morning please the court counsel my name is bill stanton i represent kelsey jones your pulse his motion to suppress evidence was denied he proceeded to a jury trial the jury found him guilty of kids conspiracy to possess and distribute a substance as well as distribution of control so he was also found guilty of conspiring to kill an informant attempting to kill an informant and discharging a firearm during a crime while he was sentenced  that his sentence was improperly enhanced l c s this court to reverse three men for a new trial or nuisance and here i'd like to address the denial of the motion to suppress first motion to suppress hearing him verbal consent to search the apartment back at the park police department why wasn't that a credibility determination just a finding of fact really to fit district court has to make their there's no requirement that there must be signed case in which when the district court has made this finding of fact that there was very full consent that we struck down a search on the ground that there is no consent i can't think of any case that i know the credibility of determination is accorded great weight by this court i just think based on the record in this case the juxtaposition of the different testimonies of the law enforcement agents right there would be possible for district judge to come out the other way on this and i understand the frustration defense counsel sometimes feel in those situations but also mr jones testimony according to the district judge had its own improbabilities and internal contradictions ran certainly so mr jones testified on his own behalf at this motion hearing and what his testimony was was i said there's nothing in here anyway or something to the effect of that now ag lab no submitted a report report that he created some cream half months after this search took place where he quoted mr jones as saying there is nothing in there anything now go ahead and search there is nothing in there anyway but there is nothing in there anymore no clear consent to search the apartment but as a corollary matter coasties testimony at this suppression hearing was then used as an obstruction of justice penalty against him sentencing and so in order for that to apply his testimony had to be willfully false compared to the testimony of the agents where this incident was not clearly remembered him i don't think the right hand knew what the left hand was doing here i think kelsey's testimony was pretty consistent that he was not shown the form until he got to police station and that he never gave verbal consent at his apartment so there's a bit of transcript that the government set out on pages thirty seven and thirty eight of it's a brief that  some of kelsey's testimony at this suppression hearing and i think that's what the district court is finding he's lying about right i would i would agree  so yeah i mean it is just a standard of review problem that you have the district court it seems to me has made the findings that were necessary to make about the willful well that the materiality and the willful li from the employment discrimination side of things where we look to protected activity rings walled was cooperating  shooting would count as adverse action right and the question is is there a causal connection given given that there is disputed but testimony but but the the jury found that he was properly identified as the shooter we looking at circumstantial evidence to determine motive and i it's hard to see another one well initially with positive killed he was not the shooter and i understand that argument yes but but we've got conflict we've got the victims kelsey had not been on any recorded calls with this jamie ringgold had not been alerted by a law enforcement agent that he was the subject of the investigations by them and not really had any specific dealings with jamie that would cause tells you to believe james tricking on me or reading me out i need to go cause him harm to prevent him from completing this cooperation against me i don't think there's any direct evidence of the circumstantial evidence of that is phone calls between kelsey and his brother there were some call activity that was increased in that the days prior to the shooting but but you would agree that circumstantial evidence is perfectly competent more your honor scores for color on behalf of toby jones we have raised two issues on appeal of the insufficiency of the other once and the unduly suggestive identification procedures premises controlled by mr jones in his home or in his car but don't don't we need to look at the other end of the telescope basically the government presents evidence showing that toby intends to purchase the clock from the undercover agent for himself he sort of states the price the six jabs he sends an agent he sent somebody else fields to go get the gun there are text messages that show that he's involved in this in that field is doing fields is doing what toby wants him to do and so why does it make any difference if he's physically there or if you know he has it there's no this instance mr fields at least initially testified that he asserts he was going to go off on his own he was potentially going to buy the guns just with cash in eventually he did change his story and then later implicated toby but there is some confusion for mr fields testimony at least as to what the terms were and can't the jury credit that you know there is evidence that it happened the way the government says it happen blending into a credibility argument you know doesn't doesn't carry much weight here but so i think the all those fair after years to consider that toby is nowhere near the scar and you know future cases future defendants could be show you know that it's their gun eventually you know suppose you ordered it i don't think you can do this but anyway you know suppose you order the guns on internet website you certainly can and it's your gun you paid for