reason there was no 5k1 was because of this government's conclusion that there had been continued criminal conduct this gets to the same place it's like one person taking the bus from cincinnati to columbus to get there at four o'clock another person taking you know a car that gets to columbus at four o'clock you took different vehicles but you got to the same place at the same time i'm still struggling with what the issue is here cause he got what he wanted anyway and the government was not required to give him a 5k it was not show me where in the record where in the agreement the government was required to give the 5k mandatory language there is not mandatory language in the plea bargain in fact it says that the government need not aren't those the words um need not file for substantial assistance on the grounds for substantial assistance whatever it's presumed reasonable this sentence is it not it is presumed reasonable right it is good lowguideline sentence presumed reasonable so you're the steep hill that you have declined here today obviously the one that judge marbley's focused upon but we have to overcome the presumption it is a it's a sentence that's lowguidance it is conceitedly both a steep and a high field for mr fields to climb however it's impossible i need to climb over mount everest in the snow i don't i don't make the call however i would simply suggest that with respect to traveling to cincinnati by bus or by plane the only thing that i can say is without the 5k1 and without the government's recommendation which was required in the plea agreement if the 5k1 was met and the judge's two or three times soliciting by recommendation for sentencing from the government that without the 5k1 we cannot determine that we both that mr fields arrived that the judge arrived at the exact same sentence we could also say that without the drug dealing from prison you'd get a different result too well the mr pierce the government made that point explicitly clear but again mr fields's problem is that there was no real establishment of that in the courtroom and indeed that was something that bothered the government i want to go back for a moment a point that you made about you know maybe he gets a different sentence if the 5k is made didn't the government decline to recommend a sentence during the plea yes on more than one occasion all right so is it even if the government had moved for a 5k sometimes they'll make a move for a 5k and not suggest the extent to which varies so wouldn't we be in essentially the same position once again even with the 5k made that the government has yet to position that it was not going to recommend a particular sentence no because this the 5k potential 5k language in this plea agreement specifically stated that if the government moved for a 5k it would recommend a sentence of twenty years or less and so there would have been a recommendation and again that's one of the unique situations about this okay thank you mr stengel you ate your full rebuttal thank you if it please the court my name is marty mcafee and i'm with the memphis bar i represent martin lewis in this case not clinton lewis in this case we've gotta keep em straight i had asked the jury to do that throughout the six twelve week trial this was a very unique case twenty eight days of testimony seventy five witnesses three hundred and fifteen exhibits the government portrayed this as a vast conspiracy respectfully it's just it's more likely that this was this was more likely meeting concentric conspiracies that the government would have to prove and when you look at all the testimony regarding martin lewis you find just weeks and weeks and weeks where there's no testimony martin lewis did this or did that or was involved or was there or was guarding or saw it was delivering dealing any of that essentially the case against martin lewis when it comes to real witnesses and facts regarding one of the several murders involved is this is a buildup to the motion is that your point or where are you going with this it goes towards both the severance it goes towards the variance from the okay well on the severance you know i i will say i thinking about this case that we did have this point where there was a stage where i was saying to myself it really does seem prejudicial to have these cases altogether thank you but then i but then i thought i can use the word stage and then i thought to myself but wait this is a conspiracy case and how funny that seems i mean if you if the alley if there's enough to have an indictment that there was an agreement to do criminal business with somebody i don't know why shouldn't you be tracked together i mean i realize that conspiracies have bigger players and smaller players and i get that but it's still a conspiracy how strange to have separate trials when there's well one conspiracy or one set of conspiracies among a bunch of the same people it's the set of conspiracies that gets it gets terrible when you prove for ten days that mr capone did this and for another ten days that that this gangster did that and another ten days that this gangster did that and then you spend hours proving that martin lewis was involved in this farflung the reason that's not so bad is all you have to do to get out from under coresponsibilities is say i never entered the agreement he never entered the agreement if you do that everything's irrelevant but if you did enter the agreement then the bad consequences seem naturally to follow well and honestly i had allotted at least in my planning to spend perhaps fourteen or fifteen seconds on severance okay i'm sorry i just want to let you know i had a good thought for you for a little while well you still can and you spend five more seconds on whether or not sure the government is correct that your severance argument receives only plain error review in such as that was not really okay well it was brought up i understand but it wasn't countless