as deals with but we claims an error in judge walks instruction to the jury after the jury said they were deadlocked one deals with judge blocks decision to allow in to twenty four and twenty five year old priors for fo government has been investigating this conspiracy between middlebrook and taylor and others for over a year there have been wire taps by his informants surveillance every method of electronic surveillance that's currently available things i'd never heard of before like sting rays triggerfish bad compile phone records and so forth and they have never heard of gates and chairman until the very last day september twenty ninth when there was a surveillance of middle that's hard on them i'm wondering if you if you have anything further to add yes that's a bit of a red herring there was no cooperation there was no intent to show cooperation the government refers to a few points in that regard and i'll briefly comment on it one point it came out that middlebrook when he was arrested fled the scene and tried to destroy cell phone and so one question we asked it is when you  mysterious and that's totally false what what what shannon said on cross examination was when we got from the government shannon's phone records shannon and myself and our investigator went through these thousands or hundreds of pages trying to figure out which phone number match the sky really looking for and right before he said they went through the records he said me and my counsel were doing this it clearly wa about him going to the government it was about quote me and my counsel trying to find the corresponding phone number and it had nothing to do with it was no suggestion at any time that he was working then isn't it true that you never directed anyone such as your lawyer to tell authorities i mean remember this guy is in jail the whole time and you can you need communications he's going to have authority is by definition going to be through a third party that's the way halfs that the government would accept this phone call at least they should know when he's represented by counsel the the the course examined the direct examination the cross but doesn't miranda deal with with you know warnings that about making statements going to walk worse and not others well affords a lawyer the question is from september twenty ninth that was dangerous and i saw yesterday did you ever direct anyone to come to the authorities and say listen you need to know about the williams i started checking the court wouldn't give me a sidebar would let me speak i managed to get in it's a comment on silence did you ever dare anyone to green that information to law enforcement and then later he did you ever tell us as opposed to the all the wreck someone to tell us in the closing it as much a response to the statement that you were making that they could have investigated the alibi well that's right they had it was a response that it was an improper so just and i know that's not the end all be whole but the jury didn't think it was that overwhelming further as i pointed out at the beginning and judge toward you and your family are the facts his name never came up in this thing the only said he was it was not very believable he had a self interest charge block said all this business about the cell tower records don't really prove anything because even though shannon may have been in western pennsylvania on many of the dates middlebrook was here the cell tower records show that shannon was in western pennsylvania on many dates when middlebrook wasn't here so it wasn't a very strong case i think that is as for purposes of discussion they here's how they characterize your argument they say shannon maintains that after printing a lien the district court cannot sentence a defendant on acquitted conduct regardless of its effect on any mandatory minimum force that story next as long as it increases his range under the advice re guidelines that the page forty six in there that that's not our position our position is that the court the sense in court has broad discretion to take into account all sorts of factors in deciding an appropriate sentence as long as the sentence isn't beyond the statutory maximum your one factor that they can take into account is when  found that conduct which is an element of the crime hasn't been proven that's you're mixing if you say one factor and then use that element it really makes a big difference whether this is a factor or an  doing calls to be an element of the new aggravated calm and i think that's the problem we have eileen and and smith saying when you have if an element that would increase know how can you say that if the jury specifically finds against it can you say well ok it wasn't proven beyond a reasonable doubt but the sentencing court still since there's a mandatory minimum because i find it sixteen euros so this is why i'm finding during this range does the sentencing judge have to invoke it or do we say because you know automatically because be for both a line adequately and watch watson or at least it can be for i mean and what's never mentioned the fact that the issue we're talking about is an element of the crime it's a complete distinction further but we did lean either i mean being discredited right but it didn't really come up in a lean tell eileen said several things very clearly one when it increases when a fact increases the mandatory minimum it's an element of the crime and two when that occurs it has to be a lesson that me and proven by a jury not a judge they don't deal with such subtle they don't say once if this proved by the cherry what the judge can then do  and i think it's it's assumed that he can't do anything if he says this guy's a scoundrel he's not remorseful it's a terrible past he was violent during the suspense he should arrogance on the witness stand for him given the  given twenty years but that's not what he said he said because you know what he said and this is with all due respect to my feelings about the judiciary this was a fancy me just block said the jury got it wrong that's what he said on the record they were wrong they're heard it makes no sense and given a quality doesn't make sense i thought yes it does and i always had with the judge for pages about that five hundred years i come from five hundred then he knew that there might have been cocaine stand and testified that he had been set up to take the fall in a massive houston to pittsburgh cocaine distribution conspiracy by philip williams who worked at maritime container in houston texas as jordan said where where where where the ok house is not a ation i mean in joyelle there's one question and here there's there's at least three questions that say to the jury you know this guy should've should've spoken up earlier