when every rudy thank you your honor may it please the court eric reconnect for marcus byrd marcus byrd who's currently serving a life sentence even though his trial wasn't fair he was not allowed to cross examine the government's key witness because the government believed he was a key witness he looked at the government's opening argument to the jury they talk for five pages in great detail about robin applewhite and only then talk for one paragraph about marcus moore one paragraph about the police officers we know here what the government knew then which was that this case rose and fall rose and fell with the testimony of robin applewhite the government off officer tompkins specifically mentioned two things that are relevant to the question of whether robin applewhite the lack of cross examination was harmful first he mentioned to the jury that when you're doing a criminal investigation you always go up the chain so he gave the jury the implication that whatever robin applewhite was accused of and we were all limited to calling them serious charges had to be something less serious  accused of is this court knows and as we know it is the jury should have known that was fundamentally untrue also for tom binns also explained to the jury the government's arresting and charging policies he told the jury we would never arrest somebody based solely on the words of an informant you would always need some sort of corroborating some sort of direct evidence so the government could not and would not have brought this case solely on the words of marcus moore the only counts two and three were in this case from our perspective obviously i'm not the prosecutor's head count one carried a mandatory life sentence wire counts two and three in the case to bolster to bring robyn applewhite into this case and to bolster the credibility of marcus moore and to bolster honestly the credibility of the officers conducting this investigation officer tompkins on cross examination acknowledged that his investigation was sloppy he mentioned he was new we mentioned he was wet behind the ears he mentioned when they were taking the inventory after marcus bird's arrest he forgot to look at some things he mentioned when he was writing down the inventory of what was taken he didn't put everything on the sheet he tried to pass it off as a simple mistake it wasn't a simple mistake and what it did was make this officer look less credible in the eyes of the jury he needed to be bolstered by someone else in this case robin applewhite officer tomkins also cannot really be used to bolster robin applewhite because he displayed real prejudice in front of the jury he referred to marcus byrd is the bad guy and the jury was aware of that joint appendix speech the forty seven they specifically question did officer tomkins really refer to the defendant as the bad guy that question was never really resolved for the jury it was not the district court's place to do that but the government is going to want to do is to demonstrate that market robin applewhite any lack of cross examination would be harmless because it was observed by these lease officers and because marcus moore was really the person putting the drug wait on him for count one this court cannot do that because it does not accurately reflect what happened below robin applewhite was the witness who got the audiotapes in front of the jury without him those tapes wouldn't have been admitted and without his credible testimony the jury thought it was credible testimony about what occurred the raw entirety of the case falls down marcus miller the jury knew was a witness who was on federal probation when he committed these crimes so the jury knew that marcus moore was a liar and he was a good liar he was able to food food federal probation officer jury also understood that officer tomkins had demonstrated some prejudice officer also  officer tompkins was sloppy so these are not the witnesses don't don't please your honour's turn this on its head don't use those other witnesses to bolster the credibility of the witness robyn applewhite who again i can't say it enough w want to fast for me explain to me i'm sorry you're on a no no it's ok early explain to me why apple whites testimony that had these men's actions with the defendant even if you think there was some error involved why it's not harmless in light of the fact that the transactions are also on thank you roger it was not harmless because the phrase on tape covers a wide variety and we know from this wide variety of circumstances and we know from these record that these videotapes were not good and the odd in the officer's observations were not good under an appendix one fifteen officer tom can testify the video is very grainy it's taken with a cell phone joint appendix one o five he says you know the video is on the poor side they specifically mention regarding the second alleged drug transaction that they basically couldn't really see what was going on because the position the officers had to saw that yes and they saw that those videotapes you know were of poor quality they heard that joint appendix to a nine to ten the officers acknowledge they couldn't even see the cars at the second drug deal so the jury relied on robben applewhite the witness who was there the witness who was not yet shot didn't they also hear testimony that they had sent after him to do this transaction and searched him before he went in and he didn't have drugs and then when he came officer tompkins explaining that who had already demonstrated bias and already demonstrated sloppiness to the jury and robin applewhite confirm that so yes they say he was searched and you know that's a fact we're stuck with but we don't know the that search and we don't know what robin applewhite two if i may editorialize is an incredibly slippery individual may have managed to do again the officers joined appendix to a nine to ten acknowledge they couldn't see mr bird's car at the second drug deal they don't know who else was there they don't know what else robin applewhite was doing and to the extent this court believes that it was a rony guess that we were not allowed to cross examine the witness fully as to his incentives his prejudice the government has the burden of demonstrating that that was harmless and that's what the government cannot demonstrate it's not up to us to prove that it