error that we raise in the final disposition ordering the judgment of two hundred and forty months twenty years of imprisonment involving one count of conspiracy with possession coded drug language method of trafficking drugs in the manufacture of crack to powder his testimony went beyond interpretive drug code word stations and agents believe as to what was going on who was speaking who was moving who was dealing based almost exclusively on the case agents knowledge and investigation in the case the agents improper opinion testimony closed without a sardi of acts for permeated the trial fifty four different day four hundred and fifty pages of transcripts was devoted to agent lee's interpretations other witnesses testified  aggregate their testimony only their testimony only covered a one hundred and fifty dollars pages this was a wiretap i have a question for you and i do appreciate the ask you this other then agent lee testimony what does the government offer as evidence against your client if anything the government offered in this case car wash where mr perry came to the car wash and saw mr anderson the agents said that they saw the two of them but were unable to see anything that transpired because the two were  after mr perry last they tried to stop mr anderson they chased him in a car they lost track of him for some period of time and they say that he threw a shoe box that had crack in it but when he was stopped again he did not implicate mr perry conversations about how that what was happening was that she bought and finally i'll say quickly because i have thirty six seconds there mr reagan he had eighteen thousand eight hundred and seventy dollars he did not implicate mr perry so this case is all about wiretaps and the interpretation one question i take it there is no dispute from you that we are reviewing this issue about lee's testimony under a plane or a standard united states attorney responded to the objection then she said if this was actually in response to a question concerning what real crazy meant and agent lee was prepared to talk reason i raise it is because obviously the witness testified for a long time about a whole lot of things and it seems to me some of the testimony was probably admissible like when he was giving meaning to terms like loulou etc that would have called for the need for an expert and there were other things that he said to my account that w far beyond what any expert would have said they were on that's history and they really didn't add anything that you couldn't get from the tapes themselves but i just wanted to know what we're reviewing it for and it seemed to me that we are reviewing it for plain era in which case i think the central question here is not whether there was error i think there was the question is whether on the commentary by the witness that went too far whether there was more than sufficient evidence to sustain the conviction and on plain error of you the burden clearly it because that objection was not continuing i think it was pretty clear and i think it wasn't badly made and the timing wasn't off but i think there had to have been a ruling should have been a limb and a ruling  could have been no conviction or likely would have been no conviction and i believe that my response to judge x i think was to say there really wasn't they didn't have anything else had a lot of princes didn't they have let me just start at the beginning wasn't the most powerful piece of evidence the extended tapes that were played for the jury independent witnesses commentary and explanatory no the case such that while i agree judge marcus the jury may have their own have been able to get there the question is did this affect the fairness do we have confidence  judicial proceedings when a trial is run this way and well let me ask you the question let me ask you the question if you cannot establish the result really it seems to me you've got to argue that this testimony was so powerful and so color rated the entire the entire trial that you've  established that it's substantial rights were affected am i missing something there i agree with you i agree but i think what using your language and hawke and i i don't see how you can probability of a different result and then all i know that they frame it i guess what i'm saying is the evidence was the evidence marshal but it's the evidence of a cogent of evidence independent evidence independent of the error that's marshaled there is not necessarily the same kind of evidence that's marshaled here independent of the er of the court are saying hey this is just a ton of talk and every you know maybe twelve calls relating to mr hawkins would wouldn't have been enough but  look the only way we can evaluate whether this matter whether it was important is whether this was a substantial part of the government's case and that's how we look at it how much time was agent leon there on the stand through this essentially is the is the issue and i'll step back just a little bit where forty four dollars b evidence of a drug transaction which occurs nine months after the charge conspiracy has ended the timeframe alleged in the indictment for the conspiracy to and has and and that specifically this conspiracy was from january two thousand and ten to december two ten thousand one hundred and thirty nine months later in another state my client pursuant to a search warrant is arrested they find drugs they find a gun that is all included in trial which i understand is a forty four dollars b situation however not withstanding that that necessarily meant it was extern that it was not part of the conspiracy the court then found it as relevant conduct and that increased him from what would have been a twenty six  