conspiracy to distribute drugs as charged in count one of the indictment and the conspiracy involving sheldon marbury to kill members of the standing terrorist group and the third one to a lesser extent is the conspiracy to murder members of apartments conspiracy all of the defendants were prejudiced by the inflammatory presentation of the murders of iranian plot pacemen which is what the government opened and closed with at the start at car and other things afternoon's murders i'm not sure that it was a reward that's how the government has characterized it but i know that there were yes there was evidence that  then brought crime boss dick into the conspiracy the problem for the government is that at the time crime boston committed those murders he was not part of the conspiracy but the geraldine apartments conspiracy congress tears i'll just refer to it as geraldine apartments for ease but there is no evidence in the record as to why that is futile rose we have no evidence whatsoever the government suggest related to drugs but even if it's related to drugs at that time period dr bostwick is not part of the count one conspiracy so whatever happened happened afterwards the fact that tommy elan may have been happy that prime bostic finally proved himself doesn't show that the act itself was in furtherance of tommy linz broader drug conspiracy one if he committed the murders conspiracy the conspiracy is characterized by the agreement at the outset so if he's doing something to try to get someone to agree with him the agreement hasn't occurred yet it is again outside of the scope of the conspiracy and when we're talking about multiple conspiracies and we look to the common goal and we don't know what the goal of the geraldine apartment conspiracy was we know that that  broader conspiracy to distribute drugs they're simply separate conspiracies and i'm in this case that conspiracy prejudice everyone as as is reflected in th checks off if he did that that's one of the racketeering acts that he is guilty of but nobody else is guilty of that racketeering acts so the question becomes who did the jury find it here agreeing with to commit that racketeering it's difficult to understand what signals are given to suggest that this is a way to join the conspiracy but but again that the answer is revealed in the question if the person has not joined the conspiracy they're trying to do something that they they may do something and are and it's still not enough your dad doesn't their argument essentially use it if even if members of the conspiracy ratify an act after it's happened from all of these to all the defendants because of this really separate conspiracy we have of the tommy ealing conspiracy and the organization through enforcement of the code of the street by killing perceived informants killing people who tried to rob him and in fights with rival drug dealers in the members of the conspiracy at that time were  shelton marbury and henry johnson are not mentioned in in those in the distributions that occur the acts of distribution and the crimes of violence congress congress party and they decide not to fight anymore but most importantly you have that he is foster who is really his right hand man who is arrested in north carolina and  that kind of sins people their own way because eric jones his other right hand man has to that point already kind of fallen out with tom the government does not present incidents of starts and that is not of beef that is characterized by drug distribution all of the cooperate in witnesses testify that the the  retaliatory acts of violence took place because shelton marbury was upset that his cousin la la was one of the people who was harmed in the assault and robbery and shelton marbury's friends agreed to help him get the people that did this and this was the state interior sent in terrorist group the government presents a theory and i guess presented the theory of trial that conspiracy it's difficult to understand why tommy evolution would feel the need to retaliate but separate aside from that there is no evidence th retaliation there is no evidence that they were pop in la la were selling drugs when they were robbed there is no evidence against and therefore no evidence that they were selling tommy even drugs past conspiracy and they call tommy evil and at the top of the chain the problem for the government is that many people below below tommy independent sources of drugs and thomas simms who is the government's i think primary witness with regard to the standard therapy and and the the witness that they used to try to link s so the fact that this prominent figure was in the neighborhood selling drugs that were provided for other people is evidence that just because you were in that neighborhood does not mean that you are selling tommy evil and drugs or that tommy evil and control all of the drugs and all of the violence in that neighborhood why don't we hear from the government will give you time on rebuttal on this issue thank you good morning he plays the court suzanne island for the united states first brian bostic was a part of this conspiracy beginning in one thousand nine hundred two the year before the killing of the smith children by accident on their way to a christmas party here's out of lots of testimony from tech foster and eric jones top lieutenants of tommy udall ins that participated in the kenny copeland beef riding along with them taking shots at a number of people including two people well before nine hundred ninety three when in december of that year the smith children's murder took place so we do just feel that the record shows that he was only part of the conspiracy in that moment if at all he was only using that conspiracy quite actively begun selling drugs as far as we know it is really is ninety one and ninety two again through several cooperators both of them received drugs step supplied to them at a recreation center in the neighborhood soon to stand welling's neighborhood from early eagle and the number t man in new york in a situation for many many many years going from at least one nine hundred ninety one to roll took over the rec center all the way up until the time that everybody's arrest around ninety eight ninety nine so it is a single conspiracy in which they all is it how the hell do we know that there is a single conspiracy when there's a drug distribution in the government has a chain theory in other words you could have a street level dealer who is selling drugs and those who his supplier is in gets drugs from that supplier but he may also get drugs from other suppliers but he gives drugs from that supplier does that make him automatically a member of the conspiracy of let's say a supplier a conspiracy even if he gets drugs from supplier b c d and e but he sells on retail how do we know that he's a member of the same conspiracy the supplier a is as with well the answer would have to be that it depends we're going to have to show the court and the jury all three elements not only an overlapping shared goal of selling drugs but also on the interdependence of participants and an overlap of participants isn't there a necessarily an interdependence relationship when you go you rely upon that supplier to get you drove some that suppliers rely upon others to get good drugs to him and to protect him and they give money sort of i mean isn't that necessarily going to be the case in every drug situation that there is interdependence it might be the case  doesn't necessarily need all three elements of a conspiracy or proven it has to be based on the circumstances and you for instance this hypothetical dealer is getting from two different suppliers he can be members of two conspiracies i would say probably depending on the l involved and what role he otherwise place