was harmful is up to the government to prove that it is harmless and certainly your honor i'm not going to stand here and pretend that the officers having searched him in there being some grainy video tape and the like is irrelevant to that inquiry but it still doesn't rise to the level of what we should have had the right to do which was really cross examine robin appel way and i can say your honour's i was on that trial team this wasn't a situation where we were going to ask him two questions you know oh and isn't it true you're you have some pending charges ok moving on this would have been in our opening this would have been sort of the core of his cross examination this would have been in our closing i mean this was the trial strategy the government's main witness was facing incredibly serious charges in my mind an order of magnitude greater than the charges mr byrd was facing and he had every incentive to lie and his character and his ability to cross lines and have a crime of moral turpitude and to do that would have been relevant and we just wanted the opportunity to explain that to the jury and that was not that yes your honor they were there were arrests and charges although the government brought up you know filed something with the court last week saying some of those charges were dismissed we would point out that you know those  missals were simply a month before trial long after trial preparations had begun and the government was the entity that sort of affirmatively represented to the district court that these were still pending charges and actually had the district court been aware that these pending charges you know some of them may have been dismissed because the government couldn't find their witnesses that's what it said in the dismissals the government handed up may have actually made it more likely that we would have gotten a right of cross if it was just rest that will be your honor my understanding and then again i think you maybe have a better grasp on this than i do but we would have asked those questions he would have given us his answer we would have been able to a mini trial about robin applewhite but we could have asked him about these arrests and about his incentives for testifying not just oh you're facing serious charges implying to the jury probably along the lines of robin applewhite facing but you're facing incredibly serious charges you were arrested for this and again at the time we know with the government represented was even you know the penalties for these charges are incredibly high and again you have every incentive to to to shade your testimony and again if you're willing to cross these lines who know what you did when you were working with the cumberland county police back in two thousand and eleven  honor the nature of the charter to answer your question we would have fought for what i think would have been easy but we were entitled to which was the nature of the charges because the nature of the charges to some degree gets to  willingness of the witness to cross certain lines the maximum penalties we would have like to have that to of course is your honour's aware we didn't get to really do any of that we got to say serious charges and then you have an officer up there explaining to the jury that you always work up the chain so whatever marcus barrett is facing robin applewhite must be facing less they saw him do a couple of simple drug deals and the jury also didn't know of course that marcus byrd was facing a life sentence so i'm juror would not have thought that whatever robin applewhite was facing was such a big deal and the kind of thing that made incentivize him to commit perjury or even previously to have worked with the cumberland county police department in a way that you know was in according with his testimony so i think the other there's several issues in this case your honour's i think the other one that's probably most likely to get some relief on is the question of the arm career criminal sentence and the government's obviously taking the position that he is not an armed career criminal but nonetheless this court shouldn't really notice that error it should find it harmless it should just let the incorrect judgment stand things like you know your honor exactly that that is a factor and that's controlled by the bureau of prisons and the bureau of prisons has internal regulations to decide you know who is eligible for certain programming and fifteen to life range so the most he could have gotten there is ten but to answer not in terms of the opi policy your honor but i think i mentioned this briefly in my letter response and this is just something i can tell you having lived through this for the last eleven years all of these programs that come through be they claim and see be they drug manus to be they post johnson relief they all involve my office or panel attorneys or someone going through stacks of p s r s and looking to see who is eligible and who isn't eligible and it's a team effort we work on it the u s attorney works on it the probation office works on it and one of the ways we get through stacks of p s ours in a timely manner is to have these sort of automatic things that make you ineligible for instance an active sentence of this person's aca they're not eligible for this round of whatever clemency that maybe they're not eligible for this sort of retroactive relief so if for instance if you are congress decides that eight fifty one is too harsh and a life sentence in the bureau of prisons for drug dealing isn't something that should be applied this may be a factor in this is a sort of thing where we assume judgments  correct so if we're flipping and we get his judgment we printed out and says oh he's aca ineligible boom that's it we're asking this court only in this sense and the reason you have harmless error is obviously to preserve judicial resources which we all take very seriously there's not much judicial resource expended in just correcting a judgment just correct the judgment to say what's true what the government acknowledges is true which is that mr byrd is not an armed career criminal that is something that i think this court should do and it his judgment which is going to be with him for the rest of his life in the bureau of prisons suing that this court does not agree with us and our other point that judgments with them and we're