dollars we would suggest to the court that there were no common factors one that was outside the scope if the work common accomplices common modus operandi any of the factors sort of set forth in us the maxwell or most recently and i apologize for the lateness of my filing on your honor's but i did put the set decision and a copy of it is an unpublished decision but it also talks about what do we do when we have what would arguably be a forum for the other drug case but it's not part of the charge conduct or charge conspiracy should that be put into the sentencing calculations the court and we would respectfully say that difference was substantial and we think it was a error too on one hand saying it is an extra in that event not part of this charge conduct of conspiracy yet we're hold you accountable for that and charge conduct because it's still part of a series of transactions part of things you were doing with the same people in the same timeframe or some of the enumerated factors so for that reason judge where our judges were asking that this case be remanded and mr reagan be reset and sed with out inclusion of this this event which occurs again nine months after the charge conduct so that is the primary care that we're indicating to the court and asking for every man nd we did raise the issue of whether or not he should have got a minor rol reduction very briefly the jury's verdict and to speak life into it they found that he was not culpable or liable for large amounts of narcotics in fact specifically found less than five hundred grams if the four for the evidence is in fact not part of the charge conduct not only is the gun not only is the narcotics found in that excluded from sentencing but it also shouldn't weigh against him in assessing what was his role his role in this offense then as a courier who by the government's own admission and their case didn't have enough money to even get home after he does a mule activity so from our standpoint we believe that a minor role but the and would have been appropriate with what evidence there was actually in the case and with that your honor i'll reserve mr reagan addressed the court and talked about the fact that he did not believe that the relevant conduct or amounts are the forum for be evidence should be used against him as sentencing as relevant conduct it talks about the weapon but i would suggest as mr reagan was essential he put in a position where in a layman almost pro se posture he's trying to argue that the whole four hundred and four b episode in and in again if the forward for the episode doesn't come in as relevant conduct then neither the gun nor the drugs should come in as opposed to trying to parse the two because they both still emanate from the same issue of an extr event so they answer your question again judge no he does not specifically say gun but i think follows that by raising the issue that the four hundred and four b should not have been relevant conduct i think the government and their records then on notice that he is talking about both the drugs and the gun  your question about whether this case falls on the emanuel side or the hockin side and i think this clearly falls under emanuel as judge x and mentioned you know there is a difference sometimes between quality and quantity and while there were one hundred recorded phone calls played for the jury the witness did not speak about all of those calls but there was a considerable amount of evidence available to the jury independent of phone calls or independent of any testimony associated with those phone calls that would be considered problematic under hawkins that would establish the defendant's guilt for example my my opponent talked about the arrest of andersen and the recovery of drugs what prompted that incident were two phone calls from andersen to perry where anderson said and this is the gist of the call bring me to buy here the next day he said bring me another that prompted surveillance of perry  perry was seen going to anderson's place of business exiting his car reaching back into the car and going into a shed with anderson and then leaving anderson was then arrested shortly thereafter with close to three ounces of crack cocaine so there's no suggestion that the testimony or the call about bring me to and bring me another is problematic in addition the stop of reagan again that was prompted by a phone call but all that was said in that phone call was perry to ross saying i'm wrapping up that thing and the jury has heard testimony from the witness clearly in his role as an expert that drug dealers off and wrap up money either and shrinkwrap or electrical tape or duct tape to keep it small and make sure it doesn't fly around and to hide it that prompted a call that prompted a response from ross that said black boys coming by and the jury knew that reagan was black boy because ross had referred to him a black boy in call and then that prompted a surveillance of perry they saw reagan's car outside perry's home they followed reagan's car reagan then called ross and said i'm being followed and i have a job and the jury had heard again not problematic testimony that is dubbed can refer to twenty or twenty thousand dollars and when reagan was stopped he had close to twenty thousand dollars wrapped up in tape so there was a considerable amount of evidence from the one hundred dollars phone calls that are not at all problematic under hawkins and tied to the seizure of drugs and money so i really do think this falls under a manual particularly it's important for this court to realize as you do that it's on plain error review and therefore the burden is on the defendant to show that any error that may have been playing under hawkins