the next case is united states versus john and johnson please the court morning honors this case seems to me to be a fairly straightforward case of the government's failure to prove a racketeering enterprise because i say that the government failed to  make this prove this showing because they established no ongoing organization existed in this alleged whole street gang and throughout the testimony in this case there were four cooperating witnesses and throughout the testimony in this case each of the witnesses testified at one time or another and i can lay it out more specifically of it's laid out very carefully in the brief you're honest but each one testified that the the were unaware of the existence of this group hung out there occasionally but saw their own drugs were involved in their own business one fellow said i was there because they were running drug dogfights out of the area and i like the dog fights but sometimes if someone came to the door i'd hand them some drugs to the fore cooperated so that they were members of other criminal enterprises that involved selling drugs for other people the closest we get to any relationship really with my client mr m same you know and getting orders from the boss every single day and bring that money back so that everybody could split it up relative to their rank and that was essentially what an enterprise racketeering enterprise ries here what we have is absolutely every way to try to take facts that just don't fit together and call them racketeering enterprise because without the racketeering enterprise the government can charge the viacom murders and i know that the court understands and i don't in any way suggest that the murder of these individuals is something that should be overlooked by this court but in fact it's something that could weigh better have been focused on by state court where there were state murders these are not vikram or it is because there is no enterprise and every way that they government your argument that there's no enterprises that because the cooperators who testified didn't didn't characterize it as such does it is therefore not a well that would have been the best proof that there was an enterprise i mean one of the cooperative says the city knows my i'm from selling drugs and you know the government always doesn't get the opportunity to give to put in its best put in best prove they're sort of stuck with what they have out there understood but if you take the best scenario as the each cooperated and it's all the proof the only thing they have is a red house with some people hung out for a very brief period of time and most of the people who hung out there were in the dogfighting business there was occasionally a guy who you know if someone came to the door i reached up on top he said and handed somebody drugs he didn't get paid for it he didn't have his and several of them said i sold my own drugs i wasn't in any gang i sold my own drugs i wasn't in this organization i didn't give any money back to christian john but sometimes he would buy me breakfast story buy me a pair of sneakers and i considered him my best friend or an older man was there not evidence cooperate was another of overlapping groups of people including your client engaged in either bobbing and killing drug dealers or people who are perceived to have drugs for their drugs or money order trying to kill them but i think the answer is yes and no judge there was certainly always the most focus on the yes part ok i was evidence of that i'll give you a perfect example there is a there is one incident where one of the cooperate is agrees to help my client kill someone for five thousand dollars and one could argue that that was conspiratorial racketeering type organizational kind of evidence but he then testifies they had no intention of doing he was just trying to rip my client off for five thousand dollars so no there isn't proof of that there is another fellow who pled guilty to this rico and said oh yeah i was a member of the organization and then on cross examination he said i lied when i told that to the judge it wasn't true i wasn't a member of any organization so the same witness throughout his testimony made it clear that he didn't have the appropriate connections to any organized group he said one of them said i was just out of bainbridge street another one said i was out on fulton street that's where i met christian john eisold with the mayor he had his customers i had my customers sometimes we got the same source but it we bought from the same supplier but after we bought it from the same supplier i went out myself to my guys and he my customers and he went out and he sold his customers this this whole street if it's anything appears to be a place where all kinds of people came through but basically were involved in in dog fighting i mean you have one guy this one cooperative mckenzie who seems in the sense to be one of the more involved cooperate as if the were such a thing and he says that he says that he worked with christian john from time to time but really most of his work was done with someone names smack and rock and that they were brothers who ran a different operation and he ran there he was in charge of their grow operation he said that christian john never paid them and when you read the whole of his testimony he made it clear that is the law allegiance is alliance was to this smack smack and his brother there were there were other incidents other incidents in which each of these cooperate says philip mackenzie again he said that my client never paid him that he never purchased drugs for my client every every in ia of the existence of an organizational force that would make out a rico is really missing from this there's the there's the the allegation but all of the government's proof is really in a way inconsistent with the notion that there is a racket an organized racketeering enterprise you know and i'm not saying clearly that they have to sign on the line and have to be members and they have to be members of the same time these are individuals who came and went over a decade long period came in if one came in at the time he met my client and they went out and they sold drugs on bainbridge street somebody else went out and sold drugs with them on fulton street so these this was not wholes whole street and then that guy went to jail  years you have a storm again he didn't go back and do work with him again this was just disparate people who met in the street and my guy in fairness the government has every reason to think this is a bad guy and we lack the capacity to but it's a bit respectfully  honest that that was a job for the state court and not for the federal court because racketeering