ritz i'd like to talk first about the government substantial interference with defense witness many melbourne the trial court's factual finding that there was no substantial interference is reviewed for clear error and the constitutional violation is respondent reviewed for whether it's harmless it is whether the court is convinced beyond a reasonable doubt that notwithstanding the error robert received a fair trial or put another way whether there is any reasonable possibility that there would have been a more favorable result on any of the charges of which was convicted either the drug charges the conspiracy charges or the gun charge the government cannot combine a standard perjury admonition with a statement by the agent to the witness that i believe that what you just said is a lie and if you testify to what you just said under oath you'll be committing a federal offense because the witness perceives that to be the threat that it is you either need to change your testimony or you need to decide not to testimony to not to testify and if you do not you subject yourself to the risk of federal prosecution but it's not pretty standard to tell him that if you lie or the court we're going to prosecute a standard pretty there are some basis for saying that a standard perjury admonition can be given at the beginning of a witness interview but it should not be combined it should not be given in response to the substance of the witnesses statement and that concern goes back to the foundational case our web versus taxes where the trial court judge singled out a defense witness for perjury admonition and he quote implied that he interference is with the impact that it has on the defense witness and that defense witnesses decision whether or not to testify or not and whether versus taxes that win is ultimately decided not to testify and so it wasn't looking at what the impact was on the jury but what the impact was on that witness and so what we have here is that age of kaleido testified at trial he admitted that he met with mandy meldrew twice the first time was when she was charged as a codefendant with robert ritz in state court while she had those charges pending colline admits that he circumvented her lawyer he'd schedule that meeting without her lawyers knowledge or presence and he interviewed her about her codefendant robert rix admitted during his trial testimony that mandy said during that meeting that the gun was hers and that the drugs were hers and that robert had nothing to do with collect denied threatening her with prosecution during that first meeting many says that she did but what's more significant is collide his testimony were about the second meeting which is after a man had pled guilty in state court while she was serving her sentence and had her brought down to testify in front of the grand jury and he met with her he testified again that man he said that gun was hers those drugs were hers and robber had nothing to do with and collected testified quote we explained to her that we knew what she was doing we knew that she was taking attempted to take the charges for robert we explain that if she was put into the grand jury and sworn under oath that she be committing perjury in a federal grand jury and that is an improper perjury admonition that is the agent telling mandate in response to the substance of what she's planning to say if you say that you will be charged with perjury the agent tried to cure that that threat by seeking use immunity from any mal brute but it was ineffective the the use immunity order carved out from its protections using unity and to see at the bottom that she still subjected to the threat of a perjury prosecution on the facts of this case that the agents admission that he threatened her with a perjury prosecution it was clear error for the trial court to find as a matter of fact that there was no substantial interference and the error was not heartless man his testimony would have been crucial to the defense i think the the the prejudice to the defense is most apparent with respect to the gun charge  warrant was executed or when he was arrested the government told one witness to try to prove that robert had possessed that gun either as a felon or in connection with one of these protracting offenses and that wasn't true excuse me tory cargo tory cargo was a cooperating witness he was in jail at the time and he was cross examined extensively at trial with the fact that when he testified in from the grand jury he denied having seen roberts with a gun when the evidence of possession of a firearm is as tenuous as it was in this case the court cannot be convinced beyond doubt that man his testimony wouldn't have made a difference as to the drug charges it is i think a heavier lift for the defense there but man his testimony would have been corroborated by the fact that she billable charges where she was charged with robbery when we attempted to elicit from the case agent the fact that manti had been selling drugs separate apart from robert while robert was in jail the government objected to that line of questioning and the trial court sustained it so we were really precluded from putting on the we opened on and that we expected to be able to present that you know mandy melber was herself a drug dealer and that robert was not where she pled guilty to dealing drugs she did and we were able to elicit the fact that she pl jail so we have we have this threat we have this improper perjury admonition we have the causation of proven in the statement of the defense what defense investigator were man he says i was willing to testify i was willing to testify truthfully threatened man mandi previously when she was brought down to testify outside of the grand jury so it's that the issue is not that the threat that the agent made at trial was conveyed to mandy it's the fact that the agent admitted at trial that he had threatened mandy again that the gun was hers and the drug was hers and robert had nothing to do with it i mean like was in an interview room i don't know that we know that we did request any interview memos that were generated as are read the result of the agent's two meetings with mandy and clyde to testify that they did not generate any interview memos so we we really don't have a record beyond what kalina testified to and many statements to the defense investigator and those two confirm each other with respect to the  conversation outside of the grand jury room collecting again denies that he threat her during the first meeting many says that he did threaten her during that first  meeting i'd like to turn next to the rule sixteen violation the i get that the case agent testified on direct and i'm sorry that the issue here is that the government did not turn over as row sixteen statements of the defendant have been turned over we objected we went to the bench and let the judge know that we can't intelligently cross examine this agent if we haven't gotten to the jail calls ahead of time if you ask for that yoko's and we did i mean we made a general rule sixteen