in those conspiracies here we don't really have a tangential figure before the court today who dealt drugs for tommy and other people that played no other kind of role everybody in th case played in force a role as well as a drug distribution role and all of them did it as eric jens testified because the beef comes with the hustler if you're selling drugs together you beef together also the top cooperators jones and foster testified that tom and you know him didn't tolerate robbing of drug dealers where he is where his people were dealing drugs it's bad for business and when he was approached by thomas since who by then was one of his top lieutenants in ninety six and he said you know there's been this robbery and one of the robbers is already been bought off by simms with tom udall instructed to switch sides to the point where he became a defendant on this side of the case and the other one has been a second one has been shot and killed si and says to him quote take care of these people quick before it affects the money that's a directive once again to be constant the hustling the drug business the shared goal is to be protected and he refers to early who's managed to be before provided firearms or and calls people up and says i've just spotted this sentiment i know where the location of that enemy is get out there and take care of him that was a real throw in a number of pieces including where apparently sims reported him weekly on the status of it while this thing unfolded over fourteen or fifteen months of shootings between the death of the second robber and the final killing of the third robber that ended this week that murder was done by ronnie middleton ronnie middle when soon as was referred to the top beef manager and the top enforcer with this language take care of these people quick before tax money in our view clearly tied the s t c shoot quite a bit of shootings and feud back to the drug conspiracy it was just another phase in a sad long phase of drug dealing backed up with violence starting with the county copeland beef the congress for being the stand some of the players change some of them are the same throughout the entire era but the mode of operation remain the same and all similarly the decision whether this was one conspiracy or several was the juries and this court ordinarily defers to the jury's use and the jury had every opportunity who concerned to consider rather through the testimony of all of the defendants as the defendant still tried to build their defense of these are unrelated matters this multiple conspiracies defense and a jury decided that it was one conspiracy and given that all of these actions are tied together in support of tony dylan's drug conspiracy distribution network we would ask that this claim be denied thank you the beef has already begun the conspiracy has already begun because shelton marbury is mad that his cousin has been robbed tommy even can't come along and buy he out change the purpose of this purpose of our conspiracy we are changing our goal from retaliation because of familial loyalty to a goal of retaliation to further your drug distribution and that is not what happened there is no group damian green testified that the stand here speed had nothing to do with drugs those three cooperate or testify that it has nothing to do with drugs the government's tenuous theory that somehow because pop and law lived in this neighborhood despite that they are not members of the conspiracy because this retaliation when we have we had evidence that that was not the cause this caused retaliation to further the drug distribution simply is not supported by the r issue two concerns the multiple conspiracy instruction and it actually has relevance for issue one because shelton marburg was prejudice you're talking about more general when you look at the when you look at the instructions as a whole that i'm missing the missing sits a sin is that would require the jury to find that each defendant had agreed with someone else whole from a plain error standard the the instruction itself would not be problematic if you didn't have multiple defendants and multiple conspiracy and evidence and the theory of multiple conspiracies advanced by the defendants and a hotly contested issue and what about the language in the instruction with respect to the second element of conspiracy in the jury was told that a particular defendant knowingly and willfully participated in the conspiracy and did so with the specific intent to distribute that center of drugs  following natural was a sentence that said the government must show the particular defendant's membership in the conspiracy doesn't that do effectively what the requested sentence  the the second problem with the participation aspect of it is the participation suggest some act this is a forty six conspiracy it is it only requires agreement and the court instructed that first there has to be an agreement between two or more people and then the participation of one when you have the participation element and a pinkerton instruction within it it's easy to see how the jury can either be confused or can follow the pinkerton is structured to hold one defendant responsible for the acts of another or  to do so they would have to find that that particular the fin the participate in willfully in the conspiracy according to the instructions right his her home her for his own acts that just qualified that he said it unless i've instructed you otherwise and the judge did it doesn't strike them otherwise  could participate or his actions could appear to aid the conspiracy before he has actually joined before there is actual agreement of the conspiracy has to ha playing here and without repeating the points that judge wilkins quoted and then judge cavanagh also alluded to in the record about the narcotics conspiracy instruction the instructions as a whole clearly drive home to the jury  necessity to find the guilt of each individual defendant as to each element of the conspiracy charge and so given it's a clean air review case we think also that this claim should be denied thank you my biggest problem with the jury instructions is that is the problem that persisted throughout this trial that no care was taken to individualize instructions as a whole do not individualize that they treat them as a i understand that there may be one part of the instructions that do and that may be the participation of women but the rest of the instructions including pinkerton before the conspiracy charge pinkerton in the conspiracy charge cases that meticulous care has to be taken to individualize the defendant's meticulous care has to be taken very very instructions during the trial so that they are not all treated as one our theory was that there were multiple conspiracy theories that theory was not adequately placed before the jury and and in that regard the the instructions as a whole were inconsistent with an instruction that was almost the entire secrets an instruction and the court said this charge set out separately the evidence as to each of the petitioners and admonish the jury that they were not not to take into a problem with these instructions is that despite the participation in this one little section in the instructions that seem to individualize everything else the jurors hope heard was that you can treat them all the because the genesis of of the beef did not involve drugs at all to the extent that this testimony of that agent sparks testimony linked the s t c conspiracy to count one conspiracy the government has failed to show that the defendants guilty verdict on count one with one attributable that there this is a harmless error analysis and the government simply hasn't shown that they they simply held up but that we made the best of a bad situation can hardly