sentence western district a tennessee of memphis before you go and i don't think that we probably did this before i got here based on my late arrival because i reserved two minutes for rebuttal please thank you very much judges this case about one thing received the ineffective assistance of counsel when his appointed counsel during his direct merits of appeal failed to challenge the district court's refusal or declination to provide a lesser included offense instruction to the jury based on the optical law at the time based on the knowledge that his counsel we would submit that his counsel was actually ineffective that she was not functioning as counsel of the six men and that this resulted in prejudice anders grief either and that's actually the issue judge and that's why we're here today is the enders brief is the problem i think the court is aware what happens is mr talley has counsel he gets picked up for a traffic violation but subsequently after all the dust settles you get a nine twenty two felon in possession count and two counts of possession with intent to distribute one for a very very small amount of marijuana and another for a small amount of cocaine dates at trial tally testifies he says i didn't know about the gun didn't know about the marijuana i did know about the cocaine base but i wasn't intending to sell it to anybody i was intending to use it on my own i want to have energy when i go to the club later his counsel requests a lesser included offense instruction the court refuses to give a court says it's going to be confusing in b he can put the jury in the position that they can either acquit across the board or convict across the board it's going to be problematic because obviously the yes i don't disagree with that so i understand where the court is coming from in terms of the fact that that portion is there but in terms of the instruction on the actual lesser included offense of simple possession or potential possession without the intent to distribute  instruction is not given after his conviction tally appeals the same counsel who represented in the trial represents him on appeal to the sixth or circuit court of appeals rather and proceeds on the merits however she moves to  withdraw and thousand and three not only does she not brief this issue regarding the lesser included offense instruction she failed to even raise it as a potential issue in her endurance pretty and based on the law as it stood at that time judge that was absolutely ineffective that is the crucial portion of mr tallies case and the law at the time that this case was in front of the six circuit panel on the merits is extremely clear we have united states versus monder which i think is two thousand and maybe nine hundred ninety nine was a four part test for determining whether a lesser included offense instruction should be given it's whether there's a proper request that got made if the elements are identical the evidence would support a conviction of a lesser offense and if the element or elements differentiating the two crimes is sufficiently disputed all of that is present in talley's case the motion is properly made or at least i don't know that anybody's objected to the manner of means or time in which it was made the elements of the offense do support a conviction for both that's case law straight out of this circuit so if you've got simple possession it is a lesser included of possession with intent to distribute the last two elements are also met by telling tallies testimony at trial tell testifies that he's got this cocaine base and he intends to use it he testifies he admits on the stand in front of a jury he's guilty of simple possession compared to mongar though doesn't the kick the court in mongar makes a good bit of the fact that as opposed to most distribution cases the coke was all in one the extra bags were not in his possession it was in his apartment rather with which h some commonality rather not his person here you know all of those elements he's got the gun and the scales and the drugs in individual bags in his possession in the car or on his person right  the question under an abuse of discretion standard for giving an instruction where was the court abusing its discretion in saying that the evidence wouldn't support that that that's a that that basically is going to get me to the end of my already welcomed us and so best quarter as you wish i mean that it that's it that's the issue first of all is when we're looking at whether or not to give a lesser included offense instruction we're not looking at credibility and we're not weighing evidence we're just looking at whether a rational jury could take that testimony and on the basis of that testimony render a verdict on a lesser offense the second thing is there's a lot of evidence in the record which i think people are going to say you know this points in the direction of somebody trafficking in narcotics or somebody intending to distribute these things but that's just one theory of the case if you look at the other side ok it's in seven individually wrapped so maybe talley's intending to distribute it or maybe he bought it from a drug dealer who sold it to him seven individual event that he's got scales so maybe he's intending to wait before a distributor or maybe he'd have to use or he wants to weigh the drug before he uses them there is evidence in the record all over the place where a rational jury just a rational jury could take this and say you know i think he did have it i think he admitted that he had it but i don't think he intended to sell it to anybody and the jury was obviously paying attention to tally because they convicted him on the gun that convicted him on the cocaine base but they did not convict him on the marijuana so they're paying attention and if they had the opportunity to say i do think that you had this cocaine base but i don't think you intended to distribute it there would have been faced with that choice that the court put them in that was kind of discouraged by the court monk one thing about monger  jury was paying lots of attention and therefore they were able to distinguish the marijuana but they were unable to follow