good morning judge shepherd a good morning judge erickson if it please the court my name is ill will that i'm with the vyner law firm in cedar rapids my former associate dylan besser who is now with our estates legal and participated on the briefs is here with me in the client his rights under the confrontation clause were violated by the limiting of the cross examination by the district court because the district court committed reversible d error we believe that mr campbell jr should receive d a new trial for cooperation mr campbell jr was found guilty of two kelce good spears to distribute cocaine base and possession with intent to distribute cocaine mr campbell jr received a two hundred and sixty two months that issue before this court your honor is how do you define for a jury what substantial amount of time in mandatory minimums mean those are the two phrases the district court gave us to use in our cross examination the defense the defense the answer to that question would be we need to be able to quantify the sentences and distinguish amongst the coconspirators their individual situations the issue here comes down to how far can these limitations go on an individual constitutional rights in this case there were at least five cooperating witnesses at the st trial there were four days of evidence they included five cooperators with different different backgrounds motivations and testimony as i alluded to earlier the district court limited the defendants to two phrases substantial amount of time in mandatory minimums that was it two phrases with very little explanation or meaning to the jury the extreme that the district court restricted the purpose of the six minute clause renders that right meaningless to an accused individual with these limitations there was no ability for definit to quantify or distinguish the respective biases of the cooperati defense counsel to ask congress and whether he faced a mandatory minimum sentence of decades unquote in prison we were not even allowed to use that term we could not even use the word decades that was made very clear was no but in terms of what the district court would not allow us to do we could not reference any coat sections that increase the sense of the quantity witnesses we could not make any reference to the quantities of drugs we could not make any reference to the exact answer which we were prevented from doing  we believe that there has been a clear sense of this clear abuse of discretion and because of that limitation of our client's confrontation clause rights there's been a showing of prejudice to the defendants and when you take that in when you look at the confrontation cla error was not harmless when you look in the context of the trial as a whole it's certainly not harmless when the government's evidence was built in large part on cooperating witnesses excuse me were you able to reference the court is aware i think the most logical place for us to focus is on our issues with the court's denial of being able to use a buyer or seller jury instruction in this case because ultimately i think it ties in a lot of the issues we had with mr campbell sr throughout the case despite the fact that this was a conspiracy case well being these folks and the allegations put forth from the government with that this is an extensive conspiracy  amount of any kind of direct evidence against mr campbell is frankly somewhat unique in this case in my opinion while there were a number of wiretaps in this case mr campbell never had a wiretap put upon his phone i agree your honor and i think that's why mr campbell seniors issue is unique in this case because ultimately as a mr campbell was not on the wire taps he was not surveilled by any police officers no police actually had any interactions with mr campbell throughout this entire case they didn't search his home there was no contraband found in his possession the one piece of direct evidence that was used against mr campbell at this trial w occurred that frankly wasn't even controlled the officers lost surveillance on the vehicle they never saw it mr campbell they watched the any kind of viewing of the control confidential wanted then they had a confidential informant wearing a wire and the officer testified that he recognized my client's voice but again he never actually spoke with my client during this investigation so frankly your honored mr campbell seniors specific involvement in this alleged conspiracy i believe does but it is supported by a buyer seller art instruction in this specific case because while there was very limited exposure and surveillance of mr campbell throughout this process the one even alleged controlled by was for a total it was a number of it was essentially ten here and i think ultimately that's that's where this issue becomes problematic in and why we believe that mr campbell sr is entitled to the new trial again we raise the issues regarding the  the one thing that i think was unanimous across the board of everyone who dealt with the campbells they were aware of extensive gambling and things along those lines coded language would be potentially used today or in the officer testified to that fact as well   mr campbell sr but then other witnesses said that they believe mr campbell sr was involved because that mr phillips had told them and so obviously that becomes a bell issue with your saying but ultimately mr phillips is the most direct appliances requesting a new trial in part arguing that the court should have granted the motion to is well aware wiretapping is an extraordinary investigatory technique covered under title three wiretap applications have to live up to a high standard and in order to be granted there necessity and nd that using that restricted to the four corners of the affidavit that the judge must make her own determination of necessity for the  wiretap wiretapping should only be used where traditional investigative techniques would not suffice to expose the crime and the judge should have such a full picture or from the affidavit as to be able to determine that wire that he thinks are necessary to establish the foundation for an order authorizing the interception of wire and electronic communications so this flies in the face of title three simply stating that well judge