those this morning the first of which was the district court's decision to limit mr wright's cross examination of cooperating witness chief cooperating with this dish on andersen regarding the penalty he would have faced had he not cooperated and received a deal from the united states the district court did not allow counsel to question mr anderson regarding the fact that  first of all very important to note that mr anderson was going to receive decades in prison either way he got decades in prison with the deal so that statement being able to ask that question gave the jury no sense in which you could actually differentiate between what he would have gotten pretty cooperative and what he got afterwards and the case law on this is very clear in the caldwell case that we decided made clear that the code exact sentence that the cooperative would receive has to be provided to the jury so they can evaluate the nature of his bias and motivation in larson in the ninth circuit the district court looked at the exact kind of question that was permitted here about an extensive prison term and they reversed they said a life term is different and you have to tell them that it's life there's nothing else like it in roe neagle here in the eighth circuit it was not even a mandatory life it was a potential life sentence and this court said in roe neagle that is not sufficient the simply say would be some extensive penitentiary term you half to permit the actual sentence life to be stated to the jury and the very concerns that motivated the district court he will do any of those cases involve a situation like we have here where it's pretty clear that the defense was also trying to get in front of the jury improperly what the defendant was facing if he judged yes in fact in r and in larson the exact same kind of concern was raised the concern was by questioning the witness were guarding the prior sentence in this way the jury's going to know what the defendant's going to get it was the exact same logic in both of those cases and it was mounted to be insufficient no improper questions were asked of mr anderson mr anderson if you look at the cross examination was a very very very difficult w the question that was asked was trying to pin mr anderson down to the admission that he knew he really was going to get mandatory life because he had a prior conviction and before we could get to the ultimate question of what the sentence  was that the objection was made in the district court intervened there is no sense in which anything any improper question was asked not an irrelevant question not an improper question in fact the government didn't object to the first question and so this there is no sense in which this can be distinguished on that basis when the very same logic were worried that the jury's going to find out mr right will get life to mandatory and i have sympathy for him that was the same thing that they were worried about in room legal that was the same thing they were worried about and larsen and the eighth and ninth circuit's have said no yeah but but in counsel don't know what we did was major defense counsel brought out the fact that it was basie that he was going to get this man or face to potential mandatory life based on a prior conviction right and of course it was going to come out later that the defendant had a prior conviction had we left out had we not put in the predicate that it was based upon a prior conviction one could have just asked are you facing life in prison if you left out that predicate then it would have been impossible for the jury to connect the dots and you would have had this problem right i don't agree with that and that's what the district court found isn't it that was part of what the district court found that was not the district court added that as an aside that was not the principal reason the district court's principal reason was that the the jury might determine the mr rice was also facing a life term the fact of the matter is that asking the question about because you have a prior conviction that was going to pin a work order and mr anderson into a position where he was going to have to answer specifically that yes he knew he was facing a life term otherwise we're going to have to fence with mr anderson for a long time as we did with almost every other question that was asked to try to get a simple answer that yes he knew that he was not willing to admit much of anything without significant pinning in question by question and that question whether the fact that it was his prior conviction that he had a prior conviction that went to his bias and credibility to he has a prior conviction that prior conviction means that he's got more trouble people look more disfavor early on somebody has got a prior conviction and it contributes to his life term so that needed to be asked anyway that's a relevant question because it goes to his credibility period and so it was appropriate either way and it did not allow for the violation of amendment right to but i've also made the link between that prior conviction and the mandatory life sentence i don't think the mandatory life sentence question ever actually got asked like but that was the desire the desire was to say you have a prior conviction and as a result of that yes you're facing a mandatory life term absolutely because what he was there was no way for him to say anything but ye he had no choice he was going to have to say oh yes that's true that locked me into it otherwise he though i don't know i don't understand which is what he said about everything the only way to cross examine this person effectively was to address him in that fashion and there was nothing improper if there's something improper about it perhaps it would be a different situation but is perfectly relevant no one objected to that part by making that link didn't you put the district court in a difficult position because you'll agree with me that as a general rule the jury is not entitled to know what your client's sentence is going to be i agree with that if you agree with that so the district because you made that link the district court was kind of in a difficult spot was i don't agree i think that the district court was in the same spot as we would have been if the jury's told where you're going to get mandatory life for it because of the there's overdoses and there's you could you could have said that way and they'd be in the same position the fact is everybody in the jury knew th right and anderson committed the exact same crime you could have left out the predicate and they would have come