sheriff of baron county were grounded on a collateral and immaterial dispute that being where was this knife fail and was it failed at the scene of the struggle  a rest of the felon billy randall stennett or was it found moments later instead it's pocket as he was being escorted from the point of arrest to the police vehicles this combined with the fact that the convictions on counts four and five the witness tampering convictions are grounded solely on the testimony of those who have admitted to perjury we would submit provide the court with more than ample grounds to set aside an overturn these verdicts i would submit your honour's that the evidence is insufficient to support a verdict under section fifteen twelve b three in this case in order to sustain a verdict the defendant has to be shown to knowingly corruptly persuade another person or to attempt to do so secondly to do so with an intent to hinder or delay or prevent the communication to a federal official and finally that information must concern the commission or possible commission of a federal offense the first very troubling aspect of this case is that it is grounded in testimony of only two witnesses both of whom admitted to perjury not in the abstract but with regard to this particular case the cooperating witness miner testified that in the state court proceedings against  he claimed a trial that he provided perjured testimony to the state district court judge and the policeman or hearing that he provided perjured testimony to the state grand jury and that he provided a false account to the i when he was first interviewed by them on april the twentieth two thousand and ten his testimony sufficient to sustain the decision that he that your client was guilty i don't believe it was your honor and i don't believe it was for a reason if i could get to just to so just a moment because the other cooperating witness runyan also admitted claimed a trial to have testified have given perjured testimony before the federal grand jury were you not only admitted or claimed a trial against which it say that he perjured himself and from the grand jury despite community but also that he forgot the critical account that he provided to the jury at trial which was if anything supported the count on count four under run ins testimony it would have been that critical  acclaim to forget here's the reason your honor in answer your question judge sauer i would submit that neither the testimony of minor or stinnett is sufficient is that we have two critical but undisputed facts in this case that doctor the decision i believe on these witness tampering counts one is that it's undisputed that at the time sheriff eaton confronted stinnett at that enclosed quadrangle had in his hand was a vow which any responsible officer would certainly assume under those circumstances an hour long pursuit of voiding to roadblocks the felon fleeing on foot and being pursued on foot any responsible officer of those circumstances would assume that that was a weapon but the second undisputed fact is maybe even more critical in that is that there is no dispute  was wielding well i believe it trial it was developed that he did he appear really early age he claimed not to have the knife in his hand he claimed to have the violin the say and it's undisputed that evolve was found at the scene where the arrest occurred the debate is was the knife found at that scene or was it removed moments later from stinnett's pocket as he was being led away from the scene but here i think is the critical aspect of the this is a corrupt persuasion case i think even the government concedes that there is no coercion here there's no threat or intimidation this is an issue this is a corrupt persuasion case so even taking the evidence in the light most favorable to the government as we have to do in this case of course and assuming for a moment that eaton did tried to persuade minor or runyan to tell something about the knife this can't be corrupt where it is undisputed that stinnett was armed with a knife that he was in position with a knife it is at most a disagreement about where the knife was found that cannot be corrupt for the ball rich case both of those cases particularly the baldrige case and think that's five fifty nine in third one one two six talked about how corrupt persuasion isn't even defined in the statute and it's tried it is explained i think the court said in a fairly unhelpful manner so this debate that we've got about where you're a knife was failed although it's undisputed that he was armed with a knife did i get a difference if  i was open or whether it was close to his fears i don't believe it was your honor because what we have here in this circumstance not to drill down too deeply in the facts but when you have an hour long pursuit as we've had of  really randall stand at all over the northern part of baron county kentucky he's chased by a number of officers by vehicle he avoids to road blocks he goes around the stops to see crashes into a house in a church he flees on foot it's discovered then he's got a meth lab in the van and then he's confronted alone for a very short moment by sheriff eaton on foot in this enclosed ank closed area where the only way to escape is through the sheriff to go over him and the sheriff at some disputed observe something in his hand and undisputed stinnett had something in his hand certainly it was responsible to assume that that was a weapon there was not did the civil rights violations he was convicted of witness tampering it's exactly right in the i mean ol that is you know his justification for the beating that occurred was not is not an issue in the this perceive this town that's exactly right your honor but it leads to the point also that the information about the knife was not material to any possible federal it just you know the jury was going to acquit him he at the tab when he allegedly requested expecting or knew that there was the possibility that charges would be brought against him aracely out of his conduct when he first encountered stand well but the look the problem with that theory your honor i would respectfully submit isn't that number one justification that the truth that did not for me and i certainly understand that that's the inference the government wants to draw here the problem the problem with that inference