if lease the court there are jobs on behalf of burnell alan i will be addressing only the conflict of interest issue i know that this panel is familiar with the conflict of interest laws the circuit because many of you have some on the panels of this circus decisions and the prosecution would have burned to control the outcome of this case but if you look at the spectrum of these cases we can dispose of hernandez garcia just so and  every single one of those cases you did not have an instance of a former client testifying against a current client so what we're looking at is the parameters between pirlo at the top which is the most egregious case infante and then down to burns and the reason that burns does not control this case is because in the words of the burned court the fax machine the previous representation had no relation to the charges brought against firms well that's not the case here the subject matter of the form a case where while the subject matters were related they were and they also stem from different cases the infante board specifically held that neither one of the former clients directly implicated in fantine in the alleged conspiracy obviously the case law is is important i don't mean to suggest that it isn't but let's wipe the case law off the books for just a minute go back to its essential  respect was the attorney placed in a conflict of interest such that the attorneys along she was not completely with the current prime as to eugene allen eugene allen was a government witness at the federal trial against colonel allen before his testimony in that federal trial that jason williams long for represented eugene allen in five separate criminal cases over the course of nine years that was not a transi relationship there but you're not really quite answering my question that is in what respect was the attorney's loyalty to the client compromised in any way by the facts that you described or any of the other facts that are here because even though the representation of eugene allen had ended jayson williams and his law firm had a continuing duty to maintain confidentiality as to its prime representation of eugene al at the evidence you're hearing jason williams testify that he learned from eugene allen that eugene allen said well i didn't have that gun that i pled to when i played over in state court and then he gets on the stand in federal court when williams is supposed to be representing and having full loyalty to burn out allen and he doesn't bring that out on cross and what he could have done with that information is cross him on that and say you pleaded to a felon in possession of firearms and you did that to get a good deal but we all know in you sad that you didn't have that gun so you pled guilty to something that you didn't do just to get a good deal and you sit here today before us having played it to the allen family conspiracy and once again you're just  to that to get a good deal you didn't do that you didn't conspire with bernal allen you were out there hustling for yourself and so right there was this was a line of cross examination that because of his prior relationship with eugene allen jason williams of but he failed to go into that he handled both of these witnesses with kid gloves instead of going after them going after their credibility and how this really comes out is when you look at the duration of the tos of eugene allen and you kim friend and the duration of their cases in state court there is a direct overlap with the federal conspiracy that was charged in this case because as you heard the prosecutor say in opening statement in this case we're going to hear about a long time family enterprise that has playing central city for the better part of twenty years and even the police sentence report in this case dates relevant contact back to nine hundred ninety six and in every single one of these instances you have these guys eugene allen now brian allen her sitting at counsel table having a reprisal of the same facts and these are the same facts that jason williams represented eugene allen on time and time again in state courts dealing drugs carrying weapons of conduct of the hearing when he first told the judge did not know about this conflict noted the domino of the conflict until after the i think the court should do with those facts exactly what the pirlo court did with the facts and say is this i think this court should consider those facts the same way that the court considered the testimony of that criminal defense lawyer and say is that reasonable under do novo review if you are view the facts separately it is clearly erroneous but in this case jason williams and his wife are represented eugene allen for more than nine years in five different criminal cases and the idea that an attorney would not gain any confidential information from a client over that very extended course where he in fact is making many court appearances and even if those court appearance is more perfunctory matters where the case was merely reset the reality of the practice as you go over to the box you sit in a box with your client you talk it's an opportunity to talk to your client about the case and that's frequently done over there and so there were many many many meetings opportunities they filed many motions for a new key my first case they had a preliminary hearing these were not fly by night cases where they went in once and pled guilty these were over the course of many years and i  think that he gained confidential information and i think one of the aspects of the confident company information is williams's testimony that eugene allen told him well i don't have that that's one great example of that seek the waiver that is unquestionably the better way to handle this and that was not handled here but the friday before trial when the government made its jencks disclosure and state jenks disclosure was very surreal in that it not only listed the names of the witnesses it listed the date case court on charge and sentenced for or each of those witnesses criminal history so upon receiving us on that friday