the next matters united states versus aaron johnson richard anderson and andrew right protect johnson when another defendant's lawyer became a nd prosecutor the government says understandably that severe oh this if you're ok says that antagonistic defenses are not enough to warrant a severance in most cases mr johnson's counsel did not ask for one even though he knew in advance oh yeah sort of in the middle but not before right started it right and then the problem is he did not take any steps to ask for an instruction to limit the summation to say anything while rights council was hammering johnson about being the boss being the two guys who were the murderers there was a double prosecutor here and we know that we don't need more than one prosecutor once enough  are not many cases in which relief has been granted or which even the severance has been granted but i point to the one side of my brain if i judge kogan in the eastern district the north like case and in that case he granted a severance somebody asked before hand don't try and write a bet that's why i have to fall back on ineffective assistance of counsel so i point to the case to show that when there is a nd prosecutor which happened here there should be a severance but more than that there has to be some step taken if it's a fair oh and prosecutor points out that instructions limit the harm when inconsistent defense antagonistic more than antagonistic here and he didn't object and he didn't ask for instruction record sufficiently complete for us to address this claim now i think it is because he just didn't do anything i mean if there if anybody could ever think of a reason to for that a legitimate defense reason i can't think of one i mean if you're a prat if you're a defense lawyer you protect your client and if there's a way of saying somebody else is becoming the prosecutor and fierro says limiting distractions would help i need some sort of limiting instruction and it was not for nothing zero which i asked you what thinking about and it wasn't protecting his client and the question of course is would have made it different and the government argues that the evidence against my gu different right agree ok agree so so as we say why why why a jury with a limiting instruction for properly focused on just what johnson did and not what wright said johnson did might have acquitted or had some different verdict with regard to the various charges and that is because the evidence shows that right not johnson was the guy who got an raged when money was shorted right and anderson i hate to point the finger at them because it's really not what i do and that's what i'm arguing about but let me defendants were enraged and set up the murder plan apparently right in anderson got the guns from this guy bof men and it was nine millimeter and a forty five millimeter right in manderson drove together right and anderson left the holiday inn to go there and the guns were never recovered but the there was a man between the casing not to my god there was nothing but my guy really the evidence was overwhelming perhaps that he was the the connection for the rochester people but that isn't the whole case and there's no evidence that johnson had one of these weapons so for those reasons and  because under a proper not aiding abetting charge but the charge that i'm going to mr is going to talk about we raise the pinkerton aiding and abetting charge to it would standing decision somebody use a false name to me doesn't make sense it's apples and oranges you don't penalize somebody by saying you know you don't have an expectation of privacy because you use a false name i don't  y it was a stole that i did today was i i don't know it wasn't developed as to my guy i'll believe it's the same as mr i've seen that i can't pronounce his name correctly sorry his client and he will tell you about that but my client should have had an opportunity to develop that and i think the standing issue is just wrong and should be considered in light of the cell phone cases by justice scalia and the other things focusing on privacy and you may please the court my name is jeff the average and i am here on behalf of richard anderson and we're going to ask you vacate the judgment and remand for a new trial based on the constitutional structure or are we also asking that you and reopen the sentence and excuse me the suppression hearing i want to begin however talking not about mr anderson but i would like to talk start my discussion about kevin felton i haven't felt and is a black ma who at the time of the trial worries hair and dreadlocks and on october rd he decided to come and observe the trial however members of the marshal service that he was allegedly communicating with the defendants and they're also concerned because he was doing shock of all things he was looking at the jury i'm so i'm very surprised that anyone would look at the jury when they when you see a trial going on but this seemed to upset the court security officers and the marshals well never mind looking at the jury but what about communicating with the defendants during the trial that's that's not a cause for concern well that's rather interesting because what they told the judge or that he had done is he waved to the defendants that was the communication that took place and what's interesting is what we don't know we don't can't observe what happened in october i did provide the court with a copy of portion of the court security video it's a total of five minutes but you'll see for all of for less than three minutes that mr felt was in the courtroom you can see what he had done is he didn't wave that's all gents or goose or address this is the st time it came up in court and he noted that this was a no consequence it happens all the time in the courtroom he doesn't want people communicating with the jury but this was not a trouble a reason to remove someone from the courtroom and if you watch the video please do so it will show you that that's really all that he had done the nd time that he appeared this morning and i couldn't see that he had done anything disruptive or otherwise  