and i certainly intend to address that but i would i would also like to address the coconspirator exception because i do think that say a significant issue as well and i'll try to divide my time  en the same the values that underpin the confrontation was more or the same cross examination is crucial to the truth finding purpose rules of evidence are based but beyond that there may be constitution these are the guys who go out onto the streets of camden and make a wests in high crime neighborhoods this was the second wave of prosecution three officers had pled guilty they claimed that one your sounds like something that's in furtherance of the conspiracy in the well i sure want you know i want these guys on board i want them to know how to write a report and how not and if figaro is screwing around with a report you better get it straight that's needed some schooling to bring him back into the way this this coconspirator this conspiracy ought to be operated that abstract argument was the argument that the government made the public is it is  supported by the evidence indeed it is the lie by the evidence and most powerfully let out of the house and we're talking about a state which must determine should be admitted or excluded government exhibit five hundred it appears at page eight hundred forty four of the appendix and all of the reports for the incidents in question or in the appendix if i can very briefly give you the flayed what i'm trying to came to me and said figaro was what port was eft up perry was referring to a particular report it was clear from perry's testimony because he talked about a particular address and a particular date he was referring to government exhibit five hundred and i can provide further context there was there was no question of all that that's what what he was referring to if you look at  its possible effect on the hearing i guess what maybe i'm missing something wrong are the i know i am ok so i cannot make a connection whatsoever between this report and the statement which is what counts five minutes and that i think was implicitly saying about this issue that dog won't hunt maybe you are going to set up your honor i've been around long enough to know that i don't disregard that kind of helpful advice  i will take sixty more seconds in an effort to try and articulate what i think is a very powerful issue the statement the only thing that that that bayard allegedly said was the report's eft up to me and i believe based on the evidence the only interpretation of that is this report contains lone ice it is an accusation that figaro is doing something wrong it is bayard saying from a position of innocence he's doing something wrong it's not there's nothing at all about about this statement somehow needs to be written differently to preserve the conspiracy because the state is written in the same terms as all of the other statements what i am saying is the only fair interpretation of this statement is bayard is saying to a fellow officer figure well rock lied on his report and that is bad if if bayard had been quoted as saying those words they are being the codefendant sitting right next to him clearly it would be inadmissible what i'm saying is in context that is exactly what they are dissenting mayor to saying this report is a pack of lives and and the reason we know  lies i have tried to make the argument as powerful terms as i can i will i will move on but i will i urge the the court to give it some consideration come clear after your on on the sentencing issue  the real issue here is whether there is drug dealing with this is a drug transaction and the key argument here is physically the only transfer of drugs is from wherever they were found on the street from the treated places it somewhere figaro figaro or steps or one of the other but the only thing that the growers uses drugs are given to the camden evidence room the remaining drugs are all found on the street this cannot do this because it's because you can't for sentencing purposes consider something drug distribution which is not under the law drug distribution or if it fits under plaintext putting but when a citizen online drugs on the street and turns it in they are not distributing drugs well i know that's i mean that is close to the position that was taken by judge are in his separate opinion in court has could not and i am not without sympathy that position i mean i just have to believe that this is not the kind of situation that the raptors of the of have to start with the text and history rebels question has suggested to me is how do we how do we avoid the because it talks about the offense conduct if  police officer who's transferring or somehow moving drugs in the course of walking like to but what he was doing so i mean we provided for that looking at the drugs not about the false report what he did with respect to the drugs the physical transfer of the drugs was lawful he was taking them from where they were and turning the men but it was not in the course of lawful activities because he was  same guideline range minus the three points you take three points off he's down to eighty seven at the bottom of the range he got approximately one third off for cooperation he testified at trial that's perfectly understandable  of the same guideline range bottom which was eighty seven he did significantly better he was twenty months and the reason he did was because he was the first police officer who came in he made the  case the other one got the eight months sentence was morris the difference there was he was not in fact and some of the drug guideline he was not involved in any of the drug distribution he was done in for