just asking that it be correct and no one is saying it is correct and again it's not a word that would not be involved a new trial that would not to my knowledge even involve the new sentencing that would be a correction of the judgment to correctly reflect reflect the fact that marcus bird not an armed career criminal of course because he got an unfair trial i don't think he's guilty of counts one through four but again to the extent this court does not agree with that at least please let his judgment correctly reflect the sentence he received and his status it just so i'm clear currently there's no sort of practical collateral consequence to this additional sentence is that right nothing you can point to like right now and right now your honor no  i would appreciate the opportunity and i will do this research to see if there is some internal bureau of prisons designation but right now i know it's it's speculative you're worried about as it's based on the fact that you know i've been in that office for eleven years and we've already had you know five rounds of some sort of post sentencing collateral retroactive type relief so i don't see that stopping the christine frets on behalf of the united states and i'm asking you to affirm the judgment and conviction in this case and i'd like to touch very briefly upon the point that we just left with before moving to the other travel they did issues at this point in time with regard to any harm suffered by an aca designation the defendant has acknowledged that it is speculative to say that a defendant can meet his showing that this is a prejudice he has the burden of showing that his substantial rights were affected just say that it's possible that at some point in time in the future he may somehow benefit from a lot of congress passes that would just completely stretch the limits of clean air review once again i just ask you though so what is the big deal right everybody just in practical terms everybody concedes his judgment is incorrect he's got this sentence sitting in his fifteen year sentence that nobody thinks should be on his record what's the government's interest in not having your correct judgment and getting the people were right what i can say your honor is that my office has repeatedly sent cases back where something had been simmons infirmed or johnson and family and it affected the defendant but i'm saying even if you think it doesn't affect the defendant i mean it's the government's you put someone in prison for life shouldn't the paperwork be correct i think that again he has to bear the burden and court first of all the government has acknowledged that an error has happened so going forward with first speck to potential prejudice i'm not sure if i see where that would be if the parties agree that he's not aca and this court makes that opinion that he's not and not aca i would think about would satisfy any potential presidential one would hope right but your prisons is a tricky place and it's going to be difficult once this direct appeal is over for a prisoner in a federal facility facing some kind of p thing to get that he's back in front of a court to get a judge so why not just clean it up now and i'm just wondering is there a practical really i totally understand your legal argument but just practically speaking what is the big deal about just getting some weight out in taking that off his record i guess the government approaches it from a slightly different perspective because obviously if the defendant has suffered some harm if he had showed that he had suffered some harm in this case we would have sent it back well the test would be has special rights been not necessarily disagreeing i'm calling clean it up but correct me if i'm wrong he's serving a mandatory life sentence that that's exactly our playing around and he's serving a mandatory life followed by a mandatory twenty five years and then concurrent with that are the sentences on the the drug convictions for thirty years so i position is simply that there when there is an error that harms the defendant absolutely this court should crack that our position is simply that under this standard where the defendant had agreed at the time that he was there and isn't suffering any harm he has not met that burden and more recently in the macdonald case this court in a published opinion applied an assumed error harmlessness type analysis to a situation where a defendant had four prior four convictions for found in possession the court said that it was giving him one hundred eighty eight months on all of the counts and then made clear that if it was wrong about the aca does the nation he'd still be getting one hundred eighty months and here we think it's even more clear that he's not harm because of the mandatory sentences and because this didn't affect his guideline that range it didn't affect his maximum ultimate sentence so our position is that absent some concrete showing of substantial rights being affected at this time he simply cannot meet the burden now i'd like to turn to the defendant's argument about robin applewhite credibility is a jury question it always is a jury question and this is the first time i have heard substantial challenges to the credibility of the other witnesses in this case and i want the court to focus on what was raised in this brief the defendant has argued that his constitutional rights were violated because he was on able to cross examine a witness this witness was cross examined he had his confrontation right he had his opportunity to confront the witness and there was a substantial exploration of potential biases and impeachment and for that reason just isn't a constitutional violation this is to be analyzed as a trial air and the question is if there was was it harmless now even if this court were to find that it's a constitutional magnitude the government maintains that we would satisfy a harmless beyond a reasonable doubt standard and i'd ask the court to look at what the jury knew about robin apple before you even took the stand we know that on may eighth two thousand and eleven he was on federal relief when he was caught with seven grams of crack cocaine a distribution amount we know that a federal judge learned of a cooperation and that he served about seven months on revocation and those state charges were dismissed pursuant to policy we know that in