removable but you'll notice that he sat down and immediately c s o linda came up to him spoke to him we don't know why we don't know exactly what he said he may have just been repeating instructions that then joined by c s all in they removed him from the courtroom had a previous interaction outside the courtroom did make you know that's rather interesting his what happened outside the courtroom that happened on october th he had the courtroom he put his belongings on a bench sitting on the bench was the government's victim witness coordinator and one of their witnesses and also mr felt was doing was getting himself back together after going reviewing the transcripts what's also interesting is that the mr rodriguez his co counsel happened to report to the court that not only did he play stuff on the bench he had a discussion with mr one of mr anderson's attorneys robert smith what that discussion was i don't know mr smith or i most recently spoke to him about this case doesn't even really recall it but it was absolutely of no consequence and he had no problem talking to him so everyone seemed to bet be upset with this individual who came in the courtroom yet with what becomes even more egregious on october th you had the wife of a juror who is attending every day of the trial she was outside in the hallway talking to one of the government's witnesses we know that only because once mr anderson's other other counsel and berger observed this she was wondering what's going on in brought it to the attention the court they were having a loud boisterous conversation yet no one from the government no one from the marshal service seemed to be upset by this yet the black male with dreadlocks seemed upset everyone every time he came into the courtroom even assuming that the marshals overreacted and and acted him improperly that's that's not enough to get this case reversed right i mean i would disagree with you this is not trivial what happened is the right to st st we have mr felton's right to be  attendance he has a st amendment right to be there the problem is mr fulton is not represented by anyone in this case and is not pursuing these are charges but you should take that into consideration is st amendment  present doesn't affect your client's right to a public trial because every criminal defendant is entitled to have family and friends attend their trials mr anderson is not from right mr new york he's not from western new york his family is on the west coast they were not able to attend his trial the one person that he knew in the community other than cap other than people who were told to represent him is a sign council people from my office defendants the only person there on his behalf was kevin felton and he was twice removed from the courthouse and when he wasn't removed on the other times they were putting pressure on him to make his appearance uncomfortable they didn't want him there when he came in everyone was talking about it they were reporting it to the judge mr rodriguez pointed out one day and told the judge he is back and letting him know at that time mr sherman felt it important to point out other things that he observed such as what happened the hallway in the following day when mr felt also came back had to follow up further on that and say what other things that he had heard and his belief that the jury observed him and was watching him the note from the jury said anything reporting the news conference from them so this is why it's not trivial this was a purposeful attempt to get him out of the courthouse it was repetitive it was more than once and they were making it so he would not show up and it was done actually with the tacit approval of the court though the court kept saying he is allowed to be there and he is allowed to attend we find that the court whenever he had the opportunity was actually supportive of what the marshal service was doing and in fact when you get with when you look at my other point about that he will fax of some of the other things that happened with the marshal service particularly what happened when they started to dying mr anderson access to his clean clothing while the judge paraded mr anderson he also pointed out that he thought that the marshal service did it darn good job and he was giving them support for what they were doing so this is why it becomes not trivial and the creating an environment so he would not be there so we have a period of time when he does not show up in court and we know that because one of the court security officers when he was removed in december th pointed out he had not been here for a while well why would he have not been there for a while because he was being harassed each time he tried to attend the trial so that's how mr anderson was denied his right to public trial by this tomorrow and that's why he didn't come back you're surmising that or  and mr rodriguez happened to point out that to the judge that no he did not speak to him at all he kept leaving it up to the marshals to do that and when they did that they still want up interrogating him when he came back to the courthouse in the afternoon after don't know if it's a tree but that what they call homicide trial and it's not a tax right but he was not let me just finish so i mean there is in context it is understanding as to why it might be important to make sure that there is no attempt to  intimidate the jury or to communicate with the defendants during trial i mean judge didn't bar him from the courtroom and didn't do anything to suggest he was unaware of these rights that you're talking about right but it doesn't a partial courtroom closure is not done just by the judge in this court in united states v smith has addressed this and recognize that the marshal service can actually cause a partial or closure and they did this in a case regarding when the rules to the to enter the courthouse were changed by the requirement that all people entering the courthouse must have a government issued id i understand all that but one of the considerations in assessing whether this is trivial or not  is whether or not the prosecutor and the judge are