understand how absolutely crucial the testimony of john abbott the witness to whom the claims pertain was to the government's case here abbott was the only person who claimed to have direct contact with mr dado during the life of the marijuana growing operation and to have knowledge of mr dados involvement direct personal knowledge of his involvement as a suppose it investor which was the government's theory of his participation in that operation as to all the other participants who said they had heard his name it was all coconspirator hearsay i'm not saying it wasn't it wasn't admissible but it certainly didn't have the same there are two of these items were in fact brady material and were concealed or were not revealed but didn't he didn't find them to be material the third one he did not to find he didn't find the existence  of this third one which i think is perhaps most important one is that when mr abbott first was first interviewed by the people investigating this the case that became this case he gave information about another person a whose name we have redacted here it's not mr dado it's a third person and he specifically told the investigators that this other person whom he described as a crooked cop had burned his own home submitted an insurance claim and used the funds that he had collected to help partially funded this grow operation invested in the marijuana operation  investigator for the state investigator that the federal agent who had questioned him about this crooked cop had promised him immunity which was was not true  abbott's motivation for cooperation was to avoid federal prosecution as opposed to the state prosecution for small marijuana transaction two or three years previously a judge ludington found that the second two were brady material should have been disclosed but didn't find the material i think if you look at the cross examination of mr abbott it was very limited as to bias  as your bottom line bias credibility i'm not sure how those two interact i i think credibility sounds more dismissive than bias although they both probably mean the same thing but they're different kinds of but i don't see how you could read the record how you can fairly read the record that way the investigating agent testified that he had contacted the state fire marshal in following up on the information given to him by abbott under a law under michigan law of every fire department in the state is required to report every fire to the state fire marshal the farmer shall found no fires associated with mr abbott or with any of the addresses insurance claim which means you can't have money to put into a marijuana operation i just don't see how it could have been anything but a false statement or certainly a sufficient basis to allow the effective cross examination on the issue  my time is dwindling and i want to skip to the sentencing issue not because i don't think much of the others but because i think the sentencing issue is perhaps legally the most interesting one of the the jury in this case was a structured in accordance with an existing circuit precedent that of mr dado that didn't did not have to be shown to have known of the the drug coverage in this indictment in this case charge and the jury found that the marijuana growing operation involved one thousand or more more plans because the government had filed a section a fifty one enhanced meant under section a forty one b down there on the bottom mr data was subject to a mandatory minimum twenty years the jury was specifically and affirmatively instructed that although mr mr gago was there they had to find beyond a reasonable doubt dado knowingly associated himself with this operation they did not have to find that he knew that he was aware of the scope of the operation that he knew in any way they did not have to find that he knew that this operation involved one s has to be shown once that has to be shown in the mandatory minimum problem and that becomes an element  i don't understand why why leans change this so that's the key is very simple there are two sections state forty one subsection eight reads anyone who were more than the fact that's correct but if if it and the basis of out of the six the prelim case law was that mens rea a is irrelevant to the penalty provisions of section eight forty one b poor we don't generally speaking countenance because it because another reading is the other reading is simply inconsistent with the way we define crimes in this country we don't have a case no no but i think this would be a good one the you've got of have a general principle that once something is an element the presumption is you've got to have a mental element to it there are some cases that say we don't use we don't send a person to prison for twenty years on the basis that our ability which is what you would do if you didn't if you don't define a man is rare component of this element  even the guidelines require more then then the circuit precedent does because you've got to find for it to be relevant conduct that it was reasonably foreseeable it's just it's just it is not it is not in my element of the offense well may i make three comments to it first of all elaine no way purported to address mens rea requirement as to drug things the statute says that the defendant knew the still that i can find were dressing this issue raised posed a lane that case was decided post in lane addressed and lanes and came to the contrary conclusion they said in length does not alter that as long as the  find that so he couldn't contest well i think your honor he is if you look at the closing arguments the closing arguments a government set in fact he knew but you don't have to decide that it's if the defense argued that he knew a justice was trying to implement these speeches that he's been making about how unfair many of the drug laws are crack cocaine et here we've got a nonviolent marijuana law you have a situation now where many states are growing marijuana and we're saying that's ok and he gets twenty years well your honor i think first you think that's fair your honor i think that's the law now he's not a nonviolent person if you would trust a record here it shows in fact was assessed points on his guideline score for threatening intimidating witnesses this mr dado is not a nonviolent person and while it was not emphasized during the course of the trial countries just defense counsel d he did have access to a loaded firearm at a store which was a liquor store that's not an uncommon place but it is uncommon for liquor stores i submit also to have scales matching the type of scales that the codefendant who is involved for manufacturing general is changing but you haven't gotten any word of that i know that there are changes in the wind and i know that we went through this before with crack cocaine but we're not to a point where that should impact a decision  received anything that said that in a case that's already been sentenced and is on appeal it's a charging decision going forward that that is what we instructions we've had it in knowing struction altering this position not here to debate the wisdom of the we're here to give justice yes your honor i believe that but that is not within my authority to amend the statute