concerns on the nuances of issues one two i'd like to concentrate the majority of my argument on questions three and four this case involves the admission under the coconspirator sap ssion to use adversarial wiretap these convert these conversations which were used in the government's opening statement throughout the three cooperated witnesses and in closing statements had a large effect in the church they  permitted what is not normally construed to be an agency theri which is the coconspirator exception and still this  but in addition a lot of these issues that have been brought forth in this case cam were dealt with in the crew which case which is the one nine hundred forty nine supreme court case and all the supreme court justices  agreed that it was error to expand as quote unquote in furtherance of a conspiracy to include in that case the post attempts posts pearcey attempts to conceal the crime and i say to justice jackson's concurrence not only just because justice jackson is has had a flair for writing but a lot of his the evils that were sought to go in be proved hibbett by justice jackson who if you're honest recall he was f d r attorney general the first wiretapping bill that was actually submitted to congress justice jackson helped try to get past so the issues where my client is going and after the fact having conversations that he partakes has nothing to do with that goes and is intended to go and threaten him with violence that respectfully should not be used by the government in conspiracy cases coconspirators intention to scare the life out of him well you could go even further with that the coconspirators could be discussing a kidnapping and suppose and the government could argue that well this is all being done in furtherance of the conspiracy you could have ransom family members of other people being discussed by coconspirators and saying well it's a past drug death that's the reason they're talking about a ransom let's let that in you could have attempted murder that similarly has that same sort of no limit to the usage of these eviden as evidence so respectfully although is our contention that the urban a case at least as far as the further ins prong is sufficient it's noteworthy that this does not change can conspiracy law or reduce the government's ability to prosecute conspiracy there's been sixty seventy years where the government has quite a lot of arrows a for those arrows to go and prosecute conspiracies and they have there's not a single circuit case where it's been used on past drug debts mr hamlyn showed or cited to a couple of recent cases but as argued in accounts brief those were not on point and they were small part of the case and certainly there hasn't been a case where threats of violence to this level where the appellant did not as a result of any threats start going back to the conspiracy or assisting the conspiracy this was surely an issue where people were talking to each other and let me also say this there's also the idle chatter your honour's have had perhaps the opportunity to listen to the tapes themselves that were found by judge coral's to be admitted as evidence all the coconspirators they're laughing it's all being done on a single day out of five conversations out of thirty five thousand wiretapped conversations and mr graham was not on a single one of these thirty five thousand conversations and that's a bit unusual usually there's some admission by someone who's being charged with conspiracy and in this case the facts as they bore out there was a proof a gap proof that  the government did not have mr graham on a single conversation the only thing they had were that one day where some of the coconspirators were talking and after the fact they say well yeah it was mr graham that being said when you have this gap proof and i'm just citing this as a hypothetical let's say instead of a ninety seven percent conviction rate this gap proof would've adversely affected the possibility of jury conviction down to sixty or seventy percent well the government chooses to go and fill that but you can respectfully cannot feel that the way the government actually did in this case which is to say it is admissible evidence on the merits next to me for the truth saying it was a not hearsay it was to be construed a conversation on the coconspirator exception that in essence the people who were conspiring for a past drug debt were acting as his agents and therefore everything that applies typically conspiracy prosecutions applied in this case  six that's circa one thousand nine hundred nine so when the when the government had chosen to go and use this case lee affected the trial and their conviction should be reversed i'd like to get to questions present number one and two if i may obviously this these issues have been litigated as to the missing portions or the non transcribed portions of the wire taps there's a at least cases from different circuits in favor to say this violated the court reporter's act there are cases from the first and the ninth circuit center cited in palin's brief and respectfully at the very least to be appreciated where this court clarifies was this a violation the court reporting act so that in the future what would happen in this case was a bit unusual most cases where there's an allegation of a violation of the court reporter act and something not being recorded it seems as if after the fact they learned something is not recorded and they say it's a violation and we don't know what or why it was actually argued that that as to an appeal hearing this case is a bit unusual there's a fair amount of in the record of this case including the four circuit that an error was discovered that was objected to on the actual admission of the tapes or in this case the audio recordings on cd after that was living as this was a sit this