counsel i'd like to use the first portion of my argument to address the wiretap issue and reserve the next four minutes to present dorothy neely's argument as her counsel in not suppressing the calls and the text messages that were intercepted pursuant to the wiretap applications and the orders that were entered in february and march of two thousand and fourteen it's our position that the affidavits that were submitted in support of the wiretap applications did not support the necessity for a wiretap and in fact the information that's contained in the affidavit evidence the sufficiency of less intrusive investigative techniques when congress first enact a title three it recognized that wiretapping was an extraordinary investigative tool and that it should not be used routinely so the procedural requirements for gaining access to wire interceptions were created specifically to prevent police agencies from using them in place of traditional investigative techniques it's our position that the district court could not reasonably have concluded that normal investigative procedures reasonably appear to be unlikely to succeed in this case where the government's affidavit sets forth the fact that normal investigative techniques were bearing fruit at the very time they applied for the wiretap the application says basically the applications that the government submitted just parrot the statute where they say that there is probable cause to believe that normal investigative procedures have been tried and failed in fact they recycle litany of normal investigative procedures all of which have been successful for them including obtaining what they consider reliable information from a cooperating defendant another case credible information from an informant utilizing a paid informant utilizing consensually recorded telephone calls and text messages making controlled purchases of methamphetamine from their targets analyzing the results of cold detail records and pen registers and trap and trace devices and going so far as to obtain information from the use of an informant who contacted and converse with the lead defendants relatives so the normal investigative procedures that we would expect the government to use were tried and were being successful at the very time they represented to the court that they were a failure they did not mission they indicated that the normal investigative procedures have been tried and failed in the in their affidavit and then they go want to talk about investigative techniques that they did not employ because they appeared to be unlike to succeed and really the only investigative technique that they detailed as being unlikely to succeed was a training tool which we really don't see much at all in support of that argument in either affidavit and there was nothing in the recitation of the facts in either affidavit that would indicate that the government perceived any danger from the investigation here so they concluded early on that they could not recruit informants and that was one i think an example of that it best to get of technique that they say thought might be unlikely  succeed at the same time they were saying that by playing on to interview informants after they got the wiretap so they're looking ahead predicting their ability to be able to do so which indeed they were able to do so after they got the wiretap they relied on a statement that the continued use of specified informants that they had was unlikely to achieve all of the investigative objectives which we think is not a reasonable expectation on their part this early in the investigative process so it's the defendant's belief that pen and problems believe that the use of the traditional investigative techniques a step or th that this court has imposed on these type of arguments is not high but it shouldn't be eradicated there the burden shouldn't be eradicated less the interception of private conversations becomes commonplace and less to becomes a part of a routine investigation here we think that the low bar required in andersen and its progeny is not map where the factual predicate does not establish that the government requires the wiretap interception even politics benefiting from normal investigative techniques we would ask that the court reversed the convictions of those appellants whose words and text messages were intercepted and used against them at trial but we generally let the district judge make that determination i understand right when they say they did say they failed but the district knows that they should go ahead and use it if i understand that the district judge is the  first court to review it but it's our position that the application that not support the decision of the district court judge if i might turn to dorothy menino neely's argument neely asserts that there was insufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that she supplied the methamphetamine that killed jesse jackson and therefore the district court erred in imposing the sentencing enhancements on counts one and six neil he was sentenced to an aggregate term of two hundred sixty four months that represents a significant enhancement on counts one and six for the distribution of methamphetamine resulting in death that actually raises the mandatory minimum when each of those counts from ten to twenty years we acknowledge that this court has held that the challenge of overcoming a jury verdict based on insufficiency is a daunting challenge but i think that even viewing the  even viewing the evidence in a white most favorable to the government in this case we're entitled to a reversal of the enhancements if there is no evidence that we simply supports the verdict in the watchwords here would be reasonable and supports not every statement that's made by government witness no matter how incredible can be relied on to reasonably support a proposition nor can any statement by a government witness no matter whether it's  inference as opposed to a factual recitations support what this court has required to be a rational decision of the fact finders in this case there was no direct evidence that ms neely provided the methamphetamine that killed jesse jackson no one testified that they saw neely at the jackson home on the day of jesse jackson's death no one testified that there's any link told them that you should go there  dark car no one saw her in or near the car no one knows whether she would have been driving the car if it was hers that day or if someone else would have been having another nearly from say she was going  go to donald magers or jeremy jacksons and we don't know whether she did what she told mrs parsons that she was going to do or not there was testimony that she high crime area but an area that was infested with meth use and dealership several of the government's witnesses testified that within walking distance you could buy math at other locations close to the jackson home  we know that he had methamphetamine the night before that this happened from the testimony of government witness of the day there was only one person who testified on behalf of the government who said that mr jackson made a statement that would seem to indicate that dorothy neely was present in the home on the day that he and his wife ingested the methamphetamine and her testimony was directly contradicted by the testimony of christine rogers who testified that she was present at the same time and that jeremy said nothing about the source of the methamphetamine given they contradictory