help keep track of your town we will meet it what i intend to do is i intend to to discuss the obstruction of justice convictions against my just briefly touch on some of the sentencing issues that pertain to my client i may serve on to this mess landau will address the broader question of the admissibility of the testimony  by former correctional officer feeney and she will also address some sentencing issues pertaining to her client and race are going to use with regard to the obstruction counts they say the facts was not foreseeable as to the burning of bodies would necessarily lead to they convening or an investigation by a federal grand jury let me ask you a had these three misdemeanors but to answer your question directly the issue is you have to look at it from the perspective of the defendant what it was that person was it objectively foreseeable from the standpoint of the defendant i ask you could i ask you to clarify your argument for me in the following read where are you saying that it was foreseeable that there would be some police investigation but that it might be a state and not a federal investigation is that your argument or are you saying that he wouldn't have foreseen it at all that both  answer to your question st off  could end up in court but whether or not he could conceive that it would be a federal a federal grand jury as opposed to a california investigation on you have to keep in mind indictment by grand jurors grand juries are used most commonly for political indictments for police officer indictments and so forth but the regular street crimes as bad as they are ordinarily in federal grand jury were federal proceeding as opposed to a state one it's that court of your argument yes it is far easier but i don't see how that fits with  and twelve g one which says in a prosecution core an offense under this section no state of mind need be proved with respect to the circumstance one that the official proceeding before a judge court magistrate judge grand jury or a government agency is before a judge or a court of the united states a united states magistrate a bankruptcy judge a federal grand jury or a federal government agency that seems to negate that argument so then we're back to just could they have seen that it would be some official proceeding and then we're left with the argument that they could expect that burning these bodies would be ignore d no not at all but the point is as other circuits have decided in the am young case that was cited in the frisky case that section that you hard to see how a street criminal is going to know that by burning his body or use another example suppose instead of we're talking instead of burning a body we're talking about lying to a police officer supposedly a oakland police officer came in question them and he lied i mean i asked her volunteers and he lied to him under the government's theory here he could he could be indicted for obstructing a federal grand jury because that oakland police officer might be called before the grand jury  talking about what you're going to well welcome center in the force for good described as statutory sprawl and what the supreme court of the united states has said over and over again and anderson in in fall there in maryland hello where that where they talk about unifying principles they talk about interpretive restraint you shortly before you run out of time could you address the sentencing issue please yes with regard to the sentencing issue regardless of how the you know what the court ultimately decides with regard to the merits of count seventy nine and ten with regard to the sentencing issue the government has conceded that our sentencing are you managed is correct that i may serve on this district court a double counted the use of the firearm the government comes back and says that the district actual number of groups it goes from three to four it rebalances the whole thing it used to be that the the predominate or the highest crime here was the liberal or hobbs act ripe by robbery and that was and now after the government's recalculation obstruction of justice becomes the highest category and the question is will the district court necessarily impose the same sentence and i want to turn over  my time to misled into and then all you've got to do they have and will allow you to sort of trade off on remodel time if you like so it doesn't have to be you that has them two and a half minutes when the time a grand jury investigation and i would just point out again he has a straight criminal he certainly knew that there would be an investigation and he was probably quite concerned about having his supervised release revoked but the fact principle issue that i've been tasked with arguing is the question of the way opinion testimony that was a minute against all of the defendants and i think certainly could have testified to some of what he testified to as lay opinion but both are all gave opinion that fell under rule seven hundred and two the testimony why beyond the scope of what the circuit has allowed and which is a plain error case allowed an officer to testify as to the meaning of telephone calls that he reviewed where those calls included ambiguous statement but in this case we have somebody who really had some firsthand perceptions but mostly had perceptions that were really had specialized knowledge and i'd like to stress that the rule rule seven o two is intended to govern not just testimony that's limited to the scientific method but also specialized knowledge mr p t s testimony was based in large part on his specialized knowledge that he gained over many years at the b o p but he was allowed to testify to a lot of that knowledge as lay opinion and that circumvented the requirements of rule seven or to the  the government said well and the court frankly invited the government to admit it under seven hundred and one and that's what the government did it the government stepped through the door that was open but as a result you know the government didn't have to qualify with the structures of rule seven o two and presented really i mean to to argue that he was and when you read the the introductory questions i mean he was presented as an expert even though there is that this is this is a i guess what this goes to in my mind is sort of a two pronged question about harmless error because if the government had been told ok this is seven o two i'm not going to have one and you're saying well he was