be held against this once once of evidence came in i don't think that up a million rated the negative impact at the outset of the trial of the primary issue the issue that i have i have opened this appeal with them that there were multiple conspiracies and he gets to get on the stand and say as a matter of as a fact witness that these two different conspiracies are actually on everything you hear about these two different conspiracies will will actually be one conspiracy there is no way for me to say strongly enough how how prejudicial that was and there was no cautionary instruction i unit seems very prejudicial when i look at the testimony he takes the stand about ten twenty and you know the piers that he only testifies about thirty five minutes were the minutes tops before cross examination began so he's not on the stand very long in those redirect is he was even sure so this is a trial that went on for you know four months of testimony and you're saying you know his testimony for the government which was a half an hour or so  most of the objections the defendant raised were overruled by the court that so he was viewed as an authority figure throughout the trial but the the problem to come back to it is not how long he is there it is the substance of what he says he links something he doesn't have to link it ten times or ten hours while he's on the stand he creates in the mind of the jurors before they have heard anything the link that is the most contested issue in the case and again he does that as a fact witness he gets to say that fact so the jury can go into the jury room regardless of whether he was he was only there for four minutes it's true that the the government presented evidence from many other witnesses and they presented evidence with an eye towards backing up what he said but we disputed that and we still dispute that the state in tears was related to the distribution of drugs or let me rephrase because i can see the court i don't want to overstate there are drugs in this neighborhood but the standing terrorist beef was not driven by a dru it was driven strictly out of familial loyalty the affirmative evidence shows that and there is no evidence to the contrary there is only inference and being in under her with air standard of review there no way for the government to show that this did not have an effect on the jury that's my only point he was also allowed to testify about he was also allowed to present testimony other testimony that was very prejudicial he started his testimony by saying this investigation began because the b c was perceived as the murder capital of the world he was allowed to list a series of assaults and murders two of which had nothing to do with the defendant government was speaking to him being between breaks in the court and the government admitted that it had told him to take whatever opportunities if he's so necessary on cross examination this witness was presented to the jury to prejudice them and he did that he was also out so i mean we've obviously in fact we obviously have a case all now that's different from that at the time and so your basic point about overview the risk of overview testimony something the court has recognized but i guess you know you just heard the question the judge wilkins raised about in this particular case and i understand your response to that about the the one issue in particular i disagree that a case law is now different i you about some of what you're saying about the rest of overview testimony in that wrist that is reflected in our current case all which also applies to this case the only point is then we go to the harmlessness issue and look at what particular found the error to be heard with because of other evidence that didn't not require either cooperators or ameliorated the prejudicial nature i'd submit that there is no way to ameliorate  commonplace view that drugs is fuelling it and in this individual case with these individuals the thing is drugs is actually not fueling the witnesses should not have been allowed to use the mid in the minds prejudice that they walked with them before they got into the jury box ok let's hear a merger this is had no place let's hear from the government on this and we'll give you some rebuttal time on that as brief there are aspects of his first testimony that should not have been admitted and we are here primarily relying on the harmless error for the court to consider this claim although i do want to clarify that some of what has been argued did not take place for instance first in come in and say well we opened up this investigation because it's the murder capital of the world what he said is the safest the stay safe streets task force was started in ninety one because of the murder rate and a few pages later he says and because of a spate of murders in ninety six we opened up this investigation so nobody tried to put that girl and around these defendants their responsibility for the murder rate in d c was never argued or mention your beloved i think here at least for me i can't speak for your other members of the panel because i don't really see how you could be being thought to be appropriate to have an agent come in and testify to a bunch of hearsay that suggests that i mean they targeted these people because of information they got from homicide detectives and others that clearly is saying that while there is this other information that's never going to be presented to you that showed me that we should start looking at bostic and these other people for understand what the queries are for him to and there was a statement by sparks that they decided that the violence was tied to drug activity we've also conceded that also was not appropriate i don't think this testimony in two thousand fourteen today whatever happened from when or if we even have an overview witness but this case was tried in two thousand and one when the standards were not as clear as they are now and so i have the burden to show this court given those problems and the foundational issues with his testimony as well first anything that you testified to by way of substantive relationship to the charges in the case came out through four months of testimony from numerous cooperators unlike cases i think hampton in particular is one where the court had an asian testifying to a lot of outside information several times and only one cooperate or that the government brought in for the most of the case this is a case where this agent was on the stand i don't know if it was half an hour but it was a lot shorter than in the which this court found to be a closer call i think more he testified over three days here he was one of two witnesses on the first day he didn't testify at great length and everything that he testified to in terms of substance through the cooperators through the more than a dozen top level cooperators medium level cooperators people on the street level we had people from all levels the woman who first started cooking crack testified about tommy involved in this conspiracy and so  the jury didn't hear anything and i don't think consequent to anything from agents or is here that was prejudicial that would have had any impact on the verdict and i think we dealt with some of those points in our brief there's no major thing that he said that wanted truthful testimony we understand that that would be vouching of the type that is not allowed so let me leave the burden to show that that was also harmless error these cooperators were cross examined extensively by all six witnesses of them and six defendants at that time there were six defendants vigorously over the period of many months of testimony about their motives and their biases and their accounts of what happened over the course of this conspiracy can be matched up or