information and facts provided by the government's witnesses and the fact that there is no good evidence that neely was actually at the jackson home on the day in question we believe that this is a case where the burden it has not been carried was not carried by the government and there was insufficient evidence from which a reasonable the morning if lee's before i represent david bell who represented himself at trial i was stand by counsel in other words there in case you need i'm going to don't think there's any dispute as to the standards that are applied in this i think it's more of a look at the application of those standards to this case i notice case was extraordinary in that  there was only two defendants who were actually the focus of the sentence and handsome and causing death those two defendants were joined in this indictment by the government i would note that i don't think there's any can be any dispute that mr belin mr maggard were not in the chain of distribution of the alleged methamphetamine that may have caused  jackson's death we would also note that there were no dealings between mr jackson and mr mager or mr bell in other words they weren't dealing with each other at all  t as as far as the evidence shows and there really was no substantial evidence that that mr maggot or mr bell even knew about the dealings  between miss neely and mr jackson and i think those are important facts when looking at whether or not number one there was prejudice here but more importantly whether or not that evidence would been admissible the evidence of mr jackson's death and all of the circumstances surrounding that would have been admissible against mr bell and mr mager in a separate trial we've seen that they would not it was at the soto beneath guess case the murder that the the defendants who were seeking separation were complaining about was actually part of the rico  indictment it was one of the ways in which this corrupt organization was working mr mr jackson's death was not furthering the conspiracy it was not part of the conspiracy it was not waiver issue here yes the government claims that because mr belding not renewed the motion at the close of the evidence that he should it should be found way it's our position that number one any renewal of the motion at that point in time would been futile prior to trial and the motion was was dealt with of months before trial and there were other motions that dealt with this the admissibility of this evidence of mrs having to do it at the close of the evidence to give the district court one final realty to assess whether in all evidence as in i appreciate your argument about the course of the trial with that that is true but also in looking at rollins which is actually joined or of offenses where there are multiple robberies the court talked about not letting the defendant go through the whole trial hoping for an acquittal and then raising this on  a direct appeal and and which to me and kate says you know that there are some you know to prevent trickery or subterfuge by defense counsel but i thought this was not the situation here mr bell was representing himself he chose to do that he had a constitutional right to do that that was not what was going on here and i think the district court made it clear throughout the pretrial proceedings that this evidence was kind of come in and that was going to be a joint trial so we would submit that that that waiver should be overlooked in regard to mr bell and finally we we submit that there is substantial prejudice from this joint trial that mr bell and mr maggard had with mr jackson and mr neely because if you look at the evidence that was presented that the death of mrs jackson became a central theme at the beginning of the trial i think is seven of the ten witnesses testified about this no mention of mr bell no mention of mr maggard and then at the end it began it was a focus again and what the government  your honor if you look at your honour's if you look at the opening and closing what they did was tell this jury that that these people in this conspiracy were destroying lives and they equated mr jackson and mrs neely with mr bell and mr magnet saying look at this they destroyed their lives they actually killed mrs jackson and that you should find them guilty to a certain extent based on that so we would ask the court to reverse mr bell's conviction and mr maggots conviction for the denial of this motion for separate trials th good morning your honor good morning counsel may please the court my name is r j shop and i represent the defendant jeremy jackson the prejudicial evidence involving jesse jackson's death should have been excluded mr jackson was charged with conspiracy distribution of math cause and death the prejudicial facts submitted by the government are not probative of any element of those charges for the death and hence these facts include the defendant playing video games while his wife was overdose and the defendant and his wife had sex during her convulsing the defendant picked up his wife and dropped her four feet to the ground because he thought she was faking the seizures sending text messages with photos of her while she was convulsing these are awful facts but they are not probative of the elements of the charges the death element only requires were only introduced to paint the defendant in the darkest light possible this was a ten day jury trial the government opened its case with three days of testimony primarily on these points then these and these facts will be prised at the end and brought up in the closing statement the district court even conceded that there were four or three issues here although there were multiple objections and a standing objection the court did not sustain those objections this evidence should have been excluded by the district court the government argued in its response that this issue was not preserved at trial there were multiple objections m position is that they depend on how they're presented to the district court and they're presented as fact to the death the district court did not know when ruling on severance and exclusion of the evidence even on the first day of trial didn't know that  the nature of the objection was that transcended the death and went to things like the video games sex all of that and that's why judge parker said look you guys i've ruled i have rule clearly on the fact of the death itself how that works out from a for a three perspective from a severance perspective but there's my understanding is there's going to be some pretty prejudicial evidence in this case when it comes up you need to help me do a fourth rebalance and there's a lot of case law on the notion of the fourth rebalances done on the spot and when the government has suggested a continuing objection beginning of the trial the continuing objection went to with a motion in limine which was specific to the fact that so on both claim is what the district court was presented with was the notion of how does this house jesse's death itself affect the different players here not this other evidence and that is a segue to what role that other evidence played separate from the preservation issues and just to take a few mentioned here again beyond the death itself which is at least essentially relevant to a couple of people distribution like that is for c of like conspiracy all these people were not only buying them but selling it to others and there where the people overdose specially in this neighborhood where