in the court the main one is just speak up loudly and no i have a tendency to drop back in my seat and nobody can hear me but me so i'm speaking from experience to try to stay in a mic so we can hear the question first case has got a lot going on which is putting in maui the government's got its cross appealing so corso clerk to give each side now an additional five minutes on their side so you've got ample time to hearing the court held that the newly discovered evidence which was the proposed testimony of john west would not even if it was believed likely result in clinical court said the jury would likely psyche be a member of the conspiracy and therefore my client west mere presence in this home or even some of the knowledge of mr perry's criminal activities it can be inferred from his familiarity with the hiding places that alone would not allow a jury to find him to be a member of the conspiracy but even if the jury likely would find that and legally could find that the next step that the jury would have to find is that those guns were possessed in furtherance of the criminal of the drug trafficking offense and if as the court assumed mr west is telling the truth the jury would not be able to both find that those guns were held for that purpose given that mr west said he had he owned them he put them there no one knew about it and he put in after the purpose of selling now the government relies on the reasoning of by the district court the first one is that mr chapman never alleged that the evidence was new to him but as the government itself acknowledges he he adopted this motion he did so claiming he was in procedur similar situation and he claimed that he did so as though he wrote it himself in the motion itself says that this evidence is is newly discovered the the next barry factor that the government says my client must fail is where there is his the nessun he cannot establish that his cellier to discover this evidence was not the result of  his lack of diligence and in this regard the government points to the the discovery that was provided him which shows that west was arrested and that those guns were found but that discovery material your hon shows that mr west denied having anything to do with mr perry's criminal activity and shows that he was merely sitting on a couch mr perry was not there mr chapman was not there claimed mr west claimed he was there because he was homeless and the guns were found in another room underneath the sink in a hidden compartment so whether or not diligence is an issue in this case to be determined without an evidentiary hearing and the final factor that the government claims we didn't meet is that the evidence was material and for this argument the government claims that  the evidence is as a matter of law insufficient to support a rule thirty three motion because it is simply a declaration of an attorney relating the statement of a witness in this case it would be john west attorney relating west statement that the government cites united states versus wall which held the coach evidence is not sufficient or is not admissible at a hearing but there was a hearing in that case does not stand for the proposition that for purposes of pleading following a motion such evidence is not sufficient to trigger the right to a hearing  i'm here because charles i felt was under fairly treated by the court and the jury in very specific way i would say at the outset but i have a lot of respect for judge brady and judge deck of tried cases in front of both of them and if i had tried the case in front of them either one of them in its entirety i don't think i'd be here your honor we had a substitution midway through the trial after judge brady heard five days of testimony he fell ill on saturday i believe that was when all the lawyers had to start talking and doing phone conferences over the weekend and judge dick stepped in and gave her usual able trying the case but there was a fracture the purpose of the trial judge in those small part is to observe the witnesses not so as to interfere with the jury but to be a backstop for the jury and the reason that we don't change things on appeal is because you're looking at a cold record was there for the vote the jury was there for the whole thing made up of me tell me what the powerboat disconnect yes sir when judge brady denied the motion to sever which was down i want to say document two eleven in the record instead of severance this court finds that consistently mitigate the possibility prejudice to a jury instructions and by continuing to monitor this cases of progress it's trial time believe judge brady meant it when he said it and i think he just didn't have the would he might have been in a better position to craft or permit jury instructions which were denied by judge dick or to judge differently as to the motion for something more than you know that's able counsel that we get it but from what i saw from the briefing and the lack of a relatively smooth transition etc i thought you wouldn't say well she didn't read the record to know but if it's only motion is seven just help me get to where you are on how the motion to sever you get relief on this with the transition the judge i didn't read i missed it in the brief yes sir the the judge who has the opportunity to observe all the witnesses and make their own independent conclusions about those witnesses and who ruled on the various pretrial motion what did he miss that he would have seen that would have made the do your honor i'd be lying to you if i said it wasn't a blur trying this case two and a half years ago i believe that when we hold mark allen out and showed that he had been talking to other witnesses while it was incarcerated that darnell dalton had done the same thing although the witness that darnell bolton spoke to sean dean was pulled out of the lineup and the government dismissed but what makes the case different you know that consolidated trial of defendants like in this this is the route not the exception i mean it's rare that a motion severed grand and if it is you know that's not brought up so this is in the that the jury's verdict demonstrate the spillover effect that if we could have tried the nominally the guy's three and one charges we would have a clean sweep and i'm stuck because i can't interview jurors after the fact to find out where the critical spillover was whether being yoked to the