it and maybe you didn't actually physically touch it payment you know it wasn't to be an internet transaction i assume that you know toby orders the gun and he gets fields to carry out the order and now it's toby he's got well again i would point to the that being true but to the fact that again mr fields says that he was going to sensually by the gun by the suzy by the guns with cash used during the exchange it almost elements of the constructive possession offense are available on the evidence for the jury to credit then it's hard to see why we would overturn it on insufficiency grounds measure can't be the star and a bit player simultaneously but i mean either theory works use of legally sufficient truth so you have your fields as the is the agent and toby jones the principal i thought the district court made findings to that effect she did go to god she did but again there was no essentially no argument made by the prosecution i have to say no chance for toby to to put up a defense to the aiding you know and abetting theory and on the identification before you run out of times or even if we thought that it was suggestive then that just takes you to the totality of the circumstances analysis and even so he keeps seeing the same not just his picture being the same but the other pictures are the same too so i don't know why that makes it makes his picture jump off  make a bill a point to the picture for the same of the other individuals other five individuals but it is far as the the actual shooting itself in the events and circumstances under which that took c visited the apartment and looked through the keyhole yes she did she was the trier of fact yes she was you know and as you point out in the brief and i mean obviously that's it it's good she did that but again this is under control stipulated so i think that the conditions were a little bit different and you know again mr archer then equivocates multiple times he identifies toby that he says he's not sure so he literally i believe i lost track of him for four times he if look flops so i think that's part of the circumstances here that this is not an open and shut you know he's one hundred percent sure that this is that this is the guy so there are no further question good morning your honour's your please the court shawn france on behalf of the united states judge would you ask a question that didn't get a clear answer yes the answer is yes before the trial began government did say in a pretrial jury instruction conference that it was not going to pursue an aiding and abetting theory that was at the time the parties were thinking that toby jones was going to try the case by jury five weeks later he decided to take a bench trial and we did raise the argument in closing but i think the important thing i mean there's a little bit of a troublesome aspect to that because one is going to defend against an aiding and abetting theory somewhat differently than you would defend against a constructive possession theory and if the government suddenly brings it out at the last minute i don't know whether there was objection made that it's troublesome to me judge in some cases you would defend against aiding and abetting differently than constructive possession but not here and let me tell you why the government's one and only claim about count nine our theory of the evidence was this that toby jones sent wesley field out as his surrogate to execute this gun for drug exchange on his behalf now that triggers section one twenty four c liability under two different legal principles constructive possession as well as aiding and abetting and we talk about this in the close in the second paragraph section two of aiding and abetting is meant to cover those situations in which you send someone out to do something in your stead so in this case there's almost a complete merger between the two and that's very important because what that means is there is no argument that would have been available to the defendant to argue against aiding and abetting that was not available to him that he would not have otherwise made to argue against constructive possession in this case it is the same thing now the one very limited exception to that and where this actually so you're saying this all turns on the finding that seals is the agent yes y the same agency principles are driving both the theories of liability now the one exception to this and where this did come out at closing and frankly why it came out when the district court asked us directly was in response to the this argument that the defendant made that will fields purchased one of the firearms with cash and the government hasn't proven the other with the cocaine what you know yet which was for which and so we had three responses to that number one it doesn't matter what was in fields is my this is about toby jones and ted and the evidence was crystal clear for months leading up to the deal the day before the deal one hour before the deal took place he kept confirming the terms of the deal six jabs of crack cocaine for that glock thirty that was our first argument the second argument was this is one in the same exchange it's crack cocaine and money for two guns it's one incident that and one transaction and the defendant's efforts to parse that into two separate things just simply didn't square with the evidence our third and final argument was where we said even if you don't find that if you find that you know it wasn't clear that toby understood he was exchanging drugs for the gun or if you don't find that this was the single one single transaction he'd still be guilty under aiding and abetting so that is the one area where we stepped out beyond to a point where aiding and abetting in constructive possession don't entirely overlap but i think the key point is your honor even if that was err it was harmless because the district court first and foremost ruled on constructive possession grounds and almost really