apparently according to the testimony at trial overdoses are unfortunately common then you have some of the more dorothy neely sex was much better so this was relevant to the notion that he was on drugs that he had received that day and of course essential element of the government's prove in this case is that what all of these people are distributing in this small town and is in fact methamphetamine that's a key element of proof and this went to that as did his choice not to call nine one one he said no cops that's pretty good evidence you could say that that's just evidence of callousness and focus on it's prejudice but it's also evidence that he was worried about being discovered as the result jesse's condition at that point was the result of drug trafficking that he had engaged in specifically w then there's other evidence like the video game evidence and dropping her and yelling at her the government's position is that first that's relevant to show that he was high it's not that wasn't meant specifically as they say in some sort of broad extension of old chief to paint him as an evil character it was to show that drugs were involved intimately that day and a lot of the seven it's also shows how and why the events transpired that day there were these four women who were in and out of the house throughout the day and for example when jeremy and jesse had sex two of the women left so that in part explains why they were gone and then they came back later because of some of the text messages he sent and so anyway the government's position is that all of that is relevant to specific aspects of the case the government had to prove and i statute there were over forty pages long the failure that the government mentioned was specifically the failure to achieve the full goals of the investigation not failure but discrete failure that would have been addressed by furthe pursuit of those specific types of the sticky issue and then video of danger is based into some of the claims made in the affidavit such as the claim that an undercover agent would have been a silly idea because this group was so close knit they were rejecting their friends who were asking them for drugs who we we tried to use we had phone calls with their twenty year long acquaintances who they had sold drugs to before trying to get drugs and they they sniff this out and putting undercover agents or performance in that kind of a tenuous situation largest community how large it so it's a small community within north vernon itself the north vernon is not more than ten thousand people country square lexus subdivision i don't know off top of my head but i could say if you had a really good arm you could throw a baseball from don magnus house to jeremy jackson's house which is in part why when dorothy told donald maggard and there was evidence that dorothy told on baggage that she was distributing methamphetamine to jeremy through actually write she also used the shorthand i met jeremy's house when talking to him about why she was late for a meet up at mcdonnell maggot's house so they  hotels in fact on one deal that mager did in indianapolis maggard was worried about surveillance and he called bill and said i need help getting home not in a car other than my own and bill arrange for two people work as intimately involved in a conspiracy to go up in separate cars and pick him up and drive him back so they're all intimately involved and at least in pretty in somewhere between general and specific sense of where each other  the oh and i would just push back on this notion that the government's arguments in closing equated the defendants that i think is a real stretch in reading i don't want to be the arbiter of what we said in talking about the lives that they impacted most of that description was on the degradation of country square lakes not the death of jesse jackson and they all contributed to their tradition of going to score lakes in the north for burn but the references to jesse jackson if you look at the way the prosecutor laid out his argument there were specific silos of evidence this this part is relevant to tell and make this part is relevant to just rejection and then of course the court the court's instructions address that as well and i think that first of all the death of jesse jackson was not charged as a foreseeable act of the conspiracy it was only charged as an enhancement with respect to two of the many defendants and the district court recognized a continuing objection to the facts of jesse jackson's death on the record at the beginning of the trial and continuing objections are customary in the southern district of indiana the government participated in that discussion and no objection to the recognition of was not presented by any one of those witnesses to prove that either one of those two participants had been using meth it was never introduced there were none of the witnesses were ever asked whether based on jeremy jackson's actions that day no matter how bad those actions were in the catered to them that he had been using ma'am those were completely separate there not a single one this was asked by the government if those actions that the government presented tended to show that either one of the jacksons had been using meth and git finally i just want to say that the affidavit in support of the wiretap applications never provide any factual basis for an assertion that the law enforcement officers believed they were endanger we see that in applications regularly and it would we would normally be looking for language about the defendants having guns or having participated in acts of violence and that sort of thing completely absent in the affidavit in support of the applications here thank  sales of methamphetamine by german donald mager in germany jackson helped destroy the community and destroy people's lives but despite the destruction of the community despite the destruction of people's lives to these four defendants these four defendants meth the fact methamphetamine dealing is a business that's equate he equated it also in his initial equating the four defendants in his opening also one last thing i'd like to comment upon is the smallness of this community and yes it is a small community and i grew up in a rural community you end up knowing many neighbors pretty many more than in a big city like chicago or so i've never lived in big cities like chicago so i don't know but these people did know their names ok but that does not indicate lot ok but were they actually it was mr mag or mr bell in the chain of distribution that that led to mr jackson's death we would submit the evidence is clear they were not they were not charged with the enhancement but yet they were tried in a case where the death of horrible death of this woman became the theme of the government thank you  the district court did receive an objection on the fourth three and did in fact rule on and on the first day of trial at the end of the day at the end of the trial at the end of that day the district court said and i quote the objection that was interposed pretrial was a four zero three objection that the prejudicial effect of the evidence outweighs its probative value i ruled on that that's a quote volume one page ninety three the nine one one call was not at issue here we're not talking about the nine one one call we're talking about the prejudicial facts that were submitted they were they were they have no probative value as to the elements of the charge whether he had sex with his wife