the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may drop in air and give their attendance and they shall be heard god save the united states of america and this honorable court  we thank you very much i'd like to start st by addressing our allegation our argument that there was misconduct in the closing argument the other matters i hope to cover in my time include the question about whether or not my client was in custody when he was questioned at the roadside and then turning to the the restriction on cross examination i'd like to begin though by talking about the misconduct by emphasizing st that this was a very weak case we would contend that this although i'm not arguing that the case was legally insufficient to go to the jury that this was not a strong case this was  case that relied simply upon the testimony of one witness the government's cooperator along with the seizure of physical evidence and that there was very little else to support the government's case it was therefore very important for the government to drugs that had a completely different relationship and that he had a legitimate reason for seeing and he had a legitimate reason or having the money that he had with him it was therefore very important for the government to cast him as a liar and it didn't that not only by using some of the roadside statements that he made and attempting to compare and contrast those but it also did that by  arguing by argument that acts that were not in evidence and making misleading unfounded closing arguments that were objected to at the time that they were may one of the there were there was i cite four instances in my was that mr cruz rivera never bene's never went to a kmart move a little all that was further misconduct was further aggravated by the government's miss characterization of getting into a characterization of what this area was which was some high drug area which which sequential good years was not permitted to testify but that was one piece of evidence that was put in front of the jury  in is the district court's finding that there was probable cause when they were pulled over to arrest yes ok well of course we we argue that there was not probable cause at the time of the arrest it's an interesting point because it actually i believe that finding is relevant to whether or not they are in custody but to do the probable cause analysis the court wants to hear our view on that one of the things that's the thing which is that it seemed to me that that the court was focused on what was observed at the garage so i was trying to figure out what distinguish what they observed about garmo bill that these two gentlemen were in persons the other cars that were coming and going and since it seems to me that if the focus was on the fact that it had a new jersey plate and also that they were the only car that had interaction with the garage there and when i say interaction i don't mean that there was testimony that they saw the enter at the enter action was that they saw him motioning and giving him directions into the parking area so that was was there any other interaction that was observed besides that no there was not which is why we contend that there was that this record does not support a finding that there was probable cause to stop and search and make an arrest as the trial judge found there really was nothing that distinguished the observations that were paid by the surveillance team what was going on with the lexus that distinguished it from what was going on with any of the other cars that came and went from that lot and there is just me you agree with we're we were challenging the legality of the stop itself for arguing that it was a pretext will stop we didn't challenge and challenge oh that there might have been a mark lane violation or something like that but then the question is is this treated as a routine traffic stop it's clear that it was not a routine trip there may have been a reason to stop for a plane violation that's not why this car was vehicle infraction which justifies the stop then there is questioning of the occupants to the car and then that develops into a probable cause by decrease and so had to erase what he had been told before he made the stop but the fact of the matter is that if you're relying on not a probable cause analysis but relying upon what transpired at the roads in order to justify this escalating intrusion on the occupants of the car what we would but we would say is that the st eight minutes of this encounter between the stop and the clearing all shows that there was nothing wrong with these two men that is there had no outstanding warrants you know the lot the car was properly licensed you can't nervousness is not enough there are cases about that i think mccoy is one of the cases here out of the circuit that says that being nervous is not enough to to get you to the next level of intrusion so simply simply because there and the thing is it's really important you can't disentangle this from the fact that it was the motive of this officer to make a search of the car from the inception of the stop that was clearly found by the trial judge and there's absolutely no reason to disagree with that based on the facts it came out of the testimony this was going to be a car search no matter what these people did so right thank you are there other questions from the court at this time the court's permission i'd like to address my rd assignment of error which is the sentencing issue this court like other court to consider the issue has held that minimum mandatory sentences in eight  b apply without regard to a defendant's knowledge of the quantity of the drugs in question so i understand that i have my work cut out for me on this issue this morning but i believe that the argument is worth pressing for three reasons the st this court's seminal decision in colossal aponte was decided before a lean and before the united states supreme court decided flo and we have the th circuit on bonked decision in which five judges dissented and rd our verdict slip is somewhat unique and i believe that aluminite the jury's thinking in this case argue in the brief i think the only logical reading of the verdict clip is that the jurors believed mr jimenez constructively possessed the heroin when it was in a backpack in the backseat of his car but that he didn't know how much heroin was inside of the bag and so because of all of this i ask this court to revisit its own case this course recent unpublished decision and r notwithstanding on the merits the argument proceeds in three parts i think the st is that after apprentice and a lien any fact that increases the mandatory minimum sentence constitut element of the offense and has to be submitted to the jury so we know drug quantity is an element and this conclusion is underscored by the fact that in this case the jurors were asked to make a finding about drug quantity mens rea requirement it contains knowingly and that the culpable mental state travels or attaches to or applies to each operative element including the elements and a forty  now my rd conclusion i draw support from a variety of united states supreme court cases st floors figaro where the court instructed that courts will ordinarily read a phrase in a criminal statute that introduces the elements of the offense