separated and contrasted by the jury over the entire period of the trial so that anything he may have briefly said about verifying their information the jury didn't have to take as gospel you could reevaluate these witnesses themselves i would also note at this point although i think this comes up in our next issue with  once three defense counsel and we cited this in our brief mention sparks testimony in their defense closing arguments to basically make points such as well why don't you have child marbury or henry johnson on a videotape selling drugs on the street why don't you have and you couldn't do it because they couldn't put a camera up that would stay up and so in the closing rebuttal of the prosecutor prosecutor said quote who's going to do their deals in front of a known exposed pole camera because  closing argument i think that tends to show it wasn't all that harmful to the defense and my closing point we just see the overwhelming weight of the evidence which we set forth in great detail in the brief so i don't want to sit here an attempt to try to summarize or recites that but because of the incredible weight of that evidence and the fact that any murder he mentioned was corroborated many many many times over any time there was a mention of other murders such as the shocking in the late summer that the defense had or the palace have mentioned it was very clear and not objected to at trial that that was actually a stand welling's person who was killed during the  i respectfully disagree with the governor and i ask the court to take careful review of the record itself and not rely only on the representations in the briefs but the record itself not a single cooperator testified th you know cautioned so that it doesn't affect our money basically he said yes i want to see this in a so it doesn't affect the profits came we have to take the evidence in the light most favorable to the government  but you still have to a view that through the lens of reasonable doubt and whether any juror would have drawn the conclusion that that this far fetched inference i've suggested far fetched it is it's far fetched that tommy evil is supplying stand dwellings in stanton terrace and worms of an ongoing feud not related to drugs and says but isn't there also evidence in the record there that the persons were robbed and the persons who rob sold drugs who were wrong soldier is right i don't know that there's any evidence that  robber in the neighborhood than a drug seller so and i think that there i know that there was evidence that more were mostly was not good at selling drugs and that is why he rob the case and the verdict form and it's not correct that the jury understood everything i understood everything is the government suggests the jury found shop marbury that there is overwhelming greater a greater quantity then a detectable amount of cocaine the jury verdict against evil and also suggest some confusion we know that the verdict form finds him guilty of sacrosanct in that the limit of processes is something the course really should be in a position of a dozen about in terms of well how was the jury influence or not influenced their deliberations by this or that we have a lot of error in this would as well and of course that's why the district judge had the of ensuring hearings brought in the witnesses examined credibility and made determinations so what was lacking and how the district judge new investigation here was why didn't marshall bradshaw has the book now i understand the just little contest when they hear in the first day there were two days of hearing the first day june twenty seventh two thousand and three i think  court and he had knowledge of all of the facts that were really essential to the charges here he had knowledge of whether he was involved in an improper relationship of journey of or said he had knowledge of whether he was ever alone with juror number bradshaw that she said i know we took her another journey to break in or whatever but there were things that were kind of suspicious to us nobody said anything we said to each other and we looked at the jury and she you really just observed how she would that these were things we observed and this was that was denied by juror seven yes it was denied by juror seven and i don't realize you don't just take that at face value of the district judge do is in judging how far to take this is to make some initial credibility determinations and maybe do some kind of initial tree arsht to see you know how far do i need to go with this and if the trial court finds that this alternate juror is not credible then doesn't the case law supports the fact sort even if you know that they were together alone in flirting or something she's bought into a courtroom and is fearful of what might happen to her what might happen to marshall crenshaw she has a problem it is to fabricate testimony there and secondly as the juror the alternate juror the judge made statements that she lied during five year about not disclosing going to rest and i talked about is in the main brief pretty extensively showing that she actually why don't you have to convince us that his factual finding as to not crediting the alternate juror was killed clearly erroneous not they talk during deliberations and for how long would that's that's if this is in abuse of discretion land week we can say as monday morning quarterbacks well that might have been you know the way i would have done it if sufficiently broad given the severity of the charges these are very substantial charges and so you take a half a day you bring in all the jurors you put them on the stand did you see anything that suggested a possible improper relationship with the alternate juror said that nothing was proven and that she had no proof that there was a that there was a relationship just suspicion right that's true so based on that you're supposed to drag every juror in and if you don't that's an abuse of discretion when she's saying that all  that she had was suspicion and no proof and maybe one of the other jurors saw something more well maybe they did but what i'm saying is the say that you're going to do a fishing expedition based on testimony that there was suspicion right well i don't think it was a vision exhibition she had things she had observed from which she drew drew conclusions and so i just think that amount of intrusiveness given this is the pancho charges and the other thing was and it as the court is new to this claim is governed by abuse of discretion in terms of the standard of review and what the court based its findings on were credibility determinations after theory of inquiry of the two vessels through which alter alternate juror two said there was external influence juror number seven and juror twenty to sixty nine the one that the alternate jurors thought just based on station had something going on with the deputy marshal and the one with the more serious allegations she made was the the notion that somehow it would have gotten through to the jury that there was this report that defendant calls to confess to something the court found that a jew was not credible in making those allegations found j j seven the one that was supposedly ball with the marshal credible and found a german twenty two sixty nine the one with the more serious allegation about a bust a confession credible twenty two sixty nine this is not equivocal on the point with whether she had ever been told that a defendant had confessed to something she responded to that question absolutely not she was acquitted of all about whether there had been conversations trying to deliberations well i think the court found because looking at the court's written opinion on this the court said a combination of the transcript review and demeanor of this witness he