proceed thank you your honor may have please the core question counsel just my name is jason adams and i'm here representing michael cooper who was convicted of distribution of a controlled substance resulting in the serious bodily injury and a separate con of conspiracy to distribute a controlled substance a client was sentenced to the mandatory minimum of two hundred and forty months on each count to run concurrently with each other that i briefed on the trial court allowed prior bad act evidence which claimed that my client had previously dealt heroin to the government's  off off testified that that act resulted in the overdose of a d or her testimony at trial is that it was possible leaf that the drugs to this alleged overdose were it's not supposed to be of the exact same type of fact scenario that's set forth in that underlying case and that's what we have here the allegation that hoffa makes is the exact allegation that the government was trying my case my client time and it's my understanding that that type of intrinsic evidence isn't allowed that's why the government is trying to get it through through the four criteria that i was discussing so that's why i don't think it's intrinsic evidence because it's exact same allegation that my client's been tried for them specifically the with regards to the drugs that this is a deal overdosed on and the government provided no medical testimony the law enforcement testimony there was nothing to corroborate this act that darcy believe that the government established sufficient evidence to prove even by a low burden of proof preponderance of the of the out of them for a jury to conclude that that apple her as to the st element of the government put forth nothing but the words of darcy possible to establish that this other apt occur she could keep the timeframe consistent and there were no other details given as to this other act with relationship to ag the government didn't call a d n to testify there were no other witnesses called by the government i will concede that the nd element is met in that it's similar kind and that goes to the intrinsic evidence criteria this is the exact same crime that my client was being tried for and the only thing that we don't know is the timeframe and i know that this court has said in the past that up to eight years is so sufficient time frame so that year or two a time for never talked about in this case is likely satisfied by the government the last element that the government must establish is propensity evidence they basically came in and wanted to establish that this cooper did this once he certainly must have done it yet and the government argues that it's intrinsic evidence because it's so intertwined in this crime that it completes the story as i was trying to say earlier the definition of intrinsic evidence is evidence of on call conduct other than the conduct at issue and this is the exact same conduct in this case government cites to the thomas case from the circuit in two thousand and fourteen thomas involved multiple witnesses testifying about crack or heroin dear deals made by that defendant the thomas case and fourteen is much different than one person in this case uncorroborated uncorroborated allegations against my client this aid was mentioned once during this entire trial so it's not so intertwined that it completes the story the only time that this person was mentioned was when the government was talking about this act and you know one of the reasons moving not to my next and see the evidence as i stated in my brief it's our belief that there is insufficient evidence that there was a distribution of an opiate resulting in a serious bodily injury the government was required to establish that my client's tributed a controlled substance that led to each case overdose and subsequently to his serious bodily injury under burrage our supreme court said that a defendant cannot be liable under penalty taken and a preliminary drug screen was done on that urine sample and that urine sample only showed cocaine in his system it did not show an opiate governments expert testified that the reason for that could have b because it was a synthetic opioid effect now which doesn't show up in those preliminary drug screens also testify that it may have occurred because it was samples taken too quickly in the k did have the ability to get that through a system there was no further or confirmatory testing on each case urine or any other bodily substance because the government failed to obtain that witness  trial indicated that the hospital maintained that urine sample for seven days but the government failed to obtain that or to even test the area of the government's main investigator on this case  age case body we don't know if the cocaine was placed with technology we don't know if it was an actual opioid if it was a synthetic opioid we just don't know the answer to that because the government failed to obtain the necessary evidence in know we said that's good not right seal's case is different than this case because in seals they actually did have a blood sample that was tested and if i recall contained at least four different and his but that's a major difference in this case because we have none of that the only thing that we have in each piece but here is cocaine and then another difference in seals is that in sils there is testimony that the defendant was present when seal's was overdosing and that he fled from the scene in this case hosp the middling person but me government witness is the only person that claims that she got the drugs from my client that's the only evidence that this drug came from my client and hoff is actually the one of the scene unlike the defendant and in seals so that's why i think that  seals cases is so much different than this cooper case there was a lot more detail there was a lot more witness testimony there was a tight time frame