the williams law firm had in its possession clear facts that these are the case numbers that they know that they represented these people and and that would have been the appropriate time to do something about it and it just didn't happen that way and unfortunately it was  argument is that the record is absolutely devoid of any evidence of agreement to a single unified conspiracy and i want to just my brief time analyzing under whether there was concerted activity which is necessary for a conspiracy or whether this was indeed parallel activity on the part of the coconspirators being out there on the street all street level sellers in the same location but engaged but not working together now we just went over some factors and that one is in your dependents and the record is absolutely clear and unequivocal that there was no interest dependance between these actors and how do we know that when my client was out there for eighteen months during the surveillance of the case agent mar henry and none of the other could cope conspirators were present he was out there on his own and there was no evidence of any communication between the conspirators helping him and it's enterprise on the flip side of that coin he was absent my client was absent during certain times and other coconspirators were present out there selling again no evidence that they were communicating at this time for the enterprise want to draw your attention to that there were many cooperating witnesses here coconspirators and the government had promised and the jury in beginning did these guys are going to tell you that they had agreed to do this to a man each one said we had no agreement we were hustling on our own we did our own profits we kept our own revenue we had our own suppliers this is not an enterprise we were working in concert we just happened to be there so when the next thing was that there was no overlapping roles which this court has drawn attention to and how do we know that they were not a concerted activity a conspiracy why would he step into supply these persons he did so that is another indication that they were engaged in parallel activities rather than concerted action and finally i just want to talk a little bit about of the drugs when well there was no evidence that there were other dealers on this block there wasn't any other news today for taking any affirmative steps to protect a territory there's nothing like that in the record they just happen one thing in the records that they happened to be in the same place dealing drugs at the same time now true they are related they're all members of the allen family so they kept you know they they base their location on their grandmother's house and there's evidence that they also kept their drugs in the courtroom that was clearly incredible now whether that's incredible as a matter of law on appeal i didn't draw attention to this in my brief i mean apologize for this puzzle looking at the record again in preparation this argument and he testified that pulling occurred in two thousand and seven from a man named big ike and also maybe occurred in two thousand and ten or two thousand and eleven from big guy now the guy testified at trial that he did not start supplying these coconspirators until two thousand and one so it's almost impossible that he actually win a sad because the guy can sell said you know what i wasn't even dealing drugs and these defendants at that time and you look at the rest of the evidence no one else said that and i'll even if we have to take that evidence as true  for purposes of appeal i think we need to look at the whole context this is a conspiracy that spanned from two thousand and seven this charge by the government all the way to two thousand and thirteen six years there was testimony that my client the other clients independently would be supplied by this big guy character and others always independently but over that six years which would involve hundreds and hundreds of purchasing from suppliers i think the testimony of one or two times pooling is insubstantial in light of the other evidence to conclude that there were a concerted action i think here that the cult closest analogy i can find is you know these are vendors in a flea market or the french market they may all have you know the same goal of selling or the goods that people come by but they're not a conspiracy to sell those goods are all coke and parallel to one another with their own goals their own suppliers and there's even test knowing that they had their own customers so this is absent further evidence of some or something else you can please correct me also if you would like  in failing to suppress the fruits of the december arrest which in our office we affectionately refer to as the screw driver arrest and the district court erred in both in determining that there was reasonable suspicion for the are in an argument with his one hand writing a screwdriver and the other absolutely right or they had the right to stop and question him however that isn't what happened in this situation officers are bound in any terry stop to use the least intrusive means necessary to respond to the situation what's escalated it escalated by the police in fact to the officers could easily have walked up to a man and asked what's going on they didn't do that instead they jumped out of their cars hands on their weapons shouting profanity laced commands and ordering mr preston to lie face down on the sidewalk all before they' asked any either of the men any questions these men were friends and they both maintain that they were not arguing mr preston we go look at it from an object of perspective of the police not what subject really was going on exactly your honor and at the point that the officers affected the stop that those are the facts that we look at in determining whether there was reasonable suspicion and also whether the officers responded reasonably to the suspicion that they had at that point the officers can see you'd been a knife would your position be different i think the position might be different in that