morning ladies and gentlemen we are pleased to have district judge step miller of the eastern district of wisconsin sitting with us today welcome thank you our first case for argument this morning united states against faulkner and sikes that time he gave a full confession to the authorities to the agents and they utilized that statement to then go out and get over here orders based on information they got in those overhe then prosecuted mr faulkner as part of a larger rico and drug conspiracy a couple of years later the evidence against mr faulkner was the exact same except for statements that were permitted by the district court in the district court was sit in it it was heard as a bench trial statements that were permitted by the district court under the coconspirator hearsay exception the problem with that and i don't think i've ever had a case where all the issues are so intertwined so my argument will be a little bit all over the place for that reason but the problem with that was that the cure say statements that were admitted if they were proper coconspirator statements and we certainly don't think they were were made after mr faulkner it already withdrawn from the conspiracy why do i say that you have something of a problem because the district court made a finding of fact that mr farquhar had not withdrawn spears well the district court did and then finding clearly erroneous it is it is it was it was not asked to be the burden of your argument ok i can i can focus on that they would draw cases talk about what is involved and one of the one of the times when someone with drugs is when they make a full statement to the authorities they recount their activities and then they cease any contact with the people who they previously conspired to and that's exactly what happened here the gov tried to claim a trial that and this is why it's clearly erroneous the mr faulkner had continued to control for at least a period of months the drug trade there was going on on the street now in this that they were sending federal prisoners to and according to the evidence in the case they had scoured his phone records and they had never found evidence of a single phone call from mr faulkner to anybody who was involved in the conspiracy  only witness that the government presented that claimed that mr faulkner ever called was a gentleman whose name was his mr pitts was not involved in the conspiracy when faulkner was out on the street mr pitts was living elsewhere that was the only evidence that was out there that said that mr faulkner ever did anything and some double and triple hearsay that was admitted where someone said that mr faulkner said that that i'm eating by still doing stuff on the block no recording of that call someone said that faulkner's steady calling the block which means that he's calling all the time no evidence of that it was is is we we we re put in the position of an argumentum ad ignorant him which is trying to prove something doesn't exist because there is no evidence that it does exist which is a very very difficult proposition  but since he would drew from the conspiracy and the district court did not consider that until it was brought up after the just recorded made their findings and the district courts essentially said it doesn't really make any difference does it that was was the comment that was made by the district court since he was the prejudiced counsel to the district court said that right in saying i don't know that i would reach a different conclusion if i didn't consider the post withdrawal statements  you're right it's that the problem was that all of the evidence to support the conspiracy charge and almost all the evidence to support the drug dealers and almost all the evidence to support the rico conspiracy came from these statements the only other evidence was mr faulkner statement that he had made when he was arrested in two thousand and eleven and nothing that that he talked about factually in that statement was introduced into  evidence other words there was no there was a statement without any any meat to it there was no evidence that he had been seen out on the block put in that there was no evidence that he provided drugs to anyone put in or anything like that so if he were true then none of the other statements that came in were properly admitted as coconspirators statements and there was then no proof that he was involved in the drug conspiracy the only other evidence on the rico conspiracy was this shooting where again i believe that the district court was clearly erroneous and they're finding and i know that factual findings of district court as to whether or not someone is guilty of a crime are entitled to this extreme sense of deference but this is the one case perhaps that this court should look back at the transcript because you had an individual who testified whose testimony was clearly contradicted not only by the physical evidence not only by the physics meaning he could have traveled where he said he traveled to get a gun not only by the fact that he got what the government characterized as a phenomenal deal not only by the fact that he couldn't remember when he ever came to this building to talk to anyone but also by the video evidence the shooting that mr faulkner was was found to be partly responsible for was ten minutes after a fight took place between two individuals yet the only witness to testify that mr faulkner was involved in that shooting testified how they drove fifty minutes round trip to get a gun and he was all over the place where they got the gun and it was all over the place and how they got the gun and when he got the gun and then he testified to returning the gun to mr faulkner mr green but mr green was in the custody of the chicago police every been arrested wing from the scene of the shooting so that could not have taken place he testified to some  if the hearsay statements don't come in and if there were draw took place then in fact mr faulkner has been prosecuted twice for the same acts and i am aware that th case when it went up on appeal the second time the court said that had the evidence been the same evidence that had been introduced originally it might be a different situation but i don't know how you get anywhere on that first this has been decided and second the supreme court's expressively rejected the same evidence approach to double jeopardy but they were in no position to disagree with the supreme court well like i can't if i don't raise it here accord come my name is ken carlson and i represent otis sykes to a large extent i rely on what is contained in our brief here but i would like to briefly discuss the issue of the sentencing disparity in this case the thing that is most troubling is that