a shorter period of time in the conspiracy he was the one who was injured  early on in one of the incidents and he retired from the force so he was in a different category altogether so when you look at them they're actually i mean judge who was sat in on the trial he saw them all testify and he knew what their the crime and there is some poetic justice here in the sense that what the officer was trying to do was he was trying to gild the lily and send these people to jail for more time than they were otherwise entitle to in particular instances like by  every judge would have applied the drug i'd like hear my strong suspicion is not everyone would have but the question is was it within his to in fact the opinion  prosecution as opposed to a sensing and you do in a sense in context you have to look for analogies and you have to make some value choices about what the best analogy is here but when you're using drugs as an instrumentality of the crime as they work here  order to make a case make a stronger to take in some instances people who weren't associated with the drug at all and essentially what but what what about the text isn't that isn't that your strongest argument here ye since since this certainly is not the standard paradigm one thinks of when he or she is thinking about drug just yeah i mean we're urging you to follow the reasoning of the first circuit in corpus abandon they rely on the pla statute they rely on the plain language of what it means to distribute and here we have a distribution we have a transfer from this was behind the tree and in fact figaro was involved in it now figaro it didn't stash them behind the tree he's right to say that that search had stashed them but figaro wrote this if you can the report they were brought out this was one of the things that stats are that they were participated in so he's implicated in this particular transfer that goes from behind the tree to i guess there's no indication they were actually planted on the individual but what the evidence room and then attributed to the individual here makes the decision to push a certain guideline range i guess  that i put in my brief that showed and again the guidelines as you look at what the underlying offenses are and they did a calculation for each underlying offense and for this one and as you say the indictment charged planting drugs as one that would be as an offense it could be a state offense it could be a federal offense and and that's where the judgment is implicated that's where judge cooper has to say what is it that was proven here and he concluded that one of the things that was proven was drug distribution under under the first circuits reasoning that would be a different case of drug distribution had a higher statutory max than the civil rights violations were not under andy would not have been problematic oh well we in violence yes that's that's a that's that's our position there's there's nothing in permissible in the guidelines that says you can't exercise discretion in this manner  think the first circuit decision was in fact well reasoned and we think even the dissent here isn't really keyed into it was keyed into the possession with intent to distribute but not distribution which is just wrong that we're relying on here so it's it's not believe in got into guy officer gallies he said two things he said there was no high speed chase i would heard about that on the radio that just didn't happen but more importantly he said i found the gun it was in the up stairs room there was robbery and officers who were not implicated in any wrongdoing and in that respect also there were phone calls there were phone records that verified this because what the cooperate are said was that after this they did see some money as well and when they got off their shift to two o'clock they were supposed to split it up and i was waiting for figaro out to get the money and i called him eight or ten times between two o'clock or five o'clock and you never showed up and the telephone toll records show that in fact  phone calls from me on a regular basis between two and five the phone they never got through but there was there was at least corroboration here that the jury found very powerful and certainly the testimony of the unbiased officers across all three other cooperators it's as well so that was a strong and interestingly i mean the argument is that that was that something must be going on because that was  didn't when they when they came to the house and he did the search wasn't there so it actually gave the jury a good reason to separate the contact between the two something quite different from this report which judge cooper said really wasn't a finds drugs on the streets of camden and turns it in to the camden police evidence room they cannot be charged with a criminal offense that is not a criminal offense and they're using drugs as an instrument  what they are doing with fits within the definition in a trance in the course of non lawful conduct but you'd have to find for these police officers how does that not roic didn't plant drugs he did take drugs from the trees and put them in somebody's sparking what he did is he took drugs found in a particular place and turned them in that is not an instrument part the other witnesses were clearly just lead with respect to bayard the case was almost identical there are a few minor differences but other than that almost identical with respect to the two the only difference is this dramatic finger pointing by his patrol partner saying you wrote a false report that's not anything which furthered the conspiracy because when you look at all of the reports this report was not an