case numbers eleven day five eight three seven six one nine one six one nine two nine one nine six and nine one nine eight usa vs adrian dorsey at out or argument not to see thirty minutes to be shared equally by i frankly think that's the more colorable issue so i would begin with that when if you look at my own brief on that issue and on the government's brief on that issue i think the only fair reading those is to from our research is to say that there appears to be a split of authority even within the six six circuit itself as to just exactly how those that sort of evidence has to be treated  within within the court within the federal system there are certain cases that i've pointed to where the criteria for that are laid out in such a way that i think in this particular case the introduction of that prior conviction on mr dorsey would not have been proper the government has pointed to other cases where it certainly appears that that would have been improper so i think it's just fair to say that  there may be a split of authority on there in the absence of a determination one of their i think the course just simply has to go on a case by case basis were improperly  your honor it's entirely possible that if he is there are a couple of different ways to look at it mr dorsey and another defendant kelly miller the government's case against those two was essentially almost identical the prior conviction again that was introduced against mr dorsey is one of the very very few places where the cases against those two differed they did receive identical sentences it draws you in the answer that question draws you into an analysis of one particular witness's testimony and that was to make it ebert's which i addressed in the sufficien of the evidence portion of my brief you could argue that because ms ebert's was unable to identify or distinguish between the two defendants that were in this home on the date of the arist case then perhaps both defendants were convicted on evidence that was really only a testified two against one of them is edwards couldn't say which one of the two it was so that lee that's where the two issues seem to merge and it becomes a very difficult question i would say if you if you decide that there is an analysis needs to be made on the prior conviction issue i would like to make a couple of points that although there may be a brief i would like to emphasize them for the court's consideration one is that the government initially asserted that it s purpose in introducing that prior conviction was either absence of mistake or it appears that they've abandoned the absence of mistake argument because they don't mention it at all in their brief that assertion was made allege that he didn't have any intent he simply alleged he had nothing to do with this thing altogether the other point i would make is that the judge never made if the judge never made a final finding on the balancing test between the prejudicial effect it's probably better thank you all right who's up next rest prior here on behalf of soon to maddox because one of the harm obviously i don't want to retread anything that's in my briefs but one one issue that i probably didn't spend quite as much time as i should have on as to the issue of raising my client's religious beliefs one of the big government didn't i wasn't seen like that was the government's fault or something like that was the aim and  to be almost happenstance and bad luck well then not pursued well i understand that it is the first time i raise the objection was when mr mcgurk had testified and met actually draws me right into the first thing that i was going to say is that one of the case that listed several factors that the court imbalance that was cited in the government's brief listed as one of those factors were a strong curative instruction was given judge jordan did indeed determine that mr mcgurk statement was sort of off the cuff for unsolicited hour ever he phrased it  in that case then the response was unresponsive and in the ruling that judge jordan gave which was on the sidebar was that just the objection was overruled and there was no of instruction at all as to that first first objection that i made as to this issue now a curate an instruction was given on the infraction regarding mr rush in to get back to the question that you just asked i mean mr rush was i want to say he was on the stand for two days he it made it i believe on cross examination he met with agents fifteen times i think he met with the united states attorney's office i think he said about five times extensively given the degree to which this particular issue the five percent nation this mathematical code that was used given how ubiquitous that was throughout this case that that question had to be addressed and given the fact that it was addressed with the previous witness they had to have known what he was going answer remind me i should remember this but before the case did you do any motion woman a or anything to say listen we've got this one thing that might come up i'm a little concerned that my client's faith could be used against him by a jury here  you're not allowed to bring up the fact that a person worships here or there doesn't worship at all so it seems to me it's up to the defendant and the lawyer generally without agree just misconduct by the government if you think there's a risk there to let everyone know i mean well i don't recall what the litigation was leading up to trial i know obviously there were going to go into mathematical code and i know that the judge was going to let that it i wouldn't say that any individual occurrence in this regard alone mike might have supported this argument but it was the fight that it was multiple occurrences and i guess the fear is the prejudice comes in and when when you've got a jury that this