crime of racketeering conspiracy was not proven beyond a reasonable doubt alan's association with members of the so called b m b gang did not establish that he intentionally or to sit in the conspiracy which the gang members committed alan grew up and he lived in the bronx neighborhood with b m b gang members operated so of course some of some of his marijuana sales were to gang members and there's no dispute that allen wasn't gauged in the business of selling marijuana but selling marijuana to gang members did not prove that he knowingly joined the conspiracy or that he agreed on the essential nature of the on one occasion was going to a housing development where rival gang members were operating so assuming that you need permission from one gang to sell in their territory then you would have to infer that he had permission from the almost exclusively to be m b gang members which simply wasn't the case in fact as i just indicated there was evidence that mr allen sold marijuana in an area said to be controlled by members of a rifle gang and at least on one occasion there was evidence admitted that a few years before he had sold marijuana to an undercover police officer so basically allan is in the marijuana selling business he's going to sell to anybody who's got the money to pay for his product he's not exclusive to the b and b gang he has no real association with members of that gang except to want to case and sell marijuana to them as he would sell marijuana just carried over to his own i don't know that that argument that the government made that he was selling at a discount to b m members really holds up either because i think on the one occasion where the government's star witness mr hamilton claimed that he began buying marijuana from the defendant there was some haggling that went on originally  alan had set a price i think of two hundred and fifty dollars for an ounce of marijuana and after some haggling he sold d it to him for fifteen dollars discount but at the same time told hamilton the  government cooperating witness that the next time you buy from me you're paying full price so i don't think that the government's theory that he was assisting the b m v gang by selling them marijuana at a discount holds up  d i have to address adults and i understand that you know the jury sore and heard hamilton as a witness it was up to them to determine his credibility but after all this is a nineteen year old who's essentially a career criminal he's in gauge the numerous crimes involving violence firearms shooting rival gang members committing burglaries and committing perjury to save himself from being convicted of crimes he also told the jury that he was a chronic liar and that he would say anything to quote get out of a jam unquote and and at the same time or further so that he was facing hamilton a life sentence in prison for the crimes that he pled guilty to in this case and in the next breath tells the jury he's hoping to get a sentence of time served so this is a very fine individual with dealing with and this is the government's star witness against mr allen and in any event i think that the testimony regarding the discount really doesn't stand up to scrutiny and i don't think that the government's case against allen for the record here in conspiracy was legally sufficient as far as the cross examination of the defendant i believe that was completely improper time and again the prosecutor cross examined dalen it it's my understanding that the government doesn't really contest that and really the question that we have before us is whether on plane air review this is required to vacate who or what can you tell us about that standard yes well i would submit to this court and the reason i brought up the testimony and the character of mr hamilton who was the government's star witness against mr allen i didn't bring that up just to smear his reputation because when we're talking about whether or not the improper questioning of the defendant prejudiced him and denied him his right to a fair trial i think it's fair to look at the evidence that was used by the government to support the conviction that being primarily mr hamilton's testimony it wasn't there also evidence that he conspiracy and which i would be happy to address as well but it's in my brief but in terms of the questioning of the defendant i believe that it did deny him his right to a fair trial and the impropriety of the questioning was compounded when he was asked one point if he thought that the police officers who were involved in a resting him were willing to risk their careers to lie about with a gun came from  that was classic improper questioning and basically suggesting to the jury that in order to acquit mr allen of the charge they would have to find that the police officers intentionally lied and i think that was such an improper line of questioning that i don't think that you can simply chalk that up as well or better left unsaid or some sort of a harmless error situation i think that truly did deprive him of his right to a fair trial keeping in mind also alan was i think the only witness who testified for the defense it was basically his responsibility to try to show that the government's case wasn't proven so being the only witness for the defense it was even more improper to question him in the manner that he was because he had nobody else to to coal in order to show that the government's case had not been proven i believe that given the weakness of the case which relied primarily on a career criminal mr hamilton and and it needed perjur address st the issue of messiah and what needs to be addressed st is what actually happened because the government describes it as two defendants reviewing discovery together and that is absolutely not what happened the testimony from mr bass was that mr thai leak what tyler was reviewing evidence and he walked over he said the government has what happened while you were there with my leak the response was i approached him and asked him what he was doing the response was that he was looking at autopsy papers and ballistics reports the government asks did he say anything to you and the response was well i asked him who was in the report and he told me it was kiki the kid that died in the party and it continues from there now the fact is that mr mr best did not yet have a cooperation agreement but this is what makes it worse the government has no problem separating all of our our defendants on a multi defendant case so that they cannot review discovery together it is a problem we have constantly in the system of defendants not being able to work together in this case a man who had proffered with the government who was trying to have a sufficient amount of information to get his cooperation agreement was allowed to be placed in a cell with so m against he hoped to cooperate now that unto itself doesn't that unto itself is a violation it was sending somebody in who was goal in life was to get enough evidence to become a successful