encompassed within that charge the nine twenty four c charge with three separate incidents and the indictment had two theories and a third fieri of that possession and use was added at the close of the evidence any jury would be confused under these circumstances the jury wrote a note to the judge saying and i quote from page two ninety two of the appendix we will appreciate your help understanding the nuances of certain elements of the law instructions specifically a can both parties be found guilty on the basis of aiding and abetting be similarly can both parties be found guilty on the basis of the pinkerton theory the court in discussing this had joked among the lawyers and i'm quoting from page three ten of the appendix and then we'll get a note saying well can we convict one as an aider and abettor and the other as to pinkerton that was a joke for the benefit of my friends on the seventeenth floor across the street i'm now before the friends on the seventeenth floor and your honors it wasn't funny wasn't funny at all there was no issue of interpretation the jury asked can both parties on trial be found guilty in the abstract of course but it all requires a third principle acting the only answer based on the record and the manner in which the case was tried is no both parties can't be found guilty in this case on the basis of aiding and abetting or on the basis of pinkerton the judge instead of answering no told the jury on page three thirty five of the appendix quote and i have nothing to add giving them no direction in a sense the judge told the jury rely on the unclear instructions which caused you to write the no in the first place if the court looks at the original charge with regard to aiding and abetting which is based on the evidence in the record the judge told the jury accordingly you may find either defendant guilty not both and this is page thirteen thirty four of the transcript and it's page thirteen thirty four of the transcript you may find either defendant guilty of the offense charged in count two on an aiding and abetting theory if and only if you find beyond a reasonable doubt that the government has proved that another person actually committed the crime and when the government went to justify not giving further instructions instead of other evidence of this mystery gunman or actually i was sitting here i'd like to quote judge walker pure imagination doesn't count that was in the prior argument that you're on a set that and they're conjuring up quote this is the government of page three fifty two this is the government's submission on this issue the quote the only piece of evidence described above that the jury would have to reject in order to convict both defendants of aiding and abetting and unknown shooter instead of finding that kevin sterling was the shooter and that vernon erred in a bed in sterling is cause me and jasmine's identification of sterling as the shooter that's not a rational basis there's no evidence the government was saying oh we can get both defendants guilty simultaneously with this mystery third person if the jury doesn't believe the identification was anything wrong with the judge's regional charge no isn't regional  appropriate but there was no fact he answered their charge by just simply talking about either one rather than both why isn't that sufficient because it's not responsive to what the jury's question  specific question of the jury was can both be convicted and the evidence in the record was no there is no mystery gunman there is no evidence of a mystery gunman and there's no way to that up there's no way to come back here to judge kaplan's friends on the seventeenth floor and say both could because maybe the jury would find that it was a nice person and think up a third person because there was no evidence of that your honor there was no evidence whatsoever of vernon being the shooter there was no evidence in the trial i mean we can try to come up with theories but that means ones that sterling was the shooter correct and the charge  ed that the original charge card that yes but that the jury's question was unanswered and their confusion compounded i hope you're going to do some time to the exclusion of the put into the they tried to put a square peg into a round hole all the jury can be an expert can opine on credibility it's not a question of credibility it's a question of the impairment supplement with a specific citation well what went through this testimony pretty carefully and it looked to me that what happened here was that the exact the aspect of the exam was pointed out and the diagnosis of the doctor eighteen months prior to the trial in connection with the assault at the at the jail where it was was brought out so the diagnosis was brought out and the so the illnesses and then the medications were brought out but any connection between how that person would perceive reality was not brought out by counsel for the defendants at the hearing until the government until redirect the government raised the issue for the first time and and then then the then there was some testimony on that and but then  on page eleven twenty lines and correct me if there's some other place that indicates differently but on page eleven twenty one mr goats or says we had not intended under the offer proof that we did to go into the issue of whether the doctor could render an opinion about his credibility the government seemed to open that door i don't want to be held against the defense we still have no intention of doing it but the government if the government is permitted to go into it obviously we should be credibility and what the doctor would say it was was not going to be something that would be explored i agree with that i don't believe it's a credibility issue i don't believe when you have a mistaken eyewitness that you could say its credibility in the witnesses like it's a capacity disagree with the judge walker that the government helped you out a great deal by by eliciting from the expert that the expert was could not render an opinion as to whether this witness  could distinguish truth from from hallucination but the fact that it came from the government doesn't make it inadmissible it seems to me that the that the the government very clearly  brought out the the the great importance of the witnesses testimony if if an expert is an expert