begin with argument in united states versus rodriguez and brown the you know right on top i'll get the my to little closer to your mouth so i repeated why don't you that would be good thank you and we'll start you over with your time thank you the killer learned where his victim was he went and he got a gun and he returned to the scene and he killed his victim what does that have to do with my client is a question that is presented here all my client did was he was waiting for his ride the two of them had been together earlier in the evening he waited for his ride the guy got back and he said i'm going to shoot this guy and he said ok i want to go i'm going to wait in the car testified that your client own rodriguez where davis was right yes about to come out ok he knew where davis was when he arrived there well he knew he was in at a party that had one hundred people but he didn't know that he was about to come out and he didn't know precisely where he was or whether you're still there right i dispute that because the security guard who testified was right outside he witnessed the crime he said the party was breaking and that's why he was why he himself was no longer inside there were thirty people on the street milling around leaving it was clear to the killer where davis was that's why came there what was added i saw that a jury allowed or why was the jury not allowed to consider that lopez that he was told by your client where th where the victim was i think that it's too slender reed on which to rest the entire murder verdict while it's true that was his testimony he did say  that my client told him where the victim was the evidence is clear he knew where the victim was that's why he was returning to the scene and you know the added value he didn't come the way he testified he said i never would have killed them if rodriguez didn't tell me where he was is that that's what the government had their witness say if you will and does that bears scrutiny he did it what he knew where the guy was he knew he was either inside or outside if he doesn't see him outside he knows he's inside so what was ended by my client allegedly telling him that he was right inside  opened on the issue that what was said in the hospital records was accurate and my client said that he was at a cookout and shots were fired in it and a bullet hit him in the hand that's so he opened based on that it was only there after that the government produced cellphone material which showed that my client was actually at the party at the time and that if he's to be believed that he was shot in the hand at the party he ended up going to a hospital that was completely on the other side of the bronx if the cell phone in from if counsel had had the information on the cell that he never would have opened that way and the government's going to argue i maintain on this rule sixteen issue that the district court found that there was no bad faith on their part  it's true judge poe did say well i'm going to allow them to do this because i don't see any good faith it wasn't exactly a hearing held the government produced the the evidence at the very last nd then claimed we just got a hold of this of the judge that based on that you know i don't see how would he know whether or not there was benefit i think i submit rather that the inference is clear on the record that once the government heard that counsel opened on the idea that  rodriguez wasn't even at the cookout he was at somewhere else where he got shot which is the real deal that's arguably when the government st started to look into what cell phone that there was to prove exactly where  rodriguez was that was that cell phone data or can we tell from the record was that cell phone down a sort of perspective from that point or was it something they already had they went back and looked to see if they had cell phone data providing location information the government claimed that they were under the impression that there was no such data and that it only came to their attention they had been under the impression affirmatively that there was no such data but after the trial commenced one way or another it came to their attention that the data existed he had already opened and and had committed himself to a theory that my client wasn't really even at the shootout that that he's got that he got hit at a different shootout but the cell phone data put him right there in the southeast corner of the bronx and show that he went to a hospital in the good morning may it please the court for corey brown who is serving a life sentence on a thin record following a trial in which the fruit of an illegal search and propensity evidence book and it testimony of a coop or with a history of perjury that he committed a murder at my client's behest starting with the illegal search this is not really a case about was there enough facts for the police to determine that my client was in his apartment before they entered to execute an arrest warrant they testified that they did not believe he was there and they dismissed the swat team that the hand that had been assembled to help with the arrest they still nonetheless entered the apartment without a search warrant and explained who testified as to why he made the call that he did right yes on page twenty one of the transcript he said that his team did not believe that mr brown had returned home and he said that he had non particularized experience  ideas that people who go out might return home and the early matters of the morning but he said more than that right he said that there was at that point other people have been arrested and so there was reason to believe that he would or might be aware of the fact that the feds were arresting people right right and he said maybe he went home to say his good byes but that's speculation in this court set and go hand in that a hunch that speculation is not enough that it objective fact from which to have reasonable suspicion or hear reasonable reason to leave and to enter and that's why the government as a fallback position raises for the st time on appeal the idea that there was an untainted consent one to two minutes after the initial entry this court has never