and giving you what you need that another inconsistency with the wiretap affidavit in this case is that this is statement that the investigation so far as it can active in meeting the overall goals of the investigation this is in spite of the fact that this investigation had been fruitful up until the point of this affidavit being filed our client was already involved in at least two controlled by they had other cooperating witnesses which goes to my next point which is the affidavit states that some of these other cooperating witnesses were not were not going to be useful in furtherance of the investigation because they were simply retail level distributors but that even also describes our client william campbell as a retail level distributor which goes to the necessity facet of title three what is the necessity and wiretapping the if you don't if you dumb still does additional phone as is is necessary independently but you do know that there is that there because of the state of the investigation and everything else there's a contrary authority might know something more but that's not even articulated specifically as a necessity facet the wiretap what's the case that a lot this is it has to be done person by person because if you think about it but when conspiracies work they often know much about the people that they're getting a wiretap on but they're trying to figure out just who are s three and the case law resulting from title three support the notion that this type of surveillance is especially protective and that it shouldn't be on a fishing expedition to to look at this possible person or that possible person in this case law enforcement disturbs the other retail level distributors as not being useful and does not seek wiretap of their farms and doesn't make a showing as to why there would be a necessity to do so for our clients on i realise i've run  circuit model criminal jury instructions and i was struck by how frequently the instructions d are telling her what it is but also what is not the case thus when we instruct yours what is evidence we tell them all the testimony and exhibits but we also go the extra mile and say what is not testimony statements by celt's all arguments of objections likewise when we have d the elements of the o guilty we go that extra mile we stop when it comes to the conspiracy instruction that goes on to more than one page in this case an instruction i believe thirteen and it gives every which way to sunday that  person can commit the crime of conspiracy but is scant on information to the jurors as to what is not it is that this light that mr of carter was requesting the buyer sell now  request for a jury instruction which was not one that was just made up out of out of thin air but it's actually and the destruction is given in district courts in many states this country and that is based on the th circuit instruction area this case included a long term investigation c i surveillance controlled by as to troll payments search warrants and wiretaps before you started this morning our four members of the conspiracy that were tried to separate trials the three camels in one trial and mr carter and another i want to begin today by addressing a few items that i believe were noted by opposing counsel that are inconsistent with the record st with regard reliable would note that neither of those two individuals are named in the st wiretap application mr carter was an unknown entity at that point it's his involvement that skiver during the wiretaps j s is not mentioned by name but  moving on to some things that were argued this morning and discussions regarding cross examination issue i'm sure will that discuss cooperators my recollection and notes reflect that the issue actually involved for  asked the defendant don't you face a ten year mandatory minimum would note that the record it page eighty two dollars reflects that there was not an objection that there was almost immediate sidebar those actually asked for by defense counsel and it was reminded that specifics were not supposed to be addressed the record there is actually some cross examination of the defense with the specifics of what the manager minim was facing in this case with regard to that issue this was a operator by prating witnesses and what they're facing as far as a potential sentence as well as the defendants this was a complex issue that had lots to do with different drug quantities how they were charged a fifty one  career offender and would have been a confusing issue would know that in this case in the campbell case specifically they were both defendants were noted or two of the three defense army were no does have prior criminal history all of the defendants are cooperating armida testified could be effectively cross examined their criminal histories were game each one of them was cross examined by three competent attorneys they were able to be asked prejudicial i mean it doesn't make sense to be you know the primary focus of this question both times as this was discussed on the record was the mandatory minimum issue because ultimately the issue that was that defense counsel wanted to raise was can we say that they're facing ten years twenty years whatever the case and because the government can file a motion it's less than at the maximum wasn't really an issue that the parties were concerned about because the primary thing that we they were trying to address was the bias that gets created by the fact that if i testify successfully i may get into this mandatory minimum penalties in general are not a an area that typically but typically are the jury specifically told it's not an issue for them welfare these guys will never be in says they're not involved in this particular drug except the witnesses b overlap the actual penalties this was an issue that even for these defendants even for those of us who are knowledgeable was difficult to ferret through and i frankly at the time some of testifies we have no idea what testimony because ultimately truthful testimony is what is seen as a benefit as outlined in the case so ultimately even if this court decides that judge reed abused her discretion was allowed to say are you able to avoid a mandatory minimum and they were able to talk but substantial and again i think