in the seals case obs here we're just left with the u and testimony of darcy off and i don't think that was sufficient for a jury to reach the decision that they did and in this case i see that and getting close to my rebuttal time so i would  you counsel mister parsons thank you judge shepard may please the court and my friend mister adams on this conviction involved a long time drug user and drug dealer who trafficked primarily in heroin fenton all in dilaudid or hydromorphone that he typically acquired through the through the mail he was not a large scale drug dealer in terms of all quantities but he was smart he kept the circle around him small and the drugs he acquired and sold others were deadly even in very small amounts i'll begin by addressing the evidence sheree rulings that have been appealed and i'll start with laurel ford be proud of trial the government file its notice of intent to offer evidence of prior acts that said docket number one a one we sought to introduce evidence of the course of dealing that occurred over several years between darcy hoffman served as a as a middle  between mister cooper and the people that darcy hot brought to him in order to sell drugs the judge schreier made a ruling on in the june th two thousand nineteen pretrial conference i think on page twenty three and she did of the appropriate for a for b balance and she found that it quite possibly wasn't trying to evidence including the evidence of the extremely similar overdose argument holding was that it was material relevant on the issue of motive and intent she specifically found that if miss testified that would be proved by a preponderance of the evidence and she found it was more productive than prejudicial and customers of darcy that she would bring to or hook up with cooper without them actually ever meeting she acquired the drugs from cooper gave them to  ambiguous once they took them she turned purple she convulse darcey did a sternum robber tried to do c p r on her and she came through and she came to the evidence was this happened within about a year of the overdose that is the subject of this case testimony was either in two thousand and seventeen or eighteen and this overdose that we're talking about in this case was in august of two prior overdose i don't know if there is evidence that he knew about the prior overdose but it's evidence he denied that he ever even sold heroin his testimony took the stand and said the only thing i ever i was a drug dealer but i was only a drug dealer for dilaudid pills darcy this is the evolution of his testimony through various forms in which he emitted more and more increasingly but he never admitted he was a heroin dealer or offend all dealer and he made out of known that were spent in all and what he was selling you might have thought it was heroin a lot of people think they're buying heroin turns out these days to be fat and all something else so it shows that he was selling extremely potent drugs that resulted in another overdose in the same type of system he had the same deal between where darcy and here was her deal she would not connect cooper directly with her customers she would get a call from either our you know herman klein sauce or the victim here or or others i need a couple  clicks of heroin she would contact cooper to drive to the gas station right next to the red rock and have her customer wait in the car she would go into the red rock and to room one hundred and sixty eight dollars get the drugs from cooper inside his hotel room usually although there are a couple times he did it outside and witnesses saw him do that that she wrote back then she would take her pitch of the drugs or her extra cash and they would use the drugs almost immediately and that's what happened in the case of this prior overdose and that's what happened in the case that we're talking about here so i think it goes certainly to motive intent and it goes i think it's intrinsic evidence because this was a course of dealing over a couple of years but this was it within about a year or so at least limiting struction on this evidence and judge try again one here it was instruction final instruction number five telling the jury exactly what it could consider this evidence for a specifically and that it could not consider it as propensity character evidence and really i don't know how you say that a predator overdose reflects on someone's character this is not the propensity of this he had a character trait of selling drugs this was what he did this was his motive his plan is preparation his  intent and it showed that he had these terribly powerful drugs and was selling them and again the jury was able to hear this hoffman so an attack on her credibility saying well her testimony is not good enough that's for the jury to determine and they found her to be credible and mister cooper to be decidedly uncredible in his testimony and in fact to try to sentencing concluded he had perjured himself on the stand in at least two instances i talk just briefly about the previous ten years and so it was absolutely probative and in united states versus probably or this court held that prior convictions are highly probative of credibility because of the commonsense proposition that one us trends get grest society's norms by committing a felony is less likely than most to be deterred from lying under oath and so that's why it was admitted that the prior felony itself was an assault where mister cooper stab someone in the abdomen because he thought he had this was someone who had ripped him off before but that didn't even come and the only thing testimony about this issue the aggravated assault was brought out by the defendant after judge schroeder's ruling and only that he was convicted of aggravated assault and did one hundred and thirty dollars days in jail that's all the jury heard the government never pursued this line of questioning