found attenuation on facts like these where the record reflects nothing being said to my client's wife between when the police arrived at her door announced that they had a warrant to enter and search and please can you move out of the way and one or two minutes later when they said please can you let us continue searching there were no intervening circumstances warrant  a warrant to enter and they began searching unclear right away she's you know very pregnant holding her toddler they push her out into the hallway they enter and search there's a lapse of one to two minutes the tightest temporal proximity imaginable and nothing that intervenes to cleanse the taint of the initial entry and in many ways the voluntariness and the attenuation alice in this case are similar because there was nothing nothing at least on the record that informed her that contrary to the initial assertion that they had authority to clear her out of the way push her out of the entrance to apartment go in and search nothing to inform her that now one to two minutes later while she stays stand in the hall holding her toddler that now suddenly it was permissible for her to withhold consent acquiescence to an apparent show of authority is not optional the supreme court said that in bumper vs north carolina this court has said that many times it's involuntary she was a law enforcement officer herself that's right and she did what you or i would do which is when confronted with apparent lawful authority she acquiesced and let them do what they said they had a warrant to do you shouldn't speak to what i would do  and i'm not sure what you would do is relevant to you there is whether or not there's a basis to think that she could give a knowing and voluntary consent i agree or on her phone i and and when someone is told we have a warrant and you need to be cleared out of the way i don't think anyone thinks that they have the ability to withhold consent or do anything other than comply was purported to be a lawful order none of the evidence taken from the apartment tied my the only improper evidence the st two witnesses at the trial provided propensity evidence other act evidence of things my client did as a teenager fifteen years before the earliest period charged in the indictment that were temp remote and without any evidence of a continuing pattern of that behavior up to the present which is what this court required in curley for temp coralie remote other act of the dance this was offered as proof of the enterprise right well the fact of the enterprise was conceded and i don't think that alter the fact is conceded doesn't mean that the government doesn't introduce evidence about it right well it certainly addresses the forty three issue in this court and gordon and scott brown that testifies that mr brown did these things fifteen years earlier or twenty years earlier when he was a teenager that latter testimony does not meaningfully contribute to the evidence of the existence of the enterprise and it doesn't corroborate him because it's the same witness and then the nd witness at the trial is called to provide testimony about mr brown's arrest for selling drugs when he was a young man also one thousand and eleven years before the earliest time period charged in the indictment with no evidence in the record presented by the government of a continuing pattern of that behavior and the intervening decade and to start the trial that way with the st two witnesses providing uncharged acts importantly remote unrelated and one of them in addition to the testimony about the existence of the enterprise that can only be bloody him up in the jury's eyes from the very outset of the rot of the trial and  good morning your honour's margaret graham for the government i represented the government below and i represent the government on appeal the judgments of conviction should be affirmed because there was sufficient evidence on each count for the jury to convict the defendants and the admission of the challenge evidence was not an abuse of discretion i'll begin with the search of mr brown's apartment unless your honour's want me to began elsewhere the agents here had a reason to believe that the defendant may have been d on ms rounds mrs brown statements to go ahead but you don't seem to be arguing that and what do you say you can see to know that was wrong you know when i can see i was wrong or focusing however on the fact that the agents also independent of that ground had reason to believe that mr brown may have been home and therefore had reason to x acute the search warrant at that time all right but you're not arguing it so you're arguing you think it's valid but you're going to decided to do this one with one arm tied behind your back and only to deal with a concern about agents going into other individuals homes without reason to believe that the party they're searching for might be there this was of course mr brown's home and as that he'd been seen to leave and they were staked out to make sure they reviewed video going back starting about one am had seen what he believed was mr brown leaving the area this is a large complex it's co op city it's many large are residential buildings in one complex  there then was a break where detective dougherty had ceased viewing the video and they then agent salter then directed agents to set up surveillance so st of all there was a break between the viewing when the  video stopped and when the surveillance was set up you know how long it was so the record is unclear but it's clear that it was that it was at least a period of time and then it's key to understand the limits of the surveillance that was taking place it's a lie as i said a large complex with multiple entrances they knew how mr brown had been dry as he was leaving at one hundred and thirty they knew the vehicle that he had been in a cadillac escalade they were trying to look for cadillac escalades going by and anyone that resembled mr brown but of course the arrest warrants for his co defendants and coconspirators who were members of the gang that he was leading had been executed at six am and so they were concerned that he may have been alerted that agents you looking for him