is sort of a foreign issue and i think i think we i think we've got the point thank you ok thanks very much  parity for appellant ronny cooper i'm reserving two minutes for rebuttal i'm happy to answer any questions the court has about any of the issues raised in the briefs but i'm going to focus today on just to the question of whether the district court erred and not granting mr cooper's a new trial motion and the question of whether his new york youthful offender conviction should have been used as a predicate offense in the career offender determination first turning to the new trial issue in order to prove that ronnie cooper was guilty the government had to show not just that the conspiracy existed which absolutely they did but that cooper join the conspiracy participated in the conspiracy at issue in this trial and i think if you take a look at the evidence but setting aside for a moment daniel ballenger is testimony there's a real concern that an innocent person may have been convicted you just don't have substantial evidence linking cooper to the conspiracy setting aside for the moment the ballenger testimony you have a series of text messages about personal use amounts of marijuana and this is listed in the government's own recitation of it's evidence of pages seventy one seventy two of the brief so you have is the series of text messages regarding marijuana and personal use amounts sometimes cooper asking maddux to find those drugs sometimes maddux acts asking cooper you have a single text message or cooper asks maddox to put in touch with contact with someone who could give him that other thing eleven hundred dollars joint you have a call session eleven six one five that the government's agent identified as being from cooper despite the fact that it was not his regular cell phone it was identified by each of cooper's witnesses who actually knew cooper is not his voice and it was originally not identified as cooper and none of the other calls from that number were identified as cooper by the government agent in which there's a reference to a third man who has a sufficient amount of an unspecified drug for the moment but might not in the future you have a nine hundred dollar wire transfer from maddox in his own name to cooper in his own name you have nine thousand alors that to his own sister again in both of their own names who was cooper's wife the testimony of chewing sanders that on two occasions he sold one hundred dollars worth of powder cocaine in utica new york far from the locus of the conspiracy the green light conversation in which cooper says yeah to the suggestion that maddox wants russia killed and the fact that there are seven hundred fifty six with a question mark that's not only is it but in the government's transcript but it is what the government's own expert described as his statement he says that he's saying that he understands in his questioning that that is truly what he wants it is not acquiescence the government describes exactly as and but if you look at best testimony on that point she does not take cooper acquiesced  in that conversation and the question mark is the government's own transcription and if you listen to that conversation which was provided to the court in cooper's appendix i believe that the government's transcription is accurate it is a questioning yeah finally the government points  the fact that there are seven hundred fifty six text messages between them and yes i mean so like or is that what you mean it's like i'm saying that given how little other evidence there is the fact that cooper says yeah never went to tennessee doesn't take any steps to threaten rush you know it's clear that maddox is mostly angry and yelling there's no sort of step taken there's nothing cooper does other than say yeah there that's it that's there evidence of a conspiracy to kill somebody but i'm focusing here on the new trial motion because i think that's where this court really has the opportunity to look at the evidence to review it and say you know what there is a real possibility serving thirty years for a conspiracy he did not enter into it's clear that ronnie cooper was a drug user it's clear he used drugs with his brother in law it's clear that he engaged in some form of illegal behavior in the utica but i don't think the government has proven once you take a look balances testimony as the only proof that he entered the conspiracy about just testimony has a thousand or not but two very big reasons why this court should not look at it which is one that he's a jailhouse informant he's not part of conspiracy he knew up cooper for eight days he gives testimony that's grossly inconsistent with every single other witness in this case not a single other witness in this case but ronnie cooper in tennessee not a single other witness in this case going but i know you keep going but only them to your two minutes the crack at the time in place was a twenty year mandatory minimum because of mr to his who says prior felony drug offense and with regard to the pot it was ten now the government obviously has  problem that i have is i just don't want the court to remain the case for the purposes of a reset it's on that kind of a loan because what judge jordan did and i think he did it rather and what willingly at the time he actually gave mr de souza twenty years in his brief that there should be remand because if a say i don't think he's decided whether to general lemon that's correct that it initially is up to you and initially you want to be general and the reason being is because of course that the twenty years in the power has got ranges one twenty and one fifty one we think it should be lower which will argue in the district core upon the remained but so judge jordan basically every twenty years of the power without the explanation why he went