in the ordinary case in most cases a police report detailing the defendant's past criminal conduct will shift the burden of proof to the defendant to show that the report is materially untrue inaccurate unreliable but when a grand jury subsequently decides to know bill the defendant that is to find that there is not even probable cause to believe that he has committed that often the burden should shift back to the government to corroborate the original police report with additional evidence burden shifting back or did it did it never did that did the evidence not exist in the first place what's the burden shift the i think those are equivalent and those are those are and virtually every case that describes this burden shifting paradigm it says the burden shifts to the defendant to show material  untrue or an act are unreliable assuming i'm sorry i mean i would think if there is evidence presented in the p s r that the defendant wants to object to then it's got to present  says there's you know this arrest records detail has facts then if i'm not mistaken your client just says i object procedurally and substantively doesn't ever then say those facts are wrong so right right because that was the government's response to your objection to the p s r so so two points about that the the first is that cases like tricky oh say that if and harrison has a great discussion of this if  the government has presented sufficiently reliable evidence in the p s r then the burden shifts to the defendant but they also say that the defense burden is to show this material in a material which untrue or otherwise demonstrate which is not necessarily a burden of production it can be merely a burden of persuasion that is otherwise unreliable so i think at first the p s r may be relied on by either party if there is a burden of production of evidence then the defense has met that burden by marshalling the p s r any party may rely on anybody's evidence to to rebut the two to satisfy a burden of of production but if the court doesn't agree with that then we would submit that the p s r never shifted the burden to the defendant in the first place and that it harris tells us at two thirty one and it note three that in some cases even a factual recitation by a police officer of the defendant's conduct will be inadequate to to trigger the burden shifting in the first place and that's an unusual case but we can imagine other cases where that might be so if the if the police report says i saw the defendant across a busy highway and i think that was him then in those cases we might imagine that that evidence might be not being reliable enough to shift the burden in the in the first place we would submit that if from a grand jury to a federal sentencing procedure proceeding increases it doesn't decrease so so that's that's one reason there are there actually many very good reasons to to  align our presumptions with common sense and say that a no bill tends to show that the end original allegation is unreliable there's the standard of proof issue but there's also all the immense procedural advantages that the state enjoys in a grand jury proceeding it may introduce hearsay it has no brady obligations the proceedings are ex parte the defendant doesn't have the right to counsel he doesn't have the right to testify it need not even be unanimous so all of that is very different from a  acquittal they didn't prove their case but as what's tells us you know we can't we have to confine that finding to the two precise nature of the finding at issue in an acquittal so we only know that it's just a little bit below beyond a reasonable doubt and we only know that it was these precise collection of elements that produced that that the the jury found were not are the iranians it's higher than proponents right and the other important thing about the difference between a jury and a grand jury a grand jury may indict you for anything so if you come in with a just amass a bottle of conduct and it says these collection of elements we don't think amount to probable cause but this one here we think that that lesser offense is a is worth probable cause then the grand jury finding you guilty or finding declined to indict you on any of it basically demonstrates that the whole all of the conduct has been found to be non criminal or at least not felonious whereas a grant whereas the jury is entitled to pass only on the bill is unusual hasn't been seen discussed by many courts the no bill issue right but the underlying issue here is not a small one correct in that many people plead they expect the range then all of a sudden the p r star says there's a basis to upwardly depart which is going to create a huge amount of exposure correctly with me so far i am ok so the district court then and here in deed says yeah i'm looking at your arrest history in your arrest history makes me think under representation of criminal we're going to go above the range that's exactly what happens here so it becomes really important what we say when we do it aloud sentencing judges to rely on a fair to say that yes ok but we have clear law that says arrests when the validated by to rich facts can be reliable that agree ok so here we do have a pretty rich description of this kidnapping i mean it's very very detail yet and so put aside the no bill and whether that if this rates all the facts would you still say that the district court couldn't rely on this very detailed description of your client's kidnapping because the victim couldn't identify just the exculpatory portion as opposed to the no bill oddity and you read it yeah  i do want to make clear i think the no bill radically changes the case but i would not agree that the depiction of the of the facts in this case are adequate but i think the court doesn't have to have to reach that in it's not merely the idea of the absence of the i discreet and that in the victim's account there if he is released by the defendant and ask to go please bring back the ransom i mean that i think that is a it's not hard to see why the grand jury might have no build that conduct there there are several very troubling parts of that recitation that raise a lot of doubt about whether or not that's an adequately reliable account there is the absence of the id there it that it is essentially the victim's word that the event happened there is the witnesses statement that the the victim