to the second case the united states versus freeman gambit good morning judge tom judge bower and judge mannion i am here today on behalf of randolph freeman because at issue here is the protection of mr freeman's right to due process and to a fair trial and not only mr freeman's particular rights but the integrity of the process under which he was taken to trial when the government knowingly uses false testimony it is not only that false testimony that was brought into question but the integrity of the investigation and prosecution as a whole because a willingness to lie in court raises two obvious questions one what are they willing to lie about outside of court where they are not subject to challenge into can you rely on the rest of their work to have integrity so this this case let's turn to mr freeman the court erred here in refusing to vacate counts four and five sixteen through eighteen and count  and the reason for its error was that due to its finding of prosecutorial misconduct it dismissed the conspiracy charge in count one counts five and six and sixteen through eighteen were all phone counts which included in the count one as the essential first element and count eight was the one twenty four c count which also included count one as its essential element and as this court has already determined in case and it's our position that that's the incorrect way to look at this under the inconsiderate inconsistent verdict started by powell and dunn the supreme court said that in order to protect the jury process in the jury deliberation process from analysis and to account for the possibility of mistake compromise or lenity should not go into whether there  inconsistency is and allow such verdicts to stand what differentiates this case and there isn't a whole lot of case law out there and in fact i could find nothing exactly on point because this case has a sort of a unique set of circumstances but if you look at this the inconsistency here was caused by the decision of the court attempting to remedy the prosecutor tauriel misconduct so the same concerns of compromise lenity and protection of the jury deliberation process are not an issue in this case it's more like what the supreme court and other circuits have found with regard to bench trial verdicts they're not governed by the same rules for the reasons that i've just said out you have one trier of fact who's making the decision and we're not trying to protect the jury deliberation process similarly this court in looking at what happened in the more case it was a little bit different factual basis where the judge actually interrupted the jury deliberation process and took a verdict on the nine twenty four c count before the jury had come to a resolution on the predicate offense and this court found that that was not correct and that the case should be sent back so that the jury could first decide on the predicate and then take it from there in this case we don't know what would have happened if the jury had been told that the prosecutors had put on false evidence and the and had bolstered that false evidence we don't know and if we presume that they follow their instructions they would not have been able to convict on count one which would have meant that they would not have been able to can convict on counts five six eighteen sixteen through eighteen and eight either because all of those counts required a finding in guilty on count one before they could find a guilty and in fact make a finding of guilty and the the the se cats so for that reason it's our position that each of these counts should also be vacated and sent back for a new trial as the court did for mr will burn in count fo now the government will ask for you instead to find some other conspiracy to stand in for the conspiracy on count one and it's our position that that's an inadequate remedy for two reasons this isn't the ordinary case where we're talking about sufficiency of the evidence or harmless error we know the other aspect of inconsistent verdicts is that we don't you don't know whose ox is gored so to speak and the government doesn't have a right to appeal acquittal but in this case the government did have a right to appeal from the judge's decision on the prosecutorial misconduct and this court sent it back the government lost so in effect if you allow the counts that require the conspiracy in count one to be an essential element to stand your allowing the government to have an unjust windfall as a result of its own misconduct so it's the only fair way to deal with  is to send it back for a new trial and see what happens in the lower court again now the second issue raised on behalf of mr freeman had to do with the court's error in failing to worry de jurors who had been overheard discussing their opinions as to the guilt of certain defendants in the middle of the case and this court has already dealt with that issue with respect in the context of mr wilderness brief so i won't address that unless you get further questions the third issue has to do with sentencing and mr freeman it's case there were three problems with with the sentencing in mr freeman's case the first was the drug quantity clinton to testify david and clinton was the person that relf cell had used or allegedly used in his testimony to deal with mr freeman and mr mcclinton who did not testify at trial submitted an affidavit in which he asserted that he did not deal with mr freeman on behalf of mr goes south first of all with respect to the drug quantity finding the court found mr freeman responsible for ninety kilos of cocaine and this was far and above ridiculous lean more than what was actually proved the trial the evidence the trial demonstrated the actual seizures of cocaine during the course of that than what was actually shown at trial and the problem the central problem was route to sell because that was who she basically she based the largest part of her drug and mr lasalle testified at trial that she was introduced to mr freeman by david mcclinton and at each point when he went to deliver drugs or pick up money it was david mcclinton who actually did