good morning yawners morning please assignable court my name is philip regen and i represent david hansberry i want to just jump right into it this is a very interesting case this case was in the inconsistent i think the the heart of the indictment tells you that he's being indicted for extortion now the statute reads robbery works torsion and what i think is interesting is that even when the court the district court gave instruction to the jury they included in the struction of rob now it's our position based on the evidence that was was argued in the case by the government that it expanded this indictment twinkly robbie on the face of the indictment is simply states conspiracy to extort what what effectively expansion the instruction well i think the evidence the evidence all the evidence in the case was rob rob rob the government itself called a witness in particular a gentleman by the name of louis mars i mean i know that they were using the term rip what they were i guess the government's argument is that this conduct that came witnesses ask the witnesses what was happening the witnesses said we were going in houses we were robbing people were taking things and even the government itself says oh ok you were robbing folks so the government is you might use that word some of the time but a lot of the time wasn't the description of what was happening with these stops was that they made agreements well right well we're going to take ten percent off the top and we're going to let you go in the drug dealers as they were cool i think i think it's also important i mean that they didn't say we're being robbed in that particular occasions but i think what's important these officers were acting in their fishel capacity as police officers and they were they were they had the ability to legally take and sees drugs and money and this is what they were doing and what they were doing they were seizing this money and then they were making deals as good police officers do to flip flip criminals to get more information i don't think but as police officers they could also give in assurance that the person wasn't going to get processed well i think and you and that person could believe that because they were police officers that they would be taken care of that they wouldn't get into trouble but i don't i don't i don't think that is on the ground i think that's what police officers do in the line of duty as good police officers i don't think that's extortion i think you have to have an agreement to take something personally or make an agreement between the the criminal and the officer and say hey i'm going to accept this dope i'm going step this money personally i'm going to take it i'm going to keep that was never a situation they were acting on behalf of the city of detroit they were in their duties as police officers working with some of the times where they took some of the drugs and left the rest of the drugs with the person they were stopping well those were over allegations by the government but again there were allegations they were put before the jury absolutely  think what's what's really interesting here is the jury acquitted mr has barry on all the conspiracy to extort counts they were they were good and except for count one which included a whopper instruction wanted the conspiracy count you said they were instructed one way that it would encompass rob robbery exactly they were instructed that anyone object to that instruction you know you're on a date at the time it was it was not objected to but it was brought back at the district court in the order in the motion for it for a new trial it was brought back and judge murphy addressed it at that time he addressed it instead it will hey there are two separate conspiracy is separate from the murphy at some points was loose with his language in using robbery but it later points and at the most formal points the instruction was are pure pattern instruction was that unfair it was it was that's very somebody guilty of one of the substantive counts in order to find them guilty on count one is that right that is absolutely correct john that's absolutely correct because they were in their own minds they were thinking we might go if they were to feel a different way did they were here saying it's because that word robbery was included in the count one but absolutely it was never included in the it was the problem was i think everybody missed it was initially in the indictment when the government supercede then the government persistence case this big robbery case or what is so i mean what is unique to robbery here it's kind of a weird fit for either frankly this whole fact pattern what's so unique to robbery that now when the jury hears this evidence they're thinking to yeah i think the extortion situation and again i want to just just be clear on the extortion situation in order to extort there still needs to be a quid pro quo there these to be some type of an agreement and  government can let me stop you there because that may be controversial i thought the distinction was in robbery you take something away from somebody and he's got nothing to do with it you took it in extortion he gives it up willingly i'll be it reluctantly under duress because you know you're going to shoot my dog if i don't give you my of my ring and that's the distinction absolutely ok and a was there a quid pro quo quo requirement here because they were public officials or police officers i would think it would have to be now but it was there was was the jury instructed that they had to find a quid pro correct that's correct all right you'll have your rebuttal mr fishman good morning to the cork steve fishman i represented mr watson at the trial and i represent him here my intention was