situation as to the reasonable suspicion in this case the officers did not know what mr preston was saying they saw only the back of his head and rather than getting out and asking a question or learning from them and what was going on which was their stated purpose they say that the only reason that they intervened was to deescalate what they saw as a potentially volatile situation instead they did the exact opposite of that they turned a situation which they didn't have all the facts and had they had all the facts wouldn't actually have been  situation and turn it into what unfortunately current events continue to show us is that a very dangerous and volatile situation for everyone involved the least intrusive means for affecting this stop his side not a weapon they didn't know what you there of the men were saying what the relationship between the men was and i mean quite candidly this isn't a situation that would happen to me it isn't a situation that happened probably to anybody else in this room the there is an implicit assumption in the finding of reasonable suspicion and in the finding that the police action was reasonable assuming that a black man holding a of the stop did not know or recognize mr preston or mr williams so they but they say on the record repeatedly that they did not suspect any other criminal activity so respectfully the idea that they were potentially dealing drugs cannot be considered as part of the reasonable suspicion second neither are both officers and i think in particular officer nunnery says that they did not investigate or determine whether or not there was a reasonable reason for mr preston to have a screwdriver in his hand they did not look around to see whether he was working on anything so be linked to making this obviously a weapon rather than a tool or as was actually the case something that mr preston found on the ground and determined might have some especially strong but it seems to me the strongest part of your case is insufficiency on count two would you address that please yes  to higginbotham point that doesn't make any sense so i apologise for not addressing the first i just didn't see the oral argument or that issue with their particular good morning may please the court my name is ryan mclaren and i represent the united states on this appeal i'm joins morning by under the guard who was trial counsel in this case i'd like to begin with the conflicts issue and i'd like to i first point out by stressing that as this court is stressed in cases like burns the primary concern in cases where an actual conflict has been alleged is whether a trial counsel was burdened by their former representation here the single most important finding by judge of all with respect to the conflicts issue was it our way twenty seven eighty one where he found the jason williams from the record but having to discuss this with trial counsel the government found out about the potential conflict the friday before trial when they were preparing the jinx and giggly material it's again this is not clear from the record but the government discussed the potential conflict with mr williams the monday of trial as did defense counsel and that that is in the record the testimony of billy southern and robert told the evidence you're hearing both came away from that discussion with mr williams that no conflict existed  that is your question your honor so going back to what judge you've all witness while observed of williams's and campus representation of her no allen at the trial they also witness williams is closing in which williams focuses again on the strategy of distancing their focus is on the strategy of distancing brunelle allen from the drug conspiracy saying things like he's not a choir boy but he is not guilty of counts one and two but the conspiracy counts after observing williams in ca representation after a day long evidentiary hearing in which eight witnesses testified and were subject to cross examination including jayson williams and monday campbell judge you've all issued a twenty eight page order in which he again to quote judge you've all found that they were vigorous and effective advocates for their client if the point of this analysis is a determined whether trial counsel was burdened or whether they pulled no punches the judge of all findings that at page twenty seven eighty one are significant also significant to judge you've also findings that opposing councils monday morning quarterbacking their proposed trials alternative trial strategies were quote befuddling end but will during and that it was in that they were insufficient to satisfy the squits court standard for an actual conflict many a judge should also findings are based on factual determinations and credibility calls such as this determination that jason williams is testimony at the evidentiary hearing was credible as was not the campus what about her argument that mr williams neither his former klein said i didn't possess the gun then pled guilty guilty to stay cool well your honor i believe that that would only speak to one of the perillo factors are still the three remaining perillo factors and even that only goes to show whether there was a conflict as this court has stated the test is whether there was not only just was there a conflict but why are the adverse effects on the defendant's representation at trial that were the result of that conflict i think that point made by opposing counsel only speaks to one of those perillo factors but there's still the judge rules findings that the three d of three other  the posing counsel is not pointed to any alternative trial strategies that would would have been necessary or in fact this judge of all found that wouldn't have been counter to burn allowance trial strategy which was the distance himself from the drug conspiracy stated that the record is totally void and that there is evidence with evidence that there was a single conspiracy and that's just not the case looking at the record beginning and at page five forty two judge of all has a thorough twenty three page order addressing