get the next case we have here is the united states versus alexander campbell and others i received a spread sheet of the time factors here at the time allotments in this case and i'm an ass counsel to self police because it that the times are so short relatively speaking and i want to make sure to pay attention to everything you say rather than watching the clock to keep time so  points of law in this case is well respected that we believe that mr campbell was entitled to a new trial based on prejudicial information or prejudicial mugshots montage that was presented to the which was published to the jury a bloke shots a montage eight of my client's pictures which were stamped with former city police department the government never showed me this exhibit before they put it up on the overhead to the violation of local rules and obviously the customs let me interrupt you just one second mr fischer i understand the argument you're making this is it though a classic you know discretionary call and a situation where curative instruction was given so my question to you is what makes this different from all the other cases in our precedent where we had had a discretionary call regarding the improper admission  evidence and curative instruction what makes this so prejudicial that under its radically different because under the johnson case the prejudicial material was introduced by government counsel this was not a situation where it was a an unexpected w a witness it was in a situation where a ruger uncontrolled police officer or casey learned out the prosecutor didn't realize it was going to happen in this case the government counsel purposely in other words it was a mistake to put up on an overhead so that the twelve members of the jury on a magnifying device on h d t v s in the jury box could see my client's criminal record and what do we make of the idea that it's in response to counsel's attempt to mislead the jury so that the count out of nowhere that was you or not but you know doing what a good defense lawyer does suggesting a fact that's not actually true  to the jury right this guy's never had dreadlocks do we do anything with the idea that the government's effort was to respond to an effort by the defense counsel to mislead the jury ursule your honor i did try the case below number one number two my cross examination was all of board one hundred percent on the mark i wouldn't try to suggest that it was improper or i'm just saying it was it was an effort to to suggest something by implication that was not honor what it was st of all the government always has the right to try to prove the defendant's identity it's how they go about trying to prove the identity of the defendant and putting in most shots is the most prejudicial way that you could possibly find they could have tried to prop one of the photos up st i would point out your honor these mug shots in these mug shots my client has dreadlocks they're pulled in a ponytail to go half way down his back the issue was over short dreadlocks that this witness had had made in an identification of her drug dealer she had said there was this drug dealer she referred to as id k i don't know his name it please the court good morning my name is megan coleman and i'm here on behalf of the appellant and on washington your honor is the district court abused its discretion by permitting the medical examiner to be questioned about the but for cause of death the reason that this phrase was problematic in that the question never should have been put to the medical examiner is because this phrase both tracks the legal principle that was in the case for the jury to decide and it likewise has specialized legal meaning we know this because the government made a request at the end of the trial after the cross examination of the medical examiner in which the government requested a further supplemented instruction join appendix one thousand three hundred and ninety three the government indicated that in light of arguments made by defense counsel as well as on cross examination of the experts the government respectfully request that instruction number fifty three should be supplemented to further explain the but for causing standard announced in the supreme court's holding in barrage so therefore if the phrase but for just had an ordinary meaning a specialized instruction would not have been requested by the government and it ultimately would not have been given by the court in this case we know that the district co did not merely use the pattern instruction and the district court did not clarify that but for means the ordinary term of because rather the district court went on to include another paragraph of language to try to help  then see it to the jury what should mean in the legal sense so now when you back this up to the cross examination that was occurring with the medical examiner you have the government putting to the medical examiner not once not causation we know this because in this case as i believe it was exhibit four f that was the post mortem report and in that report the report indicated that the cause of death was heroin intoxication and so we didn't see but for being used in that sense we know that even under rule seven hundred and four of the federal rules of evidence that if they had if if the medical examiner had said exactly what this was the cause of death but for cause ation i in no way dispute that what i don't agree with is that gives the government this ability to just have their expert witness use this phrase to try to meet that burden and i will concede that the government was going in the right direction when you look at you in appendix one hundred and one thousand and thirty five when you look at the question and answer did immediately preceded the improper but question what the government asked the medical examiner was how does the results from your autopsy and this toxicology report lead you to conclude or