cooperat and get that five k one now as far as mr time will standing to object to that i would like to point the case to the court to the bin laden case which is cited to by the government and the fact is that in the bin laden case this this court ruled that the messiah claim did not and unto itself get standing to another defendant because as the court ruled we see nothing in the record to indicate that the government was benefited or defendants were prejudiced by this happening by the placing of a cooperator or hopeful cooperator in the adjoining cell in this case there's absolutely no question that the government benefited and that the defendant was prejudiced by this because the worst evidence against mr tyrrell was the sest elect statement of a code benefited the government i don't believe that there is any justification for the government sending somebody into m d c and not having them separated if he's trying to get a cooperation it's almost a nudge nudge wink wink situation where you say here where we haven't decided yet whether we're going to give you that cooperation agreement but we're going to send you in into a position where you might be able to get more valuable information but don't ask any questions nudge nudge wink wink it doesn't work that way because the government knows this guy is desperate to have a sufficient cooperation to not spend the rest of his life in jail and i think that that's a very serious situation that this court i'm hoping will address and say yes this is also a messiah violation it doesn't matter that he didn't have that signed cooperation yet it's actually worse because he had every impetus to try to collect evidence or to be in a position to falsely testify that during a conversation this was what was said to him about mr tyrrel for your honour's if i may i would also like to address that this is a hearsay violation because it it's basically looks like a burden problem even though he's not a non testifying codefendant sitting there with him it is the statements of a codefendant that are introduced against him at trial and this is simply improper i was then like to address if there is unless the court has questions about this issue i would like to address next  he was nineteen when he was nineteen but i'd like to point out to the court that in cruise this court allowed a nd or successive filing a behavior yes for a young man who was pas his th birthday he was eighteen and a half and this court allowed that nd or successive to be filed in the district of connecticut and there this young man who was past his th birthday was in fact sentenced to a non mandatory non life sentence because the court took evidence and the court found that there is a time frame that does not apply universally and that according to all the experts that testified a young man does not develop the cognitive rational thinking that allows him to think for himself and not be part of a group until he's twenty five dollars or twenty six dollars and at that that on that basis mr cruz was sentenced to not mandatory life term he was sentenced because of his youth to a lesser sentence now that court declined to extend miller versus alexander alabama passed in one thousand birthday but it did not cut a draw a line in the good morning may it please the court just a fine time for the government i'll be splitting the argument time today with my colleague allison nichols i'll be addressing appellant allen's arguments and his nichols will be addressing a i'd like to begin by addressing the richter error in the cross examination as we said in our brief we do concede the error and we very much regret that error that said the error was limited and it does not amount to plain error the issue at the heart of richter is whether the jury's assessment of the defendant's credibility was usurped by the government's erroneous questions and here this error did not amount to substantial prejudice because there were numerous ways in which the defendant's credibility was undermined separate and apart from the problematic cross one of the most obvious of these  was mentioned by judge kearney and that's the fact that the defendant testified on direct that the gun in the car on january th two thousand and fifteen was not his it was the other individual who in the car who brought it to the car that day but then that's directly contradicted by his sworn statements in his state police in which he admitted to possessing the gun that day i'd also point out that the defendant testified that the person in the car with him that day had brought the gun to say well to mr allen but the evidence actually from the state clean with that as well as the physical evidence admitted at trial was that the gun was loaded so selling a gun and having a loaded gun in a loaded gun doesn't make a lot of sense i would also note that the defendant was impeached on the fact that he he denied knowing the other individual in the car's name but in fact he was impeached on the fact that he had told the n y p d internal affairs the phone name of that individual and notably at sentencing judge nathan added obstruction points four of the defendants false  testimony and she never even mentioned any of the erroneous questions she focused on the fact that he falsely denied knowing who were members of b and b false he denied  basically said he only sole sold small quantities of marijuana and she noted it was readily apparent from his demeanor and his statements that that was knowingly false testimony so for all those reasons what you really have here is somewhere between three and five depending on how you count it problematic questions out of a twenty four page cross examination in a trial in which the defendant's credibility was undermined in numerous ways including through direct contradiction with his own sort of statements i'd also note that there's just no way that this error impacted the integrity or the fairness of a judicial proceeding because the defendant admitted to possession of the gun in state court as well as all of that i think it's important to point out and this goes to the sufficiency of the evidence argument that again the even if you took out that entire section of the cross examination that the defendant cites in his brief and even if you disregarded all of detective williams's testimony you still have more than sufficient evidence to convict the defendant on the gun possession because you have again the defendant statement in his state clearly you have his own testimony on direct examination that on the day of the and fifteen he completed the sale of two nickel bags of marijuana to the other individual in the car and that there was a gun in the car although we claimed it wasn't his so right there you fifteen which is the exact time frame of the gun arrest the defendant was selling resell quantities of marijuana on a regular basis to the cooperating witness and other members of b the exact gang territory and location where the gun arrest occurred so we just don't think