february two thousand and twelve he was a paid informant primarily purchased trafficking amounts of heroin because they believe you believe that he had important information that could be used and the jury knew that at the time of the trial august twenty fourth team he had more funding charges and that's what they knew and that he was la charge again he had pending charges no promises or geos and that he had previously made by his to work off state charges during the cross examination the defense counsel was able to explore that he was a felon  involvement with the f p c police department had benefited him over time that he again became an informant after the month revocation sentence and he was a paid c i through twenty thirty and when he got in more legal trouble again they were able to explore that he had serious charges and that he didn't want to go back to prison when he was asked as you sit here today you have pending charges now of august twenty fourth teen right yes ma'am now you don't want to go back to prison do you know no one does not that i know of so we have a situation where the defense counsel has effectively laid the ground right to cross examine applewhite and show that he might have tailored his testimony out of self interest in fact if you look at pages four eleven and four twelve closing arguments that is exactly what defense counsel argued that he is a man who will say anything to help himself anything he's done it before continue doing do it he's paid right now to work for the fayetteville police department he gets charges over and over again he has pending charges right now and has more pending charges the last time he was working with him he has serious problems so to suggest that there was an inability to cross examine robin appel right it's simply not going out by the record the defendant might not have been able to get into the nature of the charges but again they were accusations at that time these aren't prior convictions this isn't a situation where he's been convicted of a crime of moral  honesty these are accusations against a government witness and everybody was well aware that he was a drug dealer he it was not an upstanding individual but as you know the more serious each or longer  concern was about certain charges not just the drug charges i think it was about what it was about certain of the charges i think that the government was concerned about the enflame attorney nature an accusation of human trafficking or kidnapping we now know that we were incorrect and at that time these charges were not pending but i think you need only look at the defendant's opening brief to see why we were concerned about that the opening brief talks about the government's willingness to work with a human traffic or and other things that was exactly what we were concerned about i think that had defense counsel said we don't want to get into the exact title or substance of the crime but we want to be able to ask the defendant if we add up all the charges that you're facing right now you could be in prison for the rest of your life i think that's very different than saying isn't it true that you've been accused of being a human traffic or isn't it true that you've been accused of kidnapping somebody and i think the concern was that dot was where the defense prior to trial and and i do apologize for the somewhat late filing of those documents both defense counsel and myself had been aware of the charges having been dismissed back in september before this original argument had been scheduled and part of the reason i had looked into those charges in preparing for this case i was curious what happened quite frankly and so i don't want there to be any suggestion or belief that that was sprung on defense counsel that that was surprising we've known that for some time and i think that how did we recognize that earlier on we probably would have taken a different approach on our motion in limine day because again what it comes down to is that robin wright who is an admitted drug dealer a convicted felon how did a lot of drug charges pending and they were felony drug charges and he was asked and it was explored whether he might want to tailor his testimony now if the court were to find that it was a somehow this limitation on the cross examination was ever i think the question becomes whether it was harmless and generally whether assuming the damage a potential cross examination assuming that were fully realized the defendant was there harm and again i think the mileage here on the cross examination was limited by everything that the jury knew about robin after weight and specifying perhaps you could have been in prison for however many years if convicted of all these charges i'm not sure what  material respects both by law enforcement officer testimony by audio visual and by pictures he was supervised by officers when he made the controlled money made the calls to arrange the by he was thoroughly searched before the by officers raunch the defendant and robin applewhite interact as planned and while it is true that they didn't actually see robin appel wait receive drugs from the defendant's hands and the money go the other way the juries type pictures of robin applewhite and the defendant they saw the sequence of him getting in the car together them getting in the car together for the first buy and then for the second by they see the defendant a photo of the defendant reaching in to the car where rob robin applewhite was the jury saw this and then rob and amber what goes through the by the early search there's no drugs and he comes back with drugs and simultaneously to this  there's audio and i would suggest that that audio while obviously it was easiest to introduce it through robin applewhite he was part of the conversation the individuals who were contemporaneously listening to that and those individuals who were familiar with the voices of the individuals on the tape could have also authenticated those tapes those tapes could have come in and the jury saw all of that so when you look at what robin appel way a more robust cross examination might have contributed when you look at all of this corroboration it's hard to understand why o how there could be harm and and not the government's concern here the district judge transpired latitude to impose reasonable limits this was a reasonable limit based on what