to the exact same conclusion and i think the objection would have been made anyway i don't i think that's sort of an excuse rather than a justification i don't think it's a justification sufficient to violate his sixth amendment right to confrontation and treat him differently than every other defendant has been treated in a similar circumstance throughout the circuit courts of the united states and i also think it's import this is not harmless as far as arsdale if you find this is error which i think that it it clearly is based on the case love you find it's there then you have to maximize the errors force meaning you would disregard mr anderson's testimony the problem is while there were lots of other witnesses all of the other witnesses were asked explicitly and admitted that they did not know what the agreement between andersen and right was they did not know which transactions were anderson's independent transactions and which were rights all of the overdoses were situations where they called the person they call the person living it wasn't one of these really called the one guy and the other guy came which gave rise to the best evidence of conspiracy in this case so to get to the overdoses as being part of the collaboration or within the scope of the conspiracy to combine acts of the two men which it must be to get the overdoses in you hand anderson because he's the only one who said it like wise to get in that in fact these are like point one gram transactions to get them accumulated two hundred grams you needed anderson to say yes these were all part of the collaboration because all of the other witnesses admitted they could not do that so with this is there and we believe it clearly is then if it is there than mr mr anderson's testimony would have to be disregarded and it cannot be proven harmless beyond a reasonable doubt the second issue that i'd like to address is the issue of the brady violation the evidence was as a district court found plainly suppressed the evidence was plainly beneficial and the district court was rather harsh in his criticism of the government for not knowing this and not getting this evidence disclosed one thing that the district court did that i think is incorrect from the beginning is its application of the standard the district court indicated that even if you take out the four witness  quick preface question there was a recent motion to supplement filed by the government that goes to this brady question do you intend to oppose that i don't really oppose it in so far as it turned out that we both were under the impression that the information about mr gavin having cooperated generally was there was one was a question about that in the grand jury i don't dispute that it's in the grand jury what was not disclosed was the more important fact that he did his cooperation with the very same officer that's talking to him about mr wright and so he has a history with this officer of getting benefits when he gives that officer what he wants his name was journeying in the office or that part wasn't disclosed so i don't think the the supplement makes any difference but i don't disagree with mr chen's position you don't oppose him not not not not you know i do not with respect to the standard he said the district court that even if you take out the four witnesses and then what is left is enough to convict and kyl's had made clear that it is not a sufficiency of the evidence standard that is not how you do it and then when the district court evaluated the evidence what he said was i'm not going to look at all the credibility problems impeachments that were presented by the defense i'm only going to look at what the jury could have considered that is taking the evanson light most favorable to the government that is not what you do in the brady context that is an error of war on abuse of discretion and i think requires that the case be remanded so the proper standard can be applied to begin with and when it comes the question of materiality again i think the key is the scope of the conspiracy must include one hundred grams and must include these overdoses and when you take out these four witnesses and we went through it in detail in the briefs trying to do the numbers when you take out these four witnesses there's no way you can then say with confidence that you can get to one hundred grams or that you can get all these overdoses included within the scope of the conspiracy these witnesses were essential the other thing i think is important is that what this established was that law enforcement had a pattern with these witnesses there were multiple witnesses  kiefer gavin who were in a position if we had all the information to know that they could deal with law enforcement they could get out of trouble they could go on using air one and then get in trouble again and then they had a motive to be good maybe in good law enforcement because they would allow to be able to continue to use heroin which was important to them and that motive and that situation with law enforcement that applied to them may have applied also although we don't know to the other addict witnesses and if the jury saw that well schliemann and kiefer had previous relationships to the same officers and then they added that to the fact that these witnesses common what it mitt at the beginning they weren't talking about right  anderson anderson working for right they only did that when they knew that's what the governor wanted to hear about they admitted it over and over again if the jury saw that this was going on and these people actually had a history with law enforcement and they saw that when these people sat in the chairs and said why don't have any reason to believe i could get in trouble or any reason to try to help law enforcement that they weren't telling the truth when they gave that testimony the jurors could have then disregarded other addict witnesses as potentially having the same problem so it didn't just infect the four infected them all and because of that there's no way to say with confidence that the jury would have found one hundred grams and he overdoses specifically because we know that government asked the jury for a higher finding of the crack and they chose not to so there was skepticism in this jury and for that reason i don't believe anybody could say with confidence that there's not a reasonable probability you have a different finding at least on the quantity in the overdoses that are absolutely essential to  engaged in a course of questioning of that witness that the district court clearly found was intended to put