thought that that was not the case on a first reading of the transcript one might get that impression on a closer reading the way it reads it is she says a ultimately i think i may have talked to her about some personal matters but i never spoke to her during to liberation so i think that's what this was what the court's finding was now event is julian says pointed out we drilled down to the key question was anything conveyed to that sure it could have gone inside the jury room about some afterthought so if it was that critically would expect to see it requested sooner but the substantive answer to that is when you have found no credibility in asia two and the other two jurors have both credibly denied the allegations there's no need to talk deputy marshal bradshaw or at least i'll put it this way there's no abuse of discretion because now we've hit a wall where both jurors have credibly said well no we're at least twenty seven has said no as she had a new relationship with him and twenty two says you know he said no he and careful questioning of these jurors and because of the obligation to protect the jury also from the harassment which the court has recognized and because we use davis doesn't save naked presumption of external influence it speaks about when the presumption is prejudice the threshold of external influence was never shown here so we would ask that this claim also thank  to develop which may be your answer to what evidence we have that there's more than that here well first global language nature of the trial and then second of all that's why it required disclosure of facts about the relationship because the judge deny the request to call the marshal no good there was never a request to call the marshal during the hearing from that was a post trial filing two weeks after the second hearing but let me go back to the judge patterns question there is a history in this case involving bradshaw briggs marshall graduate provided the list of inmate grids to the prosecutor now the judge after this was talked about a lot and this is a footnote in our grief about it but it was a big issue  government on this issue first or recusal motion is supposed to be made as soon as the grounds supporting it are known if in fact the reason that refusal was sought here and it concerns were based on what occurred in the trial more than two years before recusal motion was finally made in the post trial the court has already alluded to it just suggests that there are grounds for disqualification the defendant or the burden of showing that there was something about that relationship that her house yesterday house of the defendant have that evidence i'm not sure  i have it but he can't go fishing for it merely by alleging he works for you or your poor remotes have a hearing and see if for instance you go over for barbecues that's my point is that he needs to have more than that in order to make that argument and that if you thought as  risk just said that there were indications of that because of what happened two years earlier he would have again expected that to happen in a more timely fashion with regard to the alleged signalling by the judge to jurors seven about what answers to give and in this particular case nobody corroborated this rather remarkable allegation the judge lamberth would have gone out of his way to signal to the juror who supposedly had a romantic relationship based on nothing more than suspicion and he would take that moment to start telling witnesses how to answer questions it was not a credible allegation and circumstances like this it there should have been some indication of somebody corroborating it and so because the recusal motion wasn't sufficiently supported and in either  it seemed that here's the better decision for the defendant at least it seems at the time was to continue forward for this and certainly no legal basis for all and what's your response to all that it's long as there's a breakdown in trust then and then you're in effect will read on this record there was a breakdown in communication and they were talking but at i would point the court to the august ninth transcript for the statements of code defense counsel to the effect that they felt the defense team could not percy effectively they could not provide effective representation without the straightest so at that point i think they were ringing a bell there that the judge heard pretty loudly in addition to all the careful inquiries that he made about the nature of the relationship between roussel and tom eagleton and he had a chance to see them interact many many days i think it was atten period here were several hearings were held about this so he could evaluate how the communication looked in addition to the reports that he was getting and he had to take into account what happens to this defense team without result if the team is telling me we can't proceed without him one  well there's going to have to be a complete breakdown in communications appoint where you can't even provide a defense now he's got a defense team which says we had to go forward without him that puts the judge in a bit of a bind here so that i mean i had to go back to my initial disagreement of the premise of it but i don't think it's clear right to the point of being an abuse of discretion just say if your abuse of discretion is the right standard yes because i think the case law is clear that there is right to counsel of choice but not right to counsel of a point of choice to add that i don't read tommy review to assert that he received ineffective assistance of counsel either from mr russo or his team and one of the things he's got to show this court to prevail in this claim in addition to the complete breakdown of communication abus discretion by the group of the court is a separate precious and he hasn't demonstrated or really even argued that he's asked for rashard hearing without making the threshold request threshold allegation i received ineffective assistance so i think his claim pales for all of those reasons that the record shows a long and carefully encouraged by the trial court and a statement by a defendant who had last time he was asked about it it needed quote he wasn't real hostile to working with roussel and i'll just let the court two the real concern that motivated crawford and her well where with various kinds of purports and the people who prepared the reports not testifying that's really not present at all on the situation right point well they could they could have but i mean under the hood our position is that that's under competition cause it's the government's burden duty to bring and with understand and here  statements were made on the tape that wouldn't go to whether the statements he made on the tape were true or not right so what relevance relevance would it have or why is it so key core confrontation clause issue to president to be able to confront him about why he says you know x one in this ok it would be one thing if the opinion testimony worse construing something that was ambiguous that jurors couldn't you know were the pinion testimony help them figure out something that they couldn't figure out for themselves the statement you've got to have some bodies under your belt use and then the statement that any any person would know what that means exactly and therefore in there for him testifying about it as an expert or or in any capacity didn't harm to defendants because it didn't tell them tell the jury anything that they didn't already know  can hear from the government on that i'm sorry vital yes sorry we're not on issue twelve or so on issue nineteen yes briefly i do want to remind the court that as far as the issue nineteen have a confrontation clause issue my only other point addition is saying that there's no error in