how did it lead you to conclude at the cause of death for jr was heroin intoxication and the medical answered the presence of heroin in her body in her bloodstream in the absence of any other finding any other cause of death the government could have taken those facts which it's a it's an opinion that is it conclude with everything that was in the report the government could have taken that testimony to then argue based on the jury instructions now jury you know that this was but for cause of death because the medical examiner testified  it was the presence of the heroin absent anything else so based on that alone the defense most likely would not have been able to get into these other contributing or concurring causes except that that was opened up then on cross  examination well it's not harmless because it in the reason it's not harmless kind of dovetails with my argument about the jury instruction that we requested that wasn't given that i may not be able to get into fully but it but i would ask that you consider that argument in my brief when you're considering harm it's not harmless it's not harmless because what happens now is the government witness is testifying to but for causation and then we are precluded from getting into a definition in the jury instruction of about contributing causes we disagreed that the court's instruction covered what barrage said which was that if congress intended for the results from a provision to cover contributing or substantial factor causes it would have put that language in there but it didn't put in results from which was interpreted as but for causation the medical examiner put its stamp approval on that and there were a list of cases in my brief that indicated that asking a question about legal causation or other similar terms like discrimination things that have legal consequences is are improper questions thank you thank you very much  good morning please the court my name is jonathan gladstone i represent glen wells in an issue that most directly impacts him but of course affects all of the other appellants in this case that the evidence of this home invasion  all of them we of course don't know what the jury made of this as we know the testimony that implicated my client came from two thoroughly discredited police officers and the jury in it verdict was simply asked if there was a conspiracy and if my client would have been would have foreseen more than one hundred grams so we don't know what to make of it but we do know this was a separate operation altogether part of the problem is that this is something that i've come to call heroin by happenstance in that in the response to the motion the government referred to this as the plot to steal heroin but when the testimony actually came out from the police officers they did one police officers it was very clear to them that this was a plot to steal money here was a separate bunch of guys with some overlap to the to the defendants in the conspiracy but had heard that there was a lot of money and so when they went in through the apartment they were looking for money that was their expectation and then when they left they took everything they could find which happened to include a lot of heroin but then mr the evidence seems to indicate that he did not find all of this through the conspiracy the evidence indicates that he took the heroin that he had obtained in this operation and took it somewhere obviously and there can be multiple conspiracies and our conclusion is that this was a separate clearly unrelated army multiple conspiracies only where they're clearly unrelated this seems this seems to me to be direct as direct evidence of the drug conspiracy that they robbed a drug dealer they got heroin from it they sold their right but they went in there looking for money and the question is what if as a result of that robbery all they got was money all they got was one hundred one thousand dollars and they kept it what if that's what happened would that be part of the drug dealing conspiracy and so does the fact that the happenstance was that it was heroin that they find is that all of a sudden retroactively make it part of the herald when if it was marijuana what if it was cocaine what if it was cruel rands whatever it was we know that their aim was they weren't looking for heroin and when they did end up heroin getting here when they sold it separately and it would seem from the evidence that the method by which they sold it actually under the main conspiracy because they sold it through other avenues which presumably would have lessened the demand for the conspiracies but wasn't the trying fact entitle to find that when this the heroin was sold it was done so in furtherance of the conspiracy we don't know about you know i'm just saying wasn't the fact finder in title but we don't know that that is what they found all we know is that they found it was a conspiracy and that more than one hundred grams was forseeable to my client and we don't know if it was right but if there are reasonable facts that can reasonable inferences that can be drawn from the evidence that tie it to the conspiracy isn't that enough and if not why not but we can't because we don't know that that is what the we don't know that that's what the jury found we don't know that they found but that was the case that for all we know and i would expect that if that evidence weren't there my client may very well have been convicted anyhow even though the government in its opposition to the motion stated very clearly that without that information that they would very likely not be able to meet its burden at trial i don't know that that's the case ok thank you sir shropshire briefly we make two principal arguments although we do adopt to the extent consistent the arguments of co counsel as well i'd like to talk about the st the th amendment argument initially the government sees the buzzword ineffective assistance