mclendon and i forgot to do this yesterday mr clue with you and with others and i want to do it now before i forget i want to thank you and mr howard we know that you're both court appointed and we truly truly thank you for your service not only to the court but to your clients as well as your clue and every already think you may please the court the order that we are appealing from here we are quibbling only with two components and that was in the analysis of of someone who was convicted of solely on an aiding and abetting theory in a joint trial with principle where the principles trial is tainted by constitutional air so that his the verdict that resulted in that joint trial by constitutional error is no longer have any confidence it necessarily is the case that those that were swept along with that conviction in that joint trial on an aiding and abetting theory also must have a joint trial a new trial or c julie let me ask you this question to follow along where you're going are you arguing under the aiding and abetting which was only count for us are you arguing that your only entitle to a new trial as to count four because of looking at it looked like your original motion was asking for a new trial on only well your crimes were convicted of all four so is that what you're asking for only a new trial on aiding and abetting well on on taking the one step at a time theory of this and i want i feel i felt that in the district court that matter was not even disputed by the government until we got the decision in the in the decision came out in the in the district court cited a case that we felt had no or no relevance at all because it had to do a successive trials and then the government defended  the district court as it as it would ordinarily do and has defended the district throughout however we feel that error is wrong so i just i feel that that piece of the of the puzzle is a clear legal error is the simplest part of the case to deal with that's why i've separated it out but we are if you deal with the separate the two clients particularly in failing to appreciate how significant the effect of agent dante jackson's testimony and his role in the case was on the conviction of mr clendon and hence necessarily then on the conspiracy conviction for mr bryant as well so but that is a that is a i'm just saying that that part of the puzzle is a that's a bigger puzzle to fill in whereas what i wanted to start out with a little or puzzle of the what we feel is a clear legal error that the government did not even argue and was a surprise to us when it came out in the report and recommendation the with regard to the bigger part of the puzzle what we have  in this case is the central figure in the government's investigation the undercover agent who is the core he is the undercover f b i agent in the case who is doing the recordings who is having the relationship with mr bryant who is essential he is the fundamental core of the investigation his name is dante jackson is he then becomes the government's first and star witness at trial he interprets every bit of evidence that comes in he is repeatedly referred to and used by the government as a tremendous authority on drug matters so that he can opine and explain the failure of this investigation with regard to mclendon and mack when the failure was particularly as to mclendon and also to with they never did what you're supposed to do in this circuit is to prove that when some people are involved in some criminal activity that they know the criminal activity they're involved in drug activity and there's been case after case after case in this court that says people conspirators who were being paid a lot of money to move a suitcase from point a to point necessarily all know that there's drugs involved so it's the government needs to try to prove that the underlings the bag man my guy the bag man for example clinton knows and so what the government failed completely failed to do in this investigation is ever in the presence of mr mclean ever use one of the words or one of the codes that you would say he never said they never said oh this is a colombian great colombian stuff or this is you know we we have to move this merchandise i mean they never used anything that would if dispelled what was the original plan and what bryant logically could have originally told mccloughan did and what he later in an affidavit said specifically said he  which was this is about money the premise of this case again even more so than an ordinary case was that this was a money laundering operation down to jackson agent was playing the role of working with a russian mob operated club dolce in miami beach and he was monitoring money for them at some point in time and it happens at a time when to a tape recording is is vanishes in it's someone temper cording mr jacks jackson claims that he transitioned the case from money laundering to drugs but for me just interrupt you for a second to make sure i know you're argument on appeal centers on the denial  a motion for a new trial to mr mclendon and mr bryant but you haven't challenge the general sufficiency of the evidence to convict right because you started that argument by saying the government didn't do what it's supposed to do in these cases but on appeal although you think the evidence is then you haven't challenged the legal sufficiency of the evidence to convict your client's right i haven't only because it's  not a part of the burden and i didn't i thought it was not part of your burden and just asking you whether you are i don't have to challenge you this efficiency of the evidence if i could procedurally raise that issue at this point i would i did raise sufficiency in on appeal handle the case on appeal region you know and i race efficiency i believe the evidence was