particular no playing error there is that all that they are playing has seems to turn on is the desire to cross examine or examined daniel some things that happened quote prior to the recorded conversations this might be a different case if there were snippets of his statements in that tape that they thought had somehow allowed some hearsay to funnel through that was inadmissible but we don't even have that kind of potential problem that his testimony about the tapes in some respects would now clearly be considered error some my burden is to demonstrate to you that it was harmless so do you can see that hampton was issued after you using basically facts not in evidence to help him interpret these in these statements and here is it clear that sparks is using information not in evidence to help him interpret what's on the tapes because you know he's using his investigation his review of police records all of that on the net comes out in his overview testimony and throughout that he he he you know in these decay sage's so he's got access to all this other information some of which has never been presented to the jury and that that is is part of what he's using as a as a as if he's a giving lay opinion to interpret the tapes i think it's different than hampton because in hampton the agent who testified five times i think of one point said he had listened to twenty thousand wiretap conversations or something like that and at one point when presidents to wise opinion was that in your statement x meant that as said well if you listen to all the tapes i had you would know we had nothing like that here this wasn't a wire that he's basing it on you know what he said that he was basing his overview testimony on which is that you know i've done or even what he says during the war dear there is an expert you know i've done um investigations because we never said that an expert witness can interpret conversations we said an expert witness can can tell what code words mean but we've never said ok somebody says here you know something about an enterprise ok mr expert based on your knowledge generally of how these drug things work what does he mean there we've  never countenance that and i don't read that that was there or that that particular testimony was there we have the basic pound ational problem that now if you were to testify he would have to explain why he thinks a certain state needs a certain thing the jury get to decide is it because of his experience another drink he says the reason his experience in this case and what is the basis for that statement lacking our foundation there is a problem with a number of the statements that he made by taken together all of it is still harmless error that's our burden to show score in you can show it because the biggest prejudicial statements that tommy taling points to that he says he was left with because of this testimony or his own admissions this statement about how you got have bodies under your belt admittedly you don't need an expert to come in and or lay opinion expertly opinion no witness to come in and say will this means you have to kill people to get respect into maintaining territory in the drug business  taken in the context of three and a half previous months of testimony from people saying that in fact we did kill people and we did it because tommy said we had to do right now order to maintain her standing so the other testimony about kicking keys and still kicking keys to a rack of dude city grew up with that was understandable without help from sparks and when the prosecutor pulled these snippets of testimony out and argued inferences that i've argued about government essentially here come the cheated in the sense that they didn't want to call daniels if they called daniels they would have been able to play the tapes stop them and say what to do you mean by this mr daniels or what did you take  by that so what did you mean by that so they did so they couldn't really if they just played the tapes and had the jurors listened to hours and hours of tapes with no color commentary so the speak it would have really diminished the effectiveness of the jurors who have been bored to tears listening to tapes for three or four days so instead they bring in this witness this expert lay witness i don't know what you want to call in they have him improperly do the color commentary for them so that they can get the maximum effect of most of these tapes isn't that what happened here what happened here was that the agent who arranged th transaction and came in to explain what its purpose was also testified and walked the jury through the transaction so they could understand the discussions about fronting drugs and how daniels is trying to get tom eagleton to pay for some of the drugs and the the context for this in the price of the drugs there were other reasons why he was there i would have to push back a bit on what the court is saying because there were legitimate reasons why he was testifying to the extent that he drew some inferences that we should have drawn and did draw from conversations there are none of them out of the video taped conversations i don't know that there are any statements or any testimony about those three phone calls that fall into any of these examples that appellant's have pointed to have looked at that to try to see if there's a direct line to be drawn i don't know that there's any prejudice from his testimony about those tapes and so i would caution the court to automatically assume that that would be one way to respond to this i'm not sure that there is any prejudice at all there was a day were it was i've said before  government in their closing said if there was an an enterprise on the tape and they used sparks's testimony as a key fact right to support that argument to be made to the jury right court just you know and i'm representing mr ryan boston one with regard to the statue of limitations struction supposed position that the trial record presented genuine issues as to whether brian boston was even a member of the church conspiracy rippin the statute of limitations period and therefore the district court here in failing to give the statute of limitations struction there were several factors or created this genuine issue highly improbable that he would be working with both of them both of the same time the conspiracy lasted for thirteen years from one thousand nine hundred eighty five to one nine hundred ninety eight the government's own witness described bust because of low level participants for example during the thirteen year period bostic was only involved for five months from november of ninety three to april of ninety four and when that his foster was asked what kind of drug dealer basak was he said not too good and foster was also paying prostitute rent from and said that he was tired of taking care of a grown man and crossed her also when he wasn't paying his rent bostic was living in either is mother's house or brother's house which is hardly the life of someone new to really and in measure in the inner circle of a large scale drug conspiracy furthermore brian ross was indifferent to his source of supply he was getting drugs from the recessed money that he received drugs in order to establish a withdrawal from conspiracy and the related statute of limitations defense neither of which were raised as a defense at the trial or at work question from the trial court bostic there is the burden of proof to show that he communicated the conspiracy in a matter reasonably calculated to reach coconspirators he had to do something active not just kind of slink away bostic was very active between ninety to ninety four and mention this previously he rode along with tommy dylan's people when they were that when they decided they needed more firearms we had