has a meaning and every time this court has defined racketeering going back to turkey that they've said this is not it when the first time i read it as i with respect to mr johnson it goes considerably further than that because he was not even found guilty of rico or rico conspiracy he was acquitted of both of those i submit in large part because the evidence was weak of an enterprise to begin with and very importantly because the government's own cooperating witnesses stated that he was not part of the all gang or or charged with only one vi car murder and i'm certainly not intending to minimize the seriousness of of mr obama death but he was not charged with being a regular member of this charged enterprise it was this single incident in which there was simply no evidence that it related to the extent that there was an enterprise to enterprise eight there was some evidence first of all again i need to emphasize that mr johnson who testified in his own defense something of a rarity in a case like this denied any involvement at all in that murder what do we read into the sorry i'm just it's not unusual for a defendant o course certainly i'm pointing out simply in the government it pointed out that we didn't challenge that he was involved in the case and we certainly do challenge that our position is that these cooperating witnesses were in fact involved they were covering up for themselves it's very unusual that mr johnson only came into this case years after the prosecution had had began and day as your honour's are aware he did file his own  supplemental brief in which he pointed out the many many instances of perjury on the part of these witnesses but putting that aside with respect to the sufficiency of the evidence on the viking or murder itself there simply wasn't on the judge made it very clear that it's not enough that mr johnson had some affiliation had done some business at some point or hung out with member people who were charged with being members of the enterprise he has to have been a member himself and as i pointed out mr mckenzie testified that that was not the case mr jones testified that that was not the case  passing as ms come in and argued previously that there was a lot of that people knew one another there was the unfortunate fact of dog fighting taking place were people congregated to watch that but it was not an enterprise and certainly not an enterprise of which mr johnson was a member and most importantly none of that had anything to do with the death of mr olbermann there was extensive  mony and mr johnson testified to him so there was a dispute over a vehicle and even judge blocking in his decision he did not go into great unfortunately and didn't give any of us a lot to work with but he he did acknowledge that yes it seems as though the evidence here leaned in the direction that this this yes but nevertheless your honor that does not prove involvement in an enterprise no but what i'm just following up on your statement that this was entirely about a car i cannot claim it was entirely and this judge is the jury had before it some evidence that the murder was drug related i would not adopt that characterization iran he murder was at least partly drug related well ultimately it was determined that there was no drugs and there was no money no i understand that but the murder was drug related when you asked someone where were the drugs isn't it a basis an evidentiary basis for the jury to determine that at some level some minimal level you can argue about whether it's a sufficient level but a there's evidence before that this murder was related to drugs in some way would you agree with that i certainly do dispute whether it's legally sufficient whether there was some evidence on the table there was testimony to that effect although just to step back a bit ultimately there was the testimony was that where the drugs where is the money as your honor pointed out however ultimately there was no drugs there was no money and the murder happened so it could not have been motivated by those factors but i think the testimony was in part that when ober over mother says  yes refused to admit that there were drugs that's when they decided to kill but none were located so there were none i don't know if that quite answers your question but i but i think it's an important point because ultimately first of all that seems to be heading off in the direction of the drug related murder rather than the the  understand that ok you were i think you were i'm trying to understand your position and you were taking a slightly more aggressive position which was that it was not related to drugs it was related to a car and there was some testimony that it was in fact related to drugs and there was maybe i've made too big of a deal of it there was some evidence of that but overwhelmingly but was charged in connection with a conspiracy to distribute two hundred eighty grams of co banks right yes that is correct and again you know that it's very troubling your honor as ms cullman pointed out as both parties pointed out in our briefs there there was some evidence of and more importantly there was no evidence of drug dealing between mr john and mr johnson they were charged with being in a conspiracy that there was no evidence of that there were several cooperating witnesses testified that they on their own and bought or sold relatively small quantities of drugs to mr johnson but not enough to establish a drug conspiracy or a drug conspiracy and the evidence was more than sufficient to establish that that homicide was drug related the at rob related in connection with the conspiracy that he was that it's charged as being related to yes your hon go ahead i don't want to stop you but if you would tie it into that two hundred eighty gram conspiracy it would be helpful yeah sure the evidence establish that kevin miller was killed in marvin johnson stashed us one  street the evidence establish that for a period of a period of years marvin johnson sold crack cocaine from that location michael farmer one of the cooperating witnesses testified that at around that time he was selling for marvin johnson a thousand dollars a day of crack cocaine for several months which when you extract waded out to get you to that two hundred eighty grams of crack cocaine within a few weeks as called individuals that he knew who he gambled on and dogfighting who he participated in gambling on dogfighting with and those two individuals were christian john and shaquan jones and he called them is not a dog struggle and so when he had a dispute about the car he also called the two individuals who he was involved with and other criminal activity call them over and they rob and killed kevin album and