countless countless times pretrial it was brought up not renewed over and over during the trial and it was not renewed at that so i do think i'm stuck with that okay so here we go but just on severance and say this the only way we get to your but then i thought about this is if you believe the witnesses they put on which is why brady matters so much here and it's why the perjured testimony matters so much here because that's really the only way we really have a trial the bedrock that the whole system rests upon okay so perjured testimony i mean i don't know i felt like that had a really great caption but then when you read it you realized your theory of perjured testimony is the government's putting on witnesses and i guess it probably does count as perjured testimony if they're both saying opposite things but what you had was the only time they were saying opposites was as immaterial points points in the story that really didn't go to whether someone murdered somebody else at someone's directions they went to whether someone was in the car at that point in time well when you i'm going to respectfully disagree on that and i think if you and i'm going to tell you this is a sea of information i mean this is a record to tackle and for y'all to get to the well give us the one that really counts as perjury and they'll respond okay i'll do my best with this most of the really good variances that matter for me for martin lewis's case the government can't make it without marcus brandon they can't make it without terry peete they can't make it without carlos whitelow because their testimony is essentially that carlos whitelow sees mario mcneal says he's over here and he waits in a certain place until martin lewis is directed driven over and kills mario mcneal driven over by terry peete and then confesses about his actions to marcus brandon now you're going to see the theme of those three names brandon peete and clinton lewis over and over in the testimony regarding marcus term now that is a separate murder in the government's best conspiracy theory but when you look at when you break down what those three really what all those witnesses around that murder had to say they're not consistent and clearly the government knew about that prior to trial the investigation this is inconsistency the equivalent of falsity when to equate to perjury when you when one person says he left with marcus brandon terry peete and clinton lewis and we never saw him again and that saved those two people that are in the car other than clinton lewis marcus brandon and terry peete say no he left with other people and i never saw him again and the government has that information well ahead of time and they know about it and they've got em written down and one's saying north i'm certain north and one's swearin south i'm certain south that is not just an inconsistency an inconsistency is where did i leave those keys was it in my blue suit or was it in the tan suit that's an inconsistency there was a murder to explain here well which one i mean turn around i suppose you're focused on turn around i'm looking back well that is that's right but when you look at all of the different testimony on this first you have to look at marcus brandon because the government withheld information until after marcus ran and had testified they had a dea six where one of their witnesses temarcus cartwright said that wasn't this the that was acquittal yes it was okay well i didn't represent clinton lewis clinton lewis was acquitted of that and yet he was convicted by the jury verdict with the conspiracy behavior surrounding that so those are inconsistent too but regardless of that yes it had to do with a murder that martin lewis was not even accused of but these are all witnesses that are shared among this murder and this murder and this murder and when you can show to a jury inconsistencies and you are entitled to do that before we should honor this jury verdict you can't say well there's an acquittal on this or but mr mcafee martin lewis was convicted of that didn't the jury take that away from here weren't you given a chance to put the witness back on the stand yes sir after yes sir we were and that mitigates this but it doesn't give us back our opening statement the credibility that we need before a jury when we're going into a trial trying to guide the jury through six and a half weeks of testimony a lot of which we should know was coming they set up the practical matter if you might have a stronger case if clinton lewis had been found guilty of the murder because really if you going to give an opening statement for what you know will be a six week trial are you going to deal with such minutia way as to say well mr jones here will be in seven times when he went on crossexamination you aren't going to tip your hand like that you're just going to say ladies and gentlemen evaluate the credibility of the witnesses you're gonna throw a teaser out there at least in the traditional opening sentence i couldn't do that because i was told over and over pretrial you'd been given the you've got we were told over and over prior to the trial we've turned over all brady we know what brady means and we will continue to follow that obligation and yet for three and a half months that the change in temarcus cartwright's its version of the mr mcafee have you ever gotten jencks material yes sir and you've done opening statements without having been given jencks material before trial right but but i can't get jencks material after a witness that i want to crossexamine no we're talking about opening statement and you don't know what's in the jencks material that's correct so it's not my you know this is kind of to the brady situation right it is so and since there was no actual harm or at least no harm that you pointed out thus far when you were given the brady material and you were given the opportunity to cure what's the prejudice we were prevented from curing