and says this really belongs in a twenty to fifty five and it certainly does overlap into that but we have actually a th amendment violation that was and has three components to it st the government caused the problem by seizing only based on a hunch mr shropshire trial notes that he intended to use few facts there are show the following mr shrunk charcoaled what the government and i understand i understand your position i'm not trying to you know need to explain i understand you're basing it based on that idea right well i'm not sure wh asking me exactly mr shropshire cool and what the limited factual and associated and he gave the names of the government witnesses now the government witnesses are all his customers there were six or seven people who testified as government witnesses who all stated that they had what drugs on multiple occasions from mr shropshire so these weren't strangers these were people he knew and the instruction that he gave to the associated we don't know who the associate was whether it was a member of the legal team or a family member who is going to convey this but he asked that they research the names on marilyn judiciary which is a public site which you can find prior criminal convictions and feeling that google and these are legitimate things to do although i understand that they could be misused but this is a legitimate trial preparation tactic that he was trying apparently although the record was not really will develop but apparently he was trying to assist his counsel in preparing for trial this is his counsel that was the th attorney in the sequence of attorneys who represented mr shropshire and i think mr shropshire felt that maybe this trial counsel wasn't entirely up to speed so what happened old thing was that the government eventually who we don't really know who took these things with us the marshals or the correctional officers police or somebody else but surely some of these materials were returned according to the government but one thing that apparently wasn't returned at least according to his counsel was a notebook of handwritten notes and among other things these were the notes of questions that he wanted attorney mr structure as attorney to ask him to really go over his testimony and without that he felt severely handicapped to the point where he wouldn't even take the stand in his own defense because he didn't know where it was going to go so yes this has some elements of ineffective assistance of it but the ineffective assistance was caused by the government seizure of his documents by the courts rule the trial courts really failure to address this and do anything about it and to some extent perhaps his own counsel's failure to insist that the trial court do something about it and the do somethings may have ranged from delaying the trial or issuing an order to whoever it was that took the materials to return them or submitting them to the court for in camera view i don't know but basically the court took a let's just go on with the trial may please the court your honors my name is leo wise on behalf of the united states with me counsel table is assistant united states attorney derrick hines the defendants in this case operated a heroin distribution organization in baltimore city that service customers as far away as york pennsylvania for more than five years they were protected by a corrupt baltimore city police department detective the heroin they sold resulted in the death of a woman the day after christmas in two thousand and eleven the jury was presented with overwhelming evidence of the defendant's guilt including testimony from customers recorded telephone calls and text messages obtained from the phones they shared among themselves controlled purchases drugs surveillance and drug seizures at the time of their arrests based on this evidence in the correct application of the law the jury returned just verdicts the issues raised by the of pounds are without merit and the defendant's conviction hunch as counsel represented in the jail call that was listen to the defendant mr shropshire was giving an associate the exact spelling and dates of birth of government witnesses and names and asking that they be looked up on maryland judiciary case search and on google to find their addresses and enough witnesses have been killed in the district of maryland to know that that raises a public safety j and the protective order was just on that day is it on the district court i believe it's on the district court docket i don't standing or not and just so that i understand it precluded it preclude the leaving of all d documents in the jail or  just a limited subset it precluded leaving in the jail anything that was produced in discovery and so based on this call the concern was that something that had been produced in discovery a witness list or jank statements had been left in the jail and so that's why an attempt was made to obtain that on this point of what was actually taken the record is clear and this was revisited by the court on multiple occasions that's not the case as counsel says this was not addressed by judge blake it was addressed on numerous occasions by judge blake that the only document that was seized and and not returned to the defendant was this this list of witnesses with all their personal identifying information which could could put those individuals at risk it was not a series of handwritten notes or questions it was not of the things that the structure claims was taken so there's there's simply nothing his counsel could have done when the record is that the government didn't take these things and he kept insisting they did but there was repeated requests to the marshals and others to try to get to the bottom of this and where it wound up was there was no nothing to substantiate what he said turning to some of the other arguments counsel has made no particular order as for the argument about the photos your