united states versus good morning may please the court my name is daniel pearl as i represent clifton jackson i have two primary arguments this morning i'm not sure that i will need to take all of my allotted time and i know the court's schedule is tight the both of my arguments address  think fairly is the is the real issue in this appeal which is whether had this impeachment evidence related to duane vos been admitted at the trial what the result of the proceeding have been different number one twain vos was an absolutely critical witness he was the only witness who corroborated the vast majority of the testimony offered by sherry mcbride and at the end of the day there's really no question in this case that criminal activity took place or that this fraud occurred or that the turbo tax card re used to the green cards reuse the real question in this trial was who was responsible for what conduct and mcbride's position was that jackson was the architect of this scheme and vos was critical because he corroborated mcbride's testimony he was so important that the jury asked after it had received the case for his testimony to be read back in its entirety of macbride where siblings say that they were siblings that's correct but is it fair to say that the defense theory in the case was that they were the perpetrators and that they are offering testimony that is correct your honor and the the importance of the impeachment testimony really can't be overstated because it's not simply that vos was involved in a conspiracy in a definitive trafficking organization it's the timing of his criminal conduct and the fact that he was in addition to participating in this spirity he was out on pretrial release he was out on state parole so it wasn't simply he's a criminal the jury already knew that because the jury had heard testimony both on his direct and on his cross that he had committed drug crimes in the past it was more along the lines of he wasn't he didn't respect the authority of the courts he violated the terms of his image a perfectly clear and would stand what he well i'm not really sure what he made perfectly clear on the witness stand judge kaplan he read his grand jury basically he read his grand jury testimony it's recorded recollection i wish i had an answer for that and i really wish the law was different and i could have appealed that unfortunately it came in because the defense lawyer said sounds fine to me he didn't object that's correct that's why i haven't raised it on appeal us i mean the jury was aware that that he committed three felonies i think only involving drugs welp three felonies if you include this one angelic no that's not my point my point is that it the drug first of all drug crimes are one thing ok drug crimes first of all more remote in time they were they were years before i think one was nine years before and the other was six years before he was sentenced for both and the sentences ran concurrently saying that somebody is involved in drug crimes and all of these folks were involved in drug crimes your point is is that the time the government put him on the stand at that very exact moment the government in this complaint feels that the government had information that he was involved in an ongoing drug conspiracy that's correct only six months prior that's right those wiretaps were six months before the trial of of clifton jackson's trial and they hadn't acted on he was still walking around on the street he was still on the street  violation of the terms of his pretrial release in violation of the terms of his parole that's correct and that's different value would be that this evidence is sitting out here and there holding a hammer over his head this influencing whatever evidence he gives to the jury today or that is precisely correct and so if i can address my second argument which is the the weakness frankly of the government's case not that crimes didn't take place we know crimes took place but who did what who was responsible for what who was really the mastermind  really clifton jackson or was it perhaps boss and or his sister destiny in the mcbride the three cooperating witnesses had something in common apart from the fact that they were cooperating in this case all of them were involved somehow in drugs mcbride was in the car when jackson allegedly gave crack to the older gentleman in exchange for his personal information vos had his prior drug convictions sherry  admitted on the stand that she had purchased heroin from from clifton jackson so they weren't just cooperating but they also were were engaged in drug crimes and all three of them lied to the police not once but i multiple occasions if you go back and you look through the record they all say basically the same thing when law enforcement came to me and can for and asked me questions i denied it and mcbride said that when law enforcement brought her down to the station in the presence of her lawyer she denied it again and it was only after they persisted so these witnesses had a history of lying to law enforcement and now we're back to the issue of us was vos receiving some sort of sweetheart deal was he being protected by the prosecutors in this case or perhaps by other law enforcement agencies and those are the kinds of questions that really should have been sorted out hashed out by the judge on the question of the strength of the mind this was a sixty six count indictment ok and mr jackson in fairness to him is appealing all fifty eight counts of which he was found guilty not simply the conspiracy counts but there were dozens and dozens of substantive counts too so let's assume that the syrian vick corroborated portions of it let's say it was a dozen i don't think it was quite a dozen of the of the substantive counts but let's say it was a dozen that still leaves dozens and dozens of crimes that ultimately i suggest go back to mcbride and or vos and mcbride was part not only part and parcel but she was in the middle of all this her wife i connection her house she was the one that set up these addresses she's with him when he's allegedly dealing the drugs she is  please the court my name is joseph i'm appearing on behalf of the united states you can see that this this is information that should have been to know yes and we did so when the defendant made the rule thirty three motion before the district court said that yes this was something that could have been used to cross examine the defendant however i mean that mr of us that witness however the district court did not abuse its discretion and acted and the fact that he had already been cross examined on his prior convictions that he had been cross examined on what benefit he was hoping to get from his pleading guilty  and also the strength of the government's case i ask again and i know that the it wasn't objected to the trial that the government proffered this evidence under the record and recollection exception to the hearsay rule of the grand jury testimony is that a proper witness stated i'm not going to answer any more questions was was being consistent even said he it's not that he doesn't remember it's just that he doesn't want to testify yes but this  the witness if not under the recorded recollection provisions of the of the rules of evidence this witness did he did make himself on available to testify he said he wasn't going to testify did you was this question asked and did you answer his phone that is the way i'm paraphrasing yes your honor that is the way that it came in that the questions were asked the usa did read the transcripts saying you were asked this question you gave this answer did that happen yeah did anybody ever ask a question on a super careful ours would have asked was the testimony you gave on that occasion true i don't believe we have that your honor we do have did you give this testimony and do you remember giving this testimony yes so i don't i don't believe we got into that i don't believe that that question was asked the next question that your hon was giving him was giving