it and it was david mcclinton who used his phone to contact mr freeman now david mcclinton was not called to testify at trial and he and for that reason and he was also not named in the indictment there was an objection every time david flint mcclinton was mentioned if they go back and look at the testimony of ralph sell mr prima's trial counsel objected to the testimony with regard to david clinton because he wasn't part of the charge as part of the conspiracy and because he was not included in the s from mr mcclinton at the time that he was he was proposed and that was a problem from the point of due process mr freeman has a right to be sentenced on reliable and accurate information and the judge went as far as to say that she hadn't heard from mr clinton mr mcclinton and perhaps if she had it would have made a difference although she didn't think so but the point was he was there and he was offered to testify and she set because ralph was so pointed consistently at david mcclinton as being the one who actually dealt with mr freeman and mr mcclintock testimony was no in fact he didn't and not only that when mr and was selling mcclinton were in prison and in wisconsin together mr lasalle had told mr mcclinton directly that he intended to lie about randolph freedom in order to get his time cut which he actually did  cell who was sentenced to one hundred eighty eight months and served about half of that and the government for whence he was in the prosecution he wasn't prosecuted in chicago he's prosecuted in milwaukee but based on his cooperation he did not have to be sense as a career offender there was no eight fifty one notice filed for him for which he was eligible and he did have the sense he got and this is after having lied to the government in the first instance so his reliability was certainly questionable and when you add that to mr main clinton's proposed testimony saying that what he had said about how their transactions with mr freeman went was categorically untrue he at the very minimum should have been heard from and mr freeman in order to be able to present his position as to what actually happened should have been allowed to present the court's unwillingness to do that was an error and we believe that that should be remedied as well and finally with respect to the  reliability of the evidence it seems that the supreme court is is clearly going in the direction of looking far more critically at relevant conduct and when you have a case such as this one where the proof at trial is so vastly smaller than the proof or the allegations at sentencing and when the allegations at sentencing are brought by people people misuse the people of questionable credibility then there's a further reason for the court to look at it more carefully acknowledging of course that this court has said that a person can be a liar and a multi convicted felon then somebody can still rely on their testimony however there's there's a serious question in the case of this particular individual as to whether that should have happened in exactly the way that it did so for all of those reasons we would ask the court first to bake cakes the convictions that required count one to be an element and secondly to reverse the first sentencing good morning me please of course the district court did not abuses discretion in a ruling on the new trial motions here as the court recognize in its prior opinion the will born case but the district it was trying to do was to negate the fact that the false testimony had a possible effect that the false testimony of seneca williams had on the verdicts and try and identify any taint the mind of affected the verdicts and then deal with it and secondly just attempted to craft a remedy that would act as you know i think the court said commensurate with the gravity of the misconduct namely a sanction for the government for having introduced the false testimony and relied on it in closing argument and the court the district court carefully did that in its ruling on the new trial motions it for one thing it tossed it granted a new trial as to all defendants i count one the conspiracy count and then when it came to individual counsel individual defendants such as mr warn the court looked to see whether there had been a taint it could identify any possible taint from seneca williams testimony on the verdict and one way in which he did that was to say with regard to rundle freeman in count eleven the district court concluded that there was a sufficient chance that the jury relied on seneca williams testimony in understanding what had taken place in count of the court said well seneca williams testimony was crucial to understanding what had taken place in that county and therefore there was a possible taint didn't let that verdict stand but when it came to the other counts with regard to concluded that seneca williams testimony had not been material in any way and no new trial was required either to isolate and deal with the change from the false testimony or is a saying sion for the government for its misconduct that decision was not an abuse of discretion a new trial was not required as a matter of law because count heat which is the one twenty four c count and then out then count sixteen seventeen and eighteen which are also telephone counts count five to start with is a call between rundle freeman and his cousin in which they discuss the obtaining firearms a firearm for treatment this call had been preceded by some discussion in person between robert and randolph freeman at the sheraton shores condo at which robert freeman advised run doll that he knew a guy who had two firearms for sale and in this call randall freeman gives robert the go ahead but i want some pistol go ghetto so that call can easily be understood without any reference to seneca lim's testimony and in fact seneca williams did not testify about this call about firearms the firearms that randolph freeman had purchased on that day in fact seneca williams didn't testify about any of the phone calls that were williams did not add anything to understanding that article will born was not involved