it was insufficient even when we had jackson as a credible witness i still thought it was insufficient but at this point you're stuck with the legal sufficiency of the evidence right i think for practical purposes that's  the law of the case although i don't know how you again with the with the new trial analysis of first and most important point about it is that unlike the standard of review of the record is not the same standard of review of the record you on a sufficiency issues and a review of the record is more of a holistic while what would have happened if the defense had thrown this punch and what would have happened how the government of react then and so it's more of a dynamic thing that does not look to the light in the light most favorable to the government it looks in the light of what reasonably could have happened to that we can be confident in the result given the constitutional error where do you think that the magistrate judge in the district court when most seriously wrong i think that the fundamental problem is that they did nor did the series of cases go back to a case that i had with judge edmondson thirty years ago martinez you know were guys go into they're hired to go do a stash house robbery they go in they pick up fifty kilos of what supposed to be cocaine in suitcases but the only one who's told that this cocaine in the suitcase is is my client and he and the other other clients weren't told in there that the evidence was insufficient i don't think that they i think it's a very difficult concept that's been the law of this court for pretty thirty years and it's and with all of the evidence when you take jackson and his saying him saying oh this means drugs oh this means drugs this means drugs completely absolutely non coded language in other words he never says oh this is drug code the only time he says that he says to mack and so the time that he actually does something that actually proves something as to mack the district court said yeah i mean that's really problematic we have to give him back a new trial so it shouldn't be worse for my client because he never even did that and so the other evidence a government relies on his legs but it wasn't the theory of sufficiency which i know you dispute that whatever mack knew or had been told had been passed on to his supposed confederates mr mcclelland and mr bryant and therefore that's why they were in snared in the conspiracy well i think that  the government's argument if you look at the their argument in the initial brief again and those are again it's been so difficult to keep to juggle these two standards of review of the record at one time but under the end of the review of the record in the light most favorable to the government then you have a ton of evidence by jackson saying that oh this means drugs and he would have done this he would have gone in the sun past lane unless he was carrying drugs oh he would've wanted a smaller bag unless he was carrying drugs and this is otoh you could never wrap money that was another on the line jackson was the narcotics agent tyson the one that they claim is good enough we doesn't give this testimony was not a narcotics agent he was he was a baltimore police officer that had very limited experience with money operations and jackson comes up with this theory that you know that the court of appeals this court relies on it says oh you don't rap money i remember arguing to the judge judge marcus i remember in this very courtroom five years ago whatever  asking me for examples of when you rap money because asking you for something that would dispute what jackson had said about you don't wrap up money and of course i knew from my cases i had lots of examples but i wasn't able to  cases until we had the new trial motion but the case law is legion with you do read money that way his testimony was wrong and it's it but it was effective we're not we're not considering whether whether our clients would have been convicted without the testimony of jackson we're considering we're considering the brady issue which has as you know the for profits how does your argument fit with then the question that we're looking at at this stage of the proceedings in terms of again going back to what i'm disputing with the district courts finding is th disc did it undermine confidence and that's a very certainly it's a dyno review of whether it undermines confidence my feeling about it is that of course it undermines jackson to such extent such an extent that if i were the government i would not  jackson but if they are saying we want to put someone on the stand who has just in the previous months completed a major obstruction of a murder investigation so that he could protect the fellow who is his his other russian handler who got him into this exact strategy of how to handle these russian club drug money transport things the exact a template which was created by jewel by of that they want to put him on the stand saying yeah you can trust me everything i'm telling about money even though i just obstructed a murder investigation in cold blood we assassinated somebody in the hospital parking lot in the atlanta and i was trying to keep the atlanta police the sandy springs police from getting to  finding out this guy because this guy had given me i don't know whether it's one hundred thousand he'd give me all kinds of of bribes over the over the period of the last year i don't think the jury then believes him when he says this ridiculous testimony about oh you don't drive in the sun pass lane except unless you're carrying when you're carrying drugs or you don't you want to smaller bag when you carry drugs but you don't want to smaller bag when you carry money so i think that it's fundamental i don't think they call him whether he i don't think he testifies