since only would have had to change clothes or doc down in the car they testify that they were surveilling the entrances but from a distance and so there was a very real concern that the surveillance was not foolproof that it's not as though they had you know a car stops happening and a roadblock set up and so there was a very real concern added to that was agent salters testimony that in his experience with individuals returning home that if they were going out to party which the record shows mr brown had done his wife confirmed that later and that's what they believed at the time that the at the clubs close around five or six individuals go home there's also this judge silva noted earlier a concern that mr brown may have learned from the arrest and salters testimony that in his experience individuals can go home to say goodbye to their children to collect their belongings before that happens there's also and i think you know this this factors in as agents alter noted a real downside to going into early because that of course you have alerted mr brown to the fact that you have an arrest warrant and that you're looking for him he may become a fugitive which is a public safety concern and so i think all of that goes to show that the agents did have a reason to believe that the defendant may have been home based on those facts and and their experience credibility findings that she did based on on that you know there's there's no record of kind of the agents acting in bad faith or kind of creating justifications after the fact they were engaged in a very real real balancing and you know again we come back to the fact that this was dissipated as to the miranda warnings mrs brown was never in custody so we submit that that's not relevant as for the time other cases have clearly shown that a few minutes is enough to dissipate the taint and for the intervening circumstances it's key here to note that the interaction was calm throughout i think the intervening circumstances and the disappeared in our specially important in the case to show important where there was an initial swat team the door was not forcibly breached it was nine am mrs brown had was awake and had answered the door no herself there was a dose you go where she said go ahead there was there was no you know as was not my term but that's not the st off that's only the st consent the nd that's a st consent but it goes to show the nature of the interaction to that and the idea that that there was not that there was very little taint if any to be dissipated because of the nature of the interaction throughout the agents by that time and i think if you if you read the hearing it's very clear despite what defense counsel says in their reply brief the agents had an accident the apartment they were all out of the apartment and mrs brown and agent salter were having a calm conversation in the hallway as your honour's noted mrs brown was a law enforcement official which is important to the consideration of whether her will was over born and as to the last night factor  agent's entry was not flagrantly illegal or with useful purpose they had an arrest warrant for a resident of the home and so i think looking at all the four snipe factors and looking at the interaction and the way snipes says that treating someone with respect can create relative calm sufficient to anon course of environment we would submit that any taint had dissipated and that mrs brown's well was not over born and that she did give voluntary and knowing in fact that she was a corrections extent to which at the idea that someone in street clothes with a holstered gun would have created an unduly core set of environment and i submit with a corrections officer who has her on to service weapons and is a law enforcement officer herself that's simply not the case  you're on as i see i have about six minutes i don't know which argument you like me to address next i can move on to the the evidence of the enterprise if you wish or the cell sites perhaps address the rule sixteen argument mr fry field was raising with respect i have just if you would clarify how it came about that the government essentially had location evidence off the cell phone was that developed post argument post opening statement or was that something that the government had that it missed turning on it absolutely was developed post opening statements and in the middle of trial what happened was on june th there were opening statements that evening the government believed that the cell site records no longer existed because of information that the government had received that  government believe longer existed but all that inquiries after the opening or mr place much earlier when discovery was supposed to be turned over this took place much earlier than the government and believe existed and so  eighteen t services trac fone and the government did have the toll records which were preserved for a longer period of time in preparing the th tee custodial witness to testify at trial the government inquired had in its question answers the fact that track phone records are only kept for two years at that point the eighteen to custodial witness correct in the government and said no they are kept for seven years and so at that point the government realized  and seventeen of the two thousand and twelve records the government was for the st time that it had been wrong about the existence of the records that the records existed this is the evening of the th so after the openings earlier that day the government immediately alerted defense counsel to the fact that it was getting a cell site order that there might be new cells cell site evidence coming they got the cell site order that evening the morning of the next agent fourteen it turned over the raw evidence of the cells i did it self and then later that not find any bad faith defense also explicitly stated that they were not asking for a continuance and judge code gave them until june th so five days later to  have investigator donaldson testify about this he actually had begun testifying on the th but she said we're going to break up his testimony and let him testify about this specific evidence which you've just