and i'm not seeking one way or another to implicate that and i don't think that whatever the core feels about sentencing in this case should have anything to do with the fact that this person was correctly convicted and duly sentenced on the is a repeat offender too i would add the reason he got twenty years on wasn't just because of a thousand people are marijuana conviction right yes and he's involved in a very large scale operation this is not anything like a medical marijuana case or something where state law condone this this was and this investigation was initiated by the state police and this is not legal under michigan law of the year your honor i know i have defendants who are serving life was in may of two thousand and twelve whole there's comments were in two thousand and thirteen bucks all the difference well i'm sorry drugs that's the way it is if i may to turn to any other issues first of all i would like to comment on the allegation that mr abbott's testimony was absolutely critical if you look mr abbott's direct testimony was sixteen pages in a transcript where the trial testimony was approximately six hundred fifty pages by my count six slightly over six hundred fifty pages sixteen pages on direct the cross examination of him was twenty five pages by my count so the direct exam was about two and a half percent of the total trial it is not true nor is it critical that he was the only person had direct contact with me data it's not true in back out harvest the marijuana that had been missed by the search process and give it to mr data who then sold it part of the money mr schweiker and it then took them money back and used it to secure a retained attorney for michael's and my niece misters a my niece said direct contact to mr data and the fact that not everybody spoke directly to mr data doesn't mean that there wasn't communication as part of the conspiracy in fa even after the search is led to the discovery of the main grow operation mr dado can send you to exercise control over their organization and to direct its activities and to handle finances on behalf of the organization and people who are in snared in the arrest so it's to mr moran uses a modifier personal contact i don't submit that that's relevant and in the in the picture here where you have a conspiracy where the record shows there was a longstanding drug related marijuana related relationship between the corridors of my days and mr dork data and as to this conspiracy there was ample evidence of both mr me just six explain if i may the memorandum wasn't prepared until after the trial was prepared in the the mr direction it was prepared in in response to the motion for a new trial m interviewed mr abbott more than a year before dado was charged and in that discussion interview mr circus office there was no reference to mr  droshky explained he wouldn't have put out the name mr dado because mr data was under investigation the information mr abbott provided at that time related to brandon's of my duties he was never charged and it was just something that didn't wasn't a trail of the of information that mr de rocher followed up on even to the point of writing a report because it just wasn't anything that productive now as to the arson i would submit that the interviewed by agents rocher recalled that yes indeed he there had been a fire of that nature and in some place but he just couldn't find the file and the defense had the opportunity to call the fire marshal and say that that was not true at the motion hearing but that was not now the other two things had to do with supposedly a claim by mr wrong and but that he had sought immunity or the fact that he was seeking immunity from the federal government first of all he was charged he was never a target of a federal investigation he was charged in state court the defense knew that and in fact they produced for trial and using and cross exam a dismissal of one of his state cases so they were aware of that and not disarm for the court i'm sorry so someone like abbott could not be charged in federal court as a result of being cooperative  this that in this case that would not have happened because we had no evidence of his involvement is testimony it was mr dado side to recruit him for this operation but he decided that he didn't think there's any way you could grow three thousand plus plants outdoors and not have somebody discover him so he declined to him involve himself in the conspiracy so as to this case he was not charged he had state charges pending yes but there was nothing as to this case for which he was even chargeable in the abstract in another case someone can get immunity in exchange for cooperation but that was not mr abbott's circumstance and  submit that the court's analysis is very careful and correct as to the impact of mr abbott's testimony his testimony was corroborated and really totally consistent with that of mr indicated by my estimation is about two and a half percent of the overall volume of testimony presented at time of course the percentages q what is the content yes and the content was consistent was others had said and consistent with the proofs even mr anderson that mr dado was a person on the liquor store it was financing the operation that he was going to take the bulk of the marijuana and sell it at three thousand dollars a pound things of all of that was the same information came from other people it was another person from outside of the conspiracy testifying as to mr dados recruitment efforts trying to bring him  except for mr dado mr data was a person who had a business and had a source of revenue mr for the misters and i d s all those people were unemployed except for working for the organization to produce marijuana being here you know i feel terrible about this impression seeming to be that he just was doing what he had to do now it's true that other people had said that michael's from id's had told them that people the core use testified on direct action rocky core you testified in cross examination that he would have been very reluctant to row to go into business with michael's might is based on what he understood about michael's roommate his finances so all of this coconspirator stuff sure was consistent but it didn't have a whole lot of force until his best friend sells best friend got on the witness stand and tearfully the told them what he said he knew the  as to the arson allegation as i recall the testimony and as i reported in my brief that the the investigator did not say that the fire marshal told them there had been a fire what the fire marshal told him as i recall the testimony was that there had been a an arson complete but that he couldn't find anything to back it up that's that's what i understand so there was no evidence that suggests there was a fire there was only evidence  the what the offense involved the element that we're talking about was really quite seriously contradicted the only testimony of his exact add at actual involvement with marijuana was that he had taken three thousand dollars with mr was a mighty three thousand dollars as against what would have been several million dollars worth of marijuana is hardly conclusive it suggests conclusively or even convincingly suggests that mr