first of all because at that point he's he's got a fifth amendment privilege and we have the exact evidence of what happens he didn't testify i called him i pushed it i had another day of hearing set i couldn't get the guy to testify and he wouldn't testify so if you wouldn't testify they wouldn't call him or if you did call him that would be our case and there was a lot more that would have come out in terms of the dynamics of the case bryant had made statements post arrest that were not admitted it was a big issue in the appeal not in my case but in the in case you know he had ma look every i specifically told mack it was money i specifically told mack it was money i mean later than i added to that something that he'd said morkel the tory of mclennan but there was there was evidence that the judge would have likely let in i mean this was a major problem you know the whitey bulger story is the only analogy that i can think of where they let agent john connelly allowed whitey bulger to kill people because he had a good informant this is the close the closest analogy to him in american law that and and that very types of techniques that he would learn from and i'm sorry i know my time is when i know it's ok if i may have one more question there's some disagreement between you and the government over the status of max  max conviction and proceedings and all that can you tell us your position on that i mean i have i have i mean you could look at my position as being technical which is what i find very important to have a technically correct position we have an order the orders final no question about what the order says order a doc's report and recommendation in total that's it for my purposes that's what i have i don't see it as something where you dream and say did you really mean it did you really mean to adopt the order i mean the judge adopted the report recommendation in total it was a it was a delicate complex of things and he adopted it in total i don't think it's fair to then go back and say he didn't mean it now in terms of resolving a case it's true that max case months later the government and mack reached a resolution the government and and we tried to reach a resolution as well and it was offered to the district and wasn't accepted so i don't think that post order stuff should affect the resolution o united states with me a counsel table is bob sr who represented the united states in the new trial proceedings morning to both of you the morning the bottom line is here that even if jackson had been thoroughly discredited or not testified at all there's no reasonable probability on this record of a different outcome let me just go through a couple of points that mr kluge mentioned that i'm happy to address any issues the court may have specifically first of all just as an evidentiary matter it was tyson not jackson who testified about the fact that money would never have been wrapped up the way this was mr clooney may have misspoken there it was tyson who testified that in response to the if you recall there was the key point with regard to m endon and that's all that mr clooney is talking about you have bryant in taped conversations talking specifically about cocaine i mean that's a complete nonstarter to suggest that would have changed at all it's on tape where jackson is saying to bryant this is cocaine two times in the december night conversation so i think that's why we don't hear much about bryant because none of that would have changed whether jackson testified or not as to mclendon there's a conversation on december twenty first all the times mclendon is involved in the activity in this case tyson is there it's not just jackson and it's all on tape so you can take jackson completely out of the picture and none of it changes that evidence in that december twenty first conversation the packages come out mclendon talks about how he doesn't want to travel on sun pass that's not jackson's testimony that's mclendon on tape saying we can't go on this particular road in miami because it'll be picked up by the sun pass the packages then come out there wrapped and concealed their bricks you can't see what's in them and tyson says again on tape to mclendon and to bryant no deviation no taste no test you all don't get high so there you go and you have a explicit reference i think to the fact that these are drugs made in the clinton's presence now mclennan then says there's a discussion  tyson says you know you all take care of this there's a lot of risk this is money that's the only basis for the defense that was argued on sufficiency back in when this matter was before the court a few years ago it was tyson who made that comment and it was tyson who said there's no way anybody could have thought this was money because money when it's used in these kind of transaction is always available and open for inspection unlike drugs and in fact when the defendants are paid when they're given their cash after they come back after dropping off the sham cocaine they're handed bundles of cash open and exposed just wrapped in rubber bands so the point being all that is just to correct that argument when we go to sufficiency there is simply not just of the evidence has already been found sufficient by this court previously but it is material to the issue of whether there would be a different outcome or reasonable probability of a different outcome on on the new trial review leavin in jackson had not testified that would have been the same let me ask you mr clendon with regards to the weapon that mr mack possessed it seems to me because mr bryant was present as i understand the record at the meeting where mr mack appeared with his weapon whereas mr mclendon was not present at the meeting but was present at the deal and saw max car following them that