situation unusual in that the tapes that were played for the jury were given back to the government as opposed to the court reporter keeping them let the usual practice where you're from my understanding is that's not no but that's still poses a couple of questions with most of the cases that came out and again there's at least two circuits to say you have at that the court reporter has to transcribe this those involved tapes  which are not digitally recorded they were just tapes and they're easier to kind of come back here there were two additional problems at least one was the cd itself was lost and that doesn't usually happen but additionally you could have a cd that has hundreds of conversations and that are not that are quote unquote admitted for evidence but only the few that are actually played in court are the ones  that that are important for this court to to relate or review so there's more of a risk not having a appellate decision to say hey was what happened correct was there a harmless error again there would have been easier harmless error if it was somehow an analog tape and probably the parties could have agreed say well this is the evidentiary sticker this was what was played let's go and reconstitute the record ourselves here there was no capability certainly not easily to go and do anything like that to this question yes or no other way from me you absolutely get the creativity award of the month and you're out and race in this court reporter  but for a sound recording would it be sufficient under the act if the exhibit the tape or that this is maintained in the custody of the clerk not completely your honor why not because number one most of the recordings are digitally recorded so you'd have to specify what exactly was played by the u that's going to happen at trial we know what's played at trial one because i'm sure there are exceptions but invariably the us attorney will prepare a book of transcript as it did here nobody expects a juror to sit there and actually listen to a wiretap conversation and be able to follow it alone without a transcript well right yes your honor ok oh and then say and second when the when the tape was played in the courtroom it's it's an exhibit well in then through as judge tracks or suggested or question the general practice in minutes districts in this circuit is that the exhibits go back for safekeeping to the party and that's typically in a criminal place the u s attorney's office and so there is a recording of the sound played in the courtroom in the form of the very exhibit which is used to play the recording but i'm not sure why that wouldn't satisfy the act well putting everything else in this case your honor two things one is that even the transcripts that the government later argued those were not located for eight or nine months after that issue was brought to their attention so ok and part of the reason for them started or up i understand you didn't try the case your point it and we appreciate your service but the defense lawyer had a copy of the transcript and in fact the defense lawyer had a copy of the audio this right i don't know your honor well i don't know because you didn't ask for that i will say that your hon it and they indicated it was in storage and they had no idea ok fortunately the timing table was mr hamlyn found it before and there was much more if i may just finish up the thought so see my time is over there is in addition to what's already argued we would ask that all reasonable inferences in terms of any missing record be given benefit of the of the defendant there's a case out of the seventh circuit that suggest that may be also appropriate  please the court my name is michael hamlin assistant u s attorney appearing on behalf of the united states today the government does ask that the court affirm the conviction and sentence in this case for the reasons discussed in the government's brief and for any other reasons i'll discuss today i'm happy to begin wherever the court wishes i thought i would begin with the court reporter rule ten issues only because that's where we just left off with mr wind it is clear that the court reporter act if violated here may be corrected with a rule to hand hearing the governing issue in a rule ten hearing is what happened in the district court that was the fundamental issue what got played for the jury what were the wiretaps the government presented evidence at a hearing before judge quarrels overwhelmingly answered that question the wiretap calls played were those that were on the cd that has now been marked and stamped and is in the government's custody as exhibit one and the portions of those transcripts or the portions of those wiretaps were the portions that were transcribed in the government's exhibit book which was exhibit two and which was marked as an identification exhibit for this hearing just as a guidance on that of course from an issue and your honor in response to your question it is fairly routine practice in the district of maryland for the u s attorney to accept the exhibits that are presented at trial and to maintain them as part of the record the exception of course being contraband like narcotics or firearms they go back to the police so i believe that relatively routine procedures were followed here by the court the united states attorney should have maintained those discs i've accepted responsibility for that but respectfully i think that the issue has been fixed overwhelmingly we know what was played in this case but what information was played and then there's a dispute later all as to whether or not it was played or not played the the prejudicial part how does how does that get resolved how would you propose to resolve it with this system i remember struggling and worrying about that issue in this case until i actually looked at the record and