an expert it's hard to imagine how it would have been different and potentially even more persuasive to a jury if  performed well we don't know that and we can't speculate to as to that all we have is the court preliminarily ruling this is and it miscible under seven o two or large parts of it aren't and you required and there were objections that it was expert testimony there were objections that it would relied on hearsay there were objections of relevance of speculation  most unsavory type of cooperating defendants and witnesses who were trying to curry favor on the only one as who was that you had i mean we have this marco campo mario dip the other defendants charged in this case they all stood to gain substantially from their testimony they had serious credibility problems lengthy criminal histories fiji had none of those of course he was a former approximately twenty percent i didn't actually run the data but it's about nine hundred dollars pages of about a four thousand five hundred dollars page trial transcript now some of that was cross but more than half was direct and i think the energy and the time me the nature of the testimony is primarily about what is the meaning of coded language and what are you know when to use an example from another case when we're talking about washing machines we're really talking about washing machines yes there was t shirts and colors yeah yeah yeah so as to that kind of testimony it seems to me that a jury might not be skeptical about the other criminals who are testifying as they might be when it's discussion of where to lay the blame who pulled the trigger that sort of thing but it seems to me that  they would be viewed as credible on how they talk so i guess i have a little more difficulty than i might otherwise seeing how credibility plays into th perhaps your honor flight that brings in another issue which is that a lot of that testimony was critical to the drug quantities now while my client was not convicted of any particular drug quantity other defendants were and  to be an expert under seventy two dollars now honest to quantity but as to the coated interpretations but let me go back to your question i understand what you're saying but i still think it was  s testimony it was the most consistent and the other defendants the other witnesses as i recall and there was a lot of as i recall they gave you know there were different codes and so there was different testimony about this and that so his testimony tied it all together ok i'm sorry i took you off track you wanted to do so i do want to spend a few minutes discussing henry sentencing so henry was acquitted of conspiracy he was acquitted of a special sentencing factor that charge conspiracy to commit the murder with malice of forethought  persons who opposed the aster familia rival gang members and that was another group but it doesn't really matter this precise language is not that important he received degree murder and what if that that if that can be used did the judge nonetheless error in using the st degree murder guideline and also use the wrong end of proof because the judge used to standard of preponderance of the evidence not clear and convincing evidence i have addressed this in detail in my in my in my briefs so i'd like to follow if the court has any questions i particularly like to and i think that in your condo as i recall there was no special verdict acquitting the defendant of particular contests and i think you and i would say here we have this special verdict i see that i'm almost out of time so if there are further questions that i can see judge graber has a question no i was just going to say again you have about another two and a half minutes so between you you have about five minutes characterized as an expert in front of the jury he would get too much credibility so it made the decision to to have a government have to testify as a lay witness with foundation for every single opinion the court said it would take it piece by piece and it acknowledged that this would hurt the government much more than the defendant because if it if the government didn't have to put it in piece by piece the testimony would have come in a lot quicker a lot  easier more for the jury to understand but instead what danny did was testify based on his experience as an investigator he had a lot of late experience in st hands up st hand observation investigation was simply commensurate with the scope of the offense any also had daily contact with skip the wave of a coconspirator referenced as the nd overseer in paragraph fifteen of indictment for years and he had personally interacted with andrew and he could recognize their voices and their handwriting he had also participated in searches of cells and recovered the district court repeatedly require the government to establish the finis knowledge derived from this investigation so even if he had other information he was hired in this trial to testify to testify about his late opinion testimony related to this investigation although the defendants contend his testimony depended on here's a rather than personal observations there is no support for that in the record to the contrary the district court specifically found the finis testimony was quote that he himself conducted the investigation that he himself listened to these calls and that he himself made the determinations that he did evidence based on the investigation that his testimony was nothing more than one possible framework for understanding anything and that the jury was free to disregard that opinion now  higher before admitting any opinion the defendants argue that the government's brief cherry picked the best examples where there was lots of foundation but in fact the government is responsive to the defendant's brief and actually it i it gives the examples that the defendant used even the examples of the defendants highlight do not prove their point to take one example in the reply brief that page six defendants claim that being the repeatedly for some of his opinions not by referring to his investigation as a whole but i referred to earlier testimony in the case in which he had already given a full and specific basis for his opinion so at that he testifies that a reference to cleats and gloves in a phone call means drugs he referred to his earlier testimony as the foundation for that that earlier testimony was very specific about why you associated sports terms with drug trafficking and