part of the reason why they robbed and killed him was knew that they were drug traffickers and he called them over and he with them killed his own drug dealer is that enough to show that he was motivated to solidify his standing in the enterprise but i did it because also judge he could be motivated to and to get into the enterprise as well i mean he knew what these guys were up to he knew what they were about he knew that if he wanted to participate in criminal activity with them it was the government was it that he wanted to solidify his standing in the enterprise so they wanted to enter the enterprise that point i think could be enterprise for a very short period of time you know that we don't have any evidence at the moment we don't have any evidence that he he continued to engage in that and he was drawing from an art of it my problem is that you know this is a bit of evidence but reasonable inferences for the for the government and based its that's always true the sufficiency of the evidence challenge on appeal we've got a conviction that's why we're here to question the just parkers and asking is this is a thorough arguably very thin reed with with respect to mr johnson and his participation in the enterprise and we usually told us was that it was just that one moment in time that mr johnson interacted with this enterprise in a legally relevant ways that correct not not not for all not only that one time i mean there's evidence that he was gambling  fighting with these individuals for repeat for regulatory with christian michael farmer mackenzie so it's not like he is just out of the blue he certainly was engaged in criminal conduct with these individuals there's evidence that he was selling drugs with michael farmer repeatedly for an extended period of time there is evidence all be it not not an extensive amount but there is evidence that christian john sold marvin johnson crack cocaine on occasion so it's not that it was just a one off isolated incident there's a reason why these individuals were in that basement together on that night it's not by coincidence it's out by  certain randomly it's because they had engaged in criminal activity to gather for years and and so i think the jury was entitled to draw the inference that in connection with that that there are two rival gangs and a third gang tries to take over some turf some overlapping turf and you and i are the heads of the two initial gangs and i see a third gang come in we've got two separate enterprises and i call you and i say we've got to stop these guys does that make me a member of  enterprise does that make this is not enough evidence to show that i'm motivated to increase my standing in you had a prize for my just trying to protect my enterprise would you answer that question it would probably not be sufficient but i'm not well suited for your interview what's the difference between what i just described and what happened with mr johnson because what you told me was what you told us was and i i'm just thinking about this when i think what you told us was that he called his old buddies and i understand that they were part of a dog fighting at a prize but he called these people that he knew to help him deal with his drug supplier so what's the difference between that and when i saw the scenario that i just described it goes a little beyond that judge i think it's he also recognizes that they are drug dealers themselves he knows that they rob drug dealers he i think the jury was entitle to him for having him not only there was that there was  personal problem he was having with over and over over the car but it was also now an opportunity to kevin over moer of drugs and he knows that shaquan jones and christian and they rob drug dealers of drugs and he knows that engaged in criminal activity with them previously and he knows who they are he has a relationship with them and therefore that insert him into the enterprise or am i not asking the right question it didn't  again it's because he was involved in other facets of the enterprise he was in again he was involved in the in the dogfighting began when he was involved in the drug sales he doesn't have to be involved in every single aspect of the enterprise but he knows because of his not the way that the participants necessarily self identified or identified it but you're saying that the whole street enterprise based on the government's theory was a much more wide ranging enterprise that included dogfighting including drugs including drugs included murder yes and gambling ok those are pretty good acts ever charged and and he participated in the enterprise prior to the o and they gambled thousands of dollars on those stuff and that's michael farmer mckenzie christian john martin johnson and others i'd also like to address the structure i guess of the of the enterprise itself and you know the supreme court in boyle has made clear that there's no real structure that's necessary it's not really what the enterprise calls itself it's not what they're hierarchy is it's not who's going who's paying who it's what it does and here the enterprise was christian john and his subordinates robbing and killing drug traffickers their drug suppliers in many instances so that they can get the drugs and the cash to fuel christian john's drug enterprise and he was running from whole street and now miss  know you know when you go back to the transcript and you see that it's christian john who really is in charge of everything he's managing everything he's planning everything he's actively participating in all criminal activity and he's doing that using his underlings individuals like michael farmer who told the jury that he viewed christian john and his as his brother he looked up to christian john he wanted to be like christian john mackenzie had a brother but i looked  well we're here and i think this is the right place to ask this question of you mister what is what evidence is there from which the jury could reasonably find that john was in the conspiracy with johnson's such that john knew about the two hundred eighty grams or would have known should have known about the two hundred eighty grams distributed but i do is evidence again not not extensive evidence in terms of their drug transactions together but certainly michael farmer testified that christian john sold marvin johnson crack cocaine on several occasions he knew again it goes back to their knowledge of their drug activities based on their experiences together there so if he sells johnson accepting the evidence that he sells johnson drugs is that a sufficient basis from which the jury could find him for that therefore he knew that johnson was selling that certainly if he's the amounts i think that