leaders of an organization made the difference and i also just got to say in my ten seconds that i take the position that mr blair was paying for his crack  services and that he was a purchaser and paying for crack in services which are useful to the conspiracy is not necessarily joining in the goals and means of a conspiracy matter and i says to mike walsh in drafting these priests and with the court's permission i would like to present the argument i'd also like to reserve five minutes to address the government's cross appeal while it's understood that due deference nice to be given to the jury's weighing of credibility in facts the real issue before this court when it comes to jeffrey perry is whether or not the government presented sufficient evidence to satisfy the burden of proof of proving that mr perry knowingly and voluntarily agree to participate and in our cottage distribution conspiracy in violation of twenty one u s c eight forty six or if instead the evidence admitted by the government simply proved it was already conceded by trial counsel and that is that mr perry wow  morally reprehensible participated it did not participate in a conspiracy but rather have sold and distributed drugs individually for his own mutual gain and benefit and while both are morally reprehensible the distinction between the two is important where is the latter really just involves a buyer seller agreement a simple transaction between two parties in which one agrees to sell drugs and the other agrees to buy there's indifference they are towards the ultimate what the buyer does with the drugs whereas the former represents and informed interested cooperation and intent to participate it is this agreement in this intent that is the backbone of the conspiracy charge and if this intent in agreement that is the fatal flaw of the government's argument because no matter how over overwhelmingly the government showed that mr perry participated in drug sales it did not show any further agreement to join in the further crime of conspiracy now the burden of proof ear while direct evidence doesn't have to be used if circumstantial evidence is to be used  proof of agreement for a conspiracy as this court found in the united states versus right is knight not to be like the inferred circumstantial evidence in this case was used by the government to satisfy their burden of proving beyond a reasonable doubt that a conspiracy was interred by mr perry the government had the burden of proving three things the first is that an agreement existed the second is that mr perry knew about the agreement the third is that with that knowledge mr apparently voluntarily and knowingly agreed to participate in a conspiracy now there's a number of factors that different courts have considered this issue have used in order to determine whether the circumstantial evidence is sufficient  go through all the factors that a few of them that i believe believe very important in this case are the level of mutual trust the extent the transactions were standardize and the uniformity and payment so essentially this was a each trial give or take some time in between and which over thirty individual witnesses testified and fifty different people appeared on behalf of the government standing alone thirty witnesses alone suggests that no conspiracy really could have good been committed as a whole because if a conspiracy was the actual crime there which should have been no need for thirty different witnesses to come in to create this web in addition to that in terms of the level of mutual trust and the trial testimony revealed very clearly that unfortunately this was a sad story of distrust rob  that quote unquote every chance he god and multiple times a day he stole drugs from these different homes where they were located to me standing alone this really already shows that these are not choirboys the kinds of things you describe are very common in drug conspiracies this man and i think that your honor really what it goes to show this is the circumstantial evidence here without a proof of an agreement you have to show through circumstantial evidence that a conspiracy was entered and the issue here is that without an actual agreement all you have are the relevant facts as they relate to these parties whether choirboys or you know addicts who are also have their own individual issues you have to take the circuit circumstantial evidence you are presented and it's our opinion that based on the circumstantial evidence these guys weren't working in cooperation and mr perry you know while some of them may have wanted to be in this reprehensible but quite lucrative operation he was running it was never in mr perry's best interest to get anyone else involved in this there was nothing that any of these people could have really done to benefit him they were multiple ones were addicts and they had their own issues but frankly whether his conduct was itself illegal is irrelevant to state of mind with respect to the crime of conspiracy and as a spoke you can't take spokes of a wheel without an overarching riveter agreement and court my name is patricia jones and i'm an assistant united states attorney for the middle district of louisiana let me begin and with our cross appeal the cross appeal concerns to nine twenty four c convictions by mr perry and the sentence that he received on those convictions it's our contention that the district court erred in not imposing the enhanced penalty for second or subsequent conviction on either of those two convictions mr perry was convicted in count six of discharging a firearm during and in relation to a crime of violence that is a carjacking that was charged in count five and a drug trafficking offense which was the conspiracy charged in count one he was also convicted in count ten of possession of firearms in furtherance of drug trafficking and that was the drug trafficking charged in count non for the drugs found at the ever growing click house and also the drug trafficking offense conspiracy offense that was a possession and it was a first conviction for possession count is five years that the penalty for  first conviction of a discharge count is ten years in this case the judge imposed five years on county in and six years and beyond ten years on count six to run consecutive to mr perry's life sentence on the other charges on the conspiracy charge the united states supreme court