may be legally sufficient to uphold the conviction but you don't think there's any issue with mr mclendon one twenty four c conviction i mean there's no direct evidence of seeing the weapon of knowing he would be armed it's all circumstantial it's all in honor first of all as to the sufficiency issue obviously as you pointed out that's already been decided by this court previously if the analysis if the question is how does a potential credibility issues jackson affect things now from a reasonable probability standpoint the answer is none so that evidence is exactly the same jackson had nothing to do the evidence against mclendon on the gun count is entirely driven by tyson in the tapes so that doesn't change so i understand your honor's question but that was you know different today than if it had been when the issue of sufficiency was first litigated because jackson had nothing to do with any of mclendon nothing alone to do with any of the clintons interactions they're all on tape and they're all with tyson there and it's tyson who as the magistrate judge pointed out is the key if not the key witness on all fronts certainly the key witness with regard to  an officer to carry one there was nothing in that regard for mr jackson nothing except speaking about what was on the tapes that's all tape there's only one under recorded conversation that's the very first one on december second everything else on tape this is not jackson's independent testimony or where you have a situation he's just recalling a conversation for which there was no other evidence he spoke about what his an understanding of certain things said on the tapes were but this is all on tape i know there is a lot of the conversations and maybe not this one but a fair number of the conversations required some interpretation which mr jackson was able to provide i think jackson provided interpretations of what he meant i think judge marina was very strict about this i know the argument they make in their brief i tried to go through what was actually said during the trial just marina was pretty strict about saying look you can't testify about what was in the defendant's head but you can certainly say what your understanding of things were in order to explain your actions i think he was very strict about that that was an issue in the first part of jackson's testimony when you go back and read the transcript so i don't agree that there was interpretation of what the defendant said that would have been proper testimony and i don't think that was allowed and as on the guns will mr jackson and in your understanding of the record didn't provide any testimony with regard to the gun issue i think he spoke about references to guns that were involved in the tape there was testimony that i believe actually came as much or more from tyson as to mack showing up at the breakfast meeting on january fourteenth what happens on that day that's the second of the of the drug runs jackson they meet for breakfast mack shows up he's in uniform but without his name tag he is on armed i believe there's testimony from jackson also from tyson i don't think there's any dispute that he showed up armed and i don't think there's any dispute at all even from the defense at trial that there also tape recorded conversations where bryant is saying to the jackson saying i'm going to be arms for this transaction and the eleventh circuit in its opinion affirming the convictions noted that testimony as well from from bryant but the premise of the problem is with all of this argument mystically the premise of it is simply wrong there was no new trial i mean this is a interesting hypothetical discussion that takes me right back of the original question that i ask in regard to mack to the denial of their new trial requests and by the government to the order for a new trial on math because we thought and we still think there's no basis for for that you've got problem who with me on th unequivocal that mack is given there so that's not correct no judge here's here is what here is what happened procedurally goes up on the are in our objections are filed by the government to the portion of the order dressing mac objections are filed by brian to mcclintock on the same day the district court issues three orders one order denying a new trial this is documentary i think three zero four three zero five zero six one denying a new trial to bryant an order denying a new trial to mclendon and on math setting it down for a hearing and further argument presumably because the court recognized the government's objections had were at least meritorious enough to warrant an airing before the court adopted that ok the court then has argument on the government's objections regarding mack and in the meantime before it issues a ruling there is a resolution between mack and the government and the court issues a order and a judgment pursuant to that agreement sustaining imposing judgment on count for on not granting a new trial granting a new trial as a procedural mechanism on count one and three and the government then dismissed those counts he pled guilty to go for correct right to the court never the district court did not enter in order at any point saying mack gets a new trial and plead after you've been convicted yes i mean you have to you have to set aside the conviction but the court what the court did i think procedurally pursuant to the agreement and there's a copy of the agreement on the in the record he had already been convicted on count four so he didn't really plead guilty on count four of the court answered an amended move the court was did an amended judgment keeping the conviction on count four and then in a tagalong order granted a new trial on counts one in three and granted the government's to dismiss motion to dismiss those