courts already read about the accidental well not accidental deliberate killing based on mistaken idea of the two kids who were on their way to a christmas party because bostik but it looked like a drug foster around d c taking shots of these same folks all the way up till the time to foster on his own the next day in north carolina found them and killed them he was an active participant in terms of selling drugs he got more access to direct provision of drugs from tom udall and as a probably was a tactical choice not to show that he was involved with another gang of people shooting folks but we don't have a record that it is incompatible to be a member of gray's organization as well as you know once to the point where it would raise pri withdrawal we just don't have that record here if that defense has been available it could have been and should have been built and it wasn't and the one witness eric jones who started blurting out that bostic have been writing and shooting with kevin and also that a number of the murders that occurred in that area were church other people including people in gray's organization but that doesn't build to the record that the defense had to raise the show with an active withdrawal from the evil and conspiracy rival somewhere they could have built on that evidence they didn't cut it off and so it best if it's not forfeited it should be treated as cleaner and it can be said on this very fair record that the judge plainly erred by not instructing on withdrawal in search  the government even knew that bus tickets which sides because the government had dismissed a come number thirty five in the indictment because it had occurred as part of the great conspiracy they dismissed that count and all of the above demonstrates that he communicate is abandoned in a manner reasonably calculator reaches coconspirators the government knows that several of its witnesses in the great cage testified that the defendants particularly mr boster were staring at them making them nervous in that respect this entire case is very similar and we're asking that the court do the same as this ninth circuit did the the corniche should be inquired of the affected jurors whether they communicated with other jurors about what they saw and how they felt and he the remedy the possibility of removing your thing by limiting instruction in the united through the communication of both and you're involved in the rest of the jury response to this in addition to advising the parties that the marshals and the ones who played about this said look some people just look differently there's nothing to this the court went ahead and observed the defendants and the jury over the next couple of days and saw nothing  all of them wound up opposing bostic so fast that the jury where your mouth is the court thought it would be too prejudicial to the defendants in order to make such inquiry the court had already given the jurors a non verbal communication instruction there just wasn't a basis for it would who are thought that there was enough basis at least to he was willing to do a war dear to see if there was something there all right but the other but the other coun continued against bostic depending upon what he found of war not done for deer and severed bostic and going forward but if he if he thought that there was enough there to do the war dear then why shouldn't we see whether there should have been a severance of that well he asked them for more of your questions the ultimate lee never told that he would work here and the reason that the court should find abuse of discretion is that it particularly in allegations of influence which i guess the category this falls under allows particularly broad discretion in allowing a trial just to decide what the appropriate level of inquiry is and so given that very broad discretion and the fact other defendants oppose or words it was generated in another i'm not saying he did in this case i'm saying that in terms of what the principle braces compass as far as i can make out problems generated by found proven to conduct count one when she was also convicted and clearly incorporated by reference and the argument made made an issue one i think is one two and five  and to a certain extent we also go back to our arguments on the variance and the multiple of the problems raised by the evidence all conspiracies in this case but for mr evil in here the touching her target there are multiple problems with it and this and while and i think among what i raised in the papers which the government really basically doesn't respond to is the problem is what the only overt act that there's a finding on of any violence is this one and i think based on the evidence i've provided a trial it's legally insufficient and this therefore terrorists and there is direct evidence over all keeping that beef going along in addition because since testimony is that the line is he was what to do call sims and said there are some stanton terrorists affiliates at a doesn't just come from one cooperator eric jones also testified that rowena and told him he was counseling these younger members of the conspiracy as they came up on how to be affective killers during the course of that feud so it's not the case that there   that became the center of operations after and therefore there was also not proven so i'm just my own it's hard to figure out what the jury convicted him of mr even was acquitted of this it was not proven against him and he was acquitted mr tommy eat like was not prove and acquitted of this mr johnson was acquitted of this mr mosley was found not guilty and it was also found not proven absent the drug evidence  i would inform the court to remember a sweep from the moment of mr evil and sold drugs during this time period that doesn't mean he's therefore not guilty of the charge of conspiracy and it's very clear that there's evidence of multiple conspiracies there's evidence of competition between tommy you live and earlier you glenn and i think for all the reasons that i've read about the evidence i'm just spinning with the government contends that the evidence was way of looking at your order but the facts show that the court gave them instructions on how to deal with a rico count and they came with a decision which was totally opposite and if i think you can we make you fra incomplete with not legally erroneous means some of the requested instructions are you talking about the defendant's requests here the defendants and requested instruction region we talk about the whole issue of mr johnson receiving value there was no evidence in this case that he received any type of accounts forty and forty one which isn't really appropriate was correct of the order to decline it because it's kind of a commentary on the evidence and wasn't really responsive to the jury's question and the jurisdictional language that was proposed also didn't answer the jury's question the verdict form cross reference the jury instructions which the jury had in writing by page they could go cold be by car instructions they were to count three instructions on so the form which was objected justice for him to get a new trial on these or any other grounds we would argue that there hasn't been any showing of that yes there was an inconsistent verdict arguably to his benefit he was held responsible for shooting at harming his children a whole slew of other cases that's correct you didn't and i think you know what the district court did here was to have sensing hearings before the sensing hearing or propose findings subjection sed of those and then court each of the cases said it was appropriate to go with the government's proposed findings of the question is what straw was flawed about that procedure well i disagree with the characterization of what it was