with only ten minutes i wanted to stand on my brief and kind of what mr reagan was arguing to and i want to discuss the sentencing issue because to me that's one of the more interesting issues i've ever had in forty five years and hundreds of jury trials and it's interesting for the reason that was originally begun by mr reagan which is i've never had a case before where there's ten counts in a including very very serious substantive charges including don't deals including conspiracy to sell drugs against police officers and they were acquitted on one out of ten actually mr watson was only eight o because one of the counts that was supposedly only involved hansberry the reason it makes such a difference here is that the second thing i've never seen before i never had a case ever where the last amount or the stolen amount that's alleged by the great gary jackson had such an effect on the guidelines and in this case hundred judge murphy used it was over nine hundred thousand yes it was in the vicinity nine hundred twenty nine hundred forty the reason nobody knows is because the only person ever said anything about it was gary jackson ok and gary jackson said a lot of things that were inaccurate that i was able to expose on cross examination which i'm sure contributed to the not guilty verdicts on a lot of these other counts but let me tell you why i made such a difference it made a difference as to me doing what i did which you read in the transcript which i've also never done in all these years i'm sitting there it's hands very sentencing and they get to the part about the last i'm out and i'm in the peanut gallery in the back and i stick my hand up luckily i know it's murphy a long time judges know came i don't mean to interrupt but i'd like to be heard because i know how significant this issue is and why did i do it i did it partly because i wanted to be heard because i know how significant but partly because i was worried that the judge would do exactly what he wanted doing and what did he wind up doing he made a finding with respect to mr hansberry beda factual findings which as the court knows don't apply to me because the case law pretty much says they have a right and then mr hands free was responsible for a nine hundred thousand dollars law exactly lost being to the government because they didn't get to seize that nine hundred grand i suppose i don't recall the exact  was a big deal that amount did you want to make a distinction between your client and mr hans period as to the culpability for that law absolutely and the best news for me is it wasn't just me who made the distinction because what happens in our hearing when we get up there i start making my arguments and judgment and starts agreeing with me and he agrees with me as to put much three things right he agrees with me that you know and i don't remember the exact words but i put them in the brief for you just in case he says something like you know you're right i don't recall that there was any direct evidence that said that up so watson was part of this whole thing and he says in fact he used the phrase hundred evidence that was the phrase that he used and he also agreed with me that the finding at sentencing the gary jackson was credible if he did it wasn't in my sentencing it was not in my sense he never said anything like that and quite frankly there's nothing in the evidence including the fact that judge murray had to castigate the guy twice they answer questions and quit trying to cause m traddles that would cause him to reach that conclusion so factually is that the case with regard to this the actual theft of the nine hundred thousand from the semi truck is that the case that mr hans piri was present mr watson was not present and i don't know there were there were any number of police officers present in fact i why i mean just remind me why actually is your client in your view less responsible or you know why was judge murphy saying no hard evidence against watson what's different about watson with regard to the nine hundred grand two things first thing i can't tell you why judge perry said what he said if i could i'd be doing something else for a living we don't concede and there's no along with any other any number of other police officers including the informing police officer whose name escapes me but the one count that they were convicted was conspiracy yes when you're a conspirator you're tagged with everything that the conspiracy does right know if the nine hundred thousand is part of the lost cause by the conspiracy and your conspirator why are you not responsible for the because our circuit has said so and it was nice of the government to cite the case because frankly i was stuck with corson from the second circuit and so i stuck with it it sticks up for me and says that you're entitled to separate consideration and sentence if i can just to aggress just for a second but more importantly campbell the case they cite and you read my reply brief i was overjoyed that they cited because i'm a trial lawyer like i listened to the last two ladies also get they were fantastic i couldn't know that kind of stuff but what happens in the six circuit what happens in the district and campbell it's exactly the situation judge you're talking about you've got three defendants all convicted of conspiracy involving drugs but what happens the district court judge correctly makes different determinations as to each person as to what they're stuck with i think it was a fifteen kilos toll i don't trust my memory on it as i'm getting older i think he said three kilos legal reason for distinguishing between conspirators as to things like loss amount or drug possession i mean judge now banyan points out you're sort of on a cahoots together