we discussed that at our grief at page forty three so if you go through each one of the examples of the defendant list at the jacks noble you'll find that there's actually foundation for the rigorous foundation that the district court required before admitting the testimony is lay all to ensure that his testimony was reliable and then there was the jury instruction which ensured that the jury didn't give too much weight the testimony was also using female names that they communicated in the rd person that they sent e mails using an intermediary a piggyback that provided the tool for decoding much of the of the calls letters that were brought before the  restaurants or codes for drug trafficking all of that evidence shows that he's testimony was was both properly admitted and did not cause any error unless the up there are two factors that make this case really easy for this court st at the time of the murders the defendants knew they were already under law enforcement investigation that was a an apartment building with henry henry doing as under investigation there were a number of other and f members recently released from prison like crane gal so he knew that he was living and working with high level gang members that had recently been released from prison and henry knew that he actually was under investigation all that together would permit the jury to infer that jaime also knew that as a group they were under investigation what are your other what are your other central or so in a it in addition to the fact that they knew that they were under law enforcement investigation the defendants had training it's an experience with the criminal justice system including indictments henry have been indicted in prisons and was on supervised release as we already discussed how made was living in that apartment building but hiring a henery if the ins clear had a lot of experience he was not a straight chemical he just a thre for that they were targets that they knew that they were targets the training included a lot of history on and out and out and i'm past indictments it mentioned the black widow indictment which was a huge federal indictment of former enough members including henry and larry along with him that she was the material that was underneath jaime's but there was a detail test of a different aspect of gang membership including a test test questions and answers on the black widow indictment there were newspaper articles about the black widow indictment and mentioning henry so they would have known that hender a as this high colonel recently released in federal prison who had just committed this murder would have been a target a bull's eye for the for the f b i and so when henry then ordered him to do the cleanup jaimee as well as henry would have known that there would have been a grand jury investigation certainly it was a reasonable inference that the jury could have made unless the court has another question well actually i would just like to address false statements to a long course an officer or rd party who may or may not testify before a grand jury at some point was not sufficient to show a nexus to a grand jury proceeding yun specifically said that it was relying on that aspect of aguilar it said the evidence is insufficient for largely the same reasons it was not been sufficient in aguilar that's very different than what happened here this involved a double murder and the burning of bodies  false information to a rd party who may or may not provide information to the grand jury but they were actually destroying the corpus to elect i of the crime the bodies themselves and they were doing it at a time not when they thought other people were being case this court found based on the specific manner in which the verdict form was written that the jury made an affirmative finding beyond a reasonable doubt that the defendant was responsible only for less than fifty grams of the drugs and in those circumstances the court could not sentence the defendant contrary to the jury's finding at the same time the court made clear in that case that if the jury merely stale to find a fact under the reasonable doubt standard the sentencing court various states of mind a negative answer to those special findings that operate as nothing more than a statement no jury could not reach a unanimous decision and that's a statement consistent with its unequivocal undecided you're you know i understand given how it's worded that you know technically we don't even know whether they unanimously acquitted gross's just disagreed on the charge but would it make a is not the same as an affirmative finding of innocence and that can into lopez's about a unanimous affirmative finding of innocence not just an acquittal acquittal is simply we now to mislay agree that the that the government didn't meet its part so that those two things are are different in the it didn't meet either standard here it didn't make the meet the pimentel lopez standard turn to the application of the clear and convincing standard of proof henry have to satisfy all four prongs the plane air or standard to obtain release because he did not contest the burden of proof so this court need not resolve the st two prongs whether there was clear obvious error because henry's unable to satisfy the  in making his prejudice argument about why the burden of proof mattered henry only makes arguments about the type of homicide that he committed whether it was st degree nd degree or manslaughter you could look at his brief opening briefly page twenty eight or his reply brief page seventeen to see that he did not argue that the burden of proof mattered with respect to whether there was a conviction whether there was a connection between the murders and the r conspiracy so in deciding to prejudice that issue is not before this court but it's abundant records support both in the district court statements and an actual evidence that the murders were connected to the rico conspiracy as far as the district court statements showing that it would have made the finding that the that the murders were connected and the evidence where more there are the standard are relevant you're making the to me to not consider the murders as part of the rico conspiracy and then a j t r two hundred and thirty four dollars the court said it would be in comprehensible in light of what we were doing and not at all logical given argument at government about the abundance of evidence showing the