him a pass on the drug trafficking activity because of his status as a when he was not indicted in the was he was not indicted and of course he actually knew what in what context and for what purpose he was the engine he was mentioned your honor because he was picked up on a wiretap he was picked up on a wiretap speaking with an individual  frankly the main defendant in that other case mr worthy on three occasions spent two days three occasions spanning two days over the drug conspiracy that dumb was alleged to have spanned a year or more when they drew they were yes that was that was the inference that was being drawn that they were discussing about picking up drugs and trying to hide drugs from so so yes they were   for us now how do we given this theory that voss and his sister were giving false testimony in court i had a we know there's not a reasonable probability that the jury might have said we're  testimony which corroborates that testimony and if you're saying that maybe they would have convicted on fewer counts because of the argument that that and mcbride were corroborating or were were basically conspiring against mr jackson however that would bolster that because she was talking about the same things independently she did not know jacks or she did not know she did not know mcbride so she was testifying her testimony about the activity that mr jackson was engaged and certainly that would bolster the testimony of mcbride and the testimony of us who are also who who were who who had also testified about jackson's involvement furthermore you had these people who were whose personal identifiers were used they testified and they said this is what happened i provided the i provided the information and the information wound up being used in these fraudulent tax returns that were filed so you had that information so not only did you have the testimony of these coconspirators you also had the testimony of the people whose information had been used injury testimony but also the scope view you said before and i'm inclined to think you're right that the test here is whether the trial judge abused his discretion and knowing who for thirty three motion yes your honor and and and this is what that the district court relied upon looking specifically at these three witnesses and yes your honor so the fact you're saying that to say that the district court abused its discretion it would have to show specifically what about the evidence what about the trial or what about what was lacking in the evidence that would undermine the exercise of discretion in the way that the district court did exercise it with this to court exercise its discretion in this case my question about the grand jury testimony is this  perhaps have been properly received even if it was not properly received under it was three five hundred the residual exception in a to seven seems to me the key issues than on that point his write that's correct and that kind of caught everyone by surprise when the when the when mr fast just decided that he wasn't going to answer questions anymore so yes your honor that would be another basis upon another  evidentiary basis under which to admit when it became evident that he wasn't going to testify because then when you read the column way that the assistant seemed to be aware that this could be a problem at the time the testimony  was ready for it yes i agree i don't know exactly when it became apparent to her that this was going to this might happen i think she put him on the stand he started to answer questions and then he clammed up  so i don't think it was evident from the very minute she put him on the stand that he said look i'm not answering any questions because he started to answer questions and and in addition just the testimony might have been  inconsistent statement your honor i'm not sure that he testified to anything inconsistent to what he testified to and in the grand jury our point was that this is what he testified to and this is what we were relying upon you know i don't think it was anything inconsistent and the timing is well if i just might say one last thing this mr vice testified in the grand jury at a time was returned in april two thousand and thirteen so he testified in the grand jury well before he was involved in a drug trafficking activity that was not that that was not disclosed well before that so the fact of him being offered i'm sure it's not the record but i'm just curious as to what you think was going on with you refuse to answer questions time worried about perjury and testifying in consistently with the grand jury do you have a theory i'm just it's a matter of curiosity i think your honor what happened and it it appears that what happened is he just didn't want to testify he just didn't want i guess to use you know colloquial term he didn't want to be a snitch he had done it already certainly in the grand jury but sitting up on the stand he decided that he didn't want to answer any more questions thank you i just want to address the last point first regarding mister regarding my adversaries representation that vos testified in the grand jury long before these wiretaps that i don't recall if well into the past and very well may have been going on at the time that that boss had testified in the grand jury of course we will never know because jackson didn't know about any of this until after the jury had convicted him  the other hand if he was under obligation to pressure from prosecution to testify it's odd then that he didn't testify he refused you know i at this point i think there's a lot of hypotheticals and it's very hard for me to figure out what his motivation is in terms of these hypotheticals it's very difficult to identify an abuse of discretion well you know with all due respect your honor i don't think that it is we're back to my my main argument that none of this came in the jury didn't hear about it it was actually worse then than that then defense counsel not objecting to using the grand jury testimony this way he actually of lee greed to it he said yes i think at one point on page page six zero eight of the trial transcript he was asked if you have an objection he says it sounds about right to me you know i think you know to me maybe maybe it is your honor but to me it's one thing to just missin objection it's another thing entirely under these circumstances since the circumstances to say yes it sounds right to me that this witness who has said one time a one time only i don't want to answer any more questions that we should now start reading his grand jury testimony into the record ok but i don't want to get sidetracked on the grand jury issue because it's not my unfortunately the record is what it is that's not the art and not the issue that i'm arguing here i assessment of materiality i mean we have to assess whether the value of the impeachment happens and and it seems to me that would be would be relevant to health as was examined potentially but i quite agree i mean it would have been better for the jury to hear this again under the particular circumstances of this case and you know as i said before these none of these cooperating witnesses were angels they all had lied to law enforcement on more than one occasion when they were initially confronted with these crimes i just want to i don't think i did this in my brief but i want to do it to preserve mr jackson's right i want to reserve his right to raise any arguments related to the grand jury testimony under twenty to fifty five and the last point that i want to make on rebuttal is with respect to bassir of pick a judge livingston if you go back and you look the sira vick testified that jackson gave her identifying information names for seven people if you look at a forty one and forty two which is the indictment there were twenty five individuals all together each of the individuals had two counts related to two substantive counts related to them so twenty five minus seven leaves us with eighteen eighteen t thank you thank you reserve decision