to assist us this morning if if your case has been set for all argument we only hear about twenty percent of our appeals and oral argument it's because we think that the case some judge of the court at least thinks that the case don't know it seems like this week the government's been over here and since my years have been over here my apologies you have the first name of my younger daughter victoria so i didn't notice that so your answer and i'm sarah lee direct and that is thank you may please the court as you know my name is fairly direct and i represent mr sturgis in this case miss brown or will be addressing her client's repeated requests for new counsel at trial and i'll be addressing the second issue in my brief which is the district court's decision to provide the indictment to the jury in response to a question that they had for good so moving right in this court has said that no fact not even an undisputed fact may be determined by a judge the plea of guilty puts all of the evidence in issue even the most patent truth and the trial court may never instructed verdict either in whole or in part and in this case what we have is during deliberations the jury  note to the trial court saying can we have a list of the dates and locations that the robberies occurred and can we have a list of the times that the robberies occurred the district court this with the parties the government suggested referring the jury back to the evidence or some of the evidence the court said i think that is improper and during that discussion the court realized that the jury did not have a copy of the indictment even though it the jury earlier in the trial that it would be supplied a copy of the indictment that's correct and so when the court realized that the court called the jury back into the courtroom and explained this indictment has a list of the dates and locations the government is alleging in the in the indictment i hope that helps you with the first part of your question she then says as to the second part of your question about the times we can't add evidence  now that the evidence is closed you'll have to rely on your memory of the evidence to answer that part of the question so in doing so and you know i think there's anything wrong with a judge giving the jury a copy of indictment my experience that's that's why but you do in every case that's correct right the judge has discretion to provide the indictment to the jury and no one is objecting to the fact that the judge could have provided the indictment prior to the jury going out for deliberations the problem came in when the judge provided the indictment in response to the jury's question in essence a logical question on their part because they've got a lot of camps and they're trying to figure out which day it is what day on a particular camp that they're dealing with right your problem is that the judge did not give a limiting instruction so right that's correct anderson could have second problem i take it is that is the judge continued with the instruction and said that she couldn't provide any evidence with regard to the times it was an inference that perhaps the first part of the instruction was a comment on the other that's correct your honor she was implying that the indictment either was evidence or that the evidence presented at trial conformed with the allegations in the indictment and she did not explain to them as to the first part of your question you have to rely on your memory of the devil to say that right i mean she you're your argument is that that's an implication well your honor i don't think there's any other reading of her response that suggests she's telling them this is not evidence it's in direct contradiction to her previous instruction which is the indictment is not evidence but she she instructed did she not the jury now talking about a particular date you'll see that the indictment charges that a crime was committed on or about a certain date the government doesn't have to prove that the offense occurred on an exact date the government only has to prove beyond a reasonable doubt that the crime was committed on a date reasonably close to the date alleged right around or in those or in the initial instructions that went back to the jury which we have to assume that the jury followed right but in the end the in the jury was instructed by giving them the may finish she did your honor with the problem is the judge even though the judge has discretion to provide the indictment she doesn't have discretion to misstate the law and by saying here's the answer to your question it's this document this day she did not say that she said i hope this will be helpful to you and you know answer for your first question right that's not a misstatement of the law is it i mean they could be helpful as they go through it and they need to have the indictment they should have the indictment been promised the indictment and then when they're going through the evidence and their memory of the evidence they say oh this was this alleged did the government prove that well your honor but she by dividing the question into two parts i think we have a problem suggesting that the first part can be answered with a document that was given to them and the second part has to be answer this morning to please the court my name is victoria brown and i represent mr joyner my plan is to focus on mr joiners for motions for new counsel but of course of the court has any questions on any other issues please let me know mr joyner did his absolute best as a lay person on four separate occasions occasions to explain to the court that he had his attorney mr morris and had a complete breakdown in communication and irreconcilable differences in each instance instead of focusing on what mr joyner was alleging which met the standard under called around the court focused on his belief that mr morrison was a great attorney i'm not going to stand up here and tell this court that mr morrison is not a great attorney he's a colleague of mine he's a great attorney but even the best attorney isn't the best attorney for every defendant and i think the transcripts make clear that mr jim morrison was not a good fit for mr joyner and i difficult time communicating is what mr joyner kept explaining to the court to mr morse and did not seem to disagree in between the first motion that mr joyner filed in the hearing which was approximately twenty some odd days i thought most of the was something about excessive force the time of arrest and then an argument that he didn't your client didn't appreciate the way he responded with demonstrative lee shuffling papers or tossing the papers i think that was a small part of it that was mentioned in my brief in the government's brief i think that the biggest issue and what mr joyner kept expressing is i can't communicate with him i argue with him he argues with me he yells at me he thinks i'm guilty he tells me i'm guilty and between the fifth when the first motion was