affected his substantial rights and i simply don't think the defendant can get there given the volume of testimony that if you see the volume of phone calls that came in that were not contested that were not problematic under hawkins and did not have the type of testimony that this court found problematic with a witness summarizing evidence or providing speculation or providing long fettered narrative responses that this court found problematic and hawkins just question forty about you know i noted in your brief that you can see that there are some instances of improper testimony i would say the great majority of the calls have in testimony has instances where not only is agent lee testify about think within the scope of his expertise but he's also drawling all of testimony and makes all of it incredibly suspect so i understand your concern and i think what differentiates this case from hawkins are two things are the questions that were asked by the prosecutor and the nature of the responses and what this court found so problematic in hawkins understandably is that many of the questions were prompted with the phrase based on your training and expertise and your investigation so it really was confusing to the jury whether the witness was testifying as an expert or as a factual witness as the lead investigator and the prosecutor here did a really good job of breaking up the the phone calls and the statements in them by asking is this something you've heard before or is this language you hear in drug investigations and so it's clear he's testifying about code or drug trafficking processes but then the prosecutor would ask in the context of this investigation did you learn or the the expert refused me the witness would respond i learned from my investigation so i do think that differentiates this from hawkins where you had so much bleed over where the jury wouldn't know whether the witness was testifying in his role as an expert or as a factual witness and so that differentiates it here and again there were about twenty questions where the witness was not the twenty phone calls that were played excuse me where the witness was not asked any questions was only after provide the time or the date of the call or was asked to identify the speakers or based on the investigation the name of somebody a code name of somebody mentioned in the conversation so there's a great number of calls that didn't have any relevant tes between this case and hearkens other than the one that you just drew the tween how the prosecutor conducted the examination of this expert from how he conducted the examination of the expert it hearkens i think there are a couple of things your honor as i said before there's the sheer volume of problematic testimony identified in hawkins i think differentiates our case because again of the one hundred phone calls you know about half of them didn't even have anything asked substantively about them or it was absolutely clear that what was being asked of the witness was to explain one or two drug words or phrases or drug amounts or quantities or pricing and also the commentary that the expert made that went far beyond simply an expert telling the jury what a term like lulu might have meant so if i understand your question correctly your honor  quantity can be two different things right we have the searches i'm sorry the surveillance that was set up on perry after the two calls of bring me to buy here and then the next day bring me another one and that set up a surveillance which  anderson and again reaching in the car meeting with him in a shed and then and or seeing anderson being arrested with the equivalent of three ounces of crack cocaine again after saying bring me two and bring me another and as i mentioned before the twenty thousand dollars found in reagan's car after the simple statement of i'm wrapping up that thing and ross saying reagan black boy who's reagan will be by and so i know that's not quantity wise a lot of pages in the transcript but it's pretty powerful evidence that connects perry to this drug distribution conspiracy that shows his participation and guilt and that's why i think in this case it's quite hard for perry to show that anything any error that existed given that this court's decision and hawkins could not have affected his substantial rights because that evidence alone would have been sufficient for him for the jury to conclude that he participated in the conspiracy encourage the government to take a risk to kind of lather up the testimony and hope that there's enough else that if we have a problem with it will be in there to be enough evidence how why shouldn't that be a concern in a case like th won't kind of make this more routine as a matter of trial tactics well again i would argue that this is not a close case and again because of the evidence that i just went over would would be more than sufficient to for a jury to conclude that perry was guilty of participating in the conspiracy and as i mentioned before the questions that the prosecutor asked the way that she framed them for the jury i think gets this out of hawkins land where there really was a risk of confusing the jury if the witness was testifying in his role as an expert or as a factual witness as the lead investigator in this hawk in this court's decision and hawkins i think sets out a pretty clear guidance going forward about what the role of the prosecutor should be in cases like this and also the role of the district court so you start down a marker on and how we should proceed going forward but again in this case again which was tried without the benefit of hawkins i still think differs considerably given in the type of questions that were asked the nature of the