usually you sort of own the enterprise what is it legal to raise the legal reason i think is that everybody's entitled to separate consideration that we get that but but if you're a conspirator norm i mean why aren't you treated the same for many perks for this purpose because you are treated the same for for other purposes i mean soccer i don't know the answer then i don't remember who is on the panel of campbell but it was three to nothing so they had a rationale for it and it's kind of a simple rationale to me because i had plenty of conspiracy cases and i've had plenty of them by the way again and answered your question were different defendants are treated differently by the sentencing judge why because the evidence the testimony whatever it is that's presented to the judge convinces him or her that hey this person was part of the conspiracy but they're not stuck with all of it for purposes of sentencing remember there's a distinction between being part of the conspiracy and get convicted then it's kind of difficult for me to say yeah conspired on tuesday but i didn't conspire next tuesday so therefore you should acquit me because i'm guilty part of it at some point in time but we're talking sentencing now we're not talking your objection as to this nine hundred thousand business is it more procedural that that the district court in your view made a determination for for both defendants during the hand springs sentencing and you didn't get to see is that the problem or i'm still waiting to hear other than their rank is there a meaningful factual difference in your view between the two of them as to the nine hundred you know i mean which one is were both what what is exactly your your argument yes it's making as precise as i can there was no testimony crew there were any number of officers there were federal agents there there were there were different people there jackson only mention hands various to the nine hundred or what was it well i don't know i can i can tell you this asking me to recall exactly what gary jackson said he up and says that watson negotiated the payment with jackson that is complete and total nonsense the payment to jackson you have none but the judge you have to understand it's hard to believe you should have the look on the jurors faces when i said it's hard to believe the negotiations between the city of detroit through whoever and cheap got be testified to that was the two hundred fifty thousand that jackson was saying today when he testified that today he was saying they stole the money but there's nothing to support that other than gary jackson saying some judge berkeley kind of thought well maybe the tape said so but that they didn't say so there's nothing in the tape maxon testify at trial that they stole the money he testified at trial and the jury can believe that except if they but judge murphy said is true if they believe gary jackson it's just like lamont hill who know the rest of these people they brought up the street that they believe  any of them they've been convicted of everything jackson accusing the dealing jackson with a chemist they can believe want statement but find another one you know not true you're right but but but but we're talking sentencing is we're member we're back to talking sentencing we're not talking about what they can the conviction was for the conspiracy for the habs it but for the sentencing purposes i just think they should go back if you do you want on the nine hundred zero and i think the judge murphy would agree if you read the transcript he agreed with me sitting there i want to zero there is insufficient happens it should apply to hansberry too but i'm not speaking for him don't ask for more and you can get it should be zero it really should and i think if the judge got it back based on what you have in front of you in the also what campbell said what he did was he said well but i ruled that way in the other hearing and that's what you can't do that's like that's exactly my point if we tell him he's wrong about that then you think he's going to give you zero i don't know what he's going to do but i think it's going to be i think he's go just be me and him and watson and i think he's going to think he's going to see what he said in the past and i think yeah i think we have a decent chance of getting to zero in forty six to fifty seven months guidelines and i see i made zero zero so thank you very much we didn't have time to discuss michigan i would like to start first i'll leave the sentencing until the end so i think one of the things that might help clarify this the discussion by mr hansberry this was not a case in which the defendants were charged with purely extortion under color fishel right and dancer judgment of any question they were instructed on the quid pro quo when they were instructed on the substance counts and so on actually point you to that for purposes of the official color of the color official right that would be on pages  six sixty five to three six they were instructed essentially that if a public official were to accept or demand property in return for a promise performance or nonperformance of an official act and that's in other pro quo so that goes to the caller official right doesn't that so that helps his argument right he says they were instructed on quid pro quo the only mistake was the robbery was thrown into account while the jury says hey do we have to convict them of one of the substantive counts in order to convict of the conspiracy the judge says they could say well we don't find any quid pro quo so you're acquitted on all the subset of counts but hey there's a robbery language in count one so i guess you're guilty of the conspiracy because we think maybe there was a robbery there were