filed in the hearing mr morrison had said to the court i haven't even seen him so it is something that a lot of times criminal defense lawyers good ones do push back on clients that have unreasonable expectations that's their job what would you say your top three specific things are that your client delays marson either didn't do properly or omitted thanks i'll go right to the practice i think the most egregious example of prejudice your honor is the fact that on the day before the court set the trial date mr morrison filed a demand for a speedy trial the very next day he joined the government's motion for a continuance on the basis that the government wasn't ready and their witnesses weren't available in that delay between the granting of that joint motion for continuance and the new trial starr's pled guilty and cooperated so i think that is a prime example of the prejudice he suffered obviously the government has conceded that there was sentencing error that needs to be reversed so that's another example of the prejudice that he suffered and then he failed to object to the r n r on the g p s tracker which made me unable to raise it on appeal and he failed to anticipate a potential motion to sever issue with mr sturgis giving post arrest statements the bruton is correct your honor and it's not just the burton issue the government in their response brief argued that mr morrison didn't even preserve the issue in the hole that i'm raising so i think the government has stated mr morse and failed to preserve this issue that we're attempting to raise on appeal so i think those are the examples of prejudice but i believe that i think that the speedy trial is the most egregious because the government when talking about the evidence against mr joyner states that mr souers testimony was some of the strongest evidence against mr joyner i apologize my time is up   please the court counsel i'm will trainer along with my colleague at the table may well be represented the united states in this trial and we wrote the brief on this appeal your honor i think one of the most helpful things in getting to the issue about judge ross giving the jury a copy of the indictment is you just look at document one eighty four which is the verdict form it's a five page verdict form and it just says as you would expect count one robbery guilty not guilty no dates no hint of which robbery is which so you just imagine the jury going back to the jury room they elect a foreman they get to work and it comes time to check guilty and guilty and you know they they would like a little help on the way well which one is this count you know and and the government take a position as to whether the judge should give a limiting instruction when  talked about is what this is what the government alleges and so the question is did she abuse her discretion in doing that we think not and we submitted last week a supplemental authority on february twenty second this court decided its decision in keenan joyner and then also involved a request for a supplemental instruction and this court explained that to have before you are going to reverse a conviction based on a request a jury instruction you must have a substantial and ineradicable doubts that the judge has failed to correctly the jury failed to correctly guide the jury in this case we  have judge ross explained to the jury three times the indictment is not evidence and she tells them when she gives it to him i hope this will be helpful and if you look at the verdict form you see they need a little help on just that and then we also enjoy her was phrases abuse of discretion we also cited the supreme court case in need are about harmless error in looking at the requested instruction this court also looks at the instructions as a whole and then what was the case about and this case was about identity  one argued about the locations or the times of the robberies and that was all established by very substantial evidence from the victim witnesses to the many of the videos had time and date stamps the the last managers all talked about locations and losses that we had to exhibits exhibit thirty six was the f b i cellphone exhibit and it has a map of all the locations and the dates and then the times that the defendants cell phones were hitting on towers near those drugstores and then exhibit fifty five was the case agent dana wreckage is and he explained just the distance from mr joiners apartment to these different locations but exhibit fifty five again lays out all of the locations and none of that was contested it was all about identity so for that reason we think judge ross did not abuse her discretion in giving the helping the jury giving them a copy of the indictment o complain it wasn't a good fit and that's not the standard as this court knows is good cause not good fit we have to have a complete communication breakdown a breakdown in communication skills and we see judge she would just be coming off of of leave but also mr sturgis is a lawyer mr trope had a trial and he said he was not going to be ready and then so you have the parties moving for a continuance and then my understanding of the argument is that somehow mr souers would not have pleaded guilty if they had gone to trial on june twenty eighth instead of september twentieth and that's just whole speculation of what mr souers was going to do it and the timing of when he was going to plead guilty and there's just not enough evidence to support that the inference that mr stallard is would have pleaded guilty if they had gone to trial on i mean if he'd gone to trial with the other  argument would have been well received and he why yes your honor thank you yes then with regard to the sentencing error you know i was asleep on that one we all missed that there was a one point mistake in the assessment of the  the multiple count adjustment the judge actually on it based on our motion and sentenced him to on a downward variance below what would have been the lowest level if the guidelines have been calculated correctly i believe if they had been calculated correctly as it is a range would have been one the weight of the bottom would have been one away but we recommended eight years or ninety six months which is what she sentenced him to on that should have been that lower level and so that's what and i believe every defendant has the right to have their guidelines calculated correctly so that's why i would say you should go back to lay no martinez under that pressure and we'd after we have to  to await the decision of the supreme court and carpenter your honor i would say this case this court could go ahead and decide based on even if we lose the united states loses on carpenter we argued we've argued throughout the  error here that we would have to send it back potentially for the district court to think about that and if there is a good faith argument with the district court have to make that determination in the first instance it would your hon so i thank you