johnson we understand you were appointed on a criminal justice act to handle this appeal in the court appreciates your willingness to accept the appointment you maybe maybe pursue as you my pleasure to be here i'm rick johnson i'm representing antonio roberts and i wanted to talk this morning to the ten minutes primarily about the second issue that we presented on appeal which was the application of the obstruction of justice enhanced minute at sentencing at trial evidence was presented that mr robertson had been engaging in a series of p c p transactions with the primary defend it walter sorrels during the mid summer two thousand and lasted maybe a period of time of about one month  the government accused him and he was convicted of conspiracy to distribute p c p but additionally conspiracy to launder money additionally mr robertson was conviction convicted under section one nine hundred fifty six so under  section two s one point one a two point enhanced mit was applied on them on the money laundering conviction two levels i think you would be it was two levels yes i'm sorry so what the two level enhanced meant under the grouping rules for the money laundering charge was the one under which the court would determine the sentence at sentencing the court applied and obstruction of justice enhanced it for a high speed car chase that mr robertson was involved in following the last transaction august ninth two thousand and eleven and the question before this court is whether or not that was a proper enhanced meant under chapter three given that the count under which the court was determining the sentence w the money laundering charge in the questions whether or not there was the the act of fleeing from the police while it obstructed justice certainly on the conspiracy to distribute p c p there was evidence that he was in possession of it at the time and the question is whether or not it was also structuring of justice of the crime of money laundering an argument is that there was no crime from under the laundering money laundering or conspiracy that would have caused robertson filed a pro se brief and one of his arguments in the brief was that there was not sufficient evidence to support the money laundering conviction and there's the closely related not i'm  trying to stay on your point of of course and and the related and so you have to have the entirety of the case was the the p c p there was no evidence of what he did with money after trying to recall from the record in a way that just the evidence that others were fronting i think the evidence was that others did it definitely dealt with narcotics on consignment whether i don't recall there being direct evidence or any evidence that mr robertson received p c p on the front end so in are you taking the position that there was sufficient circumstantial evidence to show that he was reinvesting his profits no we're not taking that position why did not present it in my brief mr roberson presented a hit in his and if i had filed as part of my brief it would not have been an interest free the circumstantial evidence just simply that because i don't believe it sufficient but the circumstantial evidence is that a person engaged in arcata trafficking must inherently reinvest the proceeds if they go back to get seconds from their dealer that said i mean i think that this was their testimony as to the seconds or money or some or some no no there was no testimony or there's no testimony the money about the money at all it was the government made the argument that there is a permissible inference from the fact that he went back to buy p c p a second time and therefore must have and must be reinvent reinvest in the proceeds of his previous narcotics sales and i don't think that that's a permissible inference either in the application of the of justice and what does this have to do with the sentencing adjustment because we're getting to the judge been asked about the facts supporting the obstruction in there and they are no later are they what do you know you're now saying there's not a sufficient evidence to support the money laundering conviction that's a totally different arguments from are going to have and so why don't you stick with why don't we finish the sentencing are you measure so stick with the assumption that there was sufficient evidence to prove the money laundering by reinvesting the drug proceeds sure question is why isn't that sufficient then to say that the flight there was an obstruction of the money honoring too because the money honoring was in or twined with the drug trafficking the obstruction of justice mr robertson was actively engaged in at the time was were active steps towards the distribution of p c p from the phone calls from the surveillance of sorrels house and then later from his fly so there was no evidence that he had money on him there was no evidence that he was going back to purchase horse p c p with it that he intended to do anything with any proceeds the money laundering crime only occurs once the p c p s sold and he has the proceeds in hand and then he goes back in to reinvest it in agreement with walter sorrels so because there was no active steps in the commission of the crime of money laundering at the time that he fled from the police it was inappropriate to apply the obstruction of justice enhanced meant under chapter three and it in that's why we look at the facts of this case broadly  linear transactions of over time from mid to late july two thousand and eleven until august ninth two thousand and eleven is that he is dealing in p c p with  that that support of the conviction for money laundering was that he was reinvesting it but on that particular day on august ninth he was not actively engaged in the money laundering other than this other than the fact that he had acquired p c p and in fact it could at engaged again in any p c p transactions with mr sorrels and so at that point on august ninth i think that there's a strong argument that the conspiracy to launder money had ended by that point there's no evidence that he engaged in sorrels after that so because the only facts of that particular instance were the facts of the p c p possession with intent to distribute which was part of the conspiracy it was inappropriate for the so i thought maybe you were relying on those cases i was relying on the fact judge that in the in the district where i practice which is of course the west nixon missouri there is a local rule which i suppose is a local rule lots of places exactly what you  said when pro se motions are filed or when there is a representation we are not required to respond unless the court specifically directs us to no means saying it's the court's fault for me not doing it i'm just saying is that just curious were you thinking less but go ahead an address the money laundering why do you say that the two levels were proper judge as we argued and as i think is appropriate is the inexplicably intertwined argument and  judge is that there was testimony witness testimony specifically from mr frazier and i believe from others but i know from mr frazier that the practice was that people ordered the drugs they then came in picked up the drugs they then sold and brought back the money in other words one of you asked i've apologized i didn't know which one it was about whether these drugs are front or not there absolutely was testimony direct testimony by mr frazier who was involved in selling from the wall bashed residence where these drugs on this occasion came from that the net the standard practice was that people came got drugs from it to them went out and sold their drugs came back and paid what they've been fronted and then got more to talk about standard practice in this conspiracy if the