honor asked about whether this was done in response to trial counsel asking questions that would suggest a fact that was not true and that was why it was done it was done on redirect and it was done you agree it was an error at the time your honor because defense counsel had said in his opening that his client sold drugs  it did not in our view prejudice him to show photographs i know but but you do agree it was an error i mean i get i was making a different point that you agree chittagong on the overhead but it is not a harmful error we don't believe it's  harmful or we don't believe that obviously the objection was sustained but we acted in good faith we did not believe at the time time was an error to show those photographs given that the defense was and this is what trial counsel said in opening my client speeds if you know what i mean but he's not part of the formula one racing team and then he doubled down on that later in closing and said he didn't dispute that his client sold heroin and wasn't in fact disputing counts four and five which were the possession with intent to distribute counts so the idea that he had been in that context the idea that he had been arrested we do not believe was prejudicial that the questions were to suggest that this person who said she bought heroin from someone with who had dreadlocks was not the same person sitting in the courtroom who had no dreadlocks and we've got to assume that in the moment that these lay jurors saw those pictures that they deduced from them that they were we don't know in three to four seconds even if they looked at them there was no testimony given there were no follow up questions they were almost immediately taken down but again this theme was the client's is not an innocent man who happened to be misidentified or caught up in something that he had nothing to do with it was that he sold drugs just not at the scale of his co defendants turning to the question of the questions that were posed to the medical examiner again judge richardson i think you hit the nail on the head if we hadn't asked the medical examiner what the buck for cause of death was the argument would be the government didn't it but for as the supreme court said in infer it is a question of actual cause the supreme court talks about proximate cause as a hybrid concept that includes both actual causation and legal causation and they clearly state we are only reaching the st issue whether but for is actual causation and as a question of fact it is perfectly appropriate and counsel cites not a single piece of authority for the notion that you can ask a medical examiner what was the vote for cause of death a jury a lay jury lacks the ability to determine mechanism of death now that doesn't mean that they're disinvested all the authority they have to determine if the charge drug the heroin in this case that mr washington distributed was the heroin that led to this resulted in this disease death and they didn't have to believe the medical expert anyway absolutely absolutely but how could how could a lay jury decide what the mechanism of death is if the medical examiner asked and if we hadn't asked it we certainly would have faced the argument well you didn't rule out that it wasn't in combination foreign and toxic cocktail the kinds of opinions that the supreme court said in courage didn't meet the  that there was a the council sort of came into this a little bit but not not entirely all they dress this in their briefs they confuse the special rule and really flip it on its head they take it it's a rule that expands liability and instead they try to graft involved members of the conspiracy well washington told wells that andersen had money wells who was a charge member of the conspiracy went to gondor who was a charge member of the conspiracy and then they were crew did someone else so counsel said there was a group of people outside the conspiracy it wasn't the tip came from washington and then wells got gondo and gone to recruit one other person anderson was a known drug dealer to them this wasn't just a robbery that they happened to do when the victim happened to be a drug dealer the testimony was anderson had actually sold drugs to shropshire organization so they knew that he was someone who sold drugs and if he was in if he was in possession of the kind of quantity of money that was originally represented washington told wells he thought it was about one hundred thousand dollars taking that money and  depleting the assets of a competitor would mean that wells would not have been able to buy heroin which is what the one hundred thousand dollars would have at least in part be used for and compete with this drug organization and as the questioning elucidated once they have the heroin they did exactly what they do with heroin and they sold it and wells in the jail calls that were presented to the jury describes himself as the enforcer he said i'm the enforcer and shropshire is bigger than me weight wise so this was what he did for the conspiracy he committed acts of violence he also sold drugs to the conspiracy and that was on one of the jail calls so the idea that he would procure drugs and then provide them is is well within the bounds of the  conspiracy as it was pled judge floyd and finally this notion that it was somehow sold in a different way the five defendants didn't all get together on the street corner and sell simultaneously they all sold to different customers all the customers testified to that so in this case wells got the drugs and sold it he shared the proceeds with gondo a coconspirator who participated in the robbery with ray on the other cop that they recruited and then he gave washington the original source of the tip who's a member of the conspiracy a find if this was activity that was outside the bounds of the conspiracy he certainly wouldn't have done any of that so for all those reasons we think this home invasion was