so the anyway the prejudice test is but for i just don't believe there's evidence that but for the mistakes complained about for like the bruton issue they aren't proven statement thank you donna your honor i just want to briefly talk about a few things that the government mentioned mr trainor talked about the case of nader versus united states and talked about how not providing the supplemental instruction is harmless  error i'd like to point the court to other cases like gets and hasty from this court which happened you know april of last year where the court talked about a distinction between an instruction that is a very general instruction that leaves room for the jury to have to make a decision at a later time or a very specific instruction that takes that discretion away from the jury and i think in this case when you have and i understand what the court has said about that what the judge said here but i think for a layperson for a juror when he and mr turner said he they were instructed three times that the indictment is not evidence they were actually only instructed one time and that was right before closing argument she said the indictment is not evidence so the indictment had been read to them prior to here and then she gave her instructions and then there was closing argument but for a layperson the lay juror to write this question out what are the times what are the dates one of the locations what it what do you say about  first rebuttal about that was pretty powerful look at the verdict for you know how would the jury have really known how to fill it out without some reference to the indictment i  realize that that's an issue your honor and i think the way that could have been cured is for the trial court to say here is the indictment don't forget that you have to rely on your memory of the evidence to see if these claims in this document comply with the evidence as opposed to just saying here what are the locations what are the dates this is the document this helps you with the first part of your question to answer the second evidentiary part of your question you need to rely on your memory of the evidence in that case she was mr trainor send the course the court district judge is never supposed to instruct on any element of the offense but the question wasn't didn't have anything to do whether these two men did anything it's what were the dates of the robberies and nobody disputed that these robberies happened the only dispute obviously is in most cases were these the two guys that did it i'm not saying any harm that could have occurred or any problem the jury would have had from from what occurred and again i would point the court to hasty and to gets where the court says even on the smallest of issues even the most patent truth the trial judge doesn't get to make the decision the tribe doesn't get to say this element is satisfied and that's i've heard it she sighed that well your honor she said here's the document that answers that question to answer the second part of this alleged as to what the government has alleged they didn't ask might be helpful to what she said something like that well they didn't ask what the government had alleged they asked when and where did the robberies man finished when and where did the robberies occur and she said this document will help you answer that question thank  i believe that the government began their argument by asserting that i had not stated that there was a complete breakdown in communications let me be clear i believe that there was a complete breakdown in communication and i believe that mr joyner established that the next thing they got in the record be fairly believe that the transcripts stablished that the court wasn't asking about their communication the court was focusing on the government's evidence how a judge in general a defense attorney would approach the evidence why a defense attorney might yell out or throw things at a client and what a great attorney mr morrison was and every single transcript the judge says mr morrison has done everything he's supposed to be doing and that isn't the question in a motion to dismiss or replace counsel the next point the government made that i'd like to address is he said mr starr just got counsel got new counsel so clearly judge behavior memo was willing to do that mr sturgiss mr joiners motion says that mr morrison interrogated him intimidated him believed he was guilty they argued he said he doesn't have to listen to me and he doesn't want to help me he's a threat to my freedom he's working for the government mr sturg motion said my counsel doesn't listen to me she doesn't tell the court we're having differences she doesn't challenge the veracity of the government's evidence she doesn't give me transcripts we argue and she's working for the government it doesn't have my best interest in mine they're the same motion if you look at what they allege that mr starr just got a new attorney and mr joyner did it on virtually identical motions next thing i want to talk about is the prejudice the government's said that mr starr there's no evidence that mr souers wouldn't have pled guilty otherwise and and i want to address that because the original trial was set for june twenty eighth which was only about twenty days after the motion for a speedy trial was filed and the motion for continuance was filed the trial was continued until september twentieth mr souers didn't plead guilty until august pretty much dead on arrival given the rule about uncensored defendants i think had mr morrison filed a proper severance motion that included the statements that sturgis had made and possibly the statements  sours had made i don't know because that didn't come up but he somewhere in my briefs i couldn't find it my scary mr morrison stated somewhere on the record and it's in my briefs that he didn't forsee this issue so he didn't raise the severance issue on this basis so we don't know what would have happened had he filed it we pretty much know what would have happened i don't see any did this twenty two years judges granting a severance based on what i've seen here happens all the time people need time they need continuances and unless it's exorbitant or there's some other real problem judge usually grants them yes but where there is a speedy trial motion filed on behalf of one defendant and there is an objection mr joiners constitutional right to speedy trial shouldn't be giving way to the government not being ready and a co defendant's counsel being on trial and i'm just saying had mr morrison filed a proper severance motion that alleged all of the grounds that have now been raised in the appeal brief there is a chance that the outcome would have been different that's all my time thank you thank you mr brunner we have your case we know that both you and mr wright were court appoint and we appreciate you  accepting the court's appointment and discharging oh your duty so well this morning thank you and have a good day but