robberies so i'd like to take a step back first no they were instructed on robbery they were never actually instructed on what a robbery means so the difference between an instruction on extortion is the judge said you need to find a conspiracy to an agreement to commit extortion and i'm going to define what that means in a moment that was what he instructed on page six six to nine specifically with respect to the conspiracy that  agreement and joining conspiracy there's a reference to the fact that you don't have to find that they engage so it's a specifically one more point about the agreements this is kind of like at the very end of the conspiracy instruction one more point about the agreement the indictment accuses the defendants of conspiring to commit several acts of robbery in extortion but the government must prove an agreement to committed lease one of them for you to return a guilty verdict on the conspirators when he's instructing the jury that is when he was instructing the jury so after he had instructed on what the elements of the offense were there was that stray remark about robbery and so that was the only time the term robbery was included the entire jury instructions so and there wasn't anything in writing that said robbery  and that's correct that's correct this was an instruction that was submitted jointly by the defendant and by the parties this was instruction that no one objected to at language was jointly submitted where you just read yes your honor it was submitted and this is in my brief there was a preliminary instruction submitted by the parties and there was a law in the early ninety's is just that's a waiver i'm not asking if you do that i think that's plain error based on subsequent case law but the parties jointly submitted this in a plymouth or injury instruction they then submitted it again to the law clerk via email for the final jury instructions there was a charge conference on day seventeen i think of the hear of the trial in which they went through everything and the only objection was i think to whether or not you have a prior inconsistent statement there was no instruction as to the substantive offenses and  so it's but why is there some appeal to his story i'm still like ok fine maybe it wasn't they weren't instructed on robbery but they clearly thought there was a difference between count one and the substantive counts not necessarily  did i think that's the problem was they just they disbelieved every single witness on the substantive counts and but thought that there was a conspiracy because of the other testimony about what that scheme was it is it  would require speculation on my part us to term and what the jury was thinking i mean this is why we don't go in inconsistent verdicts unless they're mutually exclusive was a compromise was a mistake from my perspective looking at the evidence i think it was a mistake they didn't understand the subset of counts perhaps there but the case i mean set aside the agreement between the conspirators extortion the quid pro quo this for that implies an agreement between the people who are exchanging this or that granted it's under let's forget about conspiracy altogether because just on the substantive offenses there is some there is an exchange very tainted albi it but there's an exchange and extortion robbery you just take it by force and you know if there there really isn't a quid pro quo when officers show up bust some dealer who who they know has money take his money and then say get out charged extortion under color fishel right and under actual or threatened force violence or fear and in my view this is a spectrum the the defendants are robbery the second part of the you know that's actually the text from the one nine hundred fifty one b two that's going to pretend to be able to delimit the two but they were they were charged under both instructed under both and hansberry has focused exclusively on her color official right i think by looking to the caption the caption on the on the charge counts as under so really this is an agreement by the defendants to wrongfully use their position as police officers to extort in other words to obtain property from drug dealers sometimes it's i really think i mean so well sometimes it's  her right and i think the best example of the is nicholas simmons and that was an individual who they did search his house that was again more of the fear angle they searched his house and he said are you going to charge me and they said well we can sign you up as a source and he said no i don't want to do that and they said did this recording evans imply though at least the public officials are involved that extortion was going to be essentially taking a bribe a quid pro quo yes your honor but that was only under the collar official right context so those long as you charge both under color of official right and the other part of the story it doesn't matter that it's a public official you can still prove it's like radio or strong manic store should kind of thing i view yes i mean i'm not aware of any case law that says just because i'm a public official of official i can also extort you by fear violence or by fear violence or force and frankly this is a scheme that only works because there are law enforcement now there's the solute there's the argument there lawfully doing these things but that's not the case each one of these seizures was a set up from the get go that you just said this scheme only works because there was force so doesn't that mean they so they have to be their public officials  not in that box where we need a bribe scandal and not just the fourth because their conduct didn't always fit well first of all they were only convicted on the conspiracy so i will fall back on that