was things regarding that in particular i wanted to point out the conspiracy between more of the defendant being on going and i was concerned a little bit and perhaps i should have worded better in my brief this idea that there were still financial obligations running running between these parties and i want to make clear that i have not given this court or anyone the impression that the government is saying that any time they defend any time an individual is in a on their drug dealing with a conspiracy last in perpetuity that simply wasn't the impression i was trying to give our position was that the conspiracy between more and the defendant was ongoing and that in the circumstances of this case the fact that these outstanding drug they are relevant to show the ongoing nature of the conspiracy because we know certain things about their relationship we know that the defendant and more more so the defendant drugs on consignment we know that more gave the defendant a couple of months to repay and we know the defendant was in a rear more especially i would have to give him something else in order to get that back what i've already given him and in some way is it somehow i guess in some ways to a credit card the defendant had maxed out his credit with a supplier given the relationship though there's no reason to believe that h gone and paid more back that that relationship couldn't have continued if you reach the limit on a credit card you make the payment and then you can continue the relationship and that's why the limited time between  the last fronting of drugs in march two thousand and eleven and the arrest in june two thousand and eleven is relevant that was a reasonable time and it was consistent with some of the repayment periods and with the fact that had testified that he was simply not going to as often we also know that after the defendant was arrested in june of two thousand and eleven more went to the defendant's mother's house which was where he was residing and gave the defendant five thousand dollars for attorney's fees and he also put money in his canteen three hundred to five hundred dollars and that is around page three hundred nine and we know that in the grand scheme of things the five thousand dollars wasn't that big of a deal to moore and he he was arrested with over one hundred thirty thousand dollars so when you look at all of the facts surrounding their relationship they had a longstanding relationship they had been  defendant had been purchasing drugs for more for quite some time he was in a real but the defense more was helping with the attorney's fees and other things on the related drug charges we would suggest that the jury could absolutely find that their business relationship was intact and then you add to that the fact that the defendant identified marcus moore as one of his suppliers somebody that he could buy for on behalf  of the p d and he said that jr was the person who he was getting drugs from so when you have that background information coupled with the defendant's acknowledgement that more it was a continuing source we think there's ample evidence to show that this relationship continued and that the firearm that was possessed in the apartment next to the drugs next to the cocaine next to the money that was in furtherance of this ongoing drug conspiracy jury the drug business is a dangerous business i don't need to tell you that you see that on the news every night kids getting shot random individuals in the wrong place at the wrong time get in the way of drug dealers and their business doing appendix three ninety five the government's closing argument we inflame the passions of the jury i was there it wasn't twelve robots it was twelve human beings and i don't see why we are not allowed to appeal to their intellect through their emotion into their common experience that someone who a month before trial was facing charges for kidnapping and human trafficking might not be the most credible person there both intellectually because of what he knows he's facing because of our common experience that generally when someone who is arrested for human trafficking tells you something you're probably less likely to believe that then you would be otherwise so what about the fact the charges were dismissed and we know now they were dismissed we guess your honor we know the charges were dismissed we don't know actually to get to judge floyd's point if robin applewhite was even aware the charges were dismissed he would have been in custody the entire time i don't know what was communicated to him but you're on a they were dismissed a month before a trial well after his preparation and his working with the government and his decision to sort of enter into this was already part of the deal and as far as we know from robin applewhite point of view you know that was all part and parcel of the bargain he was making he starts working with the united states attorney and lo and behold some of his most serious state charges get dismissed a month before trial that's how he thinks the system supposed to work so you know that again and this is the conversation these are the this is kind of what our closing argument would have been about you know i this is actually out of all the courtrooms here in richmond this is my favorite but this isn't the courtroom where this conversation needed to happen it needed to happen in the federal building in front of those twelve jurors in raleigh north carolina and again just just to say again i think we know at least we certainly contend that the lack of cross examination was error we all agree that the judgment is an error and he's sitting there with a life sentence with an incorrect judgment and i would just urge this court not to simply resolve that on harmlessness a life sentence is a big deal short only of death you know if this were a death penalty case this court has rules you don't limit the scope  colloquially referred to a super due process the scope of the penalty has some bearing on how far this court's willing to go to say whether the government minutes burden of harmfulness it didn't we ask this court to vacate the convictions lawyers say hello a chance to and maybe renew some friendships or those so no hard feelings and they would go into the next case sometimes we have lawyers up here who are not familiar with our practice if you're familiar with