defendant robertson was doing on the day when he engaged in the reckless endangerment by flight that was in furtherance of money laundering judge and as one of you said fleeing with evidence that would have been used in the drug conspiracy was the obstruction now with the how it relates to the money laundering is the fact that because of the fact that he was obstructing the money laundering or the drug conspiracy investigation by fleeing with the drugs then hiding the drugs and preventing the recovery of the drugs is that reflects to the money on a conspiracy because it was the practice of the conspiracy to sell those drugs and then come back later and use those proceeds from those sales there was additionally in the car recovered was a package of more cigarettes which in this conspiracy it was also testified the fact that the standard practice was he took the more cigarettes you dipped it in the p c p that you bought you sold sticks back there was a long effort by the defense at trial to say that that's what mister mr robson was doing was he was only buying sticks and not buying large amounts the p c p evidence is he then contacted strolls on a wire call and said hey i lost one and buried two if he had not paid for those if he had already paid for those is no reason to inform sarongs that he lost one and buried two there's no reason but because he owed the drug stores money for those drugs that would be the reason the reasonable interpretation hauser's of that money laundering and drug distribution are going to be inseparable for purposes of the two have one has meant for destruction justice in our in this particular case you haven't most cases and as i believe this is only entering accessor i think in most cases if you have the kind of evidence that i have in my kind of historical drug conspiracies where they are doing this kind of activity and as the court probably knows we the department of justice has indicated that to charge money laundering you have to be able establish that there is a course of conduct you cannot for front of drugs you can't they should say can't you have to get u s attorney approval to money laundering charges for front of drugs unless you can show there's more than just a front of the drugs it's a sense of congress and its legislative history since a congress we actually have to keep track of all this and so the way that we that it's approved is because of the fact that we show there's a practice of continued operations not a one off it's continually doing the same thing and so it's not just a one time fro i realize the other side didn't argue the first issue and i realize it's clear or preponderance standard but my goodness your witness says how many to get that they won how do you get one he asked for one that's words as the calls i know he later says multiple items as part of did in fact go back on redirect and elicit that testimony as the court said it's not unusual for me to ask poor questions and so i don't dispute the fact that was a poor question however i did elicit the testimony to establish there were multiple items but that matches the other evidence that was introduced about that of in which was why are calls where he specifically talked about getting two maybe more because of his partner but clearly getting to and then sarongs talking to douglas to go provide fix which was the nickname was that when you take those two then you add the other three from the august of it and then as our brief points out as i pointed out at sentencing is when you add in the other three or four occasions where we do not admittedly have specific amounts but it is clear that based on what frazier was saying about how the palm and practice was and based on the two that we know specifically how they happened and how the other phone calls were similar to that it was clear they were doing other drug transactions that gets your other ten grams to get you defense conceded that in there since he was that they recognize it was also a different issue i have a minute half left well let me ask you one thing then if you have a minute half left i'm just curious now since you brought up this department policy on charging money laundering are you saying that this is the sort of case where you would need u s attorney approval because it's based on the fronting alone no because this was not a single time affronting it was a law it was over a course condo what it what was the policy to which a policy  you have fronted drug transactions and the the proceeds from the specified unlawful activity are the basis of fronted drugs then we do not want you five routinely term in the future when i'm trying to convince somebody that's where we're at yeah that's an incomplete friday and it's spreading in a way that is different than what is normally taught us right from is usually a one time deal the dealer gives two pounds of methamphetamine to the guy the guy goes  takes somebody else who doesn't pay for it comes back that's the kind of activity they do not want to charge as money laundering even though the money changed hands it was from specify the walk to the it was proceeds and it promoted the conspiracy that that's what they're talking about my time's up if the is a common money laundering charge this in this scenario where you have judge not obviously the classic money laundering where the money's gone through the car wash or whatever and coming out claw and dared there's a what's the purpose of i mean i know this is now into prosecutorial discretion and policy so you may not want to address about i'm just curious when the purpose judges that as you know is that the government attempts to put ourselves in the best position possible when we're prosecuting cases and the best position possible is to charge all the readily provable offenses that that we can do so under the facts i would say judge that this is a standard type johnson thank you i didn't mean to go down the road i think intentionally on the sufficiency of the evidence but rather just to point out that in this case the entirety of the case the two crimes the laundering and the drug charge are inseparable from the proof of one is necessary for the other the really wasn't any financial information that was presented by witnesses during the course of the testimony frazier's testimony enough or not though i think i because it first off there was no testimony that frazier dealt with mr roberts and that was sorrels and i believe it was his wife it was that his significant other as a frazier described a sort of a general pattern but that doesn't necessarily mean that any one individual always operated in that way and it's certainly not uncommon on these types of cases in dealing with that amount of cash for these transactions to happen on consignment and so frazier didn't offer any us testimony as to how what robertson's practice was i also don't think it necessarily close of the issue the fact that mr robertson called sorrels after the august ninth car chase to say hey i don't have t stuff i think it would be entirely proper for somebody engaged in this kind of business to let their supplier know that they just got a part chased in and dumped their stuff i mean that's a fairly threatening thing for anybody engaged in an illicit business that they came pretty close to apprehension with close to six hundred grams of p c p we have regarding that additionally let's understand what mr robertson was doing he did not want to get caught with p c p he was not fleeing from the police to avoid discovery of a conspiracy to commit money laundering last point my last sixteen seconds going to the first issue and it is the first transaction in july there is not a clear record from which the court could have deduced that there was a probability of a pond