is a pro a if you read the opinion the district court says and you know i also find that it's aiding and abetting as well so we call those alternative hold alternative not throw excuse me i mean excuse me as an alternative holding so your honor for those reasons and of course this purchases from the undercover agent so it's you know correct though the key thing to point out is that you know under the risk case the defendant has to show prejudice he has to make some effort to show what he would have done differently and again he can't do that here because in this case constructive possession and aiding and abetting a really  in the same thing that makes an interesting point moving on to the identification issue about identifying who this person was by this momentary glimpse through the pe i mean there's not problem with eye witness identification begin with before you're talking about peoples and i i can certainly see how once you actually then start looking at photo arrays you could be deluded into thinking that you're seeing that same face and there's just no reason to link that to well your honor as far as the you know opportunity to observe that took place but you know the it mr barlow testified that it was brief you actually said there were two two and a second still looking through you step back you look through again so these were very brief but he testified that it was adequate i got a good look at the face it was enough time to recognize facial features and indeed went out and expected things from the scene and found that yes it even a brief look is sufficient to be able to see through and see those facial features mr barlow testified that it was well lit he did testify that he had used marijuana and had a couple beers earlier that evening but he said he wasn't drunk he did say he was a little bit high but he said he was highly alert so i think that you know his opportunity was brief but it was sufficient was toby jones a stranger to him yes your honor yes in addition there are these the scrub rating the circumstantial evidence that points to the reliability of the testimony of this extraordinary events that took place in this week in the spring of two thousand and fourteen mr barlow shot through his front door identifies toby jones a man he doesn't know and he describes the second individual i've got a person who sounds a whole lot like kelsey jones three days later another witness testifies marty smith that toby jones and kelsey are out on the street they're trying to hunt down the c i they're asking people where he is what kind of car he drives two days after that marty smith kelsey calls marty smith and asked him are there any cameras in the back of your building sure enough an hour later chelsea jones attempts to murder jamie and his brother meanwhile at the time the phone traffic highly unusual call patterns of between he and toby jones when you put all of this evidence together and you consider the totality of the circumstances i think there are sufficient and dish  over liability here the identification is certainly not as strong as as the kelsey jones identification but it was there's enough evidence here particularly when viewed in the light most favorable to the government to sustain the conviction for mr toby jones on the question know that toby and kelsey were brothers they were involved in the underlying drug conspiracy together kelsey himself admitted to that we know that they lived together in an apartment and we know that within hours after wesley field was arrested on march twenty six toby jones knows that something is amiss he is frantically calling anyone and everyone who is at this gun deal and he jamie rings will testify that he has a conversation with toby jones in which he is extremely  know where jamie is now given toby's obvious knowledge of what's going on in his close relationship with kelsey i think it's reasonable to infer particularly given the rather extraordinary events that in that occurred in the days following the kelsey had an opportunity to learn what happened that this this was the obvious motivator as your job as your honor mentioned there is really no other plausible explanation of why at this time in these in this location going after the same target that these two brothers wouldn't ga h it's hard to say exactly what they knew but they knew something was wrong if you recall there was testimony that and asian lads recorded phone call that agent know sitting with mr ring's while they called toby and toby at first says had they bumped up with you yet had my guys met up with you and where are they they haven't come back yet and then the c i says something like yeah i just met up with them they should be coming back to you the testimony was that about an hour or so later he talks to toby again now there's a distinct change in toby's tone of voice he's agitated he's demanding to know where they are and jamie's sort of putting him off and saying hey man i don't know i met with them i met with them that call is ended suddenly the phone goes goes off the hook with phone calls so i think at that point it's reasonable to to you know believe that toby knew that something was amiss whether he knew that you know at that particular moment that the field was in custody but you know it's reasonable to infer that he figured it out know jamie h introduced this unknown person to him feels goes out meets with this on one person and doesn't come home it's reasonable to infer that he understood what happened your arse turning now to mr jones's due process claims there were two identification procedures that took place here the first was with detective taylor at the old park police station the district court found that there was absolutely nothing wrong with that procedure and the defendant doesn't argue otherwise so the focus here is on th to point out three things happened before agent lab no showed mr barlow and he photographs number one and most importantly