is the investigation was always about the case was always about not what occurred when sheriff eaton confronted stennett at the scene but what occurred after stinnett was arrested after he was handcuffed one cannot be a knowingly persuader asked to a matter that is collateral and not material to the commission of a possible federal offense and whether or not stand possessed  the civil rights violations that were alleged occurred after stinnett was in custody that what that's the government's theory that he was beaten after he was cuffed so that's the very point what the point of the first contact between sheriff eaton and stinnett is not material is not material to the allegations are that way in the investigation is your client alleged to the two witnesses in question well that's that's a matter of debate i suppose with regard to runnion he is alleged to have approached runyan the afternoon of march the afternoon and evening of march fourth two thousand and thirteen and the day he supposedly learned of the investigation from agent brown with regard to mr minor it's interesting and i'd point the court to oddie number one five two six of minors testimony matter testified that sheriff eaton provided this account of what was supposedly occurred that he wanted minor and other deputies supposedly to include in their reports when minors being asked about that he says that occurred on the same day that share phaeton learned of the investigation which was march fourth but here's an interesting point about his about his testimony he was ask he was asked what did you think about the story that even came up with and he said i really didn't like it he said why not because if you're going to cover it up you should have it should have been better than i had and it was asked what do you mean he said because if that is the story it's sad that he stand it it's said that stan it was non combative when we comfort him in the allegations were that he was beaten after he was come off that is the very day that miners claiming that he was writing his report under the direction of sheriff eaton the same day the sheriff and supposedly learned of the investigation from agent brown where even minor is saying we knew from the very outset this was an investigation about whether or not it was beaten after he was come this case had nothing to do with what occurred what occurred before then it was cuffed the court  in this in the carson case that your honor judge gibbons wrote the opinion talked about in these witness tampering cases that there has to be a federal interest the court said federal jurisdiction under fifteen twelve b three is based on the federal interest of protecting the integrity of a potential in federal investigations ensuring that the transfers of information to the federal law enforcement officers and judges relating to the possible commission of federal fences be truthful and unimpeded the my point your honor is that when this bill actually ran over i'm sorry i didn't i didn't pay attention  ten with all due respect we disagree that this case had nothing to do with what happened when the officers confronted stinnett the district court made clear that this case was always about the confrontation how the circumstances of the erast how it was that mr stinnett got his injuries and whether or not the level of force that the officers including sheriff eaton used during the arrest would affect explained the injuries that mr stinnett sustained i'll begin with the sufficiency of the evidence claim taking all the facts and the verdict in the government's favor any rational fact finder  find that the government met the three central elements of the case beyond reasonable doubt and the district court in denying the post trial motions said that the evidence as to the witness tampering counts was strong it denied the rule thirty three motion for a new trial and it denied the rule twenty nine motion based on the sufficiency of the evidence as to the three elements the government proved that the defendant sheriff eaton knowingly corruptly persuaded runyan minor  attempted to do so he pressed a false story upon them as to what occurred with this knife as judge givens raised in her questions whether the knife was found at the confrontation site obviously would inform the sorts and even approached him that he attempted to surrender and that he sort of fell to his knees and that even was striking him with a baton at that point and that that's how explains the nine inch of the nine staples sort of gash to his head in terms of the injuries it's defendant eaton's version of the story that when he confronted stan it he thought that he had something in his hand and for that reason he used justified worse in striking the defendant a striking the victim at that time and it wasn't until the other officers arrived that they were able to wrestle stone and handcuff him at which point the codefendant miner talked about this kind of continued use of force that was unreasonable in terms of punching stand in terms of kicking stand up but all of those disputes as to what occurred goes to the excessive force allegations and as judge given said the defendants were acquitted on those allegations were left to fit to be he just looking at the two witness tampering convictions and those go to when sheriff eaton was giving his story would saying that and woods having minor say that there was a knife recovered on the ground or that they recovered the knife at the confrontation scene and having runyan say that he recovered the knife or that a knife was found at the confrontation scene support the defendant's version of the events and as to that would say that clearly it was knowingly corruptly persuading runyan a minor both of those officers to that's not how the version of events went down that's not how the knife was found and the only evidence that the jury heard about the actual recovery of the knife was on that day and here he's a lifelong friend of the sheriff and it the reason very compelling testimony from runyon as to here this is my lifelong friend i wasn't even there came to me said hey i need to have my back essentially on these excessive force allegations that i now know the f b i is investigating and so i need you to say that you saw this knife up on the arrest scene and he brings runyan back there after runyan expresses