the numbers in these cases to a jury are difficult they don't understand it well that's good that's all within their argument absolutely but with regard to how the defendants feel about that time is a different question if you are a defendant the federal system that's been sentence before two states that says that or two thousand five hundred and fifteen years then your perception of a ten year mandatory minimum know what sort of sentence the particular defendant in this case that there are trying we go to extreme extends to make sure that they don't know so that doesn't weigh into their fat determination or ultimately cause i that they're that they're facing up to life that they're facing a ten year mandatory minimum we specifically don't tell the jury that and we tell them not to even consider certainly it's and it's different when we're talking about the bias but these witnesses were able to be cross intentionally are certainly motive goes to bias for a bias the district court in her rulings indicated that bias this was bias so but i would note that even if the judge abused her discretion in this case it was harmless these were witnesses that had multiple other issues that were dealt with and addressed they had two of them had been told and it had to declaw prate and did control buys of control payments  not being charged ultimately they both still were they had prior criminal history that came in one of them mr am had some mental disabilities that came in to record their individuals indicated prior drug use daily drug use of marijuana so these were what this is that they need any indication about their mandatory minimums would have substantially changed the way the jury would have perceived t they all had issues that were known in this wouldn't have substantially changed how the jury then and would know again with regard to one mandatory minimum was discussed during cross examination w stated and then i think defense counsel asked for a side bar at that time the court reminds counsel this is out of bounds this is not what i previously ordered and then testimony continues given we would strongly argue that this was a harmless error and would ask that you not reverse on those grounds in this case we had a situation  ultimately in this case the facts also did not support buyer seller mr carter specifically part of the case against him was that following his arrest after leaving mr william campbell's residence was that he gave the confession during that confession explained that he was our of and was working with the biggest drug dealers in town campbell family that specifically he was trusted by william campbell that he served as a middleman if he had held on to money this was completely inconsistent with buyers additionally with regard to mr campbell sr and the buyer seller defense counsel seems to focus on that there was a single control was receiving drugs on a somewhat limited basis but from william campbell there was an instant where they were gambling with him kamal wouldn't trust him any drugs and so then senior began to front him drugs and so that testimony also is makes this inconsistent with a buyer seller and therefore that instruction would be inappropriate into his case and for him cause that that phone is being used so the court which writes no that the individuals that we get wiretap applications on are also are often known often have cases that potentially are prosecutable but it's again what is the goal of the investigation in this case the goal was to build to go farther and to find other defendants that were potentially involved to understand the scope and to understand who the sources were would know in this case ultimately that was somewhat successful in the two different sources one from texas and one from chicago were developed additionally mr carter his prosecution is largely if not entirely based on this wiretap investigation and so it was productive in that there is no requirement in the wiretap statute that either we move up down or over with regard to the conspiracy it's just that other investigative techniques are no longer producing results we know this case that some of the other individuals that were labeled the different points as retail level suppliers had already been cooperating with law enforcement and at that time not necessarily no no in some cases known they were still dealing with the our  ultimately we would ask that you affirm the district court's rulings in this case the convictions for all four defendants and the other orders unless the court has any questions i will see the rest of my time of the transcript and the end result is we are left with the words substantial and mandatory without defining by number of years and i think that will give the court of clear indication of the limitations we were placed on so in that in essence mr urge all brought up ten years one time and the length of time was never never heard from again and we were told in no uncertain terms by the district  bring it up again so we were left with the cat's phrases that we talked about at the very beginning substantial amount of time and mandatory d minimums of very quickly  cooperating individual the district court as you can see search down the idea of length by limiting us to a substantial amount of time and or a mandatory minimum sentence so there wasn't an abuse of discretion and it's not are cross examination witnesses who conceded they were hoping to get significant oh i see doesn't get help from us versus caldwell it was mentioned a page nine of seven of the right decision where there was a reference to the district court abusing to the stresses in limiting cross examination were prohibited any reference conveying the severity yang versus roy in the right decision to page nine of the six e q should be able to contrast the original post the face by the witnesses with more lenient punishment contemplated by the police you're out of the government's argument relies on a fundamental contradiction they claim that it was necessary for the district court to limit cross examination d in the sense reductions because more information would underling influence a juror but at the same time they claim that this additional information would not of let the jury with a significantly different person of