that although this air of of course we don't deny the error but we just don't think it comes anywhere close to playing error here and to impacting the fairness of the trial but with regard to the location of his sales and what that what you could reasonably infer from that your the opposition the defense says that that was his neighborhood that's where he lived that's where he grew up maybe he was due a pass from that and that he also sewed is so in the in the territory of a rival gang and yet were not ask the was a member of that gang is will how do you respond to those arguments well what's regard to the testimony about selling to a rival gang i actually think what he said was that and the testimony was that he was going in to eat in wall which was right rival gang territory but he made sure to tell hamilton i'm selling to jamaicans they're not y s g s who were the rival gang so he actually made clear in his testimony that he was on b and b side of this argument about the neighborhood you know it's sort of a mere association type argument it was made to the jury and you know when you're doing a sufficiency of the evidence and now you know i'm sorry when you're doing a sufficien the court alison nichols for the united states good morning or honors there is no basis here to disturb the jury's verdict that sufficient evidence supported tyrrell's convictions here nor are any other of tire else claims valid the government has conceded that counts three and four should be remanded for re sentencing but other than that judgment should be affirmed in its entirety and a technical error in the way that the judgment was recorded there is no issue with those sentences running concurrently and there is no issue with a twenty five year sentence on count one however counts three and latitude not to be unanimous on the predicate crime and the got might raise some questions about the validity of that verdict could you could you address that concern please yes your honor i like to address all of the davis counts or all of the firearm counts if i may and i will start with count five it was predicated in the indictment and before the jury on two and three rather separate the count one racketeering conspiracy and the counts three and four narcotics crimes as your honor is just indicated but the jury was asked to make a specific finding in the verdict form as to which of the credits applied and they were instructed that their findings had to be unanimous and so for that reason and that count five conviction does stand because the jury found that it unanimously that it was adequately count six was predicated on an attempt assault under new york state law and this court has already found that attempted assault is a crime of violence in in several cases in the walker case using the identical definition of crime of violence that appears in the career criminal act this court has found that attempted assault with a deadly or dangerous weapon is a crime of violence likewise in the that that may decide this issue cases that have been briefed and argued prior to this one however i have to i have to underline that here this count seven was predicated both on a completed assault and an attempt at hot stock robbery and the evidence before the jury was that this was one inextricably linked event what happened is that tyrrell pulled a gun on a livery cab driver and said i'm taking your stuff and then the livery cab driver reached for the gun which caused tyrrell to hit him in the had three to four times with the weapon causing serious andrea before fleeing the scene and so while the jury was not a to differentiate between the completed assault and the attempted hobbs act robbery here with the jury's verdict it necessarily found the complete assault in convicting tyr because these these events were completely and totally in extra couple i'll just address very briefly the messiah issue that counsel raised first of all information from mitchell has no basis in the record and in fact the record shows quite the opposite the record shows that at the time that bass heard these statements he did not think that they were significant and he did not repeat them to the government until two years later he he did not believe that it was information that was that the government needed or wanted and so there is no basis whatsoever to believe that there was any evidence not overwhelming rules as i said the entire case pretty much was based on a cooperating witness how the character we don't have to go into what again i believe that under these circumstances mr allen was prejudiced by the government's misconduct in the questioning the other point that i want to answer was it seems that i thought the government seems to be saying that allen has to buy that when he went was which was the housing development that controlled by the rival gang that he was not selling to rival gang members only jamaican people i think it was actually the cooperating witness so i mean it's perfectly understandable why he would say something like that and not the road in a gang members they say oh i'm i'm also selling marijuana to other gang members in back of itself anybody who has the money to pay so i just wanted to make sure that i i corrected if that was the impression that the court has that was not i believe that was not what mr allen testified to but what the cooperating witness did and i i think the and although judge wellesley is absolutely correct that this is something that is generally more appropriate for a hideous corpus petition there's also the issue of judicial autonomy this case is being remanded for be s however this court also is concerned about judicial resources and judicial economy and therefore i think it makes more sense to allow this to go back to the court below for a full reset and saying and a determination as to whether miller versus alabama should apply to this particular case rather than having a reset and saying another appeal and then going back for i mean assuming there's a grounds for appeal i don't know that that's going to happen but then going for within another year a havey is corpus petition that this court allowed another court to have hear this issue and decide it in favor of the defendant that's probably and i can guess the future of that is what would make sense for this court to determine consistent with its ruling in the crew's case that this should go back for a determination as to whether miller versus alabama should apply to this defendant who in the court said he would prefer not to sentence to life but his hands are tied and you can even look at this is an issue of mutual mistake all around because his hands weren't high the government thought his hands were tied the defendant thought his hands were tied and the court orders hands  tied they were not because milage is not create a bright line rule line in the sand it simply states that you cannot have mandatory life to somebody under the age of eighteen it has already been extended to somebody under the age of