it by not being allowed to put on detective mackenzie who could say we had probable cause to indict marcus brandon terry peete and clinton lewis we did indict them in mississippi and the government said because wouldn't that be speculative he's speculating as to what a grand jury would have done he could say that they were indicted and the reason that that's important is that it's yet another obligation that these witnesses owed to the government because the united states government went down to mississippi and said let them go we'll take care them and mississippi thought that what they meant was we will prosecute them but what they meant was we will take care of them and they did take care of them and the jury was entitled to know that they took care of them in that way because if you can say mr mcafee if you will say abc and d and of course i can't prove that they said that and i don't think that they said that but i will say this you take away the murder diamond that's between me and all of eternity i'm your man and that was our theory during this trial and we were entitled to exploit it in every single way we could and he's the only witness who could have testified to that that you were from calling except we well there was also billy ray miles we were limited on that but frankly we did it anyway and once i looked at the record i admit the government's right that there's not much prejudice there i just didn't want to concede it because i don't want you to ignore it because the government did appose what was clearly relevant across okay thank you two seconds i better stop there we're not going through this we've got rebuttals yes sir mr simmons thank you your honor my name is jim simmons i'm from the national bar i was involved with this case initially pretrial and then for medical reasons i had to leave before the trial started now representing clinton lewis on the appeal and i was listening to the argument and why is this case different and i think there's something that makes this case different from your typical conspiracy case in that it's a statement made by marcus brandon it said on crossexamination why do ten when you can do a three that's what his father told him that's what he admitted to on crossexamination and that's the mindset of the vast majority of these witnesses because this case was based almost entirely on cooperating witnesses there was no dna there are limited phone taps is this an efficiency point you're making no your honor it's a mindset it's a mindset of all of these witnesses there's nothing improper about it that's how conspiracies are tried right at least in my book how they are i think in this case it's different because usually the conspiracies are tried with cooperating witnesses plus in this case there's very little plus there's an incentive for the witnesses to testify based upon their expectations of 5ks and they admitted it and they were thoroughly crossexamined as to their expectation of receiving some benefit for their testimony and the fact that they've crossexamined a lot of them cause then the jury has an opportunity to evaluate whether they trust their testimony right that's correct but i'm going to go back this case is i'm arguing he went to bear because i don't think you can take each individual issue and raise and say that's reversible error but if you take the issue of the perjured testimony you say is it inconsistent or is it perjury i'm a little suspicious of the what do you mean by that do you mean that you could have something counts as reversible on a scale of one to ten when it's nine or over you're saying we just get a bunch of 7s we had four seven arguments and that gets you cumulative air even though none of them rose to nine or ten that is my understanding of the law your honor is that you can have a series of errors and among themselves individually do not amount for much of a error but taking them as a whole in the aggregate you did not have a fair trial that's exactly the so do you have to own not to be errors yes if it's not error then it's not going to be a cumulative error yeah i think that the government points that out and i think that's logical so a difficult harmlessness argument gets a little easier the more i okay yep yep the brady violation i'd like to go back to that because this is again it's the sequence of events where mr cartwright was interviewed back in june of eight according to the government he said he gave a gun traded a gun with clinton lewis he made arrangements for that gun then to be put in the hands of law enforcement the gun was in fact the murder weapon and then he reinterviewed prior to trial in december january and again in february and he says no i did not trade that gun with clinton lewis i traded that gun with mr brandon and that isn't like doesn't he say clinton lewis was there pardon me doesn't he say clinton lewis was there in other words even when he changes his testimony it's not completely exculpated according to mr cartwright he did not change his testimony cartwright said i did not say that to the agent the agents say he did so who do you believe i'm just saying the final version is still one that's not completely exculpated that is not the way i read the record because what he said is that it was mr brandon who had the gun that was trading with mr cartwright it was not mr lewis's gun it was the murderer weapon so yes i think he is saying that clinton lewis was not involved in that gun and the logical sequence is that gun whoever traded the gun was also the one who committed the murder which it doesn't say clinton lewis was there during the exchange yes okay and weren't you after the well you know it was delayed and the government is going to have to answer for that weren't you given the opportunity to recross both brandon and detective and we're getting the opportunity here and you opted not to do so and then opted not to do so okay i think that was the decision of the trial