agreement but they were only of i'm going to shoot you it's the fear of i'm going to arrest you arrest prosecute convict and none of these people were charged at least by the state they get a pass this is not a scenario like in dean that's the d c circuit case mr handy relies on this is not a situation where they were lawfully engaging in the conduct and then after the fact skimming off the top this was not a fact situation where evidence goes back in evidence and then they take for themselves from the outset it was a set up that was a set up because they had  jackson they had calhoun they had louis mars and other people identifying drug dealers in order to set up and then they were wrongfully using their lawful position in order to fake a search warrant fake ace a traffic stop and take these drugs how do you fake a traffic stop i mean can you think of it is a legitimate traffic stop because these guys have drugs but then they do bad stuff at the back end of the well how do you take it well for one example and that would be the example chester browning he was an individual who drove up from kentucky you have someone who's not a police officer dressed up as a cop and participate in the traffic stop that would be one way but there were ones where the officers hold the drug dealer over and they're allowed to do that right not if there's not probable cause well i mean  is that it was a legitimate traffic stop not because they were speeding because they had actual information that they had drugs that's correct this was never a lawful traffic stop or search warrant from the get go and frankly the search warrants they were they forge for search warrants one judge in w county testified i never signed the search warrant so this was a circumstance where the agreement was we were going to wrongfully use our position to obtain property under color official right as well as by fear the fear of being arrest the fear of prosecution and situations nicholas simmons with be the best example sometimes it was quite explicit what i put for a quote was i think it's much harder for me and i will concede that if i jump out of a car and abandon my my drugs that's harder for me to argue there's a quid pro quo and that's where i'm arguing the extortion interfere  situation so there's a distinction and i would so if i'm in the scenario of the search warrant the traffic stop and they've seized the drugs that's different what i'm talking about with nicholas summons is they'd already taken drugs and forty seven and money from his house and then he said are you going to charge me and they said no we want to make  your point this is not a clear cut example and i think this is why justice thomas in the case said i'm not really sure that under color fisher right is the equal the taking a bribe and the supreme court may have gone astray there obviously we can't overturn that i'm not said and i think the issue going back to the very beginning the victim doesn't always agree the victim doesn't always have to agree in the conspiratorial context and there's a lot of there's a lot of discussion in mr hansberry's brief that the victims the drug dealers didn't you justice alito said that's true they don't have the same criminal ject of if i pay you a if i'm being if they're my shakedown scenario if you're saying i'm going to trash your store if you don't pay me money that's not a conspiratorial agreement might agree that i'm giving you  legal context but there's a this is where we get into legal agreement versus i'm giving you money so you don't trash my store and here everything was alleged properly albeit i mean this is not the clearest example is it robbery is extraordinary i think it's it's right on that line in many instances but the jury was charo the jury was instructed only on extortion other than straight remark the fact that it also proves robbery is beside the point the government's allowed to pick one theory and go with that and for the most part the government relied on the term rip which was short for rip off the fact that a witness describes it as one thing does is not controlling and so i would submit that this was fine and even if we exclude all the acquitted conduct we can look at drugs and money then you're good you can be a millionaire doing this and where your get out of jail free card that's a good example another example arthur lavelle's codefendant coconspirator testifies and he said after i got flipped f b i arrest him he starts making recordings of both hands free and watson and their recordings in september two thousand and fourteen where they were trying to set up another stage traffic stop again showing an agreement they were convicted on agreement there was ample evidence to convict them of that and i  so let's take a step back for a moment the defendants essentially objected to the loss of and the probation initially included the loss for all of the seizures and judge murphy decided he was not going to count the acquitted conduct to rely only on what was that all the seizures  number two or three million dollars it was a substantial amount or i don't know offhand he decided he's not going to find that i think legally he could have he decided he was going to so he's relying primarily on the difference in the three million dollars that was supposed to go to the cartel and the two point one million that was actually obtained by d v d and there was a hearing no need to hamstring or watson offered alternative view they simply said jackson's not credible there was a hearing where it was basically b back as mr fishman described he was present for watson with a proceeding which started and they argue credibility and judgment he says i found jackson credible i remember that tape after the fact and i recall it vividly