owed a drug debt and that there was a dispute about a drug that would provide some motive reason to doubt his his motives and there is this this unusual part of the story that the victim says i was kidnapped they called for my father to plead to bring the ransom and then they released me and said bring back the ransom that they said they would take the truck but they never took they never took the truck he just said go go get the title so that's an excuse write it down here should judge mcbride  said ok i'm just there's no reliable evidence to support the arrest no bill plus victim exculpatory therefore i'm going to hear evidence on it it's contested the yes or i mean the judge i suppose could order the parties to present evidence but here now your argument is there's been no burden shifting you don't have to precisely and it is important for the four defendants to be able to rely on the burden shifting regime at sentencing because three a one point one provides a cost to the defendant to making affirmative factual claims and so if you're so in that then the court would say you're not it's possib yes that that's it that's a possibility obstruction is also a possibility particularly if there if there's evidence and it's just believed so in this is a person who in mr gibson's situation who is in fact innocent of the prior conduct needs the protection of a of a burden shifting regime that looks carefully at the reliability of of the evidence that's coming in i haven't seen that the government is saying here we could affirm because judge mcbride said thirty five fifty three i may get there anyway that's not in this case the government has not attempted to shoulder that burden or as the government said that the other arrests the burglar arrest alone justify the upper so it's all pinned on this kidnapping arrest that's my that's my reading of the briefs and  i think that's i think that is that's a wise failure to contest that her decision out and test that the government will no doubt tell us more about that but that i think that the  case of johnson united states versus johnson in two thousand and eleven provides a really good discussion of harm in these circumstances and it says that the possibility that the sentence could have been justified by other evidence rather than rather than the arrests does not justify affirming a sentence that was in fact based in part on the arrests and indeed in that case you have a court that said affirmative is not based on the arrests but because there are other was other discussion of them they appeared to figure into the sentence and so this court vacated and remanded here you don't have anything like that you don't have any kind of disclaimer of that and you have basically four objections from the defendant to this you have the pre sentence objection i object generally to the discussion of it doesn't mention this this incident but i object to generally to the discussion of  that's right and then you have in court what i think is a given how concise it is an extremely well put together dense objection you know on the defense counsel's feet to this  which he says in particular the standard of proof is lower we're looking at a cold record the grand jury had potential witnesses that was then this is now that was that was closer to the time  and so i don't think that we can on that basis incorrectly increase the sentence to misidentify and there was no evidence about you know bill you'd agree that the paragraph based on a sheriff's report would be enough you would have them have the burden to disprove for to say i think so i think that would i mean that would be without the nobel this is a very close case but you know this is right at the one i think of of reliability but but the oth questions one factual and one procedural factually there's a reference to the fact that the victim still did describe tattoos that correspond to your client that's right would be enough to create  grand jury is instructed by texas case law to indict if it finds probable cause it's not a mere exercise of discretion it means that is a a fact finding by another court that this that the subsequent court should respect absent a reason not to do so that's right ok you just said that's right normally i would think the government wouldn't get a second bite at this to come up with evidence but it is your request and we seem to have done it sometime that was your request correct that or question is that at that point judge mcbride could say you know on the whole picture i've just decided this is the right point to get this court has the authority to decide it's mandate how ever it likes twenty one of six gives it would give it the power to restrict the evidence of the government lest i mean that seems fair you just want to know whether he was the kidnapper or not it and whether there was a kidnapping but now that's i just want to say my request hasn't been inconsistent with any limitation or no i don't know what so i'll leave it to the court to decide what the what the fair responses but i do want to point out to the court that hasn't a twenty one a six the power to to limit the scope of the remand if it doesn't think it's but the party that the institution with the best access to that information is was the texas grand jury and i submit that that should at least be enough to play complicated with the burden of proof your honour's may please the court the appellate argues that a district court has to give special weight to a no bill when in fact a new bill carries virtually no weight in any other context outside the sentencing regime bill has no preclusion of effect and no bill is not a final judgment and no bill is not a decision on guilt or innocence and no bill can be the product of a minority vote by the grand jury and no bill has does not trigger double jeopardy and in fact the supreme court said that the constitution does not bar a grand jury from returning an indictment when a prior grand jury refused to do so and nothing in texas state law prevents a prosecutor from marie presenting a no build case to a  grand jury or in fact to the same grand jury in fact a texas prosecutor can take the exact same facts the exact same at it's evidence not an acquittal right it is not an acquittal no little seems very harmonious with still finding there is a preponderance of proof because it just wasn't beyond reasonable doubt that's the watts