over the guidelines almost two times so i will promise generally man i'm just trying to make sure you're aware good morning your honour's i'm melissa salinas representing keith and i reserve two minutes please i think this court should be troubled by a particularly troubled by two points and mr ruffin's appeal the first one is the fact that he received a thirty year sentence with no consideration for his motion bird departure under five h one point four when he has very very serious health conditions namely he's had four stroke severe cardiac disease and he's basically immobilized on one side of his body in severe pain and i think the court's treatment of that issue was grossly inadequate in the sentencing hearing but i realize i only have very limited time today and i think a more complicated question is the issue of mr r was pulled over at the side of the road and the miranda warnings were very incomplete he wasn't told of his right to have police present or an attorney attorney present during his questioning and then da the agent went right into i want to talk to you and let's talk about mr maddox and let's talk about drugs and let's talk about your role in this conspiracy there was a discussion a specific admission that he had there were two there were two grams of cocaine at the house there was an admission that he knew mr maddicks and there were other discussions that were about why mr ruffin needed to talk to this agent both fair and at the station house linking those two together this is plainly a miranda violation and the court ruled in our favor with respect to the ins in the statements made in the car but ruled against it with regard to the state that whether that tainted or somehow made inadmissible the second set of  and why he has to do that to avoid spending thirty years in prison with his serious health conditions so there is a there is a there is not only did he does he gain in private information from the first set of questions and admissions but he's also teeing him up for why he has to cooperate at that moment and then this opportunity is gone the next day the other thing that i think is very troubling is that you have testimony from the law enforcement that their intent was because the statements given initially was i think what you have a situation is the agent is looking at an immediate situation if there's going to be a large amounts of drugs in the car or at the house that something immediately law enforcement needs to deal with what his ultimate goal was to see if mr often would cooperate or not and on six different occasions at the site in the brief as if you want to talk if you want to cooperate we'll do it at the office not at the car not there will do it at the careful who was coming in the next morning whatever causes the testimony was agent kimber of said that he wanted to they wanted to seize the opportunity to talk to him when they could there but that's countered by the fact that  clear fact is that agent vicki in that when they took him to the a following that situation and did the full hour and a half two hour long interview gave him full miranda warnings and delayed to talk to l missed up man and the judge quality or it was messed up legally but wasn't his statement that he was messed up on cocaine and then can he  a required to show it's coercion at that point if he's not got the ability if he's messed up on cocaine yes really i think the answer to that is upon reading the context of the transcript and of that when he's saying he's on a messed up as a as a nice return what was said but the context of that is that he doesn't have a whole lot of cocaine he's got two grams because an agent asked some men don't know you ain't  claimed that it was that i was intoxicated at the time that you were trying to get me to make a statement i don't know that that claim was ever made or was ever raised he was then tested and it showed it was cocaine in the system right he was tested i guess the following day by the department of probation when he was brought in and it was still well it showed presumptively positive for cocaine but that doesn't mean he was under the influence at that time necessarily  and just to address one of the claims made by mr bruff and as far as that test goes that's again that's a test it's provided by the partner probation not by department of justice or the u s attorney's office and that is whe results from that report then are provided directly to the parties and the judge so defense attorney had first access and first opportunity to see what the results of that were that's that's a report that's kept by probation and give his statement at the way that it was a statement that was given an hour and a half two hours it was described and that's not being contested that it was a fairly friendly cordial interview it lasted for a considerable not tom if if mr ruff and had of been in under the influence i think it's reasonable to the deuce that the agents would have been able to tell that he would have acted a certain way and there was no testimony that there was no evidence and fact he gave a very detailed and lengthy statement in confession about his involvement with mr maddox and other individuals from multiple states and cocaine dealing over an extended period of time  and giving details that would be completely inconsistent with his demeanor at the time and with the and with the intricate details that were given so all those would counter against actually and he was being on the mandatory minimum for m sentence after right i think he's in that same boat correct and your point is what that it can't have any impact but big his offense level as actually a thirty eight and a five so that comes two or three him that's based on prior criminal history that is that is offense level his sorry write his criminal history is a five but