discovery requests it was not specific to the jail calls but obviously those calls were in the custody of the u s attorney's office right that's not right kalac that was the investigating case agent for this case he logged on to a b o p database and he listened to those  calls the cases that the government sites and its brief say that the a u s a is presumed to have knowledge of all of the evidence collected by those on its prosecution team is not required that v o p be a part of the prosecution team for work for the government to be obligated to turn that over and wouldn't the general sixteen request ask for statements of the of the defendant statements of the defendant just generally that would include things he was saying to his friends or family on the phone i don't recall specifically what the rule six obviously he would know about his vocals and he was on the phone he would know about the existence of the phone calls but the substantial right impacted is the ability for us to intelligently cross examine the case agent we would have no ability to impeach him to limit his their case agent attained listen to this is not something where we're asking them to you know produce things that he did not listen to but if he reviewed them and if he testified to calls under wrecked we're entitled to the jail calls that we ha request it that the final error that we raise is the not good denial of the motion to continue which i know is how kind of the most difficult of the three areas that we raised the motion to continue we filed after the government disclose the thursday evening before a monday morning trial that the n o p officer who had conducted the surveillance was suffering from a brain tumor that affected her vision that disclosure was made along with the conclusory statement but don't worry it wasn't affecting her vision at the time that we can conduct of the surveillance without the opportunity to investigate that we really couldn't do anything with it the other late disclosure that was the basis of our motion to continue was the identity and the photographs of numerous other young black men who the government believed were dealing drugs on the same block again we would have needed the opportunity to investigate that better to shore up our attack on the identifications that were made by some pretty reluctant drug high street level drug customers who the government had called in to investigate a drugs it was difficult for the government to elicit as identifications from those individuals so it would have been helpful to us to better attack their identification if we could have more information about the other individuals young black men about robert's size  were known to the government to be dealing drugs on that same block to whom who thought rick's dealings there were i believe three street level purchasers who testified that they saw robert dealing drugs there was an n o p t officer who conducted surveillance as well who actually testified that the office interfere with the defendant's ability to call many more wrote his girlfriend we have tain statutory unity for her they simply chose to never call her and when appellate refers to the factual finding there are no we didn't think you're going to hear from her but now we have a statutory immunity we got them because she literally couldn't refuse to testify once you have statutory immunity you have no claim to the fifth this court in united states versus whittington hill that you can't claim the fifth on a potential perjury charge that the if you want to claim the fifth the on a potential perjury charge you just have to tell the truth you can tell i'm called an excuse me no one called her exactly we considered calling her but you know she had a lot of incriminating information we presented the case as her as an unindicted coconspirator the defense could have called her i think they didn't call her because they got in the stuff about the other boyfriend and in her pleading guilty through the cross examination the case agent there was never a point subsequent to his testimony and the way that i understood their brief just to back up was that the first two meetings were cured by us getting the immunity and then it was the case agents testimony during the trial that somehow caused her not to testify which there was no support for she was sequestered she wasn't of course not she was sequestered from the courtroom they apparently related to her i don't know how she came to know what he said during this testimony but she never came in and said to the district judge i don't want to do this i don't testify the defense never said we're trying to call her and she's refusing we never even talk to her so there's absolutely nothing in the record and that's critical because the burden is on the defense not to show correlation but but for causation and when you have literally nothing as to why she didn't want to testify there's no way you can establish that and if you look at the cases like that with the texas morrison is another one those cases are absolutely egregious where multiple repeated interactions issuing a fake subpoena coming in with a meeting with multiple law enforcement people and really just intimidating the witness here this is the defendant's girlfriend the agent is trying to be a good guy don't go in and perjure yourself and pick up a charge all of the evidence points to robert i mean the whole reason that to robert ricks the defendant i mean there's literally a picture of them that was posted on the day d officers were doing the surveillance where it says new edition patter new edition bonnie and clyde self made power couple that was not with pig there were hundreds of messages with robert ricks about five hundred messages within like a five day period including twenty messages between midnight and five am on the day of the search the drugs message you from who to who from robert to people like red white boy s k you know plays on smack which is a street word for heroin you know ten ten second phone calls calls that are consistent with drug trafficking activity in the drugs in the in the bedroom are found all hidden in the men's clothing would be very strange to hide drugs from a different boyfriend in the men's clothing of the boyfriend that's living with you and his id robert ricks as id was literally found in a pile of cocaine on the show i mean it was ludicrous to claim that the drugs were pigs and the reason that in call her was not because we kept her off the stand we enabled them to color that in color because she would've been subject to devastating cross examination and they got in the facts that they needed through the cross examination the case agent now moving on to the jail calls there is a distinction between the prosecution team is what defines custody and control and there's cases from the circuit that are cited in my brief where the jails where are held are not part of the prosecution team unless it's a case say about like something that happened in the jail this whole case was about what happened on the street before he ever