council which would they could could take it back and do an effective crossexamination weren't you give an opportunity to also didn't you get a chance to crossexamine cartwright once you got the new brady stuff cartwright was called as a witness but not clinton lewis okay and at the conclusion of the government proof the government did not call on mr cartwright he was called by mr lewis so the prejudice in here is the delay itself you ultimately got the brady materials and you were able to crossexamine cartwright or examine cartwright and you were given the opportunity to crossexamine brandon and detective jordan which is the same thing you would have been able to do had you gotten the brady material right you wouldn't have had the opportunity but i think to effectively crossexamine them after he has already been crossexamined and a direct examination of the brady material yeah she did so we had the opportunity but our position is it would not have had the same effect with the jury so mr chairman says keep your red lights on but i think i wanted to give you guys some flexibility so you probably have five more minutes would that be all right sure sure okay then okay go ahead the point that judge cook brought up about in fact the turner murder of mr lewis was acquitted out the point is he was convicted of kidnapping that resulted in murder and that got into the life sentence so it was the events at the kidnapping where we have the conflicting testimony what i think is credible to this is the acquittal the argument would have certainly been stronger as to the perjure testimony had he been convicted but frankly he wasn't convicted but it shows that the jury considered this the jury considered mr brandon's false testimony inconsistent testimony but brandon was the key witness in this case and through this entire three eight week trial brandon was the childhood person childhood buddy they ran together they did everything together with clinton lewis he is the critical witness against clinton lewis he had a deal his why do ten when you do a friend i mean that's his mindset that's the mindset of everybody but what's critical is the conflicting testimony that you had at the time of the abduction you had martin brandon's you had clarence broady quite a lot of also in version of the offense that you sit there and not reconcile with somebody in every detail this is what's tricky about this i mean you can have lots of perception issues where you don't remember this one feature or that the other person remembers that feature but if it doesn't go to the heart of it that's wrong right it does get to the heart of it because these are not misperceptions in details give us the biggest one he was naked he was bloody he was put into the back of a van and mr brandon was present he participated and mr brandon says i slapped him and i never saw him again the testimony was he was in arkansas and gettin back to the possession of mr brandon mr brandon cannot be telling the truth when he says i had nothing else to do with it somebody is lying to me somebody is it's not a mistake it's not a misperception it is somebody is lying and the government in this case offering 5ks to everybody is in fact for the credibility of each of these witnesses okay is there anything else you want to say the seventh issue again it was plain error we're not conceding that buddy and the transcript of this trial and proceedings i think over and over again you were saying the adversity between clinton lewis and martin lewis counsel and the two examples is mr whitelow was recalled after he had been examined by the government did not raise any issues pertaining to mr lewis he was crossexamined by mr lewis counsel who clinton lewis counsel who raised no issue regarding the abduction then he was crossexamined by martin lewis counsel who at that point raised issue of the abduction and then the court allowed the proof to be reopened and proof put in which would not have come in in a separate trial as to clinton lewis and his culpability in the abduction and the murder and the other is again after the close of all approved was called by counsel for martin lewis who again talked about clinton lewis participation in the abduction and the government asked only i think three questions are you sure that it was clinton lewis who abducted mr turner and that was the sole crossexamination i think the undue prejudice by the failure to bring up and we want that issue to be considered okay thank you thank you judge we'll hear from the government is it one of you or both of you or both of you both of us your honor may it please the court dave lieberman for the united states and joined at council table by assisting united state's attorney david pritchard i will be addressing the things related to the two lewis defendants mr pritchard will be addressing the sentencing claim by demetrius fields let me start off first with judge marbley's invitation to address the brady this relates to the pretrial statement of temarcus cartwright and the defense argues that our disclosure was unduly delayed in of brady as we said at the outset of our brief that as a matter of our own expectations and our own policy we should have disclosed sooner and we've been completely candid at the court the question in this case is did our midtrial disclosure violate the standards of brady and the answer is no brady requires disclosure at a time for which the defendants can make effective use of the evidence at trial and this loop here is one of my concerns about the timing of the disclosure the defense did not have those disclosures pretrial which they should have had these are not jencks material these are bradys yeah we are here and so you know in pretrials i think by all accounts are critical period because you prepare you know most of the persuasion is done or a great deal of it's done in opening statements they could have used these materials in the preparation of their opening why