at all didn't use it in closing argument and so certainly should be affirmed as i gave some of the background these two dealt with each other for years couple of years they met in two thousand and fifteen and quickly began using drugs together selling drugs together  she would wire money for him she would give them rides to different places if you look at michael cooper's phone records which are exhibit sixty sex in the six weeks prior to this  darcy hof is the number that has most frequent contact with michael cooper's phone three hundred and eighty nine dollars contacts him in less than seven weeks either tax or cost between hoffa and cooper so they're talking all the time and often buy heroin from cooper multiple times a day almost every day multiple times a day whenever she could get the money or whether she had someone she could connect who had the money and she could take a cut from that and so they would do this transaction out they're parked in an r v s parking lot he's convulsing turning blue turning purple his breathing is extremely shallow he's overdose so we call nine hundred and eleven the cops come to shouts of interrupts the connection of the opioids the receptors in the brain and you will come back to life to start breathing again you'll turn pink again from being blue and so that's what happened after two of those he's immediately back back so only in their medical turning purple almost stopping breathing and then the american fixes it almost immediately so we go to the hospital this guy the victim goes to the hospital he gives a give some urine there's only cocaine in the does not show up on the screen was the medical testimony the scream that they did and so the only drug in his system is cocaine which could have caused the overdose in this passion and we know he got this substance from michael cooper took it and it was an opioid the only logical conclusion it was at no that he got from michael cooper synthetic that now so we do a search warrant and we had paid are they they search his apartment get a search warrant in substance and the testimony from other witnesses and from various he was that it was this purple is bluish substance that he was he had been selling lately so whether he knew it was bad or not he got in the mail presumably he had you know a dictionary with a hole in the middle of it cut out the you could store drugs in and she had seen him getting drugs in the mail that way before it there's much more evidence in this case i would suggest even then unseals which is pretty much on all  but the time here the timing here is even more condensed and judge shepherd's case in in the united states harris as well talks about we don't have to sound our burden to exclude every other possible drug if we come up with a injury he this this man almost died and was brought back by by the american thank goodness for the narcan and so combined with the testimony of the medical testimony by the paramedics and he put up very well a young man like that just doesn't drop over in a parking lot for no apparent reason and appear to be dead and then all of a sudden get right back up on his feet after a medication like that very specifically points to another conduct overdose of some kind and the substance we've tied into is what he got from mister cooper so this was more more than enough to satisfy burrage on every level more than enough for the jury to have found him very well thank you mister parsons and stratagems you have three minutes and forty seconds may proceed thank you your honor i guess i'd like to start by addressing the court's question  opposing counsel i do believe that is highly prejudicial to allow another overdose without corroboration it's one thing to allow testimony regarding distribution  but it's a whole other issue and it's not relevant to allow an act that is the exact same crime that my client was being prosecuted for and i'm going to go there whether out with it in light of the corroborating evidence you're you're basically allowing one person to make this allegation the same person that's making the same allegations against my client at the trial the cases that the other cases of the government cited in their brief  those are different because there are multiple witnesses in the one thomas case and the other thomas case they cite we talked about two prior convictions which obviously are much more credible than somebody who's word that this occurred and this individual's unable to stay on point and consistently give the same version of events whether regarded this overdose as one at all kurt or whether whether it regarded some of the other things that the government talked about in the sufficiency deodorants argument one of the things that i wanted to point out was was when the government is talking about the phone records i would point to exhibits number four hundred and forty one o six this dirty h grams of fat not in a coffee pot in my client will sell room that's hardly the type of evidence that would indicate that my client was some major heroin  know what was in h k system because the government failed to obtain that evidence we do know that there is cocaine in there we don't know if that propane was laced with fact now we just don't know the evidence because the government failed to obtain that evidence and i disagree with the government's position that there is much more evidence and this case than there was in sales that's simply not the case and seals they they had the blood say they knew exactly what was in that their times what they had experts testify as to the effect that those substances would have had on that they're down we didn't have any of that present here in this case because the government failed to get well thank you counsel and mister adams thank you for your service under the criminal justice act appreciate it right the case is submitted and the poor will render a decision in due course