responses that were given the the amount of relevant evidence that came in through the phone calls independent of any potential error by the witness's testimony and then the evidence arrested nine months with that quantity of drugs and the guns in his apartment but he admitted in his statement that he had been doing so for two or three months so we're looking more at six or seven out of the period that only just stop you at that so the period of time from when the charge conspiracy ended and the subsequent similar act occurred was six months and it involved how many common players to reagan and ross and arrest that was included in the p s r and referenced in the p s r perry explained that reagan was the courier of drugs and money for ross so we do have two similar players ross and reagan we have similar drugs we have the cocaine and it's important to note that the judge at sentencing made some findings where she pointed out simply because the indictment has an end date of a conspiracy actually it's not always the case that a conspiracy and  and she noted that there was no evidence that reagan had affirmatively left the conspiracy or that this conspiracy stopped manufacturing and selling drugs so that and date of the conspiracy in the indictment was based on the end of the expiration of the wiretap of ross's phone so i think that's important to know and so when we do have you know common accomplices we do have a short period of time again at the most six to seven months and still you know large quantities of cocaine and those this relevant conduct and the charge conspiracy i think were comfortably in this court's precedent like simpson which would allow this to be considered as relevant conduct at  considered as relevant conduct in sentencing if it is sufficiently related and you look at some things like the similarity don't hear them i guess what i'm asking is the wisdom of this sufficiently related suppose the subsequent act was only charged it was separate and removed in time involved different players except for the defendant but was of enormous magnitude in terms of the nature of the crime what his sentencing judge be free to consider that the rise in let me finish what do you characterize it as relevant conduct or la i think the judge has a sentencing judge has broad discretion to consider lots of conduct to see whether it's relevant but what the the description that you just provided again i think is closer to what my opposing counsel set forth and which  were the only common person was the defendant and so when you consider the factors that this court has set out that a sentencing court must consider to see whether something is sufficiently related then you have here like i said the same coconspirator have to the same type of drug and a very short period of time so i understand your question it would be a much tougher call i understand that but that's the question that i'm asking given the fact that congress riposte in the district judge very broad discretion in sentencing and allows him to consider or her to consider just about anything so long as it's relevant in the sense that it bears upon for the evidence subsequent act of sufficient severity proven to the satisfaction of the trial court as bearing on what has to be characterize relevant conduct to come in i guess is really what i'm asking for it to be relevant conduct there has to be a relationship that much seems clear to me but i'm asking about stuff that's wholly unrelated understand your honor and i'm sorry that i don't have a satisfactory answer for you i think if you're just ok yeah that's fine i think more than that i didn't mean to cut you off so th up issue of whether this is more hawkins or whether i'm a more a man who is really answer does well by our allegation and their claim number two in our gr phone calls over objections and interpreted by lee telling the jury no less than the truth of the matter he believed dexter young was testifying about life and this is quote that mr young was having problems converting prouder cocaine that mr perry had sold him and that mr young wanted mr perry to send codefendant davenport over to help young cook the crack cocaine better what was he uncorrected it would be suggesting to prosecutors in the circuit that overzealous presentation of improper testimony would be tolerated and it would be giving a mass to the district court that they need not be vigilant in ensuring the integrity of trials involving this type of testimony we respectfully ask this case the reverse thank you mr wright  one circle back i wanted to just point to the record where i think the objection was preserved looking to page eight lines nine dollars to fourteen dollars of the sentencing transcript is where the issue of including the relevant conduct comes up at page nine line fourteen to twenty one we're specifically talking about again this relevant conduct and if page twelve finds twenty four through twenty five the court says well to the extent that it's it's not a formal objection but it to the degree that it is the court overrules that i would then ask the court to consider in volume five page thirty nine dollars forty cents the discussion about this only being four o four b and not intrinsic to this conspiracy is being had a page thirty nine lines twenty three through twenty five and what's actually said is that my client statement is that i've been keeping cocaine and heroin for roger ross for about two or three months as in he just had received it which is again six months after this conspiracy had ended and ross is not part of this trial so that that's why the government put it forth is for all for be evidence but then it sensing all the sudden it becomes the mammoth gun and far more