judge buck low despite having the disparity issue raised by the defense and mentioned by the government judge bako never once reasonably support disparity other than simply parroting the words there is nothing in the record that identifies mr sikes situation compared to those comparatives that you  asking this court now long after the fact to visit well judge i think that the one of the co defendants and i believe it was jasmine mclean was charged in the very same counts for the very same conduct for the very same conspiracy that mr sikes was in did he go to trial she did not go to trial or if there is one difference right there  responsibility maybe credit for cooperation criminal history scores may be different that's why trial judges don't want to venture into these thickets because there are too many problems and i wouldn't agree with the court except that the this is the same judge who had sentenced all of these people the argument was made to her and quite honestly she did not even cite acceptance or responsibility as a reason for any disparity there was no discussion of disparity whatsoever and i think that when the issue was raised by defense counsel although not raised as it one might have hoped it would be raised i think it's a matter that the court has to take into consideration it's one of the factors that the statute requires the court to consider and i think it's specially when you're talking about the difference in sentencings in this case all of this the wall street level dobro dealers that ran from probation to the highest sentence that my client got one hundred ninety five watts i think when you see disparities that great they need to be addressed if we're going to have a situation where there is respect for the law  variance of a sentence of one hundred ninety five months i think needs to be addressed and i would suggest that that that was not done in this case the only things that there were ever mentioned as aggravating factors recidivism which is something that was already taken into consideration and it was also taken into consideration in the sense that the well he did come out and repeat the offenses again that added up his drug quantities so that's something that the court already had considered the court doesn't say why it went from the sentence it did the guidelines sentence to the one hundred ninety five and it didn't address why the one hundred ninety five month sentence was an appropriate sentence much for less compare that to the desperate sentences that were imposed on other street level drug dealers for those reasons i wouldn't yes the court to reverse the sentence in this case thank you mr carlson good morning may please the court sufficient evidence supports joseph partner's convictions the argument that his participation in the conspiracies coincided and there was plenty of evidence of his involvement in the narcotics conspiracy there was testimony at the trial from troy ross that the district court credited that that f highest ranking gang member and in charge of running that spot from the mid one nine hundred ninety s through the the time of his arrest in two thousand and eleven that testimony is corroborated significantly by joseph otter himself when he was arrested and gave a statement to the authorities regarding his participation in the conspiracy he said the same thing that he was the ranking gang member and had been running that spot for about a fifteen year span  of mr ross but and there are a lot of difficulties that have been pointed out with that testimony as there often are in any case of this nature but nevertheless the essential story the essential committed the shooting and afterwards he was paid for it there is nothing inherently incredible or country the laws of physics about the essential narrative of that story and the judge was entitle to credit it for the withdrawal argument coincides also depend upon what happened after the arrest and the finding that he had not withdrawn is not clearly erroneous the tape by the dense of people having conversations out on the street but no reason to lie to each other we're clearly talking about the fact that there was confusion among in the ranks about who wasn't in charge of the spot was i ask ins or was it father as far as the double jeopardy argument goes you know again the that is law of the case  it can be revisited if there is new evidence or new authority or if it is manifestly erroneous and that hasn't been established here at all with regard to sykes a sentence the disparity argument is is the focus today and really the the the one thing obviously that stands out about about mr sikes in terms of the sentence and the aggravated sense that he received was his participation in the murder of andre brown is not shared by any of the other comparatives that he would have had the district court look at and that was a significant factor in the district court's decision to impose the sense that it did and so for these reasons we ask that this court from the judgment as to both you know this the story is is the government says it's a normal story you guys hired to shoot somebody because someone wants him out of the way he does the shooting he gets paid sure that's fine if that was the two sentence story but it was a lengthy period of testimony and nothing that was testify to nothing that was shown nothing that was on the videotape nothing at all confirm that basic statement and that's the problem with it and that's why i talk about the law post arrest statement evidence of drug trafficking all of which related to mr sikes who was not a member of the racketeering conspiracy and related to what he had done chiefly after mr faulkner had been arrested in two thousand and eleven and the testimony of mr ross saying what mr fockers activities are that's what the district court cited but it also clearly relied upon these statements so if a bunch of people are saying that we don't know who's in charge that doesn't mean that the defendant who's locked up in jail is doing anything it may mean that those people on the street have confusion it may mean that they feel a loyalty towards somebody but that doesn't change the fact that mr parker was locked up in a jail didn't make any phone calls isn't heard on anyone to be happy and that nobody came to court except for mr pitts whose phone was tapped by the way colored by all of this other evidence and influenced by all this other evidence that was improperly admitted it a minimal in a minimal mr bogner should get a new trial without all of that extraneous evidence that never should have come in because the hearsay statements work were in properly admitted and he had withdrawn from the conspiracy your honor to have a a r and the other questions thank you