once you calculate all the drug weight your honor it's i thought it was the criminal history that was going to make it difficult for him to have any benefit from the new sentencing i'm wrong about that well and he's a criminal history five so i mean it's still a significant criminal history but the base offense level is one of the main things it's going to drive while he's not old el problem it's the same issue but the defendants are in different positions his tell me tell me this is you can you make the point that with if you add up his criminal history and then you focus just on the powder cocaine problems does that get you to the same range as judge jordan found thinking about crack as well right your honor because we would you i thought it was in exactly the same you're saying it is no i believe the words i thought it would make a modest difference your honor and i don't believe so i know it was five kilograms of cocaine and one point eight kilograms of crack cocaine you convert everything to if you if you take the five kilograms of powder in his criminal history you're saying he gets to the same range that those are calculations on which is the same in a p s or a which would have been seven thousand four hundred twenty seven point eight kilos which would result in the base offense level thirty four and then add two because there was convicted the money laundering conspiracy and to for the witness intimidation conspiracy which results in a little thirty eight his god on a range is significantly higher than statutory maximum know how much jordan based most of those on big because there was a crack cocaine threat in there i know he based on the drug quantity using a two thousand and ten god lines that they already included the f s a range in the guard lines so that again that's why our calculations are that mr ruff and would not be  dialogue i was having with you as i was trying to figure out if all you had in this case was powder cocaine the other offenses that don't relate to cocaine in this criminal history you get to the same guidelines range that's your  misunderstood the question yes so that takes you back to judge merits point that if the crack offenses were affecting things you know we did w don't know what the judge might think about that in terms of variance discretion book or variance discussion understand i believe judge jordan took that into consideration in doing the sentencing in creating a record but i apparently in jail the rest of this high federal prison right there is no crack cocaine part of this and that's crack cocaine doesn't affect any part of his sentence mr maddox was convicted on virtually everything he was charged with and overwhelmingly but the cocaine conviction would drop that it would be just mandated by congress i mean it's statutory mandatory minimum of life shape form or fashion to his sentence here crack cocaine didn't have anything i could never read you're saying anything to do with the senate here i don't want to say it had nothing to do with the sentence but the bottom line is that he virtue of congress by statute there's mandatory life on the cocaine charge alone and it's not quantity driven as long as it's it was commodores torah so they can they can raise it and maybe it isn't a threat to the defendant has to proffer filmy drug convictions he freely admitted that during the trial although he claimed they were for marijuana instead of cocaine or crack cocaine meth the basie good he is going to intimidation the phone calls recorded phone calls that were introduced during this trial with him threatening to kill throw off a bridge beat somebody brains in that sort of thing the key witness who is he felt was testifying against him we take anything do with the flu but well as it turns out it doesn't because he's already got two prophylactic convictions and he's mandated by statute for life but absent those that certainly would have because the witness intimidation would have added to have those like it did with mr cooper and like it did with the mandatory life i'm sorry you're on the witness intimidation by itself would not have led to a mandatory life not it sure would not have was what about a cooper in the point about a new trial and really the only evidence is is ballenger who is you know not to be trusted and so forth what's your response to that you are not of the seven defendants who went to trial for this court to affirm the judgments of the lower court and the sentences don't need to find that there was overwhelming evidence per mr maddicks for  one but it is sufficient and what you do have in this case is evidence from a number of different sources clearly you have at the cooper argument is that yes five there was this massive conspiracy but there's some real question about whether cooper joined it that's the point yes you're right and in answer that is he did and that's shown and was proved in evidence several different ways first off and no particular order there are these wire transfers now there was one to mr cooper there's a bunch that go to his wife from mr maddox now i know in the reply brief counsel talks about that mr cooper didn't use females or didn't use couriers because that was a common theme in this conspiracy is using females so they wouldn't get caught themselves using fictitious names and houses but the significance of that is that they're going to miss loops and this is his wife again a female was that important two different ways mr karr whose case is being submitted on briefs sent in his looper sent a wire transfer under a fake name or alias why would he do that if if there was nothing to her and secondly mr in a letter very significant letter that he wrote to his girlfriend on the panels where mr maddox wrote numerous letters that were introduced on very incriminating but in one he flatly it mids that