morning in welcome to our we go for a war game in here in beautiful jacksonville before we start judge joe flight and i want to thank judge william traxler from the th circuit for being with us  thousand and sixteen he received his juris doctorate degree from the university of south carolina and he also served in some very very important positions for the federal judiciary is judicial conference and so we're very happy and honored to have him here with us to help us during this week really appreciate it you're familiar with our lighting system when the yellow light goes on that means that your time is drawing to a close so begin to wrap up if we take you beyond the lights then don't worry about it you're on our time and not yours and with that will begin with the st case number eighteen dash twelve thousand eight hundred and eleven united states versus jimmy rmy for notice at all and we'll start with mr wagner district court clearly didn't want to impose a sentence as is made clear by the transcript particularly the portion we we cited in our brief where the district court actually criticized the government for the way it filed a superseding indictment i believe that that sentence violates the separation of powers doctrine particularly because it categorically excludes one rd of the judiciary and the rendition of a federal sentence that one rd of the the government i would also argue is the most important portion of the government when it comes to federal sentencing because that is absolutely the core function of the judiciary is to decide cases in controversy between the government and citizens of the united states and all are like this record our hands are tied to a very large degree as well quote that was so widely used my brief the provisions for defense of the separation of powers doctrine must in this as an all other cases be made commensurate with the danger of the attack if the if you want if it's understood as a person a subset of protection against government overreaching government over punishment then you have to look at each particular instance of government overreach and government punishment in itself not as a categorical or per se argument and in this particular case depriving the judiciary of a core function in cases of drug sentences and ancillary offenses violates the separation separation of powers doctrine the reason is that the liberty interest at stake in comparison to that to the harm caused by society that's a judgment call that's a moral decision that the courts are certainly entitled to make they've been making that decision since marbury vs madison and i think the court could make that day your hands may be tied by by the procedural press of this court because of prior ruling but i would point out to your honor's rule be able to provide the relief my client wants any of you or at least show flaten judge jordan may on your own initiative sue spawn to ask the court to be polled as to whether this issue should be heard on bob i think the issue should be heard on bob i think the ok's are stale and it needs to be reheard by the full court thank you one more one more question for you since you've brought up the possibility of on bhangra hearing what's the dividing line that makes mr for not is his sentence unconstitutional under the separation of powers and since you're not making a person argument what sort of a mandatory minimum sentence would satisfy your separation of powers concern i'm reluctant to give a number and i don't mean to be flip and by that i think you have to look at the harm caused to society and you have to look at the sentence and you have to look at the role the judiciary should rightly play in the rendition of that sentence and this particular case i think any minimum mandatory for a drug offense would be would violate separation of powers doc and i don't think that would be the case with for instance crimes of violence and other minimum mandatory is where the harm is more clearly defined based on a moral but that but that's a per se argument no no it's not it's an argument based on this particular offense and the harm cause us liad noted a prior conviction without the government offering any basis for its admission other than perhaps propensity to commit a crime which is a use for which it is presley forbidden and the the circumstances of this case where there was no other evidence of his ties to drugs to drugs at separ hearsay and him being caught with some drugs in his possession which brings me to the nd reason the conviction the government didn't even are in your view articulate a theory of admissibility not even articulated theory of admissibility on paper or orally they submitted a memorandum but it does not articulate and it suction if you read it it i can be construed to argue that it should be allowed for appropriate propensity and the judge certainly did not articulate and exception to allow which he was required to do the nd reason the conviction be the reverse is because there's no evidence tying this defendant to this conspiracy the hub of the conspiracy mr giles did not know him none of the other witnesses knew him there was a graphic there was a poll videos in each of the locations where the drug drugs were that's often the case that they don't know each other which is a good idea i suppose they usually somebody somebody knows somebody in the leader of the hub because the conspiracy would usually know somebody but nobody knew him at all the only evidence linking him to it was somebody said that somebody said that that's my boy and his car was seen going back and forth but he was never seen in the car so there was nothing linking him to this particular conspiracy because nobody in there knew him he was over the telephone calls he didn't have the telephone number of the other people in the conspiracy he wasn't in any of the the recordings that everybody else was on the video recordings that mean even in your view what what did the evidence show that flew or did although you believe it's