with the word knowingly as applying to each element flurry's figural and ry have further instruct if there is a strong presumption that congress intended to require a culpable mental state for every operative element of a crime and right have further in strikes that that presumption is overridden by congress only if congress has made is there any circuit which has it and i know there's been this sense such as that the recent th circuit case from a few days ago is there any circuit which holds as you're asking this yes your honor i see that i read ramiro sort of two ways the one is that the court seemed frustrated with the advocacy on the issue that it received separate and apart from the merits but cobbling various sentences from various supreme court decisions i submit that the th circuit's decision to reconsider the issue and to do so on bonk militate strongly in favor against that view that this is a serious issue that is worthy of reexamination in light of rye hoth and what i believe the supreme court has been trying to communicate through is through a rapid succession of cases which is that our criminal statutes just serve reexamination as it relates to a couple mental state and the operative elements that a couple of mental state  to and the u s supreme court has acknowledged in its own decisions that conclusions that it's reaching in favor of the application of a couple mental state are going against lower court decisions that have been unanimous in the other direction and that have been entrenched for decades i believe that the supreme court is truly trying to communicate that this is an area of the law that deserves reexamination and it is in that spirit that  i pressed the argument this morning following questions from the court just when is that is the th circuit's decision on appeal to the supreme court not yet i don't believe so yet but i anticipate that it will make it up that way looking at the constellation of attorneys who were on the briefs in those cases they are some of them u s supreme court litigator so i would expect to see that decision go up thank you district thank you very much we'll hear from m question about the the specific facts known to the officers as you know there were permit facts related to the out of state license plates of the car as well as b t s as in or direct interaction with the vehicle at the roadside both coming and going from the garage and but there's additional facts that are worth emphasizing that were known to the officers the st of which was that the officer that sent a cooperating source to the garage directly both minute mere minutes before the less arrive prepared and that call was made before sergeant mackey directed that the vehicle be stopped that testimony from both mackey and triggered by ta was that communication was made before he requested that the car be stopped i think those surrounding what what what i'm dealt no is what else was going on i mean if that was the only car that was the right thing then i can understand that i just don't know i mean the the the record seems to suggest that there were other cars that were coming and going that around the same time so i don't know if it's the fact that it is that it is not the only car with a temporal connection that i have left of those two other factors the license plates  there was testimony from sergeant mackey that the vehicle was the only one that you cheers was see interacting with and by that i don't mean at the roadside but i mean the only vehicle that he approached outside of the garage and then went into the garage with the two men that had left the vehicle and had not was not seen reemerging from the garage over the course of the next two hours until at last he gave the directions away so i think that was an important fact to the officers that added you know additional have to their probable cause determination but i think i couldn't see them enter the garage i thought the only thing that they could visually observed was that directing and that they couldn't and that they were out of sight when they actually entered the garage so that a believer out of the testimony was that they couldn't see the very back of the driveway that they could see the chair is exit the garage and proceed to go up and meet the individuals and then after that point is that you know it's again throughout that period and i don't think the public respectfully want to acquire the government to rule out other possibilities or other innocent explanations for the interaction between the gutierrez and the individuals i think it's official that the officers kind of figure out what singles this one out from the other cars again your honor i think it's the direct interaction between gutierrez you know he was on the phone during the initial interaction in his garage with the cooperating source appearing to give directions to a vehicle a vehicle with out of state plates that appeared last then appearing that he went out to interact with and again direct the call from rivera who was the cooperating sources sources to gutierrez right after the car left to say the home would soon be ready i think surprise a very strong connection between that vehicle and the individuals but even you know even putting aside kind of the collective knowledge known to the officers at that were involved in the larger d n a investigation as you know in our brief we think alternatively the record clearly supports a finding that trooper  reasonable suspicion of both a traffic infraction as well as a drug trafficking crime that allowed him to stop the vehicle and that that suspicion right but over the course of the stop into probable cause to search the misread just said she's not asking this court to say the president had to wipe the of that information from his mind and those facts were very pertinent to both the initial interaction between trooper decries know and the to defend is in the vehicle as well government's interest in this vehicle and its course of travel and contradicted the defendant's statements that they had just been born citizen in family and similarly the information that the officer learned after returning to the vehicle where crews to him and h couldn't name his cousin or that his brother in law who was allegedly visiting in lawrence couldn't supply the name of the store that they had visited and then the fact that there was a sum of money that trooper   the kind of series of facts allowed the officer to continue his investigation and then the ultimate total of them supplied probable cause to search all i'd also like just briefly address the miranda issues and i want to make to is free to leave is not the task than the miranda the test is whether there has been a restriction on movement that rises to the level of form or rast and this court has previously held that being free to leave as one would probably not feel in any terrorist op is not sufficient to find a miranda violation similarly him in his claims he was in custody by the time he was put in the back of trooper to president was vehicle which again they were on a public highway on the side of the road a trooper to testify he asked him to sit there for his safety this court has also said that that isn't sufficient to show custody but in any event the only statement him and has made after that point with his purported consent