connection between the murders and the rico conspiracy and or of the fourteen by the end of code is that it and if members lott family must be respected and protected frank gal testified that a gang member who does not retaliate after an attack on family would be viewed as a weak and a coward and would lose respect and power that's a  quote most likely that and i'm going to come after you j r two thousand and forty so this is record evidence that supports the district court's statements that there was lots of evidence connecting the murders to the conspiracy separately there's the question of whether the court would have found st degree murder under a higher standard and it's important to realize that there was if the court it out either st degree or nd degree murder and wouldn't change the of the evidence on henry's background and capacity and whether or not it was diminished to be unconvincing at j r two hundred and thirty four dollars the court said the question that i am faced with is whether you can be trusted to operate outside the prison walls my ultimate conclusion was that you findings and i just want to say that there's a real cost to sentencing remember when you're talking about a violent gang member like henry it's expensive and it's dangerous logistically to move them one of the this is just as that there's this court should rigorously apply the plain error standard absolutely if there's error the case needs to be remanded but the court should look at it closely and apply all for progress that's the only  argument the government is making i'd like to turn now to the highway sentencing issue i'm going to move some pieces of paper but i won't talk and we agree that there was an error in the the calculations as we've laid out in our brief if you there was to air and if you do the right  recalculate i understand it's plain error but we're going to recalculate the countervailing error that you want to say offsets the other errors even though there's no cross appeal why wouldn't we just to given that there's a concession that there was a clear asking for affirmative relief we're asking for the court to simply keep the status quo affirm the sentence so we're allowed to defend based on what you acknowledge that there's an error built their gear is an error built into how we got to the status quo but now you want to put on the other side of the ledger another error that you know otherwise was never raised below either and we think that under the that's the correct application of the plain error standard the court's statement album thing would not have mattered to it it found it had these acts of violence horrific it said you poured gasoline on someone and let them and burn them to oppress you terrorized older women those women you robbed you stepped a man so badly that he stayed in the hospital for over a month and you have a lack of any remorse whatsoever you just time and time again it back to violence without any regard for human life finally the court said i may gave the court no hook no hope that he wanted to change or that he intended to change we think if the court looks at all the factors of plain error information about other grand jury proceedings so he would have been familiar with that and their relevance to the skin well i'm not sure it would have been murdered because those were those were materials that were found under his bed there was no showing that he had a reading comprehension that he could understand it was i took a look at those i read those exhibits last night they are in microscopic and writing blocking handwriting  the mention of indictment or grand jury is you have to look through pages and pages and pages these are additional arguments on top of the argument that if you burn the corpus the link die in a double and the theory of the government whether that was foreseeable as to jaime servant ace and that's a different question then how bad a crime was that and whether it was going to be investigated by the f b i or the oakland police or just something i mean destroying documents in the enron investigation is very serious tipping off a suspect and lying to a f b i agent as  correct but then the other cases who have the other circuits which have addressed that precise question in have said in frisky and young that yes that's true but it still has to be some element of  foreseeability of a federal proceed or that you know the word you don't it's an objective test it's not it's not a question in other words when you when you when you're on to read from subsection g it was talking about the mental rarer the intention of the federal versus state proceeding that's a different question the question that the object of question here is whether a whether you  obstruction or impedance of a federal proceeding was should have been contemplated by the defendant whether or not in his head he thought it was federal or state thank you counsel i think we understand your  obvious and you know the government has argued that essentially we can't meet the substantial rights test but we just don't know that yes the judge was concerned with what he did the judge expressed a lot of displeasure with his actions but that doesn't mean that she would have used st degree murder with which you know under under the circumstances it's a significantly higher standard of proof between preponder  in clear and convincing yes thing is that the you know the bottom line is that the way the court sentenced the defendant is that he got acquitted of nothing and was convicted of everything this is very troubling he was in the 's very troubling that this is how this six remember works after after booker but you can have something like what happened here but mercado seems not distinguishable the other counts were all back and you look at mitchell versus punchy it's not that different in that case and this was a he ringback vs so it's you know different procedural posture but the defendant was the jury acquitted him of driving the car that killed the victim and then the court itself found it was insufficient evidence on the other counts so essentially and then kind of tell lopez is not as narrow as the government would like it to be these cases have modified could have been sentenced on has a clear cross reference to murder and under that guard line his even if it if the court did find it was st degree murder it would have been capped at thirty that's how those guidelines should have been calculated thank you counsel i