insufficient what did the evidence show that he actually did you have a to see if you'd been charged with the appropriate crime would be that he may have been involved in some other conspiracy that was not charged but he was buying and selling drugs as what it was he'll want to cajun was caught with drugs in his possession and that is that most evidence there isn't so it was a buy sell transaction which brings us to our rd argument that the reason it should be reversed is that the the to you thoroughly without having the language from the brief right in front of me but but a conspiracy requires an agreement between a conspiracy to distribute drugs requires an in agreement to go out and sell drugs it requires an it the illegal act has to be the object of the conspiracy which is to further distribute drugs you can go buy drugs without having any intent whatsoever to sell them elsewhere and the jury could infer that just because there's a conspiracy but the jury should have been told that just because some people were selling drugs and not of agreed to do that and had some organization whereby they did it that everybody who bought drugs from those people was not circumstances of the case it just wasn't appropriate didn't articulate a legally clear reason for doing so we quoted his his reasons and in our brief but there really were issue that congress has gone too far in bonding the the hands of the courts i know this argument been repeatedly rejected but i keep raising it before this court and others but it's also even if not per se unconstitutional some constitution under the circumstances of this but that prior is prague conviction for possession added tencent ten years to a senate so we got a ten year additional minimum mandatory based upon a simple conviction for simple possession because he would have otherwise been subject to what zero to twenty dollars or five dollars to forty dollars within the ranges then it had been subject to ten so we got ten plus ten total right so he would have been at prior convictions did not do the trial and i made those of arguments with a little more time and he actually was very troubled by the application of the mandatory minimum so this in this case he said his hands were tied but he had trouble with that bo but there was no proof it deuced at trial beyond a reasonable doubt of his identity as the person who committed either of those crimes therefore his convictions on both counts are due to be it reversed of course the government would have to prove in open court with an in court identification that the person indicted by the grand jury is the person who committed the crime and in this case there was only one witness at the whole trial that even attempted it and identification of my client and that person was the ringleader eric giles mr giles only identified my client has that boy he never said that and nor gussie and nobody what does that mean though well it means that there was no identification beyond a reasonable doubt that he was a member of the conspiracy  surely alias is admissible but you have to government would then have to link that up at four way is gerard sonora gussy and that didn't happen in this case but he identified him physically in the courtroom boy fat boy but nobody there was no testimony that that boy was gerard's and nor gussie that testimony necessarily has to say that no he didn't identify  that's sufficient well there have been five boys kind of an alias it is but it's you would have to link it up with the actual true name of the defend it and back when i was in a usa for example i did that by bringing in the booking officer who would say i filled out this form and his name was gerard he told me his name was charts and nor gussie and that's the person who told me that and that's how you link it up that was not done in this case in fact mr giles testified i never knew his real name i never knew his real name like that nor gossipy what's the best case that supports that proposition of law that court id through an alias is insufficient unless you hit link the alias to the person's true name as charged in the indictment i did cite two cases in my initial brief and i'll sorry don't have that wasn't what i was going to argue here with me in my argument but i did cite two cases one in which the witness to the drug transaction identified the lady as o c and  the agent was then able to have somebody another witness link up o c as being the the woman's true name and so they identity must be proved beyond a reasonable doubt the special instruction number three to the th circuit instruction pattern jury instructions does require that right thank you very much  morning my name is brad meltzer i represent raymond your honour's my client's sole issue that we're arguing is that conviction for conspiracy should be reversed because there was insufficient evidence beyond reasonable doubt to prove that he was a part of the conspiracy there was a buyer seller relationship that all that was all that was proved but your honor there was your honour's there was no evidence at all to establish a conspiracy as to new green mint  or that he was a volved in any drug operation your aker contention is that the government failed to establish a conspiracy generally or a conspiracy in which your client was a member that my  only evidence that they had to link my client to to any the only the only testing they had was mr geils who basically with made a general statement that he sold drugs but there was no evidence that was conspiracy there was no evidence that he could provide linking my client as to where the drugs were sold how he did sell the drugs he didn't receive any of the profits mr geils all that mr giles did was receive orders over the phone he was the ringleader but with regards to my client my client was calling him to order to buy drugs which we admit he did but there was no evidence that he was selling that as a part of a conspiracy and that he was engaged in any drug operations in this boss will