and i find incredible about also whether or not watson was involved and judge murphy says look having gone through all of this and this is on page two fifty nine or two two zero five nine zero two zero six three of the record having gone through all of this having gone through this whole thing i say to say to all of you number one that tape that jackson made a stablish to my satisfaction a number of things and he centrally he simply says look i would need some sort of facts if you look at two zero five ninety two zero six zero i would need some other facts other than what you're arguing to find him not credible since i just found incredible in the prior proceeding so the only thing that he just murphy is is he's speaking to watson and he's speaking to mr fishman watson at that time so the finding that went from one hearing to the next was i found this witness credible i need something new to not find it credible and you basically saying the same thing that's different from whether or not he's responsible and accountable for that but i think that that's completely appropriate for a judge to rely on a prior credibility finding from another proceeding unless there is some sort of new facts to challenge that credibility finding and there really wasn't from one sentencing the next was the one hundred thousand did it in a did it need to be specifically willing to wats and it did not but it w to watson yes it was your honor so legally no it did not need to be once you're part of the conspiracy you are responsible for anything that's recently forseeable in the scope of that conspiracy and here that clearly was within the scope of the conspiracy so the reason there might be a distinction would be if mr watson to join the conspiracy after this but of course he hadn't the evidence was that mr watson helped negotiate this very seizure arthur lavelle's and brian watson negotiated this takedown of this semi truck going back to the mexican cartel and the this was if you look at my sent in my portion of the sentencing brief the layout of the page i d s of course but essentially he was involved from the beginning now he's at the seizure and he has arthur who is communicating with harry jackson really information so brian watson is there and he said first tell gary jackson that we suite that was a quote and then also said hey can you ask him if these were stored sequentially in other words if you see the photos that  i attached in the district record these were all bound saran wrap pools of money and they were labeled like one out of thirty two out of thirty three out of thirty that was after the fact brian watson was actually asking arthur lavelle's to have gary jackson say is that the way it is because obviously that makes it harder to seize right that's the cartel does this make sure that someone's not picking it off on the way and obviously makes ards a cop for the cops to do it i don't know how they did it because they did because only two point one million is up in the police bank account and  after this all these guys start rolling up in nice cars david handsfree is an aston martin another guy buys a boat clearly money was seized and so to answer your question legally he was partner illegally it was recently forseeable because he was part of the conspiracy it's within the scope of the conspiracy i may answer the question or please just because not having started i'm not sure it could be because the record was so large that he was struggling to recall the exact connection between watson and hansberry as far as how watson was directly there certainly took  miss to read the transcript took a substantial amount of time for me i'm sure it took you in your local it's a substantial amount time as well i'm sure that he can remember what happened with respect to the actual seizure and with the recording that happened after the fact but whether or not watson was involved before and how initially no but then simmons decided he was going to do and i think that he said well i need to find more drugs i need to find more more more money i think this is good police work i don't think this is extortion i don't think that it's robbery i think what the fine line is and we i think we talked about earlier is the fact that the judge judge murphy used the word robbery and i know the governor said is a straight remark it's  instruction that both sides submitted to the judge i know that's almost like outright waiver it is i did there but for but for your honor the fact that it was addressed but for the fact it was addressed at the at the motion for new trop and and judge murphy do with mr watson if you read what the judge said about his conclusions from the hands very sentence what he said was if i relied on those facts blah blah blah and i would say in all honesty that the tape that jackson made established to my satisfaction in number of things including hansberry's guilt beyond a reasonable doubt and his lead he doesn't say a word about watson the reason i want to have my thirty seconds is all of you asked me what exactly am i asking what i'm asking is for the court to find if it gets to the sensing issue to find the judge where he did not make the independent sentencing determination that he's supposed to do by coarsely this is my second circuit case and send it back for independent consideration and we can handle this out again i noticed in the questioning and i agree with the government lawyer he wasn't there i was there and i can't tell you what exactly was in his mind but i think there's sufficient things in what he said are sentencing including the part that's been cited by the government that i just read to you that if it goes back again he's going to have to focus only on officer watson and i your argument thank you all