on examining this person cannot render an opinion as to whether the person is capable of distinguishing truth from imagination from imaginary facts i don't see how that person's testimony can be merely cumulative rufe no help to the jury in the things that the district judge said  issue whether the doctor could or could render an opinion about credibility the government seemed to open that door i don't want that being held against the defense we still had no intention of doing it so my impression i got from this was that if the  your honor we who practice criminal defense in the federal courts are aware of the general law in the the case law of this court and other courts that you can have an expert testify and credibility so we were making a vallas making i'd say maybe see the case in a different light so where is the proffer in the record i can't i have a general sense of the record i've read the record i can't i can't your co counsel was a jew or it related to believe ability is an honest witness or a dishonest with ms you weren't offering any you weren't suggesting that the person could testify about that but that's a different matter from the the the capacity of this particular person let alone anyone who has these diseases it's being a in effect of these diseases to distinguish between reality and fiction and that's trips and cost me went on seven or eight of them right right and when he was arrested he had the drugs on him and we were he testified at meetings in which cost me was present cos not not henry correct director and the jury convicted on the shooting of the brandishing and use of the gun rack not the simple possession in other words would just be the drug counsel would be involved no your honor why not just row shane henry was the sole witness to the two additional firearms on to count two of nine twenty four c that's at page seven fifty four to seven fifty seven he also was the only one to testify to an extremely damaging statement that occurred in the car and henry was the only one to testify that my client was alleged to have said someone no i'm not talking about that part i'm talking about the firearms offense the juries was asked on the jury on the verdict form did s to kevin sterling one count to the firearms offense the question a did the government prove beyond a real and then there was a he said he more specific question asked if the government proved beyond a reasonable doubt that this defendant is responsible for brandishing a firearm yes now there was no testimony from henry about brandishing a firearm there was testimony from henry about firearms being in the car and i correct yes he was a my correct on that i don't believe so now he was in jail for that to wreck and then the same thing the same two questions were asked of vernon and the answers were the same yes that is that clear yes i had the was extremely similar to the issue raised by mr sterling however in our brief we did expand on not on several points and i think that his honor an important part of our argument is that the injury and the confusion of the jury's question that that was the beginning of the error began when the district court instructed the jury on the pinkerton theory and as mr davis mentioned this was a case where the government sought to prove count two the one twenty four through three separate theories of liability direct liability under aiding and abetting and then under under pinkerton during the charge conference mr vernon's trial counsel objected to the giving of the pinkerton struction because of the fact that it was confusion it was confusing and then the conversations that were had there after it was alluded that is confusing because there was no evidence that the theory would be applicable in this circumstance so given the number of possibilities it would be nearly impossible for the jury to decipher which theory they were actually finding the defendants guilty of specifically mr vernon no your honor i think the one of the factual things that was just brought up in the beginning argument was the fact that the government's theory of this case from the beginning and relying solely on the shooting incident was that mr mr sterling was the shooter and then mr vernon assisted him in that in some respect the theory from the very beginning was that there was two individuals in this car those two individuals were these two defendants so under the pinkerton theory there was no evidence that some other individual from the believe that all but the jury the jury and the triage permitted the jury to conclude that if there was a shooting it was by a member of the can if and we were not sure who it was even though there was evidence of a sterling maybe the jury would disbelieve certain aspects of cosmic testimony on that and that but but still accept the fact that there was a shooting by in furtherance of the conspiracy by someone and  that sterling knew that i mean a cause me knew that he hadn't paid and therefore had reason to fear i mean you know it was it was maybe it wasn't necessary in this particular case but  if the jury accepted the cosmos testimony that sterling was the shooter but it the jury might not might be direct that and on that point your honor i think that that would be reasonable in some circumstances but in this situation the argument of somebody else from the conspiracy was never even a topic that was breached or even submitted until the questions from the jury which i think this all kind of plays a part it's a domino effect you have an  instruction that was not appropriately put in for the jury to consider and the jury has these questions because they are confused as to how they are allowed to convict these two defendants and then eventually leads us to the verdict which is our second extended the questions that were relayed by the jury your honor mention the fact that this verdict form on count two specifically the jury found mr vernon and mr sterling guilty of discharging and brandishing a firearm so that leads us to believe that they had to have found guilty on the shooting incident incident on one so in regard to that incident alone since the government's theory from day one was that mr sterling was the shooter mr vernon was his accomplice driving him that does not fall under the pinkerton theory and since they did find him guilty on that specific instance we don't