intrinsic to to the conspiracy as it was charged it is the different state used the word intrinsic i think of it as being direct evidence of the conspiracy it's neither extrinsic or x extrinsic it's actually direct evidence four that conspiracy i would agree with that i think that the that language intrinsic versus extrinsic is often used in this context but i think a more direct way to put it is just as your honor has said this is evidence of the existence of the conspiracy this was in furtherance of the conspiracy to show the relative roles of the conspirators and it was reflected in other evidence well one officer john doe specifically said he never he did not know my client this is exactly why the government why their stock of putting up a mug shots montage prejudiced my client because from the very day i was arguing that my client was in a part of this massive conspiracy but yes the evidence would show that he was involved in a couple of illicit actor was a hand to hand transaction of heroin for example so my whole argument was premises on our belief that mr campbell was not a part of this very large conspiracy but was separate and distinct and so the star witness said that he did not know my client even though any any type of issue that they think is appropriate but did they really think that an exhibit of eight unredacted unrelated to this case mug shots would be admissible  through a witness that was on qualified to testify he was a harford county sheriff's deputy had no connection of baltimore city police there was absolutely no way this exhibit would have ever been allowed in and perhaps that's why government coun did not show me the exhibit before they placed it up on the monitor thank you  the government critiques us for not pointing to authority in which it's been held in abuse of discretion for a medical examiner chief use the legal phrase but for causation barrage was decided in two thousand and fourteen and is the court is aware there really is scant authority since barrage the cases that have been reported among the few circuits in which it's come to light has really considered the differences between whether the evidence was sufficient for there to support the but or cause standard that was required or whether the facts in the cases were many contributing factors and therefore did not rise to the level of the bug or clause in the statute what the government is asking this court to do is to render an opinion that would essentially stay say that now in order for the government to prove a death resulting case from the distribution of drugs that the government has to ask the medical examiner the book for question and i don't believe that that is appropriate for this court to do i don't believe that the court should set a standard that now in all of these that examiner has to be asked about but for legal causation that type of ruling would fly in the face of the other opinions that i put in brief from other circuits where objections were sustained to ask a witness whether t has the capacity to make a will why would there be all of these other cases as examples where those types of questions have been sustained for this court to then come in and say but in this specific context with this statute we're going to require that this legal phrase be used thank you very much for the consideration of my argument all right thank you but that is not what he told judge blake in opposing my client's motion what he told judge blake was that this was a plot to steal her and it was it was a plot to steal money in addition in the motion government indicated as if to buttress the plan to steal heroin that when my client came into the apartment he went directly to the kitchen and found the heroin indicating that that's where it was in fact the testimony of the officer was the two of them went in the apartment together the two of them went into the bedroom where they found the young woman there and there after my client went off to find what he could elsewhere unfortunately in their brief the government didn't refer to the facts as determined at the trial but repeated the allegations before trial that my client did a beeline for the drugs which he didn't do again there can be more than one conspiracy obviously this was three people assuming you're believing what the believed what the police officers exploit officers and they did this claims the own money but ended up with heroin which they unloaded through some other mechanism but it wasn't part of them certainly the other members of the regular day to day drug dealing conspiracy wouldn't have viewed this free lance home invasion as part of their operation or even foreseeable to their operation and that reason we believe that it was improper well the judge st of all didn't get accurate information which wasn't supported by the evidence that came in later but ended in a situation where it was i phone calls what the effect of that was and all that sort of thing those are representations by the government these were never the subject of an evidentiary hearing the court made that made no findings of fact and therefore there are new findings to which this court must give deference well isn't that a reason maybe why we should leave this until the twenty to fifty five when there can be an evidentiary hearing so our but there are also parts of this that sound of direct appeal as well i also want to point out to the court that the protective order which allegedly mr shropshire violated is found at page two hundred and forty four dollars of the joint appendix scuse me in volume one and it basically says to paraphrase it that the defense may not make sure the information that was provided to it on is on a disk but it may not leave copies of it with the defendant and finally that nothing in this order shall constrain an attorney client relationship which is exactly what we did happen here the court has no other service you've done a fine job