line of authority she's different i mean i know bills are unusual and the government's not usually happy when they happen my experience is they almost always do relate to some defect to prove but i agree with you that is a matter of law we just don't know what the grand jury was thinking but that's going to be really hard to impute to a defendant because grand juries are secret so on that theory you would never be able to discern anything from a grand jury no bill that may be the government's if we set aside the nobel entirely as the government argues we should do the facts of the case are sufficient and very detailed to allow the district court to make a finding finding by the proponents of the evidence in addition to the fact that the victim identified the defendant by a series of tattoos not just one or two but according to the p s are a number of tattoos that matched tattoos that were in fact on the defendant's body there was corroboration by the victim or the defendant's roommate the police went back to after the incident and interviewed the defendant's roommate who corroborated the fact that the defendant was in fact there disagreed or or did not admit that he kidnapping had occurred but said that the victim had arrived wanted to purchase drugs which is consistent with the victim's story didn't have money and that some sort of altercation or heated dispute broke out between the defendant and the victim and the police also found blood on the floor consistent with the victim's story that he had been stabbed at the location so all of those things the defendant's roommate story and the blood on the floor corroborate the victim's account of the events and we should note that  while the appellant has pointed out some potential problems with finding that these facts ultimately amount to a texas state kidnapping specifically the defendant's voluntary release of the victim prior to any payment of ransom the district court did not find that a kidnapping occurred the district court's factual findings are very specific and the district court stopped short of finding that the defendant committed the texas aggravated kidnapping as charged in the original indictment or the proposed indictment what the district court found was that the defendant mr gibson engaged in certain this very specific violent acts that he grabbed and beat the victim that he stabbed the victim and that he demanded ransom money beyond that the district court did not go and the district court did not find that an offense was that that this particular charge defense was committed that's an important fact because the district court doesn't have to make findings on the defendant's mental state or other elements of the kidnapping in order to maintain its decision that these violent acts occurred what's the government's rule of law here because i think you would agree that case law is clear of bare bones the rest can't count correct so here  i read it we've got not a bare bones we have a description but very candidly the description says didn't didn't lead to an indictment grand jury didn't accept it is proof or we don't know what plus the victim didn't even a in a rest then has well all descriptions always count even if a grand jury rejects them and even if the victim says he didn't do it what would what description wouldn't always validate the arrest is countable that certainly the description has to be sufficiently detailed that the district court can make an evaluation of the facts and determine what's where i see the judge mcbryde sort of thinking and the probation officer there on mission they just see detail description and say i know that happened how could they do that it's a very fact intensive inquiry is going to be a case by case in court but certainly a hunch i just see enough description there's nothing to support it what supports it says it didn't happen but i know what happened is how is that not what probation did here within that detailed description we have a corroboration of the victim's account of what happened based on an interview of a different witness the defendant's roommate that becomes crucial so your position is that it's spite of the victim not identifying him the roommate implicates him in violative conduct and in assault and insult the roommate does not  offense well if if identification by the victim is the thing that's an issue then the fact that the the roommate puts the defendant at the scene as the individual that was in a dispute with the victim your presence is not sufficient under any crime right correct but we're adding these accounts together the victim the flaw in the victim's account if there is one is that he failed to identify the defendant in a photo lineup but he did identify tattoos that matched to the defendant so there was some uncertainty in the fact that he had to warning to the police officer resembled the defendant's correct and there was blood on the floor consistent with the victim's account of having been stabbed but no one test the blood and we didn't we don't know that based on what's in t so there was blood on the floor consistent with the defect that with the victim's account of being stabbed i mean i mean she you know better than any of us that and we've got plenty of time but but what maybe five percent of cases now plead out so the world of criminal justice is all sentencing and it's this preponderance of feiss judges can sentence if they find to a preponderance so factual reliable factual evidence is absolutely critical here the government i would think has to say we've got all sorts of problems with this but their arrest or described arrest that seems to undescribed itself let's just have a hearing but i would i would point to several additional facts the event itself was reported by the victim's father and based on the victim's account of the events the defendant made the victim call his father to ask for ransom the father is the one who reported so that's an additional witness corroborating the event he reported that i was in fact called and my son demanded ransom and some some of them certainly could have we don't know whether they'd be willing to testify on and that's one of the problems with giving weight to the no bill we don't know what evidence was presented to the grand jury as to why it doesn't seem like you can put people in prison for the fact that the facts they will testify and we're not