yeah that's because shannon first of all i'm not convinced that any of these questions goes to his his silence in the immediate wake of his miranda warnings that ok but see doyle footnote six limited the holding to silence in the immediate wake of moran i know discordant davis in zero nine and said subsequent third circuit cases have extended to well to all pretrial silence i'm raising the issue to preserve it for furthe review for us for now as to why this is not a boil violation you have to look at his testimony on direct because near the very end of directs his attorney ask him if he tried to find philip and he says yes i've tried to find  re has to be blatant inconsistency with the defense trial testimony for there to be some kind of opening of the door for this kind of u siler the blade inconsistency from our perspective is that he says he is trying to find philip but then and he says even he has told several people some version of his story so all after his arrest but then he doesn't convey information to those people which would enable them to help him or do anything not they should just walk away oestrus silence well what you're it sounds like what you're arguing is you can't say anything without implicating your post or a silence if you say anything about what you did that opens a door for us to walk in and say well you know you never did anything to say that to the authorities well if you open the door and then don't close it behind you like mr b could have asked this client let's go through what you did to try to find philip let's go through everybody you talk to to try to find philip but he didn't do that how how how is how is what he said quote blatantly inconsistent because  testimony is he's trying to find philip and as mr boies says his client's in jail the whole time so he's working with somebody to try to find philip is working with his lawyers trying to i felt tom come forward and hopefully testify but have but he's not said that he's left that they can and then when question kind of with another question kind of what you don't get the answer ask questions all right well that's fine then what i'm saying your honor is this the portend the cases defendants can be cross examined like any other witnesses i mean if another witness testifie the defendant when they come forward with some story at trial that you didn't hear before that's exactly the facts of oil that's what you've got here that's what you did and in the conference with the judge you seem to think that you know that doyle didn't say what it says  said the judge said once you pick the stand you wave your fifth amendment right which strikes me as a complete misapprehension law and you just go right along with it because i don't know the first well i don't think the judge understood the nature of the objection that's why raise the preservation issue how could he have not because he said he was self leader when the supplies raise it says you major objection you're preserved right but i think i don't know that there was a meeting of the minds as to what that objection was ok but here's the problem yeah that's right but here's the problem i have your honor which is that doing well does say you can't impeach defend it where this post ran this i was at least in the immediate wake if not as a circus apply to all the way through i couldn't find any case so that sounded well one a harmful one where the defendant goes the extra mile and says yeah here's my alibi i told several people my version of the story after my arrest and you know i even tried to find the person who set me up or who's responsible for my predicament i think when the defendant does all of that extra stuff we have to be able to cross examine about what he thought and i thought that's what was joyland fault somebody getting on the stand and giving the story or he's had her for your loose use of the word an alibi right handed and the court said straight up you don't get to do that right so i'm still absolutely i'm not getting and i don't mean to be i don't see how you don't have a great big oil problem because he doesn't just testify to an alibi he testifies to things he did or didn't do as a people he spoke to all post miranda about his predicament so me hadn't said anything about who he spoke to right when she'd be saying the exact same things we never heard this before how come you didn't tell anybody about you know x y or z if he hadn't said both i'm trying to find philip and i related some version of my story the other piece of the difference that's what makes a difference if he hadn't said that i think we'd be conceding error at least i would have advocated for that but to me that makes all the difference because as soon as he says that the prosecutors and titles are crossing what he did or didn't do that's interesting because that's not something that surfaces all in the discussion between you just book mr boaz it's a straight up assertion that once you take the stand you weigh right and that's i think you know not to make a scene  objection either because frankly doing it wasn't mentioned miranda is not mentioned i mean this man testified even at a pretrial i mean you all have practiced criminal law doesn't take rocket science to read this  colloquy and do you ever direct anyone to come to theories and say listen you need to know about philip williams your honor may we have a side bar please no i object to that over rule if that's an action he's asking the question did you ever tell anybody about when i told amendment right to silence due process hears in implicated you don't think that's worth a conversation at the you know you are i mean it's from hindsight i would like to say go if only because i think the judge would agree that there has been opened and if he had agreed with us that decision would have been reviewed for abuse of discretion was now here i'm in front of a court they know so i would like to sidebar the but the court you know after a few up to you know keep granting sidebars up to like twenty two of at it like this i think the jury found evidence that mr sheen it was a drug courier was less an overwhelming i think because no one saw him middlebrooks the bag of cocaine so that's why they put us on the phone records i mean there was nothing his name  name is not matching but i think they couldn't see their way clear to let him walk on the the conspiracy charge because the evidence that he was at least a drug money career was overwhelming i mean read holding this bag red handed sits there with it for forty only doesn't call the police for forty five minutes my thought of the way this unfolded is that he goes into the bank goes cuts goes says this isn't good and gets out of the cab of the truck is walking in to make a phone call and he's arrested twenty