wilbur and was the subject of wilbur his relationship with freeman was this critical part of the false testimony of seneca williams because seneca had placed will born with freeman and at a location at a time when it was impossible for wilburn to have been there but as we can see with count five and count eight counts sixteen seventeen and eighteen will born is not involved we're going to relationship with freeman is not an issue and seneca williams did not have anything to which randall freeman is seen handling a firearm at the sheraton shores condo it was captured on a video dog that had been placed there by the agents  so the jury was not required or second williams testimony is false testimony had nothing to add he didn't talk about that account he didn't talk about that firearm he wasn't there it had nothing to do with freeman's relationship late at night to maintain maintain the bug they thought there was a danger that the bug was going to get discovered and so they went into i think moved the door somehow to seal it further and when they were in the condo that night they actually found the gun was the subject of county so the district didn't use discretion in allowing that to stand count sixteen seventeen and eighteen were phone calls three of the three calls in succession between freeman and civil mcclatchy a woman who on this night was acting as a money courier for freeman in picking up money that a man named little he owed to freeman and freeman was trying to collect the money through civil mcclatchey there were two phone calls that set up the third namely freeman saying have you gone to you know literally always me that money have you gone to get it from him and then in the third phone call civil mcclatchy reports to freeman that the police had stopped the car in wh she was writing and had taken the money from and in fact that night because the agents had been listening to these calls the police had stopped that automobile and had discovered the money under the seat again those calls apparent on their faces being drug drug money collection columns did not depend on seneca williams testimony seneca williams testimony added nothing to the understand you know those calls and in fact seneca did not testify about those calls at all so unlike what the district court did with count eleven where it granted a new trial for freeman on account on which seneca williams testimony was important to the jury's verdict had to do with the subject of the count namely the quantity of drugs that were and i believe count eleven was it as i said possession count on which will born  freeman were talking about the quantity that was possessed that day and seneca williams interpreted the phone call and said well that quantity was x amount of got it one hundred twenty five grants or something like that unlike count eleven where the district court granted a new trial accounts five eight sixteen through eighteen the district court properly concluded the senate didn't and anything and therefore those counts should stand  warn and freeman which was the subject of senate williams false testimony that is their relationship at least in part with the call that i guess i have two things to say about that one is the call is a call from freeman to will warn asking where bucket is buckets to marcus williams because freeman is trying to collect money as a drug money collection call without reference to senecas false testimony and the only thing i would say is because senate the the false testimony of seneca williams had to do with will borns relationship with the freeman organization it was really not an argument that freeman was not the leader of a drug organization that the problem with the false testimony was williams linking will born to the drug organization not the existence of the drug organization will bourne's defense was that he might have been a drug dealer and the blue devil line or the orange stripe line was his but that he had a drug outlet drug selling operation that was not part of the freeman organization so i think there's a distinction to be made there i understand it's a little bit more difficult but the district court in ruling on this motion i think did it very careful job of looking for possible to the verdict and trying to craft a remedy that addressed the government's misconduct i think that those i'd we'd ask that the court affirm the convictions on those counts fo five eight sixteen through eighteen as for sentencing the district court did not clearly error in concluding that freeman was responsible for more than eight point seneca waves as well as sentencing but the court found without reference to seneca williams that the government had proved that freeman was the leader of a drug organization that obtained packaged distributed and sold crack cocaine and other drugs at cabrini green that he had done so for a matter of years that he and they had done so as a matter of years and it was a common course common scheme or plan as part of the same course of conduct as the counts of conviction that had been allowed to stand and freeman's case there was one count of conviction that is not challenge in this appeal which which was the basis for this relevant conduct finding that's count three which is a which is an eight forty one count possession with intent to distribute count again that count was based on the videotape from march twenty fifth of zero six in which freeman is seen in possession of heroin packaging heroin talking about distributing here so on so that the court made all of the required findings for attributing relevant conduct to rundle freeman there were common victims namely the drug addicts and people who lived a completely green there were common actors throughout the course of the constituting there was a similarity in conduct and there was a regular already of operation over the course of the conspiracy over a number of years and therefore the court attributed drug quantity  for that entire period and when it came to the quantity finding the court relied on the testimony of ralph and sell the sal had testified at trial that he was he was a supplier