were being sold by christian john to marvin johnson would right you know in terms of also just to expound upon the the the enterprise those robberies were conducted so that christian john could again drugs that you that that uses robbed from them i sold them and i gave the money back to christian john and he was able to keep twenty five to fifty dollars per pound sold similarly the can read robbery that was perpetrated by michael farmer and desmond james what did you do with the drugs michael farmer said we took the d v d player that we stole we took the playstation and we gave the method a means to christian john so those are just exist some examples of the crew coming together to further christian enterprise and enterprise a kind mckenzie were certainly a part of for years he testified that for years he would be at christian john's residence is selling marijuana from this point i guess is that the term enterprise has been so down over the course of the last several decades that were few decades  residence every day selling drugs they're gambling on dogfights regularly at christian john's residences they are breeding fighting dogs they're they're storing guns they're holding guns for each other it's more than just one off instances of drug you know robberies or drug dealers it's a pattern it's a group of people coming together and continuing a pattern of criminal activity for number of years and so it's not just you know you did the court to supreme court looks to interpersonal relationships between members of the enterprise you have that here it looks to go on jerry duration of the enterprise you have that here and so  well you know in the organized crime world we may have a very sophisticated enterprise to your point your honor you know that that may be more than fifty it's more than sufficient to create you know to establish the enterprise but here the question is not about it in terms of sort of a boys club in which they're all hanging out together and doing various nefarious and certainly illegal things we includes drugs it includes dog fighting it includes gambling on dog fighting that sort of the meat of what this matter prizes in the government's view yes coupled with the conclude that any of those murders relates to anything other than drug dealing well i do a good jury can conclude to the extent that those robberies were successful in the sense that they got cash in the robberies they were able to you know breed their dogs they were able to  john did repeatedly he fell to the same to him the very next day christian john killed decline child and he did it on whole st it's not a coincidence that he did it there he did it i think the government the government argued in the jury was ill it could reasonably infer he did it to send a message that i will protect my turf he he assaulted michael farmer he burned michael farmer when he thought michael farmer was being disloyal to him and burning is significant it leaves marks hilt markel farmer will have those marks the rest of his life the people who know michael farmer who know christian john the word gets out that's what happens when you cross a christian j and that mark will last forever those are calculated decisions by christian john to protect his turf when there was a dispute over the robbery of the husband of the jewelry store proceeds christian john shaquan jones conspired to kill messiah locally as were in retaliation again there's more if there's elements of just it's not just drug trafficking it's retaliation it's interpersonal relationships it's  just briefly your honor and i'm not sure i moved off the position then i started from but it seems to me what the government is now described is my client is a one man crime spree who along the way picks up people who help him or don't help him but their failure to establish the enterprise that they've charged in this particular enterprise is not my client acting on his own but i'm with some group that they say is a racketeering and deprives the whole street crew now you have four court you have if you have the leader of an organization which is why i took the government summary most recent summary i mean you can't say that there's not an organization just because one person's leader  well but if you don't have the same members and you don't have the same goals and they're not members of the same time and they don't have allegiance to my client then it seems to me you may have a head but he's a head of nothing you have four cooperators judge who's not a single one of them not one acknowledged the existence of this alleged enterprise when they were asked did you know about the whole street crew one of them said not until the government told me about it was a cooperator and every one of them said one said oh i i work with christian john from some time a muslim time i was selling drugs with someone named chinaman one of the other cooperated said well i sold drugs sometimes with christian john but most of the time i was working with smacking his brother growing we'd so these are people who would transients in their own criminal conduct and if their paths cross with my client well because of my client but the notion that my client heads any kind of an organization that could even loosely be described  enterprise it seems to me the crimes notwithstanding the evidence doesn't exist the closest the government got was to have somebody say yes yes i was a member of an order of the organisation during his plea on cross examination he said he lied to the court so i think you have a lot of terrible crimes and you have a lot of crimes here that rest on the back of the proof of an enterprise that in my view the government failed to prove thank you raise his position in the enterprise but possibly to to join it since since mr poland meenie basically knowledge that even under the government's theory it was only an extremely short period of time that they're alleging he was part of this enterprise there was no evidence of mr johnson being involved with the enterprise following the olbermann or homicide so that doesn't make sense if the theory was that he that for a second yes because on think i'm trying to think as a juror might think of course and mr pollin mean he gave a reason that makes sense but doesn't provide proof that he was that mr johnson was a member of the enterprise he knew who these people were and what they did this same thing a person in a neighborhood controlled by organized crime might have you know for their own  reasons cause to consult the godfather because he knows you know you have a problem this is the guy that can take care of it for you does that make that neighborhood resident a member of the enterprise i don't think any jury would fund that