and the government's and it's a probable cause had developed by that point the search was proper or even absent any consent and as to the broader circumstances the government respectfully submit that this isn't a closed case every factor that this court has identified is relevant to the question of whether an individual is in custody w in favor of finding that the search was non customer i mean this this interaction encounter was not in custody of the interaction took place in the daylight on a public highway there was a single officer involved in the questioning although the nd briefly involved the translation over the phone there were no restraints or other restrictions placed on the individuals in the questioning itself lasted only within the st thirty eight minutes of the stop and trooper to president of specifically testified that the questioning of each individual was only a couple of minutes after each case after he left his vehicle and then it all general mr nowell did the district court make findings make the findings then you're just presenting to this court so your honor i think if you read the district course recitation of facts it largely tracks the government's the facts that i just laid out but even if there aren't expressed findings this court is how i can say to you they are not case and also united states the mccarthy now where there is no express findings this court must view the record and the reasonable inferences in the light most favorable to the suppression ruling and so even in the absence of any express finding to those of that that fact i think the fact that the court court's ultimate ruling with respect to the closing arguments i just want to briefly say that i think the prosecutors statements were all directly supported by the record evidence and at most there was some dispute in the record about certain portions of those facts but alito which was there was testimony that make alito less is nickname for of era that was directly in the record and i say this number of other instances in our brief where that fact was also listed and so i think it's incorrect that that wasn't before the jury well within its discretion in limiting in certain respects that cross examination and in any event the limitations did not rise to the level of a confrontation clause violation counsel confronted  allow him to receive a lower departure sentence if you get a helpful testimony that he assumed she would get a break if he helped the government that he in fact gave grand jury testimony against these very defendants as a result of his plea agreement in florida and then what i think isn't particularly important is the district court allowed the government didn't jack to kreuzer vera listening to these specific sentences guideline ranges or at least massachusetts expected to receive a significant benefit that was sufficient it was not ever for the district court to prevent any testimony about the specific exposure that the witness might have been similarly every other circuit that we cite there held that and kept of the circuit and our being bound by prior panels but but the merits of it if if there's if you have a conviction under age forty one a simply for knowingly  have provided have applied staples it citing video in cases going back decades and the court this report has made clear that presumption applies to differentiate between innocent conduct and criminal conduct and i think all would agree that would leave possessing a drug irrespective of its quantity is not an innocent so there's no need for that mens rea to carry down to eight hundred and forty one b to differentiate between innocent and criminal conduct and if this court is and again i'll just emphasize that as our i think twenty eight j letter to this court last week suggested this court's longstanding case law is consistent with every part of criminal court of appeals in every of appeals that you consider the question decides and i think it's enough to say as a statutory matter that the statute requires the government to prove that the offense involves one hundred grams of heroin here and that's a finding the jury didn't fact make and that's separate from the question knowledge requirement i'm not aware of any your honor and i guess i would just stress that there is unanimous decision at least majority decisions among all the circuit so i don't think there's one side of the law i don't think there's a need for congress to step in at this point i think the courts have gotten it right including this right but it would be interesting thing to know if the issue was presented to congress and what the path the congressional path in response to perhaps an effort to change the statute was that's that's why i ask right here i am just frankly not aware of any such efforts unfortunately any further follow up from the panel our thank you mr knoll and miss fried thank you i wanted to to speak about the restriction on the court's restriction on the cross examination of the going to gutierrez about his cooperation agreements and on the sentencing guidelines one of the things that seem be animating the courts was its desire strong desire to keep the the guidelines knowledge of the provisions of the guidelines from the jury one of the reasons why  because they were not facing sentencing for the same crimes committed over the same period of time in other words the good it's a good a good yaris was facing sentencing in the district court distribution count on september th when he sold drugs that there wasn't an identity of the applicable guidelines for which the jury might be able to infer oh this is what the sentence is going to be the other thing that i think i important for that that's important in this discussion is that it is the government that put the cooperation agreements into evidence these were contracts that they moved in and then the court would not allow the defendant to explore what these contractual terms were the contract will terms the terms of reference of one into these other provisions that were laid out specifically in the plea agreements defense explore on cross examination the provisions of this contract that the government drafted and put into evidence itself in order to bolster or not the credibility of its o he respond to the government's argument that even with the limitations there was adequate impeachment back what was allowed in there for the in the air it was harmless my response judge thompson is that it's not enough to allow the defendant to ask what the witness is understanding as to what he might get that would be the bare minimum of what would be appropriate what's important for the jury to understand and this is sort of at the crux of a case like davis versus alaska is what the law is what the penalty that this is a void by a by providing  to the government that it's providing the witnesses understanding of that may be completely inaccurate and it almost certainly was in this case and also there's no it's not necessarily the case that the witness is necessarily being honest about what his understanding is either we don't and the objection that this is attorney client privilege to information is simply u you thank you very much that concludes argument in this case attorney freed attorney tracon attorney and all you should just connect from the hearing at this time