to randolph freeman and he  kilograms ninety kilograms of powder cocaine it's supplied powder cocaine to the freeman organization your honor and the freeman organization as a disappoint found primarily distributed that powder cocaine in the form have a criminal record he was trying to get a benefit from self by testifying but the district court specifically found a listen was credible but the jury relied on him and it relied on him to if it was intitled to do that and that sort of credibility finding is not likely overturned by this court certainly can be said to have been clearly erroneous and when it comes to thirteen which was in the wake of the grant of a new trial and the government's appeal of that word or this court's affirm and so the order granting a new trial and then the parties went back to the district or the government elected to not retry count one but to go ahead the sentencing as to the remaining counts and after that then in may of two thousand and thirteen district court wrote a very lengthy very careful opinion truthful to randall freeman it was a year and a half later well into the senate process that counsel came forward with the clinton's affidavit evaluated all the reasons he had for being truthful for not being truthful and i think one critical distinction between with sal and clinton it was it was had a deal that required him to be truthful required him to be fully and completely forthcoming about his own criminal activity otherwise he was going to lose the benefits of that deal and other that the incentives for was sound were to be forthcoming and truthful about his criminal activity incentives for ms clinton on the other hand who had not been prosecuted and who had no deal were not to be forthcoming were in fact to deny his own criminal involved involvement in any crimes so the district was properly skeptical i think of mcclinton summary late affidavit  finally the district court did not actually refuse to hear mcclinton disappointed expressed skepticism about what bill clinton might offer on the subject of drug quantity and she may have been but that's not an appealable order her unwillingness or skepticism about what mcclintock might have to offer so for all these reasons and what's stated in our brief we've asked the court firm  sentence of right now freeman and the court's orders regarding the new trial motion couple of different occasions that i was being too aggressive and that she understood my arguments and in that context it was clear to me that if i pressed again to have mr mcclinton testify then i was going to be crossing a line with that judge so based on what she said in the context in which it was said which doesn't come across on the paper i grant you she was not going to let him testify right so that's the context and also there are a few things that he's to mention about mr mcclinton which he's probably not as familiar with but mr mcclintock did have a deal with wisconsin prosecutors chicago prosecutors did not use him and he was in prison at the time trial which is probably why he was not called by the trial lawyer so mr mcclinton had no reason to make up any more reason to make up masel who was getting a major benefit with respect to coming in but i'd like to to return the issue of seneca williams because it was clear in the district court and in this court when it dealt with the issue in the first place that seneca williams testimony was not just about freeman and will born although they were the two that were impacted the most clearly but his testimony cording to the district court and this court was the glue that that made the government's conspiracy case because he's the one that talked about codes and he's the one that talked about how they did their practices and he's the one that put everybody together and as the court will recall the other defendants that went to trial in this case defended on the grounds that they were drug dealers but not with mr freeman that they and mr freeman had social relationships had grown up together and worked side by side but they weren't working for or with each other and granted that's a that's a novel defense in drug dealing cases but it made it more problematic if seneca williams is the glue that holds this conspiracy together and the other defendants are defending and they're not being a conspiracy but separate buyer seller relationships it's not altogether clear and it wasn't altogether clear that there was a drug trafficking organization as such of which mr freeman was the so the issue is not one of sufficiency of the evidence the issue is one of due process because of a defendant has a right to be the government has to prove beyond a reasonable doubt each element of the charge defense without the conspiracy these other counts are missing their first and primary element and in the context where the court has said the verdict can stand and if the predicate offenses is not  not affirmed those have been jury verdict cases and this is a different context because what is going on here is that you can see pearcey which was established primarily on the basis of seneca williams testimony is which was faults in a couple of different respects is the core of the rest of the case and the government said in that in its closing argument this is the core of our case we've already shown you that this conspiracy happened so all of these other things follow through follow from that and so you cannot simply cure the taint by getting rid of the conspiracy when the conspiracy is the critical first element of each of the subsequent counts and we know we've been instructed by the president and elaine that every element of a particular charge must be proved beyond a reasonable doubt and you can't simply say well this this this element is not valid we're going to let the convictions stand then especially not in a case like this when the very reason for the dismissal of the conspiracy is so i don't think it's simply enough to go through and treat this as if it was a sufficient c of the evidence problem because but it clearly is not the court has no more questions we will stand on our briefs i