the defendant's own penalties in front of the jury and the specific question was you know that after they increased the charges to conspiracy with overdoses and death you knew that with a prior drug dealing conviction the only sentence and then that's when the objection was interposed i think counsel's argument that you know we didn't object to the fact that he had mentioned that mr anderson had a prior drug or felony conviction that's obviously impeachment of a felony conviction is certainly permissible as an impeachment matter under the rules of evidence as the thomas case says though the defendant's own penalties are not  the district court at the moment and then again in the trial motion found that that question was intended to put the defendant's own families in front of the jury to put the diff the court in a bind and the court came up with a reasonable resolution two to resolve that particular issue and what's important here i think is the the problem is it is pretty clear that part of bias cross examination is to get out the maximum potential sentence that the witnesses facing and and what the deal is and and i'm not sure decades quite guess you know i did i think councils correct it does it doesn't really say this is the difference of what you're facing because of your testimony here and it undermines the ability to get by as i say it put the district court in a tough spot it did put the district court in a tough spot and if the questions had been asked in a different way without the leaders i think that you know there probably wouldn't have been an objection and you were facing a life sentence even facing a mandatory life sentence but then you struck this plea agreement then you you know now you're not facing that that would have been appropriate here and i would disagree that  and i'm i'm not arguing that and but you know i can understand counsel's argument that when you have a difficult witness sometimes you've got to kind of force it down their throats take before you get them to admit it maybe it would have been better to do an initially go right to what you say are you facing and then if he denied that then maybe come back to the predicates for it but it's a tough business when you're on you're standing on your feet because you know doing cross examination it's hindsight's twenty twenty i agree or honor and i think i think i would disagree with the characterization of mr ayers i know there was there were sort of a back and forth there was a very lengthy cross examination but i don't think mr anderson in any point attempted to minimize the severity of the charges that he was facing and so saying that those questions were and and designed to cabin him in i just don't think it's necessarily consistent with the record that he he would answer the question and i think did answer the question after the side bar particular issue is the standard review we're looking at whether it's an abuse of discretion and when we're looking at the banners and all standard that talks about the district court having wide latitude to impose reasonable limits on cross examination specifically  based on concerns of prejudice or confusion of the issues and the thomas case that talks about the fact that penalties the defendant penalties are supposed to be in front of the jury specifically says that's because it would be a confusion confusing to the jury suddenly and in  this case i think that confusion is even even more pronounced because by asking the question in that way putting it in front of them effectively would turn this jury into a sentencing jury they would know what penalty that the penalty that they would be if they made all the findings would  brindley listed a handful of cases some of which i think are a circuit cases that he says compels a finding that these are errors the right he's correct that those cases touch on this issue but they do not compel a finding that these were  different from the only it is different from our own ego in a couple of different ways first of all roni eagle involved a pretrial ruling that basically there would be no discussion of the type of crime or the reduction in sentence so this was a something happened well well before trial and it was mentioned in roan eagle that this wasn't this wasn't a situation that it just came up in sort of the thrust and parry of litigation or in the heat of the moment i believe is the the phrase that was used by the court and so i think that's somewhat important that this was something that we contemplated before that these witnesses were going to be asked about the type of crime that they pled to or the sentence they that they've received so there's discussion in that case about that but there's there's no first of all the while the issue of whether the defendants penalties would be touched upon in that way i think was acknowledged by their own evil court and that was one of their concerns but i don't think that that was that wasn't determin contrast the the penalties faced by the witness but the caldwell case didn't involve an instance where the defendant's own penalties would then be put before the jury so i think it's of limited value the court's comments and that more to the point i think is the w case which is cited by the district court in our brief where the court just in two thousand and nine found that there was an error in limiting the cross examination on a range which was five years up to forty years mandatory five years in up to forty years there the court allowed a reference to a significant sentence and this again was on the basis of the concerns of well the jury might be checking out of the discerning terming the actual penalties of the defendant in the case that was a concern in the majority opinion cites the concurrence from the larsen case out of the ninth circuit and the concurrence basically found as wally did that there can be some reasonable limitation put on to the cross examination examination and i think that amply seen there are lots of different examples given in the larsen concurrence that talked about some of the problems with that but i think that's another issue the fact it's just inconsistent with what the supreme court has said the district court's rol is under those circumstances and so this this is a case where not only i'll mention here not only did the was discord correct in imposing that reasonable limitation because not only and i had to get back to one of the questions you asked earlier about the difference between a life sentence and this decades in prison phrase context is important obviously here as always and mr anderson was