the instructions on the on the cocaine because if they had believed they were instructed to the extent that they would  what i think is the problem is that the jury doesn't really have that option and we all have heard germ ember sometimes get frustrated with somebody who's going to take the stand in mid guilt on something because he doesn't admit guilt on the marijuana he says that stuff isn't mine but he does claim the cocaine base and so you have a jury put in a difficult position where they're going to say you know now we have somebody on the marijuana he said it wasn't even his he said he had no knowledge of the marijuana or the gun so you know they obviously didn't believe it with respect to the guy but at least there's a certain certain sort of street cred that says that three and a half grams of sugar might have it for your personal use but the crack in different illegal here's the here's the ultimate thing on all of this i think the court can see that the lesser included offense instruction is at least an issue i think the amount of argument the amount of discussion that we're having on the fact that it should or should not have been given is definitely in we're not on mr talley's direct appeal but we're here to talk about today is the fact that when he comes to the sixth circuit on its merits appeal with the same attorney who represented in the trial with the same attorney who asked for the lesser included offense instruction with the same attorney who didn't get it with the same a read the judge made the decision in the jury rendered the verdict comes to the court and says this is an issue then the second part would be prejudice where the standard is that it's probably would have had a different verdict to the particular instance this standard is now the law supporting the lesser included offense instruction is so clear and but but monger doesn't go isn't about ineffective assistance and prejudice and so it would be about the question of was it a reasonable argument unquestionably it was a reasonable argument to raise and it should have been raised in terms of prejudice the two things i would say would obviously no for the court one is if the jury gets its direction they have now this other option and we have a that's clearly divided on what they want to do with mr talley has somebody that has possession of one thing and maybe not another thing claims he does have one thing but he doesn't have it for the intended use of the weapons the jury was divided the verdict was provided because they consider the evidence the other portion of it is in terms of the sentencing that mr talley receives because of the fact that he is convicted of this intent to distribute offense he becomes a career offender that increases talley's criminal sentence by another i'm not a probation officer so i always had to you know couch that in terms of i'm not sure about the guidelines but i would say at least ten years he gets sentenced at a level thirty for criminal history six that gives him a two hundred sixty two month sentence the way i'm working this out i think he might be twenty six under other other terms which would put him at one thirty seven you know i mean that's at the height twenty two to sixty two is it the low one thirty seven is it the high end we're talking a difference of ten and a half years though and on your on your submission if you were to be successful they would what have to re sentence him without that but could they also retry him on the because you'd simply be reversing that part of the conviction wouldn't you you have to retry the whole case well the portion of remedy here is something i've been thinking about really since i i submitted my brief because usually i like to say you know reverse and remained my thought has been so far reverse yes remand to where i think procedurally it may be remain to the district court for a full hearing on a twenty to fifty five motion and that might be the first step although if the court is in full agreement with mr teles arguments i think you have as a clerk the opportunity to grant more substan well on the twenty to fifty five what more would the district court do on the twenty to fifty five on your submission he was simply wrong and if we are going to agree with you it's not there's something you didn't do procedurally or more evidence is you're wrong you have to grant the twenty to fifty five which normally is retrial across the board wouldn't which which i would agree with the thing that i would expect most likely to hear from the united states attorney's office would be that in a situation like this because there was no hearing given below the record has been fully developed in terms of ms good and potentially whether her failure to challenge on appeal to a lesser included offense instruction could have been some sort of reasonable trial strategy i don't want to talk myself out of a new trial here but in cambridge a court that might that might be what we have to you know you're getting your submission is not that there was something wrong in not having a hearing that you know that's sometimes raised as an argument but that's not your argument here either i mean i think it least in the record that i see the evidence is pretty clear this should have been raised it wasn't it did prejudice towie it was ineffective we should have a new trial the question that i think the court eventually gets into is if you're going to grant substantive relief does it go back to the merits panel of the sixth circuit or does it go straight to the district court for a new trial of which the lesser offense instruction can be given so what you might say is that all that he gets is the new appeal right that and that and the of a remedy in this particular instance is one that i think has has paid me ever since i submitted the breeze in this manner and i figured we would need to talk about so i think those are really the three options back to the district twenty to fifty five back to the panel on a new appeal or back to the district good morning maybe daniel french i represent the united states in this matter and just picking up on what you said judge barnes i think this case is so different