aware of the responsibility you have to to ensure a public trial and so judge serious i was aware of that right yes but also the judge was supposed to make adequate our findings and what would  do you think you should have had outside of the presence of the jury made mr felton come up and take the stand and answer questions that would have been one way for me don't you think that would have been more chilling i'm mr felton judge once you up here under concerned with is that the marshal service repeatedly was removing him from the courtroom and creating an environment to dissuade him from being there when you say we've given the how many times you talk was twice he was removed yes so repeatedly had was in every correct any believe that the marshals were acting good faith in what they were doing and thought that was enough but good the good faith exception doesn't apply here the question that applies here is whether or not the reason the remov subverted the th amendment values of a public trial in humor at the value is a person being entitle to have their friends attend the trial your time as long expired counsel but you have two it please the court my name is lauren squares again i do represent andrew right when i want to discuss with the court today is judge sera gooses aiding and abetting instruction to the jury which we think was improper for a couple of reasons one is that oh and another thing i want to discuss is mr wright's murder convictions which we think are not supported by the  statute or the aiding and abetting provision of the narcotics law this court in the united states versus walker has suggested that that is not appropriate and therefore  should not judge to reduce or should not have offered that instruction in the court this court understands that the the walker case it just that because there's a difference between section two and section eighty four thousand and eighty one i say that that that section two and it's to the different types of things that  can constitute aiding and abetting and here by instructing on section two the judge allowed the jury to consider things that they should not could not have or ought not to have considered  evidence to suggest that the different that the three elements of conviction that any of them had been met and that therefore charging on pinkerton was also in appropriate with respect to the murder counts there was really essentially no evidence the government claims that there was circumstantial evidence that mr wright participated in the murders but there really wasn't the th ere was nothing to suggest that anything out of the place with the murders well he all the government knows is that he that his cell phone in a in an area close to the place where the murders took place but that in and of itself is immaterial they never talked about st of all they never talked about exactly how close that was and so forth and weathers and of course the fact that mr wright owns his cell phone doesn't necessarily mean that he was using his cell phone and that not another codefendant or someone else was using the cell phone  that the gun used to kill one of the victims was the gun that your client received in columbus it there is that but then again with the eight without the aiding and abetting circumstance that is irrelevant  we don't know how mr we don't know how mr wright allegedly transferred the gun and even if we did know that because of the aiding and abetting situation it would not be relevant public trial argument st and i think it's important your honour's to clarify a few points st it's important to point out that the doors to this courtroom were never locked the public was free to come in and leave at will secondly it's important to point out that there were not repeated exclusions of mr felton from the courtroom and the record shows that the record shows that on october th the st time that the marshals noticed mr fulton they didn't kick him out of the courtroom they spoke to him outside the courtroom and told them you cannot communicate with the jury and then specifically told them you're welcome to stay and watch but you cannot communicate with the jury he didn't come back until december th and on december th people noticed and yes we did notice we noticed them because as your honor pointed out this for the triple homicide case the security of the witnesses the security of the jurors was important when this person was st approached by the marshals he told them he was doing research on the jury that's fair game for the marshals to be concerned they didn't kick him out when they learned this they simply it simply drew their concern about the record also shows that this man had been previously convicted of violent felonies so there was reason for the marshals it is their job to be concerned when people who have a history of violence to the court now let's be clear as well this was not mr anderson's brother who was excluded this was not mr anderson's father or mother who was excluded in fact your honors with respect to defense counsel the proof on whether he was even mr anderson's friend is not completely established when he was st approached by the marshals on october th he told them he didn't even know mr anderson why they asked why he was there not that he asked to give a reason they asked what he was doing and he said one of the things he said is that he's doing research on the jury now the prosecution didn't ask that he be removed the court did not order that he be removed the nd time the marshals took it upon themselves to remove him we can see that but we submit that under the constantino versus kelly decision your honor from this court that does not constitute even a partial closure of the court asking somebody to leave one purpose when i looked at the tape i saw no other members of the public in the courtroom he was the only member of the public that shows up on the video so it is it was a closure or partial closure since you took out the only member of the public who is there or your honor is that correct am i correct about that i don't recall whether there was ever a time when he was the only person who