putting anybody in prison this is a sentence time gets an up or departure he gets an up or departure based on a preponderance of the evidence not a beyond the reasonable doubt standard which would be required to put him in the corner round circle it's just it's a close it's a tough case agree that's different you have a case so so we don't have cases for either one justifying a larger prison sentence and now in this case we've got both together correct we have no case law specifically on the issue of no bill but we would argue that the the logic of the little cases plus it seemed like the objection was sort of abrupt and then it sentencing it was a i'm fully sympathetic the mother comes in the district judge said listen i'm open on the up or departure folks you can talk about it and there wasn't an exact hate iran or i'm not the kidnapper and but but then it doesn't seem too hard since they aren't asking for you to be bound go back and really just fine to a preponderance if he was the kidnapper or not but that's that's correct your honor they they never disputed the facts in the p s r they never claimed that the facts were cited in the p s r were inaccurate they simply relied on the existence of  correct it on and we would point to to the series of cases that allow detailed police reports to stand in for proof in the sentencing condit text we don't believe that the existence of a no bill undermines that they produce no substantive evidence or argument to undermine the facts the very detailed facts in the p s are simply relied exclusively on the existence of a no bill in another itself  do know in a in an additional fact we do know that the victim was in the hospital so something violent must have occurred to cause the victim to be in the hospital blood was found at the scene where the victim said that he was stabbed the defendant's roommate puts the defendant at the scene where the victim says he was stabbed the defendant's roommate says that the defendant and the victim had some sort of dispute about a drug debt at the scene where the victim was stabbed and blood was found how can i get a hearing pretty easily even hearsay right you can offer hearsay to sentencing hearing the father comes in where the roommate comes in where the victim comes in and they actually show the victim the to do's going to happen really quickly all of those things could happen your honor if the victim's if the witnesses were willing to testify these are drug dealers and and looking at the record i believe that the district court can speculate that the reason that for a likely reason that there was a no bill was that someone possibly the victim who was involved in drug dealing may not have wanted to testify about exactly what happened right never said i'm just a lie here because i'm worried about danger to other people right that complicates the sentencing considerably e d he never implied neither did probation people were a risk to calm him corroborate that's correct that's that's interesting all such a hearing could certainly occur it's not necessary because of this extensive case law that district courts at sentencing may rely on detailed factual recitations and certainly i don't believe anyone disputes here that we have a very detailed factual recitation this is not a bare bones arrest record and the government would certainly concede that if that if it were a bare bones arrest record or an arrest record plus a very broad overview are very sketchy description of the facts that would be insufficient to support any kind of factual finding at sentencing but that's not what we have here and nobody claims that that's what we have here we have a description of the facts that is so detailed that we can in fact have a discussion here in the fifth circuit about whether those facts are sufficient to establish whether the defendant did this that or the other thing that's a very distilled just description of facts we've got a description that ranges three pages in the p s r that describes interviews with the defendants father i mean i'm sorry that the victim's father the victim the defendant's roommate because we believe that that was within the district court's discretion it was a twelve month upward departure and it certainly wasn't outside the district court's discretion and or the p s r did recommend an up departure yes and based not only on this offense but to other offenses that did not result in criminal history points and were not calculated into the sentencing guidelines this offense and those two harmlessness your honor it's it's difficult or impossible to disentangle the district court's thinking certainly he gave weight to this particular offense as well as those other two but we can't say that if you subtracted this one his sentence would have been exactly the same he did not say that it's he could have said that yes or no would do future tense he couldn't and if this were a man did he may very well give the same sentence we don't know and that's why we didn't argue harmlessness there's not enough on the record for us to have to rely on the your honor we would we would also bring the court back to the comparison between no bills and acquittals bearing in mind of course as as i argued earlier that no bills have no precludes of effect that they don't bind subsequent grand juries they don't bind prosecutors and therefore they should not bind the federal district judge at sentencing but also the reasoning that the supreme court gave when it announced that a district court could consider acquited conduct at sentencing is even more in watts the supreme court said an acquittal is not a finding of any fact it is impossible to know why a jury found a defendant not guilty on a certain charge without specific jury findings no one can logically or realistically draw any factual inferences from an acquittal that's certainly true with an acquittal it's even more true with a no bill because of the secrecy we don't know what evidence the grand jury considered we don't know what charges w necessarily brought before them to consider we don't know what witnesses testified to or what evidence they had before them it is a higher burden of proof your honor yes but in the quibble is also a final judgment an acquittal is the product of a unanimous verdict by twelve jurors a no bill can be actually a minority verdict in texas twelve people sit on a grand jury nine are required