received on  the th to give you time to prepare on it i think it's also important to notice to note that the government had noticed defense one month earlier that investigator donaldson was going to be an expert witness site evidence the cell site evidence of mr brown and ms bozeman and so they were no one argued at the time that that notice was inadequate and so they were on notice at the time that cell site would be at issue in the donaldson would be testifying about it and could look into and explore any arguments they wanted to make about the reliability of cell site evidence as well as potentially seek their own rebuttal witness on that point as to the opening statement of the argument that they were prejudiced because they introduced this idea in the opening statement of course matthew shows and we noted in our twenty eight dollars j letter that there was no substantial prejudice where defense had irretrievably committed itself to the theory before the government received evidence that contradicted the theory and of course the record shows that they had given their opening before the government even knew this evidence exist background information about sex money murder and how violence within the gang operates which i think is important to understand this was brown a sex money murder leader asking a lower ranking member to kill a rival sex money murder leader fellow leader of the gang and so i do think it's important to understand the background of sex money murder the fact that guns are central to their motto their nickname their hand shake their hand signal the evidence was that any attempted murders or salt that they do outside of prison where guns are not available that anything done on the street is done with guns you have brown's own glorification of guns his statements his probation officer when the probation officer mentioned a shooting in the area that if it had been sex money the wall behind the victim would have been riddled with bullets his back tattoo which is to gun stretch across his back the rap lyrics referencing guns the fact that when brown wanted to open a new sex individual it's also important to understand brown and lopez's specific history including that brown had told the instructed lopez to buy forty caliber handgun from sex money murder members  from atlanta in two thousand and thirteen that brown had also prior to the murder asked lopez to help him find a gun from eric rivera as well as the two guns found in brown's apartment showing that brown of course possessed guns and then the conversation after the murder which is that a week after the murder brown and lopez discussed the murder and brown when lopez stated i shot him brown was brown was happy according to lopez and said good the government is or hewing that prior to trial they gave notice to brown that they would use cell site evidence against him and somehow that satisfies rodriguez is a right to have notice of him i don't summations there was there was no request for a hearing on whether or not the government was acting in bad faith the government made representations on the record that this case this information came to them late and counsel had in not knowing you know this is the thing about we were under the impression that it was a tract phone vs two years how did they come by that impression we're not really in a position to decide whether they were negligent or acting in bad faith or anything now i know they filed that letter because i alerted them that i was going to rely on thomas here which unfortunately is not in my brief briefly in time as there was no finding a bad faith on the part of the government to go but because it was post opening the defendant suffered substantial prejudice and that was the standard rather than whether they were acting in bad faith or not if you take the logical extension of your argument that means if you you know you're you come in it comes out  trial there's some new person out there they don't know about the government goes out finds that person interviews that person and sends a guy you were talking about and they give you some heads up that that person is now being added to the witness list give and by the way in thomas they list the factors that the court should consider in determining part of one of them is whether or not the government had bad faith or not but it's not dispositive at all and just by the way to distinguish between the inculpatory witness and this this will sixteen which says that they have to provide it and it allows the court to to to sanction the government when they fail to comply with the rule so that's a little bit different than then suddenly uncovering and puppets or with this at the last moment  thank you mister mr silverman i think judge sullivan made a critical point when he said the records not there and that's what's going on with the suppression hearing when it comes to a gap there were no questions about it when asked how long it is was it a minute was the records not there it was not made by the government that has the burden i'm certain throughout this for the nd consent if i was i'm sure i was talking about the contention that they were concerned that the officer had reason to be can sure and that maybe they had missed it when they testified that they would have seen him if he returned because they were watching every day when they believe they would have seen him if he returned they didn't see him and they did not believe that he had returned as to the st but let me just interrupt you got a nd even two minute gap would be sufficient for him testimony that detective doherty arrives twenty five dollars in five thirty am he views video surveillance seen mr brown leaving then he calls the team and they begin surveillance so there's an inference that maybe there was a gap i don't recall him saying that he was concerned about a gap and that's why he sent home the swat team and again you know we're talking about a record that the government bears the burden of proof that too and it's the same thing with respect to attenuation the government says that officers had left the apartment and that there was an atmosphere of calm there is no testimony about the officers leaving the