was there but i do know that those doors were never closed the courtroom was always open to the public when he was asked to step out he was asked to step up because the marshals believed that he was engaging again in conduct that he was warned to not to not do which is namely trying to communicate with the defendants now we've courtroom to make the findings according to waller whether there was that it was the least restrictive me and etc and did it to the government suggest to the judge said it might be useful if he made those fi opportunity for waller findings he could have you could have made them after the fact i suppose he could have made them after the fact but mr felton never returned he didn't return on october th after the marshals despite the marshals telling him you're free to stay but you can't communicate with the defendant and he didn't return after december th now on the record that the better approach would have been for the marshals to contact him and inform of the situation and then he would have he would have attempted to apply was he didn't have the opportunity to do that i also looked at the video as my colleague and a colleague is referring to and i have a difficult time seeing any disruptive behavior the video could you explain what the context of the video would judge the are we talking about october th or december video of the st one right you're talking about december th based on what's the marshal said that mr felton was attempting to continue to face you don't see his hands you don't see where he's looking or what he's doing with his hands the marshals are in the courtroom they are observing him now mr l c overage points out that the marshals paid attention to him that's true but let's be clear that in the pay attention to him because he was black or because he had he had hair certain hair they paid attention to him because he had indicated previously that he was there to get do research on the jury and he had he also had a criminal history with violence in the marshals were doing their job even if this court and i'll finish on this point with respect to this issue even if this court were to conclude that this was a partial closure of the courtroom we respectfully submit that it was not from the quality as to the time out of the court the triviality as this was the only person who ever came to watch the trial how could it be trivial with the only person who ever said up to watch this trial there's no that video doesn't show who's sitting or if anyone is sitting in the back rows that this case was a pretty significant case in the city of rochester people were teen we came summer interns came the media came the media was there constantly they were reporting this exclusion happened on the last day of the trial after all the proof was closed while the judge was reading the jury instructions to the jury no question the jury instructions were important that's for sure but there had been a prior jury  charge conference where the lawyers hashed out the particular terms of the jury before this day so all the issues with respect to the jury instructions had been had been decided prior to the jury instruction the lawyers didn't know what happened the judge did not know what had happened so there is no issue of up somehow being important for the maintain in open court so that the lawyers can you can't do the prosecution can remain appreciative of the importance of doing justice and there were no witnesses called so the peterson factor about keeping witnesses honest because there's they're testifying in public doesn't apply in this case either because no witnesses testified on that day   in the time remaining i don't mean to cut you off in the middle of a word to the rights of privacy that these defendants have in the use of their cell phone what happened in this case with respect to mr anderson cell phone was not him simply using a fake name let's be clear about and if it was only that then arguably the defense would have a claim what happened in this case is that mr felton she's mr felt mr anderson i apologize mr anderson used a stolen identity from a nursing home patient in florida jason keep a real person by the way we tracked him down and we found his provider was obtained before carpenter was decided it was a team before carpenter was decided but by the way search warrants were the state court judge that authorized that order the phone company we never got to this issue because ju magistrate ruled on the standing issue but in fact there were warrants issued by the state court judge with respect to these phones mr mr anderson used fake identity not only to taint that  but in fact to carry out his criminal activity in this country he had been twice deported do you concede that he would have had a right of privacy if it was his own phone registered in his own name yes no i can yes i can see that the government would have had i think one of the other defendants had his own phone in his own name and yet you got that information as well didn't you think everybody in this case all the defendants in this case used fake names or on a richard anderson use jason since each of the attorneys have some rebuttal time i will ask them i thought one of the attorneys said that his phone was registered and he may not have used it but it was registered to him and you got that data as well as i recall the names on the phones that were used were rich jason key for richard anderson something brooke for  since carpenter but you stand you are arguing that if you use not your own name in a phone that you paid for you give up your privacy rights under us versus carpenter  that carpenter wasn't really a standing case i think that the case that maybe draws more concerned for us at least was the byrd case which is the rental car case where the supreme court said that just because you're driving a rental car and you're not the name you're not named on the contract that is not enough to deprive you of standing this is not that actually no standing doctrine under th and that law it's just answering the question if you have a reasonable expectation of privacy if you do you have