case number ninety three thousand and ninety four united states of america versus russell davis arguments not to exceed fifteen minutes per side mr belly you may proceed for the opponent if you may it please the court my name is dennis bell and i represent russell davis who appeals from his conviction and life sentence for distribution offen resulting in death this case is a good example of why prosecutors should talk to their witnesses before the indictment stage and i say that because the indictment in this case alleges that russell davis distributed a fatal dosage of fenton all to the victim clearly alleges a direct transaction between the two however by the time of trial the prosecutors realized that that was not the case and they alter their theory of prosecution and i described this theory of prosecution as sufficient that mr davis allegedly salt fence and all to someone and that was passed on to somebody else who had died and we would submit that there's no legal authority identified and it for want of a common so where do you get the limitation you're your limiting principle seems to be that in order to be liable under the death results of hands you have to have delivered the drug personal way to the individual who died but i'm having a hard time seeing where that comes from the language of the sense in enhanced mit and so i'm wondering if you could articulate your theory for why the one case is consistent with the plain language of the statute because after a swining was decided after the parties brief this case this court came out with a decision united states versus ham that discussed swine eat in great detail in very similar circumstances to this case in the hand case mr ham was a uniter media distributor  all and the facts showed that he distributed a portion of his car fenton all to a young lady who was the individual who then redistributed the car fenc all to one person die and three jail inmates who suffered who overdosed on it so the facts in that case clearly showed that there was not a direct supreme court ruled that juries not judges must decide certain sentencing factors so what hand did was clarify how swine eight applies in the jury trial context  link and what the court said is that the approach has to be to fault number one is the defendants guilty of the distribution government could simply proceed on that basis that's all you need is one distribution of drugs that at some point down the line causes the death of another person and the whole conversation on the whole discussion davis never dealt with the deceit that some dispute saw mr bell i mean it seems that the facts here fit unless perhaps a conspiracy theory of liability corrupt probably misstating his name they pooled their money and the defendant i think was aware of the fact that the buyer in front of him was buying for the two people and  so the defendant either you know in a constructive sense or in some other legal sense was delivering the drugs everyone understood he was delivering the drugs to both of them not one person which is a different theory than conspiracy conspirator liability but it would seem to be one that is a commonsense assessment of the decision of this court on may the th and i'm quoting one sentence that says because death or injury from the use of the substance is inherently foreseeable there is no need to require the government to prove that they were with foreseeability of death and what the court said is that when one sells drugs to another person that has the potential of causing death and that there's no need to instruct the jury  rd upon which they could find mr davis guilty number two the evidence shows that according to mr crapulous he was a user there's no way that a jury could find that he's mr davis and we know that in mr castro white's bloodstream there was fence and all not heroin and we also know  dollars from his wallet and then several hours later he's found dead and the only thing is bust stream is fence and all and under this court's previous decision and i think was hacked and or  seized the court that call for the government the evidence prove the take of castro white died from the lower dose and that the defendant russell read sold those drugs to castro white and harry care a palace contract type of a relationship between the seller and the victim as judge murphy seemed to point out in his questioning that's not supported by the test of what you want the test of a forty one simply says if you distributed drugs under a one or deliver drugs you're guilty of the offense and the penalty provision be one see those that if death or serious bodily injury result from the use of such substance then the enhanced  type requirement or you have to show some sort of conspiratorial like i read those exactly the opposite way your honor in fact in the inhale the problem was that its distribution resulted from it and there was never any pinkerton instruction it's kind of ironic in their initial brief is that such an instruction should have been required d and as ham has come out his when he was as is me as i'm out in this jeffries i'm out this court has made clear that when the government proceeds that way it can't use pinkerton liability to get the death result enhanced ultimately here so it is now under under the plain text as your as your argument have any type of living principle i can imagine what  distribute in violation and it def somewhere but a sufficient so that enhancer that is what we believe your honor and we think that's supported by him which said that if you can prove that the defendant was in the chain of distribution  that is sufficient to hold him guilty for the enhanced men assuming of course you can prove the a one hundred and forty one a one violation and that makes sense really a take it to a more realistic scenario a high level supplier should be able to insulate himself or herself from this enhanced penalty merely by putting stuff real intermediaries in between that