the characterization characterization of what the court did the court didn't say give me proof post findings and and then provide a procedure for objection which correct any definitive could have objected to the proposed findings and conclusions of law that the government filed and none of those proposed findings were actually findings they were all just conclusions they were complete restatement he didn't cite you any transcript were actual record evidence so the proposed findings credits the trial testimony of for example so soon flies on randolph and green cetera so it cites specific testimony that supports the idea of your i'm sorry but i have to is brought it the only thing broader would be the trial testimony supported the findings might my conclusions the next level down from a judge going to sentencing and saying the trial testimony supported my findings the testimony of the various witnesses establish that the conspiracy here involved a massive quantity of crackers well be armed well well well beyond the amount necessary to trigger the particular sentencing range  so that would be a big quantity but when you are deciding from quantity attributing to individual defendants under the relevant conduct rules this court has has imposed a strict push the procedural mandate that each defendant has to have agreed to that quantity that's actually in the chain conspiracy like this where we don't know the quantities to which a particular distribution conspiracy involving one each of them knows to be or an extraordinary amount of drugs and it's recently forseeable that those that extraordinary man will then be distributed what's wrong and there's numerous witnesses who testified to that the amounts involved what doesn't that solve the problem if you have that scenario that he agrees to suggests that not everyone that there was evidence in this trial that not everyone was in for p t in four pounds in for everything it suggests that there are findings within the testimony that the district of large quantities or substantial period of time he did transactions does is anything is anything material gain by forcing the judge to that he is mentioned in relationship to other people separate conspiracies that do not involve tommy but with regard to shelton marbury the government other quantity of drugs from tommy even to shelton marjorie that shelter marber should be held responsible because the district judge does not have specific in detail findings there's no way to know what those witnesses frequently say i got my drugs from time even helping somebody else i want to look to see if the government will give you time on your bottle on there may be more of a legal issue here than a factual but i explore that with the government  and i'm sorry i know that my time is up but i was supposed to mention things from my co counsel related to play her lately in booker which we maintain there's a reunion necessary under those grounds understood and we that the court should have made more specific findings going and the court generally i would say has said that what kind of findings have you made and of the circumstances this is a trial over the course of some seven months of these four  that's money that went to issues like who's responsible for your jewelry present drug money and i think it has to be taken into account that that having the court come through the record for every bit of testimony that would support all of its findings might be more than between he's not responsible for everything that the conspiracy did that was in furtherance of the conspiracy in which we foreseeable to him where is the dividing line in order for you using reasonable forsee ability out of the box or use reasonable wall that there's going to be massive amounts of drugs distributed by others in the conspiracy that that defendant at sentencing is responsible for all the drugs even though that defendant had nothing to do with the actual distribution by the other members of the conspiracy i think you could argue that i don't think that's what happened here because marbury was selling drugs from the early eighty's all the way up through ninety six or ninety seven over a long long period of time the one six month  for every gram so and you know you know doesn't automatically i mean i think our case also frankly very vague on this and so that's our problem or at least my that's my problem individually and so that's what i'm trying to explore other defendants responsible for me now so that they actually individually were tied to dealing let me answer because i've defended court's decision the court referenced that which was reasonably foreseeable armories so i and what is that is that everything i know it all we know is it's more than one point five i know that i don't think we can assess whether that's or can we i don't think you need to because he was dealing for such a long period of time there were already ok so that there that number in six and so i think i understand your theory which is regardless whether there might be some argument that you could go to the proper a fury about conspiracy why billy for sensing purposes we're not going with that broader argument here is what i hear you saying you want me to we don't need to and we can go with the narrow argument and even under the narrower argument you clearly pass one point five for each of these defendants yes ok and are there are aligned more easily so but that conspiracy and so that evidence is pretty direct and his present in the record for all of these events are individual murders that the court held them responsible for either because they committed them or reasonably foreseeable whether it proposed findings and objected to the hard rock money being attributed to them and the court didn't actually resolve any of those objections rather it held everybody responsible for everything before i even addressed the witnesses let me let me also say that this court in williams did make a right line and said that if it cannot be held responsible for drug distribution or he joins the conspiracy i accept that explicitly explain that when they didn't get their drugs from tom they only got their drugs from sammy some time and when they didn't they got them from their brother and so this is and remember this is a different that was part of a different conspiracy one point five kilograms of and what i understand the court telling me is the defendant should have although he didn't have to present evidence he did have to that's where i'm at a loss moment and say that that testimony does not add up to these amounts i respectfully disagree that a defendant has to stand up and present the evidence when i everybody responsible for one point five kilograms and that the record just doesn't support that amount herself and margaret and this is this is precisely why the court is required to articulate reasons it is not clear as the government says that the court would not impose different things but i think the court had obligations to consider the thirty five to be three factors i think he should pay should be remanded for the court considered forty five meticulous or words to the supreme court he's no peer taken to individualize the defendants not even when you get to sentencing when it is most important and the sentencing errors absolutely require remained for the court reconsider we don't know the extent to which the door now murphy murder count twenty two affected everything else i don't think that it did affect everything else but we don't know so the only way to resolve that is to send it back to the court thank you thank you to all the counsel in this complex case for their vigorous arguments thorough briefs this is a complicated case with a lot going on so we appreciate what all you did all  represented your clients well