issue instruction you agree with your colleagues representation that the difference between a conspiracy and mere boss or relationship is what happens subsequently after the sale of the drugs to  and that in addition to the fact that there has to be an agreement between the conspirators to sell the drugs so what happens after the if mike if after the fact he were to sell drugs but there was no conspiracy that linked any of the other members i don't think so you're saying the difference is what happens prior to the boss are all still yet or what happens contemporaneously and not what happens later on i believe so because if if whatever happened if he were to be selling the drugs after the fact then but not linked in any way to a conspiracy then he might be charged with distribution of drugs but it sounds like you do talk about two different things and when you come to it comes to the question of a jury charge of making laypeople understand the difference it's kind of hard for me to see where the problem is we don't look like the two you agree on what the differences well i think we would both agree that there has to be an agreement between the conspirators because that's a central element of the of what a conspiracy is i believe we would agree to that what happens after and i think that if there is no agreement between the conspirators whatever half an happens after doesn't really matter what happened what happens afterwards can be evidence of an agreement true if but it had there has to be an agreement proven circumstantially or through direct evidence right up front and and and in the knowledge knowledge by my client at least that he was aware of this agreement and the conspiracy which would have to happen before all right thank you very much thank kosky is that correct ok the court i know you only have i only know you only have one minute but will will give you an extra one so you can only get your name out before you have to sit down so thank you  represented as him go on and said i want to address the retroactivity of the st step act so we believe that the provisions of this act should apply to mr gallon even though he did not make the technical our way of looking at the final imposition as far as you're aware how many cases throughout the country addressed that issue yet yeah i looked about a month ago or so and i think one or two decided this adversely to us i don't think this court has ruled on it yet i think you're right about that ok so we're hoping you know carve a new path out on this and you know based on the principles  stiff and begins and because i might forget to do this i want to thank all of you for your service to your clients and to the court i know that you're all court appointed and we certainly couldn't do our jobs without your service and dedication we  prior conviction the united states position is that reasons were given and articulated on the record by the prosecutor as to why this evidence was being introduced and also that the district court sufficiently articulated its reasons for allowing that evidence in the reason given by the prosecutor both in writing and trial when this was litigated was that it was going to be entered for intent for knowledge and for motive and by pleading not guilty and putting the united states to its burden that information was admissible in this case to prove both the conspiracy against mr same floor and the charge of possession with intent to distribute if that's the case and i know that our cases support your position a prior conviction on our katic starch always comes in in a subsequent narcotics prosecution one even though even though those of us who have been on the trial court know that the line is very thin between knowledge intent to motive and propensity well i agree with your honor it's certainly a close call sometimes but the court here did the proper balancing test if this evidence is relevant and if it isn't on julie prejudicial then it can come in and that's exactly what the court here considered and ultimately decided in favor of allowing this evidence in now that being said although the united states position is that there was no abuse of discretion in admitting that evidence this court could also a farm on a harmless analysis underscore what this court already knows which is that prior conviction was no smoking gun in this case it was one piece of evidence and a case that included around one hundred dollars pieces of evidence in addition to testimony from dozens of witnesses including other drug traffickers including law enforcement agents from multiple agencies around the state of florida the prosecutor the case was that overwhelming would you need a prior conviction well i think maybe with the luxury of hindsight we can conclude that the united states didn't have to have this  we don't there's no crystal ball so to speak about what exactly these defendants are going to try to do to support their theories of the case we did know generally the theories of the case by that point which was with regard to mr same floor that again i emphasize that the united states did not rely heavily on it at all and a closing of somewhere between forty five and sixty minutes only one sentence was devoted to it when the evidence of these convictions  gazey came then the prosecutor described it as a housekeeping matter and simply handed the pieces of paper the certified judgments over to the clerk so there was no drama associated with this there was no heavy emphasis and the jury got the correct instruction on this is the th circuit pattern instruction the jury was instructed very clearly not to use this for character evidence and we can presume that the jury when correctly instructed did follow those instructions and did not use that evidence for any purpose other than what it was offered for motive and ted knowledge i'd also like to address the buyer seller instruction which overlaps that for for for be evidence somewhat the the court asked what the elements of conspiracy are and they are