sufficien testimony he may have been getting the names confused but it's pulling their money together in order to go to a drug supplier then returning with the cocaine that they would cook in the crack and then hide in the stash of their grandmother's house in addition to that there is at our their drugs around their grandmother's house specifically in the backyard and then there's multiple witnesses that testified that they saw bernal allen sonny allen and preston selling cocaine in front of the grandmother's house selling crack in front of the grandmother's house every day  as you pointed out your chicken bottom taking turns with a what appeared to be a non computer sharing the territory and that in such a way that would facilitate their drug business their enterprise analysis conspiracies need only to be tempting poorly and spatially related not linear and literal further in the in furtherance of language in one twenty four is interpreted broadly to mean any action that advances or helps the drug trafficking offense so in this case there is this  conspiracy and then the conspiracy after it and just looking back to the judge of all the analysis of this it's not a gun conspiracy in furtherance of a phone call it's the gun conspiracy in furtherance of the drug conspiracy and the phone call i think it's not that but the only way that we can make sense of it is if we look at it linearly and look at it as as as pressing has phrase it as the gun conspiracy in furtherance of the phone call that's just not the case it's the gun conspiracy in furtherance of the drug conspiracy and if you look at it like that i think that makes sense out of moving on finally to the suppression issue there's no of the first i'd just like to say this and i believe the judge when you address this there's no indication of race in the record it was not argued at the suppression hearing and as judge owen he said that i don't think that this has anything anything to do with race so i'd start with at page six ninety the officers who searched press and begin their testimony and according to the officers testimony they saw press and screaming yelling at williams and holding a large screwdriver in a high crime area they could hear press and yelling through their closed car doors and windows they saw press looking around for an escape and when they ordered presson to drop a screwdriver multiple times he refused to do so and judge owen as you said this escalated the situation this is enough to establish reasonable suspicion and in fact less than this has been sufficient to establish reasonable suspicion and i would point to this court's decisions in wiley and wilson cited on pages twenty nine and thirty of our brief further the officer's actions were not unreasonable their actions using some force pointing a weapon at a suspect ordering a suspect to the ground handcuffing a suspect have all been approved if there are no further questions or briefly conclude for every one of the issues raised by the three defendants including the conflicts issue the suppression issues in the sufficiency issues judge have all made factual determinations incredibility calls and wrote extensively ruling in the government's favor for example for the complex issue judges all hold an evidentiary hearing or eight witnesses including jason williams and ninety campbell testified and were subject to cross examination and following the hearing judge of all credited williams as an campus testimony in a detailed twenty eight page order there was a similar hearing for suppression issues in which eleven witnesses testified and judged already thirty one page order and detailed in a detailed analysis rejecting every one of the arguments put forward by the dozen or by opposing counsel here today the defenders  pointed to anything in the record that indicates that these findings in credibility caused by judge devolve are clearly erroneous for these reasons and for the reasons stated in our belief or in our brief the government respectfully request that this court affirm the convictions of all three defendants thank you or thank you mis reserved only one minute for a rebuttal so let me just warn you to go ahead and get right to the point and focus only on what you can say in one minute and i wish there were questions from the court first i would like to correct a misstatement of the record by opposing counsel there was no consensus as per the record of the evidence you're hearing the jason williams and or not to campbell had talked to the government or talked to defense counsel and decided that there was no conflict there is no testimony from anybody from the government that that conversation occurred and due to counsel for the co defendants expressly refuted jason williams account of that conversation the record is clear there williams and his law firm knew of the potential for the conflict before the jencks disclosure but at the time of the jenks disclosure it should have become unmistakably clear i want to then go to the other potential adverse effect one of the things that mr mclaren mentioned in his argument was the fact that williams drew out from yuki i'm afraid her motive or the fact that she might get a reduction from testifying well that is the bare minimum you can do on cross examination of a cooperating witness what would have been much more powerful is to establish her motive for that context should if this was real is this a business business enterprise should each one be held liable for the acts of the other one committed to tort will be fine the other one will be hold of responsible i think under these facts for you on the absences each doing their own independent work that would be the outcome there's no for the questions all right thank you mr tyson we noticed that your court appointed we wish to thank you for your role in this to take your portman in for your good work for your client government can come up with an idea of what the jury might have thought that would have allowed for a conviction certainly that cannot be the basis for this court reading a conviction into what is clearly a