know what there they found guilty on so without any sort of special interop atory asking the jury to explain which are no cases that we can cite at this point however i think that the facts of this case are to sting i couldn't find any case where these specific types of questions from the jury were asked and i think that is very telling in this situation and it provides a lot of support for our position is that the jury was clearly confused they were asking a question about how they could convict mr vernon or mr sterling and because the question that they asked as mr davis pointed out it was incorrect they could not convict both mr sterling and mr vernon on this theory of them both being an aider and abettor or them both being guilty of the pinkerton theory so because that question was posed and  and and one of them one of them but the jury doesn't know which shoots somebody why can't they both be found guilty on the pinkerton thing you know are that's a that's a very good point and i believe that the answer to that is because the jury has already been instructed and the indictment specifically charged both of these defendants under the aiding and abetting theory so that's the way that the jury looks out at the aiding and abetting aiding and abetting theory of liability would be sufficient they wouldn't have been needed to have been instructed on the and you're on a jury you have to have to know which one which one was the i think that with the pingers on instruction the issue is it goes kind of beyond aiding and abetting that's arguing that there is another person from the conspiracy that is involved reference to pinkerton in general there have cases have been more along the lines of to give an example if we look at the car situation the other one of the other two incidents with the firearm just being present not necessarily being discharged one of those occasions the testimony was inconsistent about whether mr vernon was actually present in the vehicle so under that sort of circumstance and situation he would be he could be could have been found guilty and or pinkerton if he knew as part of this conspiracy that mr sterling would have a firearm on his person while he was furthering the crime of collecting the money from these individuals and that sort of thing because the government was arguing for this specific incident and they were both present under pinkerton and it was mr vernon's counsel's  position today that that would not have necessarily applied and was confusing for the jury which obviously ultimately led them to ask the question that they did thank you  please the court and good morning to skinner for the united states represented the government at trial below let me start on the expert witness point first judge kaplan understood that in the first instance this was a credibility argument made by sterling's counsel below it's a letter that's not in the appendix but it's dated april seventh two thousand and seventeen on the docket from sterling's counsel pose that as a credibility question now no question at the hearing questions were also asked about reliability and judge kaplan understood that in the i just don't understand how you could object as evidence much less how that sustained but it's extraordinar incapable of answering the question of whether this witness could distinguish reality from him from imaginary i was mighty careful that is a very very important thing and how could you how could the judge think that it was cumulative to the person himself having said oh i have a loser nations and problems used in wishing i mean the very fact that he says he has problems distinguishing shows that he recognizes the difference psychiatrist says i can't tell whether this person can distinguish fiction from from from fact i don't think very very important evidence but i don't think that's right that last part and i just want to come back to the record to make sure that we're reading the record accurately  i think that this conversation started on a two seventy one of sterling's appendix where mr golts or from mr vernon was asking questions like could psychosis affect the ability to accurately report historical facts it could yes answer could a psychotic episode possibly impact adversely an ability to distinguish what really happened it could and could a person who suffer from those episodes have difficulty recalling what's real and what's not at times he said  went no further than that is pretty important evidence for the jury would go on then on redirect the government asked just to clarify do you have an opinion as to whether with respect to this witness he can accurately report historical facts no opinion do you have an opinion as to whether he can accurately distinguish what happened in the past no do you have an opinion as to whether he can tell what's real or not no i don't think the reading of those those questions should be that the expert has evaluated mr henry and come to any opinion at all about whether he can decide those facts i think what the expert has no opinion having examined the person knowing that he's psychotic knowing that he's schizophrenia and the expert has no opinion whether he is capable of distinguishing fact from fiction right pretty important for the jury just as well be careful but when we're using the word no opinion i think what the testimony you have an opinion no that's no opinion and the reason that he had no opinion there is because the expert examined mr henry on one day in september two thousand and fifteen which is what you're reading and interpretation that you would like to read into it i'm reading what the experts that i have no opinion whether he can distinguish resigned from reality has to give you such an opinion you know did did his letter purport to go into that it did not just didn't he asked only to determine in connection with the assault that took place in the jail whether the defendant had that state of mind to be culpable and whether or that whether the defendant should be considered to be whether whether the facts were such given his situation is medical situation that he might be entitled to mitigat that we're on the capability that's absolutely correct as far as he is test as far as his ability to give testimony that's right and judge kaplan entirely recognized that and when judge kaplan ruled he didn't rule just on credibility