standing if you doubt then then you don't have a th and then claim so i guess the question my colleague is asking is would the mere use of an alias defeat your expectation of privacy and in something you would otherwise have an expectation of privacy end and i guess the answer to that has to be no you know if i checked into a hotel room using an alias i would still have an expectation of privacy in the inside in the hotel room which i had paid for right there are cases and we cite them in our brief that says the use of an alias is in fact somehow somehow deprive someone of an expectation of privacy with respect to the thing or the room for which they're using an alias however however and this is key in this case there was much more here than mere use of a nail this in this case richard anderson and the other defendant used these fake names to pursue a criminal activity namely to sell drugs cross country to travel cross country when richard anderson and jason when richard anderson flew from california to columbus on an airplane he used the i d jason key he did that to pursue not only the underlying drug drug conspiracy but to facilitate the murder of these three men that often happen the cases are consistent that when somebody uses an alias to for pursue or to facilitate criminal or fraudulent activity then there is no reasonable expectation of privacy that is not something that society is willing to accept the courts are consistent and in fact the bird decision the supreme court decision recently about the rental car not having your name on the rental agreement the court specifically in that case said all we're saying here the supreme court or we're saying here is that not having your name on the rental agreement is in and of itself not enough  deprive your stand it's specifically excluded in reserve for the question whether somebody who uses an alias to pursue fraudulent or criminal schemes in fact does lose their standing so what leases are pretty consistent on particular dates your honor but what's clear is for example for richard anderson he was twice deported when he came back to the country he reconnected with andrew right and it was at that time as by remember correctly that he obtained the phone and the fake i d with decency he had to obtain the fake i d which recently complete my point yes of course he had to tame the fake id with jason key because under richard anderson if he was found out he would be know how my client got his phone or not that was not developed i will assume that he used a fake name to get the phone i just wanted to point out that the issue of standing and privacy is not as clear and there are many cases that say that it is developing now i just litigated a case recently in the st circuit with regard to a fellow who use f ruled against us and said standing standing standing and motion to reconsider the court reconsidered and vacated that opinion and it's standing basis so i don't think the expectation of privacy depends on what name you use it's apples and oranges if you commit a crime you can be prosecuted if you use a cell phone and a phony name you still have an expectation of privacy if you stand in a phone booth and make a call and you say your name is joe small you still have an expectation of privacy and i think it's apples and oranges and the i think it's that riley case perhaps where justice scalia started talking about returning to the expectation of privacy and trespasses and if you trespass on my phone even if i have a phony name i think you still i still have an expectation of privacy i'll leave it at that i can give you the name of the st circuit case if that would be that we moved he that he was not removed but he was observed his activities were pointed out it was it was addressed that he spoke to mr smith it was addressed that he put his quote down on a pew outside the courtroom as he was putting himself back together after going through court security and you don't think marshals are judges she will ask questions about those kinds of things or observe those sorts of things it's not it's not a question that's not a that doesn't go to an friendly environment in the courtroom well courts need to any evidence that he was chilled from coming back to the court now we do not have evidence quite to that extent we do know though that he was removed twice the st time he removed i disagree with  learned colleague that was a partial closure even though he was a lot ultimately allowed back he was removed from the proceedings at that point or how long until until he came back in the afternoon but what's the what's their record reflect with respect to how long he was we don't we don't have we don't have a timeframe for that we are and we do know that the nd time that he was removed he was told don't come back and this was not done by the court this was done by the marshal service the nd time is on the day i mean the point being made by prosecutors that it was the day of jury instructions right was it a very instructions correct your honor now i also want to point out that the question regarding his doing research in fact this is one of the reasons why we have an open court the st time he was asked you know when and keep in mind this is a person one of the only black men other than the defendants in the courtroom who comes in once observed things also he's being questioned about his activities which were really as a judge described and consequential but all of a sudden he's being questioned on it what he tells them he's doing research on the jury when he comes back to the court and the marshals talk to him they tell the judge he changed his story his story didn't change what he did was according to the court security officer he told them he was doing research on some cases he kentucky which is researching the jury he was interested in knowing and this was also relayed by the court security officer the made the racial makeup of the jury he was trying to see is this a fair trial and are these criminal defendants and his friend getting a fair shake and having a representative jury now you or i may know that a jury doesn't have to be have like