he sent ten approximately ten thousand dollars worth of wires to kids evolution and categorize and specifically is money laundering because he's charged with two million dollars money laundering and he does the math subtracts ten thousand from that and says they've only got me for this amount of money laundering because of the ones that i sent to my girlfriend and to kids it lugar's so you have those you have his involvement in the witness intimidation conspiracy and i know there's a question about yes question mark but when you read the entirety of the call the couple other things i want to point out at the beginning of that call and maybe the most important part of it is the timing of it immediately after the phone call from mr maddox to mr rush where he leaves the threatening voicemail and essentially threatens his life the very first call it's made within minutes is to mr cooper i get shows his relationship with mr maddox and the first thing he says is if you touch down again if you ever come in contact with this boy again talking about mr roach it's not just talking about in theory but if you come in contact with him this is what i want a later on down he says i'm just saying if you come into contact don't let him talk that sweet talk mess ain't no love you hear and it goes on and on about him cooperating i think he's cooperating mr cooper's responses so you combine that with the timing of it with the language it's used and clearly he understood what i react we asked whether he took an active step in going out and getting some of the goons that were referenced by mr ruff and mr maddox are not still you combine think we have your answer and i think we're we're good thank you very much for answering our questions we appreciate it so i think we've got a few people with of the  listened to the other defense attorneys testify it occurred to me that perhaps i need to clarify something when i referred to dorsey oral argument i was referring to my client mr dorsey not the dorsey case i got it it was really unfortunate that so first i just want to say the government said that you need to find sufficient evidence of course for the new trial motion not merely sufficient but leaving this court without a sense that there's a real possibility that cooper with innocent there are three things that the government twent two first was this wire transfer again we're talking about a single nine hundred dollar wire transfer to cooper directly that cooper introduced evidence was used to pay for his car repairs in both men's own names no other the wire transfer went to cooper then about maddox is doing is sending money to his sister not to his brother in law via his sister we have to imagine that he's going to implicate his sister in this conspiracy in favor of his brother in law that he's going to protect his brother in law in order to incriminate his sister by sending her this money also is raised in the brief the wire transfers don't you know this was promotional money laundering this has to be money laundering that then used for subsequent lee hoping the conspiracy there men the timing given to intimidation call it's true that it's right after he calls rush but what the government said they said cooper understood what maddox meant it's clear cooper understood maddox meant magic said if you ever come to tennessee which mind you he had never done before live but he doesn't tell cooper to go beat him up he says if you ever encounter a rush you should know he's cooperating you should know there's a green light on him he doesn't say you know anything but you want to know that i think because at that point you know rush was was one of the many people arrested this conspiracy maddox called cooper all the time there are seven hundred fifty six text messages between them during the course the conspiracy only about fifteen relate to drugs right these are men who have a friendship their friends their co defendants in this case you know there's no joining of cooper in maddox's maybe maddux didn't want him even if maddox called him because he didn't want him to go beat up rush there's no evidence that again for keith parris rough rough and i did want to address council waffled a bit on what agent kember oh said at the evidentiary hearing about whether he said he was going to seize the opportunity to interview him without counsel the without counsel part of the statement correct it says yes we usually seize the opportunity to interview someone prior to being appointed counsel and yes yes we do do that and that's exactly what happened on that night you seize the opportunity could have that problems into play is that under under the siebert tast if we were looking at whether there's an intent to circumvent miranda and the first set of statements in the car are lobbying mr ruff and all the reasons why he has to talk that look at the record but i mean i guess the way i'm understanding it is there's just a general statement of yes we all will seize the opportunity yes we'd much rather talk to them right then and then there rather than wait two days with counsel they're actually allowed to have that view as long as they properly mirand someone right but the question here is whether the beginning piece of the interaction in the car was was geared toward was with continuous first and second also if you are adopting th s concurrence in siebert the question then turns to whether there was any intent to circumvent miranda as a whole so i'm saying that in the car all of these question all of these think it relates to both i think he's being very honest that that's what he was doing on that day as well as what they do in general  and i think we've heard from everybody right ok thanks to all for your helpful briefs and oral arguments for answering our questions we really appreciate it the cases will be submitted and