he ruled on reliability as well and judge kaplan found important that in that report the expert himself found mr henry to be more reliable than the prison guards in describing that prison incident after viewing the video of that incident it's it's at appendix two eighty four ruling he testified he has reach no conclusions regarding the reliability of mr henry as a witness reliability then just kaplan discussed the fact that the expert himself relied on henry's recounting of that prison incident and then on a two eighty six of sterling's opinion he judge kaplan found not just as to credibility but mr culture brought out that psychotic episode could impact the ability to accurately perceive and narrate if i remember the testimony correctly historical events than just happened said well sure could the question is did that's the important distinction in the testimony by the expert about the possible effects of that type of illness meant nothing to the jury when  jury had mr henry's own testimony about the symptoms he did suffer and more importantly where the expert had no opinion as to the witnesses reliability or credibility in other words how those symptoms of the disease in general impacted henry he did not examine that at all not been asked to sit in while he was testifying no absolutely not in fact judge kaplan went out of his way when the defense late subpoenaed this witness judge kaplan went out of his way to make that witness available for the defense to get the full proffer of what the defense wanted to get out of that witness on the record he double checked with them is that all you have to offer before i rule and then he found that number one it wasn't probative for the reasons we just discussed it why not appropriate completely stopping short of the issue of the of the meaning of the questions in the answers that you would listen when the psychiatrist answered the questions that were proffered by the by the by the defense explaining explaining what are the the characteristics and the and the and the effects of psychosis and schizophrenia  and explaining that it can cause a witness to be incapable of distinguishing reality why is that not why is that not appropriate matter important matter to be brought to the jury with respect to witness who is psychotic and and  but here it would have been just cumulative of what henry already tells them how to do what but henry is not an expert henry's not somebody who can tell the jury with it with any credibility because he has no no no knowledge no expert knowledge of it about the consequences of psychosis and schizophrenia but what i would add is that in fact the experts testimony was less helpful to the jury because the expert didn't connect that illness to any impacts on henry himself it was only henry first of all who even told that the expert that he suffered from elucidations that was all based on henry disclosing that to the to the expert jury learns from a lay person is psycho has been diagnosed as psychotic and schizophrenia but i don't know what that means you don't know what that means the jury doesn't know what that means than an expert is called who will tell the jury what are consequences of psychosis and schizophrenia it can mean inability to distinguish fact from fiction why is that not really important because number one the expert couldn't tie it to henry and self couldn't say that this person suffered from those particular symptoms especially couldn't say it during the relevant time period of the testimony which was at about six or eight months before the interview the interview was also about eighteen months before the trial secondly it's cumulative because henry himself said what his own  know that you're distinguishing fiction from fact correct it's important to look at the particular types of hallucinations he testified about as well which were hearing a drumming in the ears or hearing a good basically a good angel in a bad angel telling correct correct and had absolutely nothing to do with whether henry hallucinated months and months of his life of going up to ithaca selling drugs which was entirely corroborated by mr cause me who is by far the most important cooperating witness in this case i should mention the who summations point of course that came out on cross it came out in the summation the redirect on the hallucinations was devastating because the government was able to say oh what about this text message from mr sterling to you asking about how the bus ride is going to do hallucinate that of course the answer was no the additional evidence beyond what judge walker has already pointed out are customer lists that were recovered from leonard sterling up in africa were the drugs found on henry and leonard sterling were texts between henry and cause me about the trips going up there just in the defendant's aren't guilty i'm saying that this was very important evidence to be allowed to hear judge i just without saying it i transition into the harm harmlessness analysis  one of the one of the people who was impeached by buying his situation as a as a cooperating witness who has the usual incentives that was or well falsify for his own benefit on the drugs let me just be clear the car with leonard sterling nonetheless car with in the car with leonard sterling apart from anything that henry might have said that was that was true and then and then caused me is where are henry does testify about just that even before we reach all the other evidence of the drugs is that even if the experts testimony was allowed remember what it would be would just be a description of the illness without any app of actual applicability to expert had something to say about what either henry's ability to testify currently at the trial which he did not because he saw him a long time before the trial or if he had something to say about the time of the crime which he did not he reviewed some reports from two thousand and six to two thousand and eleven and then saw him on one day in september two thousand and fifteen and he wasn't even focused on that he was focused on his culpability in another case right so so even if the court were to find some error which we think they should not consider the slight marginal benefit that that possibly could have head just on the issue of henry's credibility which is already attacked i think he testified for about