from mongar in one way because we are dealing with the ineffective assistance of coun standard we're not dealing with abuse of discretion at this point and so the question is was most good was an objective leon reasonable for her that she ceased functioning as counsel under the sixth amendment when in her brief she failed to raise this jury instruction issue and i don't think the jury instruction issues as clear cut as count is that is that is that failing to raise that as one of the not raised issues or is it failing to not  ender's brief and go full bore on appeal i guess it's both really there's really the letter really well first they're saying she should just raised it on appeal and then i think the second part of the argument is at the very least in her interest br she should have raised that as a potential issue if she saw all that it was you know something she wasn't comfortable bringing up but looking at that i mean when we look at this issue about the jury instruction unfortunately this standard point standard we have to get to whether the instruction i guess we kind of have to look at that to see whether core the or did in a sense abuse its discretion and what was the likelihood of success on appeal and mr summers was correct the first two elements of this four part test  contesting those i mean clearly she missed good made a proper request in the elements of the two offenses are difficult to prove the first elements though the one that would require the evidence to support a conviction on the lesser included in that the proof sufficiently disputed so that a rational jury could acquit on the possession with intent and convict him on the lesser i think that's where it gets tricky when we look at this standard the court is not supposed to weigh the evidence when it looks at the standard  determines whether to give the instruction but it is supposed to make some kind of determination in its discretion whether there is sufficient evidence and the problem is the evidence that's being pointed to is mr tallies testimony and this own appeal from the ender's brief found mr tallies testimony to be materially false and to be completely impossible the court said that in uploading an obstruction of justice and has been that was given to mr talley based on his testimony and the reason that the court found his testimony to be implausible were the same as the district court's reasoning basically mr talley when he testified he claimed that the officers forcibly removed him from the vehicle despite what the officer said he claimed that there were six or seven police cars on the scene when this was just a routine traffic stop he claimed that the all the claim that she did raise as to suppression of evidence would have been based on his view of stop that's correct that's correct and and the other important stuff is what he said during his testimony really supported the intent to distribute with what he had on his person of course he denies the marijuana that's because he was going to give it to his girlfriends for a little special drink well i don't i don't know if you actually said he was going to do it he says he uses it to get energy when you go to the club he said he was going over to a hotel room to pick up a lady friend and  but the other things he when he starts talking about what's in the car and what was on his person he claims that he had the scales on the card away things up he denies of course knowledge of the marijuana and the firearm but like judge like you did the marijuana was in one bag solon he couldn't deny the crack cocaine because it was on his person it was on his person with one hundred seventy seven dollars in cash now on during his testimony he claimed he actually had seven hundred dollars in cash on his person without explaining where that when i guess he was trying to imply the officer stole it and of course he claims that earlier in the day only had five hundred in cash so he fails to account how he made two hundred dollars between when he went to someone's house and then ended up at the traffic stop so i mean all these elements taken together you start to really question his testimony the jury was also allowed to hear that he's a multiple convicted felon and that he in fact a lot about where he was staying at the time he claimed and one point during his testimony that he lived at the motel that he was going to and then he later admitted that he really was living in somebody else's house and that he had the motel room for things on the side and that's all he would say so based on that the judge denies the request for the lesser included you know was the analysis the best that it could be no but miss good looking at the implausibility of her client's testimony i don't think they've shown that it was a gesture of leon reasonable for her not to raise that point you know you can't just get on the stand and say that drugs magically appeared in my pocket and then get the lesser included instruction judge has to look to see if a rational jury would have found them guilty on a lesser and not guilty on the only actual possession with intent in this case the jury did listen to the defendant as mr summer said and they didn't believe don't use their common sense like you said judge but i think these are common sense with the marijuana they said i got three and a half grams of marijuana in one small bag sitting under the seat out of the you on the other hand i have a pistol that the grip a sticking out from under the seat that he could have seen and then on his person i've got seven individual bags of crack cocaine package for distribution along with one hundred seventy seven dollars in cash as well as digital scales and baggies used for packaging in the rear front passenger side pocket so at that point the jury convicted him as as the court noted they were told that if they believed he only possessed they could have acquitted and they did  in this case just just lastly with regards to to monitor this case is also different from unger in that the facts and mugger are very different from this case in mongar you had a situation where the crack cocaine was in one bag on the defended there were no i don't see