mr barlow told agent ladd no i saw my shooter in that photo lineup the detective taylor showed me the first one the first one i saw my shooter he was depicted in it and i stared at the shooter consistent with what the tech to taylor had told age eleven zero second he said i was scared at the time but now i'm willing to cooperate and gave a very very detailed physical description of the shooter that matched toby jones to a tee that is all before he's shown any pictures so your honour's i would argue that it was not only not unduly suggestive for asian lad no to go color that's exactly right right now now this is where it got a little sloppy but it wasn't unduly suggested agent lab no went and tried to as you said get those large single individual color photographs to lay out for mr barlow on his way back into the room the testimony was that he them sort of splayed out like playing cards in his hand with the top three visible and the bottom three not visible so the top three were equally visible toby jones was in the third position as he approaches mr barlow he makes this spontaneous identification and photographs he didn't want to lay the same things out for him so what he did was he then put out a black and white version of that same line up the detective taylor had showed him and that's that's arlo photo spread  photo rate twice the same photo array a second time after he explicitly told law enforcement agents my shooter was in that lineup so that was not only not unduly suggestive it was the only reasonable thing for law enforcement to do at that point question that it was adequate to sustain this conviction he made a very detailed post arrest admission in which he admitted that he had been working with his brother to distribute narcotics cocaine and heroin that his brother had given him a cellular telephone that we refer to as course the march nineteenth two thousand and fourteen undercover deal and with the video and audio recordings of in which the c i and the u c met with kelsey and toby and purchased a large amount of crack cocaine that they that they had purchased during investigation it's important to point to note that during his post arrest interview kelsey admitted that he packaged the drugs that were sold on that day he told agent lad know the weight of the drugs and he was right and he also said that he rode with his brother to provide security that day and that makes sense because he was selling a particularly large quantity of narcotics that day now as to the identity evidence against kelsey johnson this was frankly the most overwhelming part of the government's case we had to eyewitness identifications we had marty smith the testimony of the phone call asking about the cameras just an hour before the shooting we had marty smith days before kelsey asking him where is jamie what kind of car drive we have the forensic evidence when we search kelsey's apartment the sweatshirts matching the shooter's clothing with gunshot residue concentrated on the left cough all of the witnesses well jane the people who saw the  defend it with the gun in his hand jamie and mark consistently testified he held it in his left hand we had wesley feels his testimony remember westerfield's was in jail by this point he didn't know anything about the shooting wesley feels as the morning of march twenty sixth before i got those drugs and money from toby jones chelsea jones i went up to the apartment kelsey jones took out a silver a crumb and black nine millimeter handgun short to me and said this is the new toy and of course all of the witnesses jamie saw the gun in his hand describe it as a chrome and black hand we know from forensics that it was a nine millimeter the evidence here is simply overwhelming your honour's very briefly to the buyer seller instruction  i don't need to tell this court district courts are not in the business of giving jury instructions for which there is no evidence to support that is confusing for juries we don't know as use pointed out in the lomax case the buyer seller is instructed struction is only to be given the irrational jury could find the defendant merely bought or sold drugs but did not engage in a conspiracy here no rational jury could find that all of the evidence was evidence concerning jointly undertaken conduct to distribute narcotics together there was none of that kind of evidence that we saw in the cruiser garcia case where the evidence was about you know the defendant and his alleged coconspirators standing on opposite ends of the transaction the only thing approximat was wesley killed testify that sometimes he gave drugs to kelsey there was no follow up about that and it absolutely pales in comparison to the conspiracy evidence the district court did not err yars unless there are any further smith testified that he knew kelsey to be an addict the only test one we had of cosi dealing drugs was marty saying sometime in two thousand and thirteen he dealt with drugs without any specificity and markings while the informant's brother stating it was the winter of two thousand and fourteen that that kelsey filled me drugs seem right that it's actually a big operation when the government's theory is that maybe kelsey wasn't the one who was personally doing all of this right a big operation where suppose he has this phone twelve hours a day yet is not in any recordings with a government agency or do they see that my time is up you have no further questions i think free to write to thank you and i think maybe you have about a half as far as mr barlow goes the june second identification was made only after agent lab no in the federal government hannity prosecution federal prosecution and more ram so you see didn't see the light until this  prosecution as far as mr fields goes i know in the brief we've made essentially some credibility arguments but this is an unusual situation where you have a fact finder it mid in writing in the oral opinion that mr fields is a liar