four hours a lot of that was cross examination  never mind before we even get to all the other evidence of the drugs even if the jury were to throw out all of henry's testimony which i don't think they would have having simply heard the expert when they already heard him say i had to sedate all these things i've heard i've heard all these things i want to come to he said no i don't want to intrude on the jury's deliberations the reason that question is important is because the note could have meant a lot of things it could have meant first what defense asserts on appeal and below that the jury is considering can we convict both of these men of aiding and abetting a third unknown person but it also could have meant can we convict kevin starling of aiding and abetting alonzo vernon because the jury knew that the government's theory was that it was the other way around that vernon aided and abetted sterling it could also have meant as judge kaplan recognized that the time can we convict one of the defendants on aiding and abetting one of those guns in the car and can we convict vernon of aiding and abetting the shooting or any combination of those three incidents and defendants it could also have meant can we can six of us find that kevin sterling was the shooter and that vernon aided and abetted him and can six of us find that burn that sterling did the shooting in vernon even abetted him the other way around judge kaplan was correct not to try to figure out which of those matrix of possibilities the jury talking about it would have intruded on their deliberations instead he pointed them back to their correct notes which one of the defendants agreed was the right way to respond that's vernon and pointing him back to those correct notes can't possibly be arbitrary or irrational as the court would have to find to find the judge kapl abused his discretion just note that nothing about that change the theory of the case the jury was never told by the government or judge kaplan anything about an unknown shooter that was only brought up by the defense and and  finally we then reach the point that even if the jury had understood that to mean and were asking the question about can we both be can we convict both men of aiding and abetting an unknown person the evidence was plainly sufficient of that it's taking out evidence that the jury would have to do basically not believing two of the identifications in order to not find that it's not adding any evidence that wasn't there all the evidence was there for that decision i see my time's expired unless the court has any questions will rest on our submission second yes very brief the note speaks for itself at page eight to ninety two it doesn't require interpretation it does however require finding a mysterious gunman somewhere in the record with regard to the the issue of dr how taylan reading from page two seventy one to two seventy two of the record at page twenty nine of my brief question and is it possible that someone might believe they can distinguish between what is real and unreal and be wrong about it because of this psychiatric illness answer yes it's an extraordinarily significant thing to preclude a defense i'm old enough to have appeared before you judge lavelle as a district court judge and the district court judge here should never have not the defense out of the box on on testimony that was that important it denied my client a fair trial and i use the court to reverse and remain to the district who're  the problem with that is that the government was unable to rehabilitate him on redirect like you pointed out say where you were sitting at the specific time and he's able to say yes i think that the testimony of the doctor would have been able to put that in context with the jury to make that determination whether or that mr henry was hallucinating the doctor would be able to give the opinion that people who suffer from this type of disorder do husseini and if they are hallucinating they cannot tell they cannot say whether or not they're who sedating or whether or not what they're experiencing is so mr henry says to me that he wasn't hallucinating he he's assuming that he wasn't listening although nobody could specifically say that he wasn't the doctor would have put some context to that as well but the doctor would have had to say but i don't know whether he cracked about whether he was absolutely judge then just as to the point about the words that i think it goes to the argument that would have been able to be made about the credibility of or the reliability of the testimony of the witnessed or i don't believe so john i think that in this set of circumstances because of the admission by mr henry i think that giving were very large the government's case they would not be able to make their case without them so i think that their credibility was this was a very important issue that the jury had to determine i'm sure that what they sat down and figured out and i see my time's expired if i could just touch on one more point the government mentions the fact that the questions posed by the juror by the jury during deliberations was not clear i would like to point out one thing from the record the jury asked three specific questions can both parties be found this is in vernon's appendix page one sixty four can both parties be found guilty on the basis of aiding and abetting similarly can both parties be found guilty on the basis of the pinkerton theory the last question was if defendant found guilty of the discharge of a firearm via pinkerton theory does that mean that the defendant is responsible for both brandishing and discharging a firearm to be clear the defendant does not necessarily need to fire a firearm or even be present at the site of shooting to be guilty of  charging a firearm under pinkerton liability correct the third question i think puts into context what they are asking of the other two because they're saying to be convicted under pinkerton means that one of these people was not there they're saying to be clear the defendant  not necessarily need to fire a firearm or even be present at the site to be found guilty of discharging a firearm or under pinkerton when they're asking if both defendants can be guilty under pinkerton i think that puts into context that they thought there was this other person that could possibly be there so