consistent with distribution found on him there were the police ultimately found out believe a scale in an apartment that he shared with other individuals who also had been arrested for drug sales and then they found some baggies in a community dumpster that they tried to tie to in mongar the governor it's says and i have been focused on this the government failed to lay an adequate foundation for the admission of the scales on the cellular  phone i take it that means that didn't come into the trial even though it's now being raised as as part of the government's side with regards in mongar mongering mongar the way i understood it just reading it is that they did go into evidence but they just didn't have a witness explain why those items in the bell and the panel was i i didn't did know where they were making a legal judgment that that was evidence that shouldn't have been considered and when it says the government failed to lay an adequate foundation i took it to mean that that the government failed to explain how those could support the distribution as to when i could be a candidate but the thing i think that the court sees don't mongar is that the government's own witness testified under oath that the amount of crack cocaine in the way it was packaged could be consistent with personal use so the jury not only heard from the defendant that it was postal use but also heard from the  own government's own witness so taken together the court said well you know this was an abuse of discretion the court should have given the instruction at that point in the court on fairly weighed the evidence rather than determining whether sufficient so i think that's how we distinguish mongar in this case from the court case and also the fact again that we're using whether this was objecting fully and reasonable and lastly just to address the prejudice element at judge barnes you brought up a good point here be probable once probable that he were up you know and without getting too far out weeds on that i would submit based on what we've gone over here about abuse of discretion i don't know if they've shown it again mongar i think can be narrowed sort of to the facts of the case that before the court there and these are just completely different facts and so based on that it the court has any other questions let me ask you this because when you were just raising the what's the connection between the standard for could the jury find something which is what lets you get the lesser and the fence and the prejudice standard that is is the that even if the jury could have found it if we think it's pretty unlikely then it wouldn't meet the prejudice standard or time similar to what i think i think so you're i think i think they have to show that that you know but for this that they would have prevailed that they had well i mean really i guess we're not even dealing right now with whether they what the jury would have done if they had the instruction were more or less dealing with whether it was proper for the court not to give the instructor up but there's that but in order to be ineffective assistance this is not like monger on direct appeal your ineffective assistance that then you have to show prejudice and is the different result a different result at trial or a different result on appeal i think it's  different result on appeal but i think that's what i think that's what's being argued here is that if she had appealed this it was ineffective for not to appeal this and if she had appealed this it was probable that the conviction would have been reversed if the structure where and that it would have gone back to trial at that point and it run i will say this dealing lastly as i'm thinking of this with what the women he should be if the court does side with mr talley in this instance mr summers is correct that it's our it's our view at this point that if the if the court is going to side with mr tally and find that the twenty to fifty five was was in appropriately denied that it be remanded for an evidentiary hearing on the twenty to fifty five which would allow the government at that point to explore i guess to seek a waiver of attorney client privilege with miss good and at that point have her discuss any conversations she had with mr talley bad as appeal what her thoughts and process monder monger i don't know if i'm saying it with a soft or hard g would either way it is we've talked a lot about it i think is this case necessarily every single fact is the same as managers know it's probably not but there are some steps that substantial similarities between that case and  and in some respects mr case is better than the case in mongar in order to get a lesser included offense instruction there are less drugs and like in one hundred there's no direct evidence everything is circumstantial so i don't think that you as  attorney or a court could just say ponder this and then something else and i don't think there's necessarily a one to one correlation but i think it does have some value to what we're looking at and i think the fact that at the time of mr taylor's direct appeal manner had already been decided for a number of years is what makes the ineffectiveness so clear least in terms of what we're presenting the only other issue in it we didn't really talk about this nor did the government or argument there were some waiver issues that were potentially raised at some point based on mr talley not bring this up on direct appeal when he filed his response to his and hers priest is the court want to engage in a way that we raise there in our breeze in addressing in reply why we thought waiver would not be appropriate at this issue but i don't know if the court had any questions about that while we were here  didn't immediately although from a kind of used when somebody files a pro se brief in response to an end that seems a little hard to tax them with a law school quality at the same time  it gives you a little feeling that it wasn't something he was outraged about i understand with the court as a legal standard i don't know where it cuts you did give us some evidence on that and we can look at it anything else judges thank you very much