a forty four year old man drug user has lived a pretty rough life and i think that was before the jury pretty clearly and so the idea that he faced a mandatory a minimum of decades in prison at that station in his life and that where he was that he put a bit of a rough customer the grand jury  in this instance there's a ability to fairly apprise the benefits of obtained by his plea agreement let me ask he was the jury informed that it was a mandatory minimum of decades or just without the eight fifty one enhanced meant he would have been a twenty was twenty to life and so that was his only deal was dropping the enhancement it wasn't also a thirty five fifty three and a five k one there was no particular agreement for any five k one examination though mr anderson did not know what potential benefit he he would receive he understood that that he wasn't looking at a mandatory life but he didn't know what his ultimate sentence would be and based on the cross service on the cross examination that was allowed the jury was fairly if you applied a harmless error analysis would be had would have to be harmless beyond a reasonable doubt i believe so your honor and i think i think mr bradley is correct that if if there is a concentration clause violation found with respect to mr consider mr anderson's testimony but on the other hand we have the testimony of the fourteen or so different witnesses who testified as to their perception of the arrangement agreement between the defendant and mr anderson and the way this has been argued by counsel i know just sort of on to the other issue and i can jump there here as well is that nobody else knew the agreement between the two of them well we were not required to have direct evidence of that agreement in this case there was overwhelming sense circumstantial evidence of that agreement and as a district court found witness after witness came up and testified that he would call one and the other would show where there were some they knew that there was some relationship between the two of them they didn't know exactly the particular relationship as far as you know salaries and whatnot but they certainly did testify as to the russian ship that they perceive mr brindley also argues though that you can't get to the minimum amount of drugs minimum quantity that was played in the indictment without that testimony as well i would disagree with that as certainly mr anderson's testimony put far in excess of one hundred grams in this i think it was a turning around that almost a couple of weeks i believe his testimony was but the other witnesses did testify to dealing with mr wright and mr anderson over the course of years i don't necessarily agree with the calculations made by by counsel  as far as the quantity to attribute to each and every witness but ultimately the issue of the drug quantity is again more of a harmless error issue anyway because of the sentence in this case is driven by the the overdoses and the alternately the jury's quantity finding didn't have any impact on the defendant's ultimate sentence because with the prior conviction the fifty one notice that was filed any if the jury had found any single injur serious bodily injury or death it was a mandatory life in this case the jury found six injuries and two deaths that were attributable to the conspiracy and to the defendant and when going through those each individual overdose incident they are not tied into specifically mr anderson's testimony or specifically the singular testimony of the other witnesses involved in the brady issue there are at least  three well three and a half for instance to get both of the deaths and then one death was actually where one victim was actually charged with both a serious bodily injury and a death because she was found in a critical condition on one day and passed away a few days later and the jury found that the distribution of the conspiracy resulted in both her injury on the day of and then death a few days later and so that would be ms morgan but the there's an overdose involving mr hill and there's another overdose involving a lawrence michaels those have nothing to do with these witnesses that were that had any of the issues with respect to the impeachment information now with respect to the  certainly with respect to mr gavin we don't believe that the idea that it's the same officer as opposed to just cooperating with law enforcement generally that that has any any material benefit or any substantial it doesn't really move the needle on the impeachment value of that particular information not to mention mr gavin cooperated in this case was clearly seeking some benefit from his testimony because of the fact that he had provided the information or the heroine to mr bolton likewise with ms schieffer her prior her prior cooperation this isn't really material ms kiefer came into the case because she was the victim of an overdose she was found at the scene nearly dad brought back to life and  was asked questions so it wasn't known at the time to the prosecution team although it was certainly within the government's possession that she had previously worked with the with the reps police department but that really doesn't impact in sort of off the street not facing any particular charges was cross examined about her potential bias on all those issues as well with three suspects to the question of the overdoses and the harmlessness of mr anderson's testimonies discounted none of the witnesses none of the other witnesses could say that the overdoses were part of the conspiracy  collaboration because none of the overdoses involve calling anderson and having right come or calling right and having anderson you had to have anderson for that it does have to be proven beyond a reasonable doubt because it's a constitutional error pursuant to chapman versus united states and supreme court and i do not think there's any way to meaningfully distinguish this from roan eagle it's the exact same logic the wyly case if you look at it it cited it page forty nine of my original brief where i quote what they were talking about while he a fact that the difference between two and five years was so small that it's sort of is negligible that it doesn't really apply to a mandatory life situation and ronnie go and the other case law says that what the judge did here on that if i could have just a second to finish what the judge did here on that that's not sufficient and so we would ask that the case the conviction be vacated in the case remand record for the argument the case is now submitted and we will take it under consideration