was this not disclosed so you are i encourage the court to take a look at the transcript of the brady hearing that's document one thousand three hundred and sixty okay and our trial team lays out in full its explanation number one they had initially planned to call cartwright to the stand number two they thought that his pretrial statements were covered by jencks can i stop you on the first point yes is that right that that's an explanation you're going to put someone on the stand why i understand why that helps you so you know what the trial team is looking at where a series of cases that this court has issued presser banks and the one discussed below is an unpublished decision called brazil where this court has said that where a statement falls under the jencks act and where the government intends to call that witness at trial the timing of the disclosure is defined by the jencks act now we didn't call cartwright to the stand and nothing in my brief and nothing in my argument today is relying on the jencks stand it's only brady and the brady asks going back to judge marbley's initial question did we disclose in time for the defense to make effective use of this at trial now on the point of crafting opening and closing arguments this court in says well when we're looking at brady prejudice and materiality we're looking at issues of guilt or innocence not matters of trial strategy but setting that point aside so just i'm at a really simple place okay i can't get off of it i just it seems really obvious to me if it's blatant material that would otherwise help the other side why is it at all irrelevant when you're going to call that person as a witness they need that crossexamination and everything else i agree it just doesn't make any sense to me i agree your honor the explanation that our trial team gave was based on statements that this court had made in presser and banks and brazil were there was no prejudice because something else happened i really said well if you're calling the witness it doesn't matter and that just doesn't make any sense to me so i needed to crossexamine the witness so the the statement in banks was if it's covered by the jencks act jencks act overrides brady with respect to the timing of the disclosure well then i'm throwing it out which is why i'm not at all relying on those cases and not adopting the arguments in those cases i'm we said this all are prejudice i just would've thought this is a prejudice issue not a there was no brady problem we should no your honor these tests of radius did we disclose in time for the defendant to make effective use of the trial that's the question of whether a brady violation occurred that's the test of brady and the requirements of brady don't ever set under your paradigm because brady is pretrial disclosure and they filed a brady motion you were under an obligation not only to disclose to them but to disclose at but i guess you could argue that but with disclosure is not related to government trial tactical strategy it means when you discovery if you don't have it when it's asked for but you later come into possession of it that's disclosure you had it when they asked for it you made a tactical decision not to disclose it because it gave you a benefit to disclose it later at the jencks and you withheld it so what do we do when you do something like that your honor to discourage you from doing it again because i know that you know it's the legal move i know that you know that that was wrong and that's why we can get candid with the court at the outset that this should have been disclosed earlier the situation and i could be misremembering but the situation that we have here is actually very similar to the facts in banks i believe in that case there was a pretrial statement given by one of the government's witnesses saying that he did not remember the defendant being involved in the drug deal and that's where the entire line of arguments that our trial team was relying on came out of the banks case i am not relying on those arguments here the question under and i know we're engaging can i just ask you something that why can't tell me what is wrong with this way of thinking about the case we do not need to address whether it was a varied violation from finding the prejudice i completely agree with that so why i mean it sounds like you're asking us to split a lot of hairs and lines that i'm not aren't intuitive to me and the other part of it seems incredibly easy i was trying to address i think no no i'm not i'm not complaining i'm just i'm putting a question i get my question my question is why am i bothered with why should i bother with this when i have a prejudice inquiry as well you don't have to bother with it you can focus entirely on the materiality to resolve the disputes here materiality being the defendants must show a reasonable probability that had we disclosed this sooner the results of the proceeding would have been different right and i have not heard any fact any argument any piece of evidence or testimony that was not presented to the jury as a result of our midtrial disclosure and i have not heard any argument winking any of the counts of conviction that either of these defendants faced to cartwright's statement i'll walk through both of the defendants one by one martin lewis cartwright's statement addressed the forty five caliber handgun used to kill turner martin lewis was not in any way inculpated in that episode we didn't charge him with that or allege that he participated in that so the statement is unquestionably irrelevant to the jury's assessment of his culpability and clinton lewis this was one of the members of the panel brought up earlier this statement or directly on count three the murder of turner in a direct hearing and the jury acquitted on that i think at this stage on appeal it's up to the other side to come clean yes i agree wholeheartedly with what judge sutton just said yes and i agree