hesitancy in sort of going along with that story and brings him back to the arrest scene shows ok here's where this knife was supposedly found this is what we're going to say and then all of the testimony there's no testimony that ever places the knife at that confrontation scene and to so to say that this is all immaterial really contradicts the since it contradicts the district court statements about what this case was about it contradicts the government's theory of this case from the beginning if this court looks at the trial memorandums in this case the government from the very beginning said that this was about the circumstances of the arrest and how these injuries were obtained and what happened in terms of pressing this false story u was recovered at the arrest scene and that is completely contradicts the evidence that miner gave about the knife being recovered from the inside of  was escorted from the arrest scene and they did a pat down of him and so you know if you say well sheriff eaton thought that there was something there that he had a weapon and that there was a vial and that's undisputed it's very different from whether or not a knife was brandished at the scene or whether or not in eaton's original statements a pistol was at the scene and placing the knife on the ground at the arrest scene which is what he had both minor and running in give statements about and had minor testify about in state court bolsters his version of the events knowing that the f b i was looking into a potential section two forty two violation as to excessive force in this case also just in response to the defendant's argument about the admitted perjurers this court's been clear that the credibility is in the credibility of witnesses in the jury sole province this was an inherently incredible testimony and it wasn't testimony that was contrary to human experience or completely at odds with common sense this was a defendant who pressed to pressed false stories upon two of his deputies who were under his command who testified about the pressures they felt to fall into line the pressures that they felt about their job runyan as they said had compelling testimony about just wishing that he could hold out until retirement so that he could have all of his years of service and then retire and so there was plenty here for this jury to convict the defendants of convict the defendant both of these counts and to the extent that the  focusing on this notion of admitted perjurers this isn't your typical jailhouse informant case this isn't your typical case of witnesses that have long criminal convictions these are two deputies forced by their boss to fall into line with a false story and the defendants here had ample opportunity to cross those witnesses on the consistencies in their statements which the witnesses fully explained and they hammered the credibility arguments in their closing arguments and it was for the jury to decide whether or not they were going to believe these two witnesses just as too quickly unless the court has other questions on sufficiency of the evidence as to some of the other points to both the jury instruction and arguments were not those instructions were not requested a trial it's plainer review taking the instructions as a whole there was no prejudiced of the defendant in this court's been clear that even incorrect instructions under play in our review rarely warrant reversal and here they are admitted instruction so they're not prejudicial statements of the law as to the special un instruction this court's decision in gray and schmaltz is directly controlling on the issue the witness tampering sort of underlying facts is to add minors tampering in count comments they were made in response to factual theories that the defendants asserted in their closing arguments and to the extent that this court would even assume they were improper which courts often do in their decisions they weren't  didn't mislead the jury in any way the jury wasn't inflamed it acquitted two of the defendants on all of the charges that acquitted chair feet on the salt based charges which was what the comments were referring to and  they weren't extensive comments in any way and unless this court has questions about any of these issues we trust on our brief and ask you to affirm two convictions on the witness tampering coun just a couple or three points if i could your honor is we first of all we disagree with the contention that the case was about the conduct at the time of the confrontation if you look at the indictment throughout the indictment it uses language like while in official custody he uses language throughout the counts cuffed behind his back the indictment is replete with language that is about charging  offenses that occurred after stinnett was handcuffed and as a result what occurred at the time of the initial confrontation was immaterial it was collateral to the events and we believe that i would submit that that  does not invoke a federal interest they again i go back to the two facts that are undisputed one is that the stinnett did have something in his hand we know that was the secondly he was in possession of the knife and when you have those kinds of undisputed facts in the case it flies in the face of the notion of corrupt to say that any effort by sheriff eaton to press the story is as the government uses the word has a corrupt motive that's why i'm we admit we did not ask for the fifteen easy instruction but as it turns out in this case it was critical because when you look at the verdict the jury acquitting sheriff eaton on all the assault related counts the jury acquitting him of providing a false report about the arrest about in the village of salt about a weapon acquitting him of providing false testimony to the f b i which addressed the arrested addressed the possessor of the stand it supposedly his belief that he possessed a weapon when you look at that it appears that the jury information in his report yuri was instructed on that they came back with a guilty verdict well they were they were instructed they were instructed your honor under fifteen twelve that if they believe the probability that there's been a conviction here for what is innocent conduct the right of the sheriff to give direction to his deputies to include information in the reports that is not a crime that is not