got arrested the defendant was detained nothing for maybe four months or something between when he got arrested he moved to reopen a detention hearing he got bond and then he was out on the street for maybe a year earlier a bit more before the trial i commenced house not requested of us into the tape absolutely and you know whether or not the jail a given it to him without a subpoena here he was a participant in all of those phone calls so he coulda issued a subpoena i don't think he would have been able to quash a subpoena and that if he knows what's on the calls and they were somehow important he wouldn't be able to meet the specificity requirements of nixon to issue subpoenas i mean the thing is the agent listen to him it's the it's the defendant talking to his friends and family that has nothing to do with the case it was going nowhere we didn't try and introduce any of the defendant's  phone calls they were completely irrelevant which rule sixteen isn't just all statements any and all statements it's relevant statements there's been no showing made that anything on those tapes was relevant at all to the case and the point that they were trying to there was no testimony about what was on the defendant's tapes none at all the point that the defense was trying to make we introduced coconspirators name apple in butter they had a call in which butter calls apple and cisco pick up the five hundred dollars from robert ricks the defendant we introduced that to show that here in apple's numbers in his phone here's his coconspirators trying to pick up money from him further into the conspiracy statements and then the defense his point was going to be hey you heard these calls from apple and butter you didn't hear any calls from robert erico roberts not a drug dealer those guys are the drug dealers which is eat he literally said that exact same thing to the jury you heard calls from apple and butter you didn't hear any calls for mandy you didn't hear he calls from robert that ladies and gentlemen is reasonable doubt that is almost a verbatim transcript from his closing argument so i mean he got to make the point all the stuff about not wanting to wade into traffic in the cross i mean he made the point in the cross that he was trying to make any reinforce in the closing i don't know if you guys want to hear anything about that continuance a just there are a few things i wanted to clarify briefly that though the officer that made the observations was working in a team with other officers she watched a drug deal go down valving the defendant she radioed her partners they stopped the people that she had seen they got heroin off one of them they got a xanax without a prescription off the other those people both testified during the trial that yes we were meeting with robert ricks at the time the officer observed the meeting with me right before they got arrested the officer testified herself she said that her vision problems arose a couple months after the surveillance we introduced body cam footage of the search warrant that occurred four days after the surveillance and she's on her hands that picking up little bitty packets of heroin you know no vision problems whatsoever you know she's able to see in this room at six o'clock in the morning and find these little packets of heroin there it was corroborated over and over and in any event they got to make the point that identity might be an issue the thing was he wasn't charged with the distributions that she observed right for the five counts related to the items that were found in the better and there is no doubt that the defendant lived in the bedroom eating contests that so all of that had to do with joint constructive possession that she didn't testify or the trial about the distribution she didn't testify or the about the distributions but the definit was not charged with those distributions but she testified about and her testimony yes she did and her testimony about seeing him was corroborated by the buyers that she radio two were partners to stop who said they were actually meeting so they tried to make identity an issue it really wasn't an issue because all this occurred at the defendant's house and for the five bottle rip your honor on the issue of causation for the government's substantial interference many melbourne was present for a trial we had a defense investigator in the hallway the government had a defense investigator in the hallway and she left  i think the causation is established pretty directly by the earlier threat of perjury the immunity order not protecting her from that perjury charge and then by the time that we are ready to call her she is  agent's testimony nobody he didn't know them so the argument is that the use immunity was insufficient was sufficient at one point but insufficient when you know i think that in the briefing i was looking at this a little differently than i should have which is you know that columbus testimony was most significant for his admission that he had threatened her with a perjury prosecution when you met with her outside of the grand jury and that use immunity didn't cure it and i think the court should look at b and b in koski which sophisticate case where the court found that the the consummation was stopped or the usa assured the witness before trial that she would be prosecuted for perjury so i think what we would ask for is for every man to the district court to allow the government to decide whether or not to assure manny that they won't prosecute her for perjury and if they choose not to do that to quash the indictment because i think that the decisional dynamic for this trial has been irreparably harmed by the fact that that she wasn't available to us but what in addition to the use  mean if you give her use immunity and you say just don't lie what's what's wrong don what's wrong with that is that the agent has already told her you will know if you've said what you told me which is documented in her affidavit  the agent recounted what she told him which was the guns mind the drugs are mine if you say what you told then you will be committing perjury and use immunity that that that does not protect her from a prosecution for perjury leaves her with the threat from the government age i'm the one who refers cases if you say what you are planning to say i can refer you for prosecution but i think that's absolutely inappropriate it precluded us from calling her as a witness on the issue  of the harmlessness of the error the government's been a long time talking about the drug evidence but we're still left with the weakness of the other ones on the gun count on you know that gun count triggers significant mandatory minimum for our client i think the evidence that he possessed it rather than man he was particularly weak and for that reason man his testimony would have been very crucial the fact that she told the agent that she purchased that gun for self protection because she'd been kidnapped while selling drugs elsewhere that was that the fact that she was selling drugs out that's where it was