with your analysis i have a different concern however i don't want to see us eviscerate brady with death by a thousand cuts so yeah because the court the district court was sage enough to kind of remedy the mistake that you created by this late brady disclosure and so as a district judge i and i think as a court of appeal we have an interest in brady not being eviscerated so how what can we do to ensure that this doesn't happen again your honor when you're completely free to repeat the government's concession here that we should have disclosed this earlier and that in that our failure to do so while regrettable did not violate brady in terms of all the analysis including the materiality analysis we have been very forthright that this was exculpatory and that we should have disclosed pretrial and i'm not sure what more i can offer you i can also say that this is something that the department and the us attorney in this case treats very seriously and the us attorney has individually addressed this episode with members of the trial team i'm satisfied with thank you you may move on to another issue okay thank you your honor if i could move on to the claim that the government presented perjured testimony counseled by a friend on the other side for clinton lewis focused on the testimony related to the turner kidnapping the government had two main witnesses clarence broady and demetrius fields which walked through each step of how turner was abducted from the streets of memphis driven around for two days in the van and then dropped off at a stash house and was later killed both broady and fields implicated marcus brandon in the abduction wasn't council's right we did call marcus brandon to the stand marcus brandon says i was there at the initial abduction but i wasn't a part of it i saw them actually slapped the victim and then i walked away so that is the discrepancy is a degree of participation broady and fields thought that brandon was centrally involved brandon admits he was there says he played a minor role in it and did not otherwise participate in that that is a discrepancy that is something that defendants are allowed to use and they did use to try to impeach marcus brandon's credibility at trial but it does not establish perjury it is an inconsistency courts including this court has said that inconsistencies in government testimony do not amount to perjury the defendants have an additional burden they have to show materiality what did these discrepancies regarding the testimony excuse me what did these discrepancies or how did these discrepancies effect the verdict and the answer is it's very hard to see in this case because although we had a number of witnesses and some of them had individual discrepancies as to who were these secondary players were everybody said that clinton lewis was involved everybody there's no discrepancy on that point and then the final point at any perj of any claim that the government's perjury they had to show that we knew that we were doing this and again courts have been very clear that the fact that we have witnesses who offer inconsistent statements will not impute knowledge of perjury knowledge of false feed to the government this is what trials are for sometimes our witnesses do not their memories do not align completely we present our case and we leave it up to the jury to decide the district court here judge mays gave very extensive instruction to the jury as to how to evaluate credibility and there's every reason to believe that what are you say about the variance arguments well at first i would say it's not preserved there was no claim at trial about variance and so we're here after playing here the second point that i would say about variance is that the standards of the defendants is exceedingly high they had to show that a variance only occurs when the trial evidence can only be construed as showing multiple conspiracies sort of like a sufficiency standard and they've not met that burden and that's really hard to do so why is it just a sufficiency test i think people's eyes glaze over when they hear the word variance but they don't glaze over when they hear the word sufficiency i think it is very much a citizen's arrest uhhuh in a light most favorable to the government but there's a third obstacle so just to so if here there's a global conspiracy alleged to claim a variance no there wasn't there were lots of conspiracies you're saying it's a complete variance response to show that there was sufficient evidence to show the global big conspiracy yes that is the discussion yes it's actually really hard to find a successful variance objection in a rico case i had a time of it and that's because this is not an ordinary eight hundred and forty one drug distribution is this a single chain or is this a web when congress passed rico it designed to target conspiracies to engage in enterprises that were involved in multifaceted racketeering activities so one person may be involved in drug trafficking one person may be involved in kidnapping there's a whole list of them in the statute and the question is have we connected it back up the line to the enterprise and the answer here is clearly in spite all of this court's guidepost everybody here had a common goal they were working for the organization to traffic drugs throughout the southeastern united states the nature of this scheme was incredibly complex and interlocking had to get the drugs from mexico across the border to memphis you needed truck drivers people to unload the trucks people to distribute the money to stash houses and get it out to the community security like martin lewis to protect the organization's interests and then get the money back to mexico the government detailed where each defendant in this case where they fell into that line and then the third point is similar to the same that the participants overlapped here because this is all about moving the product down the line to