counts so technically judge when you're right i mean that was it was not a let me correct that was not a guilty plea the court entered imagine it ended judgment retaining the order retaining the conviction on count four that have been used by the either way what the do if the district court didn't grant a new trial to mr mack it didn't sustain your objections either it did it did not rights not what we have on this sort of record is  magistrate judge after a full hearing recommending a new trial for mr mack we do have we do have that and the government filed objections though he isn't is those are we believe they were they were persuasive objections  varying going on here in regards that i know it's not a legal test but there's a smell test that's out there as to what happens when you get mr mack still under the nine twenty four that seems to be the be the whole argument as to the inconsistency of what's actually happening on this record in regards to that that's what's going to bother me sure i believe it is reflected in the  i don't know those transcripts are actually part of the record on appeal but the proceedings in front of judge marino related to the resolution with mack are all on the record those are two transcripts in the  reflected on the docket there are also pleadings in the docket reflecting the government's agreement so there was nothing nothing underhanded about it and the discussions with judgement rayno including public record discussions of plea agreements involving the bryants and  were put on the record so those are out there is nothing underhanded and we're talking at all and i'm not saying or underhanded i'm just saying the story but let me ask you this question are do you believe that opposing counsel is asking for a new trial on they were convicted on all four issues were as mr mack was not convicted on two are they asking for a new trial on all four of their issues are been you only asking for a new trial in regard to the mine twenty four c my reading of their brief is that they are seeking a new trial on on everything i think they have a different argument on count four they sort of have a what you call argument or a sort of separate piece of it sort of saying even if you were to find that there was no basis for a new trial on the other counts there is a basis for a new trial account for because by their interpretation of the record the district  granted a new trial for mack and so therefore we get one two now that's legally mistaken as well factually mistaken but that's what i understand their their argument to to be judge will it go down to the if you can have the whole apple take part of the apple if they can get a new trial in mind twenty four c which is the aiding and abetting provision in regards to that and that looking at the breach that was that's my understanding i think you're right that's my understanding of their argument again i  i think there are at least three you don't have a just record order granting a new trial so all of this is hypothetical if you were to get into this issue i think you'd have to look at the government's arguments as to why no new trial was warranted on mac at all i mean we steadfast argue that and we stand by that in an otherwise comprehensive order magistrate judge o'sullivan i think was mistaken in terms of the evidence against mac he attached a lot of importance to a reference to the mac that the shipment was going to involve t shirts and that sort of treated as if that was the only evidence against mac regarding his knowledge and that maybe he was in your view mistake of it maybe it was just a visceral reaction to the horrible horrible optics of the government trying to keep together convictions after a case agent has engaged in this sort of misconduct and i'm not casting blame anywhere mr shipley is just a personal observation for me that i don't  colleagues but every once in a while something happens the government is not responsible for but it puts on a case that leaves people shaking their heads and is not going to affect my judgment in this case but i'll tell you this is one of those cases i mean this is horrendous well the thing is conduct that the agent was purportedly involved in and when the government seeks to try to keep convictions i've i respect i respect that view and certainly i'm not up here to defend anything jackson did i walk in the weeds of it i think they're there briefing their characterizations overstate both the timing of the conduct and also potentially overstate what jackson did with regard or didn't do with regard to the case in georgia he has not been criminally charged with obstruction in any forum and he did provide the names of the individuals who actually committed murder but i'm not going to fend i'm not defending that whatever you think of that conduct bottom line is this is a case about drug trafficking involving corrupt public officials these were serious crimes these are defendants who breach the public trust and committed terrible offenses themselves so you know ideally obviously if the government had known about any of these issues regarding jackson you know he might not have been called a witness he certainly wasn't necessary the tapes came in tyson was the key witness it was not a position the government would have probably put  prosecution in because these were bad guys betraying public trust and doing bad things so i understand you're on his concern but i think there's a countervailing considerations as well and this truly was there is no allegation that anyone in the prosecution team other than jackson himself knew about this conduct i'm not suggesting or anything close to the record is clear on that that there was this was a serious prosecution of corrupt officials and i think in a righteous one no i think i think the magistrate