in united states vs deal held that multiple guilty verdicts in a single case constitute multiple convictions under nine twenty four c and therefore that the enhanced penalty does apply to the second or subsequent convictions obtained in that single trial in this case the judge ignored the ruling of united states versus deal by not imposing that enhanced spin altie the judge did so because she could not determine which of the convictions came first and which was the second one the united states concedes that there is no way of determining which of the convictions was first which the jury voted voted on first they were both returned at the same time and which is second but because a deal held that necessarily want is first and one is second the judge should have made some determination in this case the order of the convictions does in fact make a difference in some cases it doesn't if he had been charged and convicted of two possession counts it wouldn't matter which one was determined to be first and which one was determined to be second but here there is a higher penalty for the first conviction on the discharge count so if that count is first mr perry would receive a thirty five year consecutive sentence if the possession count is first he would receive five years on that making for a total of thirty years so it's a five a five year difference depending on on which one is first in this case so we can see that the role of lenity should apply that's consistent with what's been done in other circuits the night the second and the six have all hel that when there is no way to determine which conviction came first apply the rule of lenity and use the least serious conviction as your first count and that's our position in the cro would you know we filed three objections to the pre sentence report to three different paragraphs in the pre sentence report our objections eight eleven and twelve related to this issue we cited the court to the deal case as well as to the major case which is the case from the ninth circuit which applied the rule of lenity the judge recognized both the deal and major when she ruled on the issue she indicated that she was following the circuit's decision in major but it in fact she did and she indicated she was following major but major says apply used the least serious as your first offense she she didn't count either of the offens as the second offense and so she didn't follow major but she was aware of it she was aware of deal and the united states did present the issue in writing and argued it but briefly at sentencing ok so we've g he obviously has a substantial sense he has life in the has fifteen years in addition to that at the time we filed across appeal we did not know the substance of the appeal or what its outcome would be we didn't know if the conspiracy charge which is the life sentence would stand up if mr perry would challenge the sentence and so we filed this essentially to hedge our bets i think the same it's still that still applies and the issue is one also that that will no doubt arise again in our district as well as in other districts in this circuit and so for that reason we would ask the court to give guidance to the courts below on that issue or you could similar to the crime of violence definition in section sixteen b the residual clause but of course mr perry waived that argument he didn't challenge his ninth twenty four c convictions he had every opportunity to do so so the that issue is simply not before the court and given those convictions perry doesn't argue that the judge did not make a sentencing error in failing to impose the hance penalty as far as mr chapman is concerned  his motion for a new trial i think mr chapman makes more out of the information from mr west than really is they are mr west said according to the declaration provided by perry's co counsel three short brief things he possessed in the firearms he stored them at the evergreen house with the intent to sell them and he did so without mr perry's knowledge the affidavit says nothing about mr chapman's knowledge it says nothing about whether mr west was a part of the conspiracy it says nothing about whether the guns were stored there in the furtherance of the conspiracy in perry or one of his coconspirators for the guns and he kept it there with the intent to exchange the guns for drugs and in fact there was a substantial amount of testimony at trial that dawn's and stolen items were bartered for drugs at the click causes mr chapman argues that the united states cannot rely simply on wes argument to show that he was a coconspirator but he's forgetting that he has the burden of proof here it is mr chapman who is seeking a new trial and mr chapman has the burden of proving that that information from mr west would probably have resulted in an acquittal at because the affidavit is so big and so brief and doesn't actually contradict any of the evidence of guilt of either mr perry or mr chapman then it certainly could not result in an acquittal in this case or at least he hasn't carried his burden of showing that with respect to due diligence and the need for hearing mr chapman argues that there should have been a hearing and he addresses due diligence for the first time today it wasn't addressed in the brief it wasn't addressed in the district court there has never been a mention of due diligence before today and it is his burden to come forward with evidence and show the district court why this information was not obtained prior to trial if in fact it wasn't there when there was no information given about the circumstances under which this information was found there was no information about when it was discover how it was discovered anything of that nature there is there is no evidence that they reached out to mr west at any time and in fact there's not even any allegations as to any of this absent allegations and substantive proof of due diligence one of the berry factors mr perry was not entitled to a hearing on the motion for a new trial in fact this court has held that there are only limited circumstances in which a hearing is called for on a motion for a new trial and that is when there are allegations of prosecutorial misconduct not at issue here jury tampering not at issue here or third party confession not at issue here and so there was no need for a hearing fact mr chapman and mr perry provided no information as to what