the consumer by all those guideposts and under a variance standard a sufficiency standard this and under plain error review this conviction on count one should stand i think we understand your arguments as to the lewis's is there anything else you feel compelled to say based on what your friends on the other side are saying i am happy to rest on my brief for all the other claims and turn it over to my fellow okay thank you mr lieberman thank you thank you mr lieberman so mr pritchard yes your honor so i wonder if you heard some of the questioning from the bench on the fields appeal i did i don't really have anything to add i'm happy to questions that's an excellent argument thank you all right we'll hear rebuttal since the government submitted it i've got nothing specific to rebutt as far as argument i will submit it okay thank you and mcafee you want to go next thank you your honor what really happened to marcus turner he was abducted beaten hauled to a house in a car driven around for two days and then he was tied up ridiculed beaten some more left on the floor and ultimately put into a van again by someone taken to mississippi or killed in tennessee and taken to mississippi or taken to mississippi and killed somebody abducted him held him hurt him and killed him here are these small discrepancies mr brandon says well i witnessed the abduction saw clinton don't need to be one person so your theory is that one person who did all of those steps well if you listen to the different versions you said once somebody did no no you're right and several people no you're right i suppose but some and maybe a different person did this aspect we know the slapping occurred but no no you're right you were right i don't need to don't know for sure i don't mean to minimize anything anyone did in this in fact what i want to do is point out that that's what each of these people are testifying to brandon says well i witnessed the abduction saw clinton beat him never saw turner again law enforcement prior to trial did confront mr brandon with the fact that the other witnesses were saying different things now anyone that's ever practiced law dealing with us attorneys knows that that usually means you're invited to leave with your client when they're saying when they are test when they are minimizing their conduct what does mr broady say he says clinton lewis based upon marcus brandon abducted this man hauled him to a van broady turned turner over to clinton lewis marcus brandon and terry peete mr weibo admitted that he participated in the abduction released turner to terry peete and marcus brandon mr peete says not involved in the abduction turner was released to clinton lewis and marcus brandon i was not involved in the killing all of those things have to do with marcus turner's abduction and they are every one of them trying to minimize what they themselves did when it comes to this horrendous crime to marcus turner but these are also witnesses that are essential to the government's case against martin lewis and so when you ask why does this matter when this these inconsistencies as the government puts them one of them's telling the truth about it and one of them is not now on several different points what about their point that supports perjury they have to know ahead of time that that's what there's falseness and the fact that they come out as inconsistencies doesn't prove anything ahead of time but they knew about it before the trial and they put it on when you put a witness on that you know is telling something false then you're supporting perjury did they know it was actually false or did they know it was inconsistent if the let the jury sort it out okay if the question is was the bike yellow or was it red that's inconsistent if it is mr mcafee were you there holding the pistol and one says yes and one says no that's not an inconsistency anymore i wasn't there during the abduction i wasn't there during the torture of and i wasn't there during the killing mr peete is lying or these other witnesses are lying one of those two things is both inconsistent and perjury and if we're going to believe that the system is going to make sense we have to rely upon there's not cameras everywhere we don't have them and the only thing you can do is to take what juries find with sworn testimony because it's supposed to be meaningful when you put your hand on the bible and swear to it and that's only meaningful if we are sifting before we ask the jury to just sift through these things it's not good enough to say well i know they had a lot to look at over that six and a half weeks but the jury blessed it so we're done and it's just inconsistencies yes that is good enough when it's well i can't remember if his his suit was it navy was it dark blue or was it black that's an inconsistency but if one of you says mr mcafee argued before me today the other one says well he didn't make much of an argument and the other of you says he wasn't there at all that's not inconsistent it's wrong one is wrong well it often too depends on the lateral perception if i'm color blind you know i might think it's green you're seven might think it's gray and blue we're just inconsistent but and i agree with you we all agree it's red yeah okay i agree but that would just be inconsistent all right but marty isn't here one of em is wrong thank you all right thank you mr mcafee appreciate it mr simmons come up your honor i have nothing further to add to this point okay well thanks to all five of you for your arguments some longer than others we appreciate and thank you for the briefs and mr stengel mr mcafee mr simmons i see you're all three court appointed which we really are grateful for i hope your clients are grateful for it's a real benefit to us and to the system and we did this when we were in practice and realized how little you get paid for it so thanks very much for what you guys did great work today so thank you thank you your honor