five feet from the entrance to the truck stop so this is well it's not a forty five minutes after he's discovered this drug money he's like out of his cab it's reasonable doubt correct right that's a that's a pretty high burden here is your circumstantial evidence the fact that he's gone eighty four times zack and you know even accepting he was looking at the cash for twenty for forty five minutes is enough to get you over the home yet that list here was testimony which you just might just disbelieve as to the amount of drugs involved in the conspiracy didn't reject the whole thing if that plus taylor's testimony the trucking records you know his own kind of remember again says however the more improbable it is the less likely it is to be harmful you have him saying well all those times i was up there before when a drug deal was going down you know yeah i was up us the comment from your answering brief and and you heard him just about he just about it i think their position not to be that anything that affects the guidelines but the very specifically something that implicates a mandatory minimum and this is right smack in the heart of only now if that is your position that's what they are valid taking as their position would you explain to us why when the government chooses to charge with a mandatory minimum you can charge ever you want that you chose to charge the five kilos or more which carries with that  your man the mandatory and the jury doesn't except that rejects it on a special iraq a tory that it's not and i don't mean problem if the court purports to reject the jury finding right can't really i don't know how else to say it other than what's kind of stands in the way of this court doing anything about that watch is about double jeopardy watch watch doesn't even once that i'm aware of say and this is not a six and then a problem under a  it's charging indictment five kilograms or more right the government you know i don't bring persist of it but i was an assistant u s attorney in charge plenty of drugs and that's the only reason i ever knew of for putting that in and adding something that you had to prove which otherwise wouldn't have you specifically because it was going to implicate i mean dettori minimal so i don't know what the what the purpose of this was unless the government was implicated mandatory and if that's the purpose how can it not be a problem when really when you don't win that point for the just to say i reject injuries fine i don't know that what the purpose was a putting that in but i do know i mean he's convicted of the conspiracy count which carries a thirty year statutory matter then that's on the five hundred grams or fewer not if this case triggered a mandatory minimum any sense the court and to that i think so ok is that what happened here i don't think that's what happened here i mean i have to look back but i'm just now understanding mr boies his argument more clearly for the first time but i don't think that's ok for the judge to do it you jury who has to pay it has said no to it ok i think it's because when the jury rejects it except the five hundred grams or fewer  can you know choose within that region perhaps he could or he could but you know your opponent is even arguing that right mr boies stood there you know a few minutes ago and said in effect i'm not suggesting that the court couldn't have gone through thirty five fifty three analysis and reached above yeah you know somewhere below that thirty year minimum but what the judge wasn't entitle to do was what the judge did and that was to say the jury's verdict makes no sense i'm i'm giving you ten years now that those are the facts for dealing with and i guess the question is on a record that star a look in the appendix thirty to thirty one superseding indictment that's the charging decision it charges five kilos or more section eight forty one b one eighty two sets a minimum mandatory of ten years for five fuels or more ready is a minimum mandatory specifically to an element charged in the indictment yeah i know that's a lien isn't it i think it would be if he sensed according to that but i think what happens is the judge sentences him according to the guidelines range and i don't know that the that so you know that that is the best i can do i mean i don't see how to get around why it's saying that you can sense a defendant based on acquitted conduct now if you're finding that just because watts sounds like us with the wide range of stuff which are legitimately sentencing factors quote unquote that is not elements of s which could be found even if it jury rejected some argument or discussion that the government try to prove writing is  well i'm just there seems to be a whole whole lot for watts to say without it being are pretty directly in conflict with the league because what it sounds like you're suggesting is that somehow watts over rule the lean in advance a different standard of review i mean if i'm reading your ears are you saying you know because it's preponderance sentencing it can be considered yeah i mean i think it is that we don't we don't know what the jury would have found if they'd been asked to evaluate these higher threshold up both ends of that stick you get you make the choice you pick up the consequence the consequences if you don't prove it that's acquitted conduct which according to the supreme court cannot then be the basis use what the jury said no to to in fact get the person with the same punishment but i don't know that that really can do you still reconcile i don't know what to do with watson and if that if that happens that's the only thing i mean i'm trying to figure out how to read the two but as you pointed out of georgia the standard is is that harmless beyond a reasonable doubt there may have been enough to convict but it clearly was not overwhelming and as such this couldn't be harmless error and let me just point out one thing  is stressed this point of how we try to pull the wool over the jury's eyes and show that we were cooperating with authorities it just isn't the case and the only point he really referred but the next sentence was and he said it was very hard because i thought i was helping a friend in the home in trouble the idea that somehow because we responded to a tape which they didn't play the whole thing that that means we were trying to create trying by the government that because the jury found no five heels or more wasn't proven it's no longer an element makes no sense and it's like saying if a jury a question first degree murder because they didn't find premeditation the premeditation is no wonder an element of murder it's still now and it's just one that the commonwealth or in this case the u s couldn't prove and that's what happened here it's an element