realized i thought we had an easier case and that if i were faced with that problem your honor i think i'd probably do what i did here i think i'd bring back the prosecutors i think i would bring back the case agents and i would put them on the stand i would have them testify specifically about what they played and why and if there were inadmissible and prejudicial information on that desk then i'd probably elicit from the prosecutor did you play th part and why not and of course my hope would be i didn't play that part because it was prejudicial and inadmissible i suppose in an extreme example we could theoretically sorry mr heller i'm sorry i thought judge tractor was asking what would you do in the first instance how would you if you were trying a case you would try the case next week and you had zero twenty seven recordings on one this and the quarter yes there would be that as well and there was actually i've actually talked to my criminal chief about this yawners and we're talking to our courthouse court reporters about letting the tape ron when the government is playing audie of this is an interesting case and i actually think there is some learning process here we're going to have that conversation and that would be very safe alternatively i burn a new desk that cuts out the offending portions and finally if i can't do that i note for the record the time index the honor for the record of the government is playing beginning at one minute thirty seven seconds on ending at two minutes and forty five seconds those three options in descending order of goodness i think are probably the way to solve this problem and that's what i'm certainly going to do in my future cases and i think it's what we typically do this is an unusual set of circumstances are mostly reporters in maryland now using real time or is there still some carry overs so the graphic records i think helen speak definitively but i feel like these days it seems to be predominantly real time because i find when i'm going up to the bench on something to the judge had i just as i was your bright red times i've withdrawn objections because i realized that the question was actually not objection worthy and  i'll go back so i think we're increasing real and how would the court reporter using a real time system actually record a wiretap conversation would it be expected that he or she would transcribe as she listens or he listens or would we talking about recording on the real time system the audio of what's being played in the courtroom or both i guess i have to think the latter your honor because i don't believe that it would be a practical possibility for court reporters to transcribe wiretap it's all it's all your agents can do to transcribe it after listening to it for  challenging yeah i don't think a court order could possibly be expected you that i think it would generate confusion i think letting the audio run is a natural solution here so letting run while the court reporter is system is picking up the audio in the courtroom that would be my suggestion if i were in charge yes that's that's i think probably what i think would solve the problem here and i think it would probably solve the problem going forward it's a decision to be made over my paygrade yes that occurs to me as a reasonable solution but then what happens if anything when the court reporter is asked by a defense counsel like this one to transcribe the audio of a wiretap conversation and there you know a million  i don't know and you know oh you say that this isn't gus the mayor said oh i don't know how you know how poor a court reporter could possibly pull that off i can't speak for the court reporter and there was actually correspondence that's in the join appendix i don't have a citation on ars i apologize but our court reporter make clear i'm not going to i couldn't have done that would have done it in that situation perhaps mr wine gets his audio gets the court's permission to give it to a third party court reporter or something like that  these of solutions the government does submit that we solve this problem by a mile in this case this unusual set of circumstances the second issue of course is the more substantive admissibility issue should these wiretaps of come in any way the government does submit that these wiretap calls did satisfy the coconspirator exception to the hearsay rule they satisfy both provisions overrule ada one to two we number one word these conversations where these wiretap call statements by a member of conspiracy with mr graham during the conspiracy the answer is and admittedly this is a somewhat unusual posture than a lot of our cases the answer is yes this conspiracy still existed it was still going on it never terminated these individuals mr reeves mr marshall mr goh lardo were all still members of the conspiracy to distribute narcotics they were anxious to deal drugs they wanted to deal drugs there was not a shred of evidence in this case and there has been no suggestion or attempt by the defense to satisfy their burden that the defendant ever withdrew from this conspiracy there's not even an argument in any brief about mr graham withdrawing and i don't think the defense could make such a showing they were still in a conspiracy together under the law and mr graham as where the clarence or all members of it i don't think the government needs this given the burdens but when you consider the testimony of mr marshall which appears that joint joint appendix ph three eighty five this is an even easier case mr graham's response when asked about whether or not he was going to pay his debt was go pay is money when he gets more product mr gra wanted more cocaine he was ready willing and able to continue in this business he wanted to continue in this business and the conspiracy lived even if the government had the burden which i