the these three elements an agreement between term or people the defendant knew of the conspiratorial call and the defendant knowingly joined or participated in that illegal venture the jury was correctly instructed on that had they not found each one of those elements the jury could not have convicted the defendant answer and an instruction on the theory of our cases at least are pretty clear so there may be an issue as to phrasing the issue that judge draxler mention but as a general matter our circuit our circuit is pretty clear that a mere buy sell transaction does not a conspiracy me so why is the defense entitle to putting language aside and maybe that's your argument but why isn't the defense entitle to a buy sell instruction if the evidence of you in the light most favorable to the defense shows just that sort of a transaction because the evidence also established the conspiracy and that instruct evidence in the light most favorable to you you're not supposed to look at the evidence of the light most favorable to the government when the defense seeks instruction same thing for alibi same thing for entrapment accept or accept or if you look at the party asking for the instruction i understand your honor and my point is that the conspiracy instruction covered the law there was no there was no sort of a business that left open this question about whether or not the jury could acquit if it didn't find this conspiracy and i would also mention your so your argument is a person argument too that a conspiracy instruction necessarily subsumes by cell theory in this case yes based upon these facts your honor i don't understand that at all well i'll try to make it a little bit clearer but let me did you you opposed to by cell instruction the united states government instruction on what theory the that the evidence a stablished the conspiracy and did not specifically i should say this that the evidence precluded a theory of  buyer that the as a matter of law butin the light most favorable to the defense well it really was a matter of fact sure honor the government's argument was the facts do not support that instruction viewed in the light most favorable to the defense that was the argument below yes you think that argument is correct i do believe that yes there was no way that the evidence could have been construed by the jury had they disbelieve some of your witnesses for example that this was only way that a jury could have construed this evidence even if they disbelieve your witnesses was that there was a conspiracy if they had disbelieved the witnesses they would not have been able to convict of a conspiracy and they might have just found the buy sell transaction carette then why wasn't the instruction given well that wasn't a charge the charge was conspiracy in the charge was possession i know they're not asking for an instruction on the charge they're asking for a theory of defense which cuts against the charge i understand your honor and i would just have a different point of view about this than it appears that way but let me also underscore for the court that these defendants did make that argument before the jury that the that mr singh floor and mr i up were mere buyers so it isn't as if that argument was never presented to the jury at all it was made pretty aggressively as their theories of the case and the jury rejected it wholesale why have plenty of time left your honor some happy to continue answering the court's questions but if there are none then i will rest on the briefs and ask this court to affirm the judgments and a little time so will take a little bit of your talk that's all released on with or least i will ok so the government has a huge amount of discretion as to how to charge cases some in some scenarios its hands are tied by ethical rules and attorney general memoranda and the like but in a lot of cases the government has huge amounts of discretion as to how to charge cases and whether to stack counts or not so why did the government choose to charged this case in the way that it did given the district judges frustration with the sentencing options that the limited sensing options he had facing him at sentencing well the united states felt and feels that these guys were bad guys doing bad things and that the charges against them drugs is selling high amounts of drugs yes including one again eighty year sentence you think is appropriate for the we're not talking about the cali cartel here a forty year sentence well i'm starting to you're starting to and i know these are legislative judgment so i'm not speaking on that issue but you're starting you i don't mean you personally but i mean the government is starting to impose to prosecute these cases in a way that people are being warehoused for decades and there is going to come a time when that practice i think is going to come to bite you in the rear bite you the government in the rear because it's one thing to try to impose i speak only for myself not for my colleagues and i know that our hands are tied here given circuit precedent on a fair number of the arguments that for example mr for notice makes but you're starting to warehouse people for being narcotics dealers those are the sorts of sentences that are normally handed out to murderers and rapists and kidnappers and terrorist and i think something is getting lost in the quezon that keeps happening your government is going to one day happen upon a defendant who gets a sentence like that and it's so disproportionate that all that favorable sentencing precedents you have is going to get turned on  head well i certainly understand the court's position and concern in that regard allow me the opportunity if i may to know to couple of things about this case because of the mandatory minimum state were here the government did not introduce evidence that it might normally at one of the sentences where we didn't have these minimum mandatory sentences and at one point the district court judge mentions that you know i don't know