and this is the statutory test doesn't seem to provide any kind of privity of contract requirement which is what mr bell used to mean to require and let's remember we're not only the standard of review here is plain error the jury instructions here mr davis agreed to allow and in fact i would point out to this court there verb eight i'm the same instructions that this court a month ago found in the jeffries case more proper so we don't think that their challenge to the jury instructions o text message was plea was something obtained during the search the evidence that the government relied upon the most incriminating evidence was all obtained prior to and obviously independent detail records the cell phone location information had located and talked to both mr scott and mr kara palace and it was all of that information that led us to the search of the defendant's help in the defendant's home there was no fentanyl found there was marijuana and there was ok that she pled guilty to and then we found his cell phone now the cell phone certainly was a helpful piece of evidence or of but it was two military we had already learned from both controlled and recorded own call to mr davis on that telephone azzi identified him via boice detectives sievert identified him by voice so finding the defendant telephone was a an important piece of evidence but it was cumulative i like we just didn't use closing argument the government said that cell phone was a treasure trove of information that you argue that so how can you say that was that was a reasonable possibility that the evidence complained of might of contributed to the conviction which is the standard under united states versus the scientists are it is your honor it was a treasure trove of information showing that mr davis was a drug dealer a point that he never contested and continues not to contest his defense a trial was not that i'm not a drug dealer i didn't distribute drugs his defense a trial was i didn't sell these particular drugs that night and his most important piece of evidence for that was this magistrate judge recognized that it was deficient and took additional oral information and that he before issuing the warrant and we proffered that information in our suppression was it was always our understanding  that additional information if provided under oath can be used as the basis to support a search warrant and that's what happened here both detective seaver and medicine judge cook  ninety six there was a plethora of additional information sarah palin specifically identified mr davis he picked out his house on a google satellite or google earth image then detected seeburg verified that it was claim that the warrant was void from from the beginning because it was not by a proper person is based on and unreported ohio case that will upheld but still did not order suppression because of good faith well i just did a fair amount of research i recognize that magistrate can mean different things in different contexts and here i think there's a fair amount of ohio state case law suggesting that this particular type of magistrate trying to issue that the argument that there was some sort of a constructive amendment or variance from the indictment simply is not supported here again it's a plain error claim because it wasn't raised a low there was no amendment or constructive constructive amendment because the defendant was charged with an extortion scheme involving and i believe being imported from pennsylvania and the government approved an extortion scheme about steel being escorted to i think it was michigan  kentucky i think the fair analogy would have benefit government charged mr davis with distributing fentanyl but instead proves he had been distributing cocaine or methamphetamine that would be a more fair analogy but there was no constructive amendment at most here there was a variance but we don't even think there was here and there certainly was no prejudice that resulted the indictment states that the defendant distributed fenc more required to prove that he was in the chain of distribution mr bell is trying to read an extra word directly if he's told it directly to individual one that's not in the indictment and there was no prejudices here because the government made clear all if the government could avoid its burden of proof by simply not asking the court to instruct the jury on what the proper burden is the government made a similar argument in ham where they were alleging and the county jail inmates who had overdosed they are only liable for this distribution to l k w m d m mates as tracy my there's coconspirators in tracing myers was the one that a principal things that would be excluded under your request for exclusion i soon that counsel would want to somehow get that that text message and so i'm curious what if you could talk  residence of the phone as judge gilman pointed out was considered a treasure trove of information what specifically i mean what was on the phone now as you know that constitute harmful air because  drugs that were found or no so what what information notwithstanding the prosecution's characterization what specifically was harmful the government alleges that the contents of the phone showed that mr davis was  a drug dealer now defense konsole conceded that the defense counsel have to go with what they had at the time they knew that that evidence was coming in and because the judge will rule the motions press they could have adopted a completely different approach if nothing from the apartment was admitted and the government would have been stuck with a guy that just lie  also would ask the courts to compare this case to the united states versus you nk where this court reversed a conviction because the evidence was failed to show that  chain between the defendants less distribution of drugs and the drugs that were actually found in the victim's bloodstream ok thank you mr belin that conclude case will be submitted t