don't in this posture it satisfied here this  alive and well the second prong of ada one d to a year honors is did the conversations further the conspiracy the government against him it's that it did the issue is not whether or not mr graham spurstow financial interests were furthered and the law does not require that the conversations be not adverse to him these were debt collection calls made in furtherance of the conspiracy of the organization if you will and therefore they satisfied the rules of evidence the defense correctly pointed out that i cite no cases that are one hundred percent on point in the sense of being mere images to this case but the government's cases or in the ballpark and the defense respectfully has cited to no cases in which you would there was collection of a debt being undertaken like this like this and they were found to be inadmissible this is a good solid example of statements furthering a conspiracy briefly the defense is sick a citations well the all important for the principle of conspiracy do not get the defense where they need to be or ban x an important case but it's facts are completely different from this case there was no further its coronet the more recently decided case again absolutely no further  correct which i think is a seventh circuit case also no further it's not even a hint of a cruel witch and out and here unless the court has questions for me is the case it was more prominently feature in the defense reply brief to mr wine discuss the case today which is an interesting case and the government doesn't dispute the concerns about an implied infinite conspiracy that is a potential problem but that's not the fact and we have here it is not the government's theory and never was that this was a conspiracy that persiste simply because there was the generalized sense of concealment this conspiracy was alive and well with the goal of distributing narcotics and mr graham was ready willing and able to participate as soon as he got more product this conspiracy still existed the statements furthered the conspiracy and they were admissible the government also argues on brief that the that an argument could be made that the air any error would have been harmless in this case but given the overwhelmingly admissible nature of the statements and on this subject unless the court has any further questions i do have substantial time remaining and i think we understand your poi reply thank your honor the i'd like to go and briefly reply on a few matters that were discussed by mr hanlon keep in mind there was no conditional admission done in this case it was  by the court and i would like to go in that although there's no circuit court cases the government argues that that is beneficial to their side especially we would argue that's because there are hasn't been a usage of conspiracy law on this level regarding past drug debts for abs aerial purposes and this was discussed some oppression lead by judge justice jackson in the crew in which case there is a case i would like to cite given that the government said there was no cases it's not a circuit case is a district federal district case it's by chief judge norton from south carolina buyouts it being done for concealment purposes and for personal monetary gain and judge norton said citing cruel which at length that that was improper and to use that on the basis of conspiracy sometimes there are cases where you get a case and say and you have to deal with what was objected to at trial but also understand that there is a difference between what is sufficient evidence and what is an evidentiary argument the evidentiary argument was clearly objected agreements and that would be sufficient evidence of conspiracy however that is respectfully different and has been argued by the palin is different from a situation where the co spirator exception has been used and if it was improper that these five audio tapes were used against mr graham that were used and argued throughout his as i said there's a difference between going and allowing this evidentiary type position which justice jackson went into detail could and judge judge norton actually said citing cruel which that to go and countenance the government's position for not just an objective to conceal the conspiracy but and to but also to obtain personal enrichment would have disarray the boundaries of conspiracy law mr graham they could have argued under the facts of this case if they wanted to and it would be interesting to see whether or not the judge corals would have let it in they could have tried to argue something to the effect of well let's go and use this to rehabilitate but none of that ever happened and this court already has the ball a case to go and say you cannot go in  before defense counsel has an opportunity to appeal impeach in this case it was admitted at substantive evidence from the outset it was argued by the government in their opening it was already and again judge corals actually left open in the question of whether or not to be done  as a conditional and they the government said we want to argue it in our opening we want to have it in our first main witness and based on that judge corals let this in but it would be an interesting issue would any of this have gotten in and if it would have gone in again these are triple hearsay for the most part conversations it's possible defense counsel would simply make a choice tactically to say to to not cross examine at all on this issue to avoid any sort of pretty are pretty motive arguments of opening the door but that didn't happen the blevins case which is cited too by the  government it actually was in a similar procedural posture to our argument except for the gut they affirmed that it was proper to admit those coconspirator exceptions but the alternative argument was well would have gone in and