a hearing would have shown there were no facts proffered as to how mr west would have testified or even if in fact he would have waived his fifth amendment privilege and testified as a matter of fact mr west is mentioned in mr perry's pre sentence report as a crack addict who hung out at the house and did favors for ran errands mr perry in exchange for crack and so it is unlikely that mr west would have waived his privilege against self incrimination in order to testify at a hearing on a motion for a new trial and no allegations were made to the contrary with respect to mr boyer his primary complaint is spillover and the severance motion that his motion for severance should have been granted unfortunately mr boyer provides no specific information as to what the spillover was this was a conspiracy case in which mr boyd was charged in the conspiracy and two substantive counts and all of the substantive counts in this case were part of the conspiracy and so all of that information would have been at miscible against mr boyer in a separate trial i mean perhaps there are little blip some information that might not have been admissible in a separate trial but mr boyer has not pointed those out to us and i can't think of any off the top of my head so we really don't have any evidence that could cause a spillover effect because all of the information could have been introduced against mr boyer at a separate trial additionally the judge to mr boyer made a statement about this because judge dick substituted for judge brady he didn't get the jury charge that he wanted i'm not sure what he's referring to i'm not aware of a charge that he asked for that he didn't get but the district judge did in fact instruct the jury that to treat each defendant separately and to treat each count separately and the jury did exactly that the jury convicted mr perry of two excuse me acquitted mr perry of two counts it acquitted mr chapman of three counts it acquitted mr boyer himself of two counts and it acquitted mr williams who was charged only in the conspiracy count entirely and so mr chapman's argument in his brief that it was the conspiracy count that was so confusing and the jury would not was so overwhelmed that they wouldn't be able to judge the conspiracy count doesn't hold water since mr williams was acquitted of that count finally your honors as to mr perry mr perry argues that this case is nothing but a buyer seller situation and that's not at all what this is this court has recognized that if a seller sells drugs to a buyer and that is the extent of the evidence of a conspiracy that that is not a conspiracy understandably that is just a transaction that's not what this case is in this case there were at least twelve coconspirators who assisted mr perry who didn't just buy drugs from mr perry who assisted mr perry in his operation they they handled sales for him to other parties they retrieved drugs from storage locations they stored drugs in hidden compartments they weighed and bagged drugs for him they took trips with him to texas to get drugs they committed robberies for him crack addict mark allen tested the dope for mr perry after he cooked the cocaine into crack they guarded the drugs for him it went on and on and on this is not a case of just a buyer and a seller it's a case of a large organization operated by mr perry with a very strong arm when drugs came up missing one time he beat up both mr chapman and mr boyer for that mistake that is evidence of the conspiracy tauriel relationship  we're back here just really to address a few simple things not support things but a few things address for the government argument right here cost appeal and the government is correct that we did not raise the nine twenty four c issue on it on appeal and that identical to nine sixteen was it already rolled it was constitutional and not unconstitutionally vague under the due process clause that said at the time we did not have a basis a good faith basis to base this argument  also in addition to that it wasn't necessarily in mr perry's best interest to do so but we raised the constitutionality the unconstitutionality of nine twenty four c here really to just as a defense to the government's argument and to bring it to the court's attention that this may be a bigger issue than what's before this court right now based on the when should be demaio decision that's in front of the united states supreme court right now and significant then just this issue and you know based on lynch fee denying the fact that nine sixteen be raises this identical language the involves it raises the threat it raises the risk of force or the residual clause according to the government's argument count six which is the time the discharge count involves a crime of violence which here was carjacking now the risk of force clause is the first clause in nine twenty four  clause which is the clause before the supreme court right now we disagree that the that carjacking count six would fall under the risk of force clause because by its definition nine twenty four see i mean by its definition the carjackings statute specifically says requires that the government prove the taking of a motor vehicle by force or intimidation and this court has defined it taking intimidation as a taking that occurs when an ordinary person in the victim's position reasonably could infer a threat of bodily harm from the fifth and that from the defendant's acts and unlike the government we believe the case law distinguishes between threatened harm and a threatened use of force in singleton this court held that it was enough that there was a substantial risk of physical force for a defendant to be convicted of carjacking which shows that the crime of carjacking falls under the residual clause the second clause the clause that's before the united states supreme court right now so should  is fined nine sixteen be residual clause the second clause is unconstitutionally vig based on its language the identical language in nine twenty four c would also potentially be unconstitutionally vague and since it's our position that the carjackings statute falls under the second clause rather than the government's position that it falls under the first we believe that judge dick sentence depending on the outcome of the supreme court may still fall still be considered constitutional should that decision reversed nine twenty four see on the re