judge's order makes that pretty clear so and you may be correct judge jordan as to what judge take on things was and i would understand that but from a legal standpoint from where you look at things now in the court of appeals you do not have a new order  trial order from the district court in count four we don't agree that there would be a legal basis for it anyway so all of these hypothetical questions about what would be the affair act a new trial order on an aiding abetting theory from principle on a accomplice we don't get to that point you've got to you would have to skip through a variety of things that didn't happen in this case so if the court has i c m over my time the court has further questions about sufficiency or any other matter i'm happy to address it otherwise we'll stand on  i'm going back and looking at the issues that you raised for this appeal all affecting a brady issue yes and i am having a hard time right in the appeal that went forward before at least as far as mr mr bryant was concerned they indicated the evidence was overwhelming as to his conviction maybe not so much as mr mclendon but they went ahead and upheld that now that sufficiency issue for me is beyond the pale of the case that we have here i'm having a hard time  show me and i try not to ask a question unless unless i'm confused and sometimes that's often but anyway how do you maintain that brady of a brady violation as to your t without arguing sufficiency that your client gets the benefit of any kind of a brady analysis in this case well again the the reason why the evidence was considered either as to all four counts or either as tonight nine twenty four c let's try to count twenty four c because i think i can go back to a question the judge jordan answer to this asked the same time again our track with the argument on one twenty four see is and the only reason the only reason given by the district court the only reason given by the disk were for denying my client a new trial in count one twenty four c is mistaken reliance on the stand in her case which has nothing to do with this case because it's  success of trial case so that it is impossible given all of the other machinations whether they are good or bad put them aside there is only one rationale in this order for denying my client one twenty four c really and that rationale does not hold up because stanford does not say that stand for implies the direct opposite and the case law that we've cited including a hundred year old second circuit case it's clear as a bell you cannot have the constitutional error infecting the trial of the principal and the it doesn't but it certainly does affect the conspiracy question in terms of conspiracy as to math because again when you find that you have the whole evidences to max involved in a conspiracy is now tainted then all of the evidence that the court of appeals  any other corps previously relied upon of on my client guilty of conspiracy because of some involvement of mack also takes on the taint so i think that that's but that's the critical point it is also i believe however not tangentially but i think i i it is also true that the evidence is insufficient my client's knowledge of the firearm or having anything to do with the fire and i have no doubt that i would have won the appeal if i didn't have you know if i didn't have to deal with mat guilt issue government defended it tried to defend it but they didn't much defend it here today the other part of the government's case argument and you know i have i have these things and i appreciate what the government is saying tyson did testify that he had never seen money rap like that but he backtracked because he had not done much work with drugs and he backtracked and said i guess it does happen so tyson actually was not bad on the wrapping of the money it was jackson it was jackson who testified that the wrapping of the money was bad and the quote is that page one fifty one fifty two of documentary one fifty one forty five jackson says the cases i've seen haven't even transported money we don't transport money and then the question from the government the government introduced is this of agent jackson the star of the agent and in all the operations you worked on had you ever seen money rap like that agent jackson says no and bang my client goes down and that's the truth that when you and you can  say it didn't matter it oh no it's on the tapes the tapes were our defense and this happens in a lot of cases there is not a single word on that tape that anybody can rationally say that they never use the word key low they never used the word terminology that people would use to refer to controlled substances and i happens every once in a while and i beg adult court and let me respond to that again it again putting aside the martinez case which i have a deep in my heart mr gallo who i represented and went to see him in south carolina deep in my heart that case but putting aside martinez and the edwards case and charles all the cases it followed look at the specifics of this case this was a money laundering case that was not that it was a this wasn't agent jackson was a money laundering case he's the one in the destroyed tape who says i shifted it it's only become a drug case does i apply the point was not about this case mr clue but that you might have stretched a bit too far in suggesting that no one who engages in a drug transaction  it was money everything maher whole defense was it was money the tapes say nothing about money so they put jackson on he says every single line that says nothing about drugs he says it means drugs ok we think we've got your position but i think it's much more most important point was that jackson it was jackson with the money rapping not tyson tyson help us thank you thank you very much