that you would like the senate that i would give you but my hands are tied and so this is the senate's and my point in mentioning those details is that we don't know what the senate says would have been in these cases they may have been what this court considers severe the united states elected not to ask for any more because the senate says inclusive of the minimum mandatory and the stacking was sufficient to suit its sentencing goals but the united states was perfectly capable of in a case in this case but in particular case minus the mandatory minimums of bringing in evidence to support these harsh sentences to a baby true but we just don't know that well i guess that's my fundamental point your honor we don't know what the sentences would have been in this case and so while we are focusing quite heavily on the minimum mandatory aspect of it and i understand why these sentences may have approached something close to that at least for some of these defendants the range for these defendants was ten years to fifty years we had some twenty years and it's in a forty year senate so we just can't know what the court would have done but to the extent that any defendant  maybe suggesting that there would have been a ten year sentence as opposed to a fifty year sentence or anything like that we can't know that we just can't know it because of the minimum mandatory that had to be applied in this case i'm not suggesting that a ten year sentence would have been difference so don't take my remarks as suggesting that a five or ten year sentence would have been appropriate in this case not at all it's just that a forty year sentences for times that otherwise apply coble statutory minimum brothers that the government has argued that perhaps the sentences would have been similar had the judge had some discretion to go below the minimum mandatory that's exactly what we're asking you to do remain and it so that the judge can actually make this decision without being hamstrung by the minimum mandatory we don't know of course what the judge would have done and i'd like to find out now but i would like to say one thing in my body what do you say in response to miss tiffins argument that at least for some individuals in the case as your arguments been adopted by some of your so counsel the sentences imposed also included gun charges it wasn't just a straight narcotics case in my i've referred to these charges as drug trafficking offenses and ancillary offenses and i purposely put those together to distinguish them from nine hundred and twenty four dollars cesar charging connection with crimes of violence there's a fundamental difference that is the difference no one was hurt in this case no one right not in a lot of violent crime cases nobody is hurt either you may have a hobbs act right argue may have a carjacking where by the luck of god no one is actually injured what's the difference between wielding a firearm in a narcotics case and being ready to use it with doing so in a hobbs act robbery of a seven hundred and eleven dollars or a carjacking and trying to take someone's vehicle i understand your point it comes to the fundamental the underlying offense which is drug i've cited in my brief newspaper article where a convenience store owner was actually celebrated in one of the gun rights art of magazines for using a firearm to defend his store and the photograph is him standing in front of a rack of cigarettes holding his gun saying look at me these guys are carrying guns for protection in the drug trade and the drug trade is not an equivalent to a crime of violence the underlying offense is a drug offense it's a fundamentally different crime and a crime of violence if there had been  explore very briefly a stand by my argument that the government that not identified the any exception that would allow for a four b evidence to be admitted of respect to this particular defendant they  memorandum addressing multiple pieces of evidence in multiple de defendants but not this judgment of conviction or why would it or why it would apply other than to simply say that by pleading not guilty intent we've decided cases many cases that state that evidence of a prior conviction for possession which is what that this was is not evidence of intent to s beyond that of mere self and we cited in support of that argument precedents from this court including from united states v go to morrow which goes through the critical distinction between a good spirit in the hinds case two defendants used aliases and committing a sexual assault they provide said their names to the victim they were aliases and the quote that i have from that case is that the government connected the appellant's to all of the aliases referenced at the trial from the case and i just want to say that this is a copy of this superseding indictment if the person was identified as that boy and that's all which defendant is it's not a name defendant so how with it how would we know who that evidence goes to we don't because it would have to it was not connected to the name defend it and that's the point of my argument there is absolutely no evidence in the record that he sold any of these drugs once he bought it there was one comment by mr geils that he did sell it but there was no evidence that he could point to specifics of where he sold it how did he sell it did you make any money from it zero evidence that is very important because we're assuming that he was out there selling these drugs but there's no evidence of that there's no evidence of any money made no evidence that he made is the evidence of the quantity that he had the only evidence that they had with him in possession evidence of quantity only eight point four grams which is which all well that's not according to the law enforcement officer that there was no packing materials firearms burner phones drug leisure's anything that would show operation no evidence existed other than my client buying the drugs which would merit a different sentence thank you