to indict so a mere four people can decide following that analogy we don't give any weight to a bare arrest record even if the arrest was proper based on probable cause we don't give that any weight at sentencing we need more so we shouldn't give any weight because it's also derived from the same sorts of procedures we wouldn't give any weight to the negative we don't give any weight to the positive we don't give any weight to the fact that a grand jury returned an indictment if we know nothing more about the background of that case and we shouldn't give any the fact that they failed to do so and certainly the law doesn't give any weight to that fact in any other context the prosecutor can turn around and really indict with the same evidence the next day in front of the same grand jury  from liability is occurred that's a red flag i did it didn't get past what a grand jury usually does which is assess the government's evidence for probable cause i don't believe that's a red flag because there are so many inside uncertainties surrounding what the grand jury does we don't know what evidence they heard one of the things that appellate point but in highly atypically we also have the victim saying not the guy that's just really difficult for me to still say then but i know it was the i think that's perhaps too strong he failed to identify the defendant in a photo line but he did identify the defendant by unique tattoos on the defendant's body say he did i thought it was this year's report saying those to use are similar to what the victim told us correct keep he in the victim saying i've seen his that tos and those are the ones that opportunity as far as we know in the record that opportunity was never provided to the victim he was presented with a photo lineup presumably of the it's so what's the reliable supports it's descriptive but he acknowledge candidly that the most important person not the grand jury the victim so again just so simple to us to ascertain have a little bit of a contested hearing and if we were operating on a beyond the reasonable doubt standard we could certainly understand why a jury might fail to convict or might acquit based on the fact that the defendant or the victim didn't identify the defendant in a photo lineup but in this context we're operating on a different lower standard at sentencing and there is ample evidence in the record corroborating the victim's accounts of events the only negative fact is that he failed to identify the defendant's face in a photo lineup please the court i want to take a little bit of issue with my colleague's statement that the court did not find him a kidnapping here if you look at pages ninety two and ninety three of the  record the district court said i can tell from a preponderance of the evidence that the defendant struck somebody by the name of mccleary and had a knife as he was hitting him and then he stabbed mccleary in the right saw i engage in some serious conduct and these things are recent and then he directed the person that he had assaulted to call his father and tell his father they wanted a ransom and finally the defendant said he was willing to accept the truck as ransom and i find from a preponderance of the evidence that those things happened so i'm not sure what the missing element is for a kidnapping here the the court didn't say i find this part credible but but the rest of the kidnapping is to be true i don't know how did he know that i think that that that's not a reliable that wasn't a reliable finding for him to to say that he knew that to be true  i mean the victim so that all that shows is that somebody had a motive to get the police involved and that the the roommate's testimony i think tends to discredit the police report because he doesn't say anything about a kidnapping he says he came here and there was a display and we had an argument about about about the price of drugs so that you know that that is a manifest problem in the police report  say anything about stabbing and it doesn't the p s r doesn't say that you know we don't know i think we're we maybe getting a little bit seduced by the by the detail of the police report and we have creating a false sense of certainty about it the institution that is closest to the questions with the best resources to find out about them is the grand jury i'm not saying that they're finding has to be precluded all i'm asking is that we give it some weight it say that the use that you say in a no bill give it weight in the context of expansion to say that a no bill demonstrates that a grand jury found there was not probable  the and the fact that there was that it is not accorded decisive weight in the double jeopardy context to my view only demonstrates another procedure would vanish that the state has in the context of a of a grand jury so not only do we did they issue a no bill in this case the prosecutor didn't even try again with new with additional evidence in this case so all i'm asking for is that we align our presumptions with common sense and say that a no bill is a significant event that it tends that is a great flag about the reliability of the police report and that before that reason due process requires that there be something besides a police report that is presumptively available to a prosecutor presenting the case to the grand jury in the first instance as respects watts i want to just point out for very quick the distinctions between the present case and cases and what's the first is the standard of proof as we've discussed here that there was an acquittal this is a no bill the standard of proof of proof goes up to federal sentencing from the grand jury two watts was talking about cases where there are precludes of where a definite was given as we're asking for precludes of effect to an acquittal here we're only asking that the no bill be given a weight in a reliability determination that it shift the burden of proof three in watts cases you had district judges that had tried the cases and heard the evidence on which they relied to make the preponderance findings here we have cold records a court looking at a cold record and a police report that was available to a subsequent institution that found that and decided not to act on it and finally i think there may be well leave it there but i do want to look just ask you to look at one fifty six and one fifty seven the parts that say that