apartment at the top of page seventeen at the bottom of page sixteen of the hearing record off agent salter testified that he was alone was badri brown in the hall she was pregnant holding a toddler she gave consent and they were turned and he says then we went back into the apartment on page fifteen line fifteen he said he had never been in the apartment yet so when he says we went back into the apartment after he's talking to her alone in the hall all as he said at the bottom of page sixteen it appears that what he's saying is that she and the toddler return to the apartment and he went with them and that would be consistent with what it appears although it's not clear agent went for he says on page thirty six but if they had to leave the apartment in any event the government bore the burden of attenuation we argued that the nd concert was tainted on page seventy the government all but conceded it on pa sixty four they had the burden of proving it and did not establish that record and they're not asking for jacobson remain and they're asking for this court to make a finding based on a record that's not there to affirm a life sentence for a relatively young and i think that is frankly a bridge too far the government and even even if the agent had left i just want to be very clear this court's precedent in particular snipe but also organs in radio do not say that an atmosphere of calm is an intervening circumstance snipe relies on couch texas for the proposition that you need to have something that breaks the causal chain between the entry between the illegality and the subsequent consent and then all three of the analogous cases that this court has decided the intervening circumstance that broke the causal chain was informing the person that she had a right to refuse consent reading them a consent to search form right in this case to say it wasn't read to her until after they started doing the search right why didn't i read it to her before the consent like in all these three other cases and there is no case no supreme court no pinion of this court that says that an atmosphere of calm for a one to two minute temporal proximity can be an intervening circumstance that breaks the causal chain just finally there was talk about sufficiency i want to be very clear on the nine hundred and fifty nine account the top count the life count we're not arguing insufficient evidence we're arguing that this was a thin case it was based in very significant part on the testimony of christopher lopez that are that my client said to do this mr lopez had a history committing perjury to avoid criminal punishment he admitted that he lied to the government when he said that my client provided the murder weapon and only told the truth when the person who actually provided the murder weapon was arrested and he was afraid that that person would confuse you're not arguing insufficiency you're arguing it's a thin case that's right because for purposes of the harm analysis this court and the says that one of the things this court should look at for purposes of determining harm is just saying if we agree with you that the search was invalid correct that because it's a case that would be a basis for reversal well that's right because gordon  this court identified as thin for purposes of the harm analysis a government case that rests and substantial but not entire part on the testimony of a cooperate or with significant credibility problems and that's exactly what we have here we have a lying when he said that my client provided the murder weapon who admitted to serially committing perjury to avoid criminal punishment and the only corroboration was from his wife who testified on page seven hundred and thirty that she wanted to help him while he was cooperating and she did not entitled not to believe this was a short trial three days of evidence in the jury took a day and i have to deliberate i do a murder trial with mr patel and some of the jury took like an hour right when it's an open and shut case so we going to the company i'm joking factors to consider including the strength of the government's case the government's use of the evidence and you know when hallam and curly and inventor a number of cases this court has pointed to use of improper evidence jury information as critical in terms of a harm finding i am not aware of i'm not saying it's not there i am not aware of a single decision of this court that says the government emphasis of improper evidence transformation is harmless but i know of five cases  currently there are where this court is pointed to use of the evidence in summation as creating harm and there's also one final point that i think the record in this case sort of signifies that i would like last  the last final point thank you judge and i appreciate it thank you thank you judge but you know because the rest of my client's life depends on i do appreciate final thirty seconds client is fortunate  thank you judge and the final the final point is you know what made me think that if you look at the record and you see that my client when he finds out that there's an arrest warrant he went down across the street to five hundred prostrate and he voluntarily and he peace surrendered and i hope that in the future i will have many more clients who do exactly that i don't think we expect that in countries you know around the world where people don't expect fair trials and this court made a very important point a few days ago and the last two paragraphs of the monsanto opinion talking about the importance of jury trials and jury has obtained the law and following the law and i'd like to respectfully submit that for criminal defendants to have that kind of confidence that they will peaceably surrender to face capital prosecution that is also very important that district courts apply the case law and then even when it leads to undesired outcomes like so pression about evidence and that when even the most universally and i mean that universally respected district courts or as we all will then it will be corrected on appeal at least work here where as here where the evidence is emphasized in summation extraordinarily inflammatory and it cannot be deemed harmless