african american members of the community on to it to be a fair jury but this is what he was interested in finding out this is research on a jury this is  about so i think this this is important to consider this was not trivial if you look at the cases where the courts have found the triviality exception applies it's usually it's often in inadvertent closure it's often for a very short duration of time but here we hadn't had the member of the public being told openly not to come back and there has to be appropriate waller findings which judge surface and never made there is one of the thing if i may recently just because it came up regarding the cell phones there were i don't recall where in the record but they did have at least one individual who sold cell phones to talk about it  i would like to remind the court of the decision from another panel this court united states v fields from one thousand nine hundred and seven where the the it was pointed out the privacy expectations do not hinge on the nature of the defendant's elissa's or use all the time there are plenty of court cases that have recognised that use of an alias does not eliminate the privacy interest surely stealing someone else's identity and using their social security number and their name  how can you have an expectation of privacy and the use of that name to accomplish if people knew mr anderson is jason key he had the phone is chasing he he paid for the phone is using a real jason key was contacted by the government of the phone give consent and then we would be in a different posture at this point and have to deal with a different question why would we be in a different posture the us the issue is expectation of privacy there's a person who steals another's identity have an expectation of privacy when he knows that the real person might actually cooperate with law enforcement but we don't know we don't know what mr anderson knew about where this identity came from or how he obtained it has to have known the nice to know whether he will part and who has the  true we again we don't we don't know all the circumstances that for all he knew that these these numbers could be made up it could have been someone who is long deceased these are things we don't know at this point the government says there was a warrant in this case is that we did not get to it at this point there are still questions early on at this in the litigation as to what was valid i believe it was a warrant from the government to get this information under stole it he walked that here and he started making phone calls over the next half hour your view is that the government have to get the f b i would have to get his consent or a warrant before they could get cell site information to use against him when he had your phone and was making calls if mr rodriguez stole my phone he probably would not have much success with it but there were there becomes questions as to what you have an expectation of my adversary did not directly address any of my arguments i thought i would if with the court's permission talk a little bit more about the cell phones there's nothing in the record to indicate that mr  my client's cell phone was based on stolen identity it may well have been based on a an alias a name different from him from his actual name but there's nothing on the record to indicate that it was based on  i can send a letter to the court with to answer that question i don't remember right now whether there was that motion was made but i think that livingston put her finger on it when she said it isn't really a matter of standing per se it's a matter of expectation of privacy and also right in the government's brief they called in a circuit case called united states versus lewis and they say a mailbox bearing false name  false dressin used only to receive fraudulent only obtain mannings does not merit an expectation of privacy there is no indication at these forms were used only for criminal activity in fact i think there is  significant evidence in the record that they were used for other purposes and that they were in essence your honor said if you stole the cell phone that's one thing but they were the bus cell phone and some of these  that the defendants also do you think out of the cell phone data was suppressed or not allowed into the trial there's a likelihood that you and the other defend your defendant of the other devices would not have been convicted certainly that there was evidence that my client was near the murder site that was based on a paint off the cell phone he was holding this would mean nothing else so he wouldn't be put at the scene without the cell phone anywhere near the scene and that was and although i don't concede that that one pain puts him at the scene because as i said we don't even know who is using the south of there were reports the two men ran from the house and you're arguing that your guy is the violation in the use of the cell site location information why wouldn't this be subject to the good faith doctrine well i don't understand i'm not sure i understand your question well at that this evidence  obtained if i'm understanding the record correctly was obtained prior to the decision and carpenter right and prior to that i don't believe there was any circuit law any authority in this circuit that said that you had an expectation  privacy and records held by your cell phone provider was rd party information well listen doesn't the fact that this court decided copter does that not are you saying that because when it was originally i'm exactly thank you not sure of this argument was ever made below as i said i am not sure it's a it's a it's a ten volume or twenty volume record and i just can't recall but i was not argue  as far as i'm aware by the fact that we joined in it even in the header as your honor said gives us the right to argue that the court i understand where your honor is what your honour's thinking in terms of having ways to perhaps blowing that's what i have to address in that letter thank you thank you all for a very lively argument or we appreciate the work of the appointed counsel thank you