we have one manager on the calendar today and i am told everyone is present and thank you for making it through the weather judge carney will be participating by video because of the weather judge carney can you hear well i can hear very well and i can see you very well i think we are ready to proceed occurred on the spur of the moment and that the shot so dawson over a some sort of disagreement over a single sale to move away from that and the only piece of evidence in this case that talks about involving my client in the shooting is by mr ford there are three major witnesses for the government in this case ford krieger and lewis sure the court's aware of their backgrounds forward a convicted murderer and a person of all sorts client to ford did show that basically this is an extremely weak case from the government standpoint and the thing which i'm most concerned about which is the four zero four b motor and it wing under four or three takes on added importance when you have a case which i think is weak is that forged testimony was that he saw my client firing and that is totally inconsistent ballistics would show that the shots that killed him were obviously from what buckles gun that there were some shells that were found in the basement situation that dozens testimony grab i've forgotten which one it was but that with the stand of they backed off and dealt with it but let me your client brandished a gun during the standoff earlier did so isn't that right some evidence that he was involved in  conspiracy that resulted in the shooting a little bit later that day your honor there that maybe but the point being that if this is not a strong case and i'm talking what i want to talk about really it is there is a similar long long criminal record and he goes and testifies that my client on a previous occasion was prepared to kidnap handcuff and take off some drug dealers and the government also says that the evidence was relevant to knowledge and intent not just the relationship between the brothers not just his background evidence but it helped to establish your client's knowledge with regard to the i thought about that i don't really understand that i mean i don't own knowledge of what the intent of what that he intended because he tended to shoot a jamaican you know intended to shoot when he came out knowledge that the gun would go off many people are daily lives think the propensity is being important but we made a judgment as a society that that is not to be in the commode justice system in the uniform rules in the federal rules most tables and what we have here having difficulty hearing out there mikes on we haven't started yet you're ok i thought lips moving i felt i would ask that afternoon my name is vivian sheva it's i represent david g the one who's that we deal or i have to judge carney are you able to hear clearly i am now thank you i want to address the insufficiency of the evidence  as against david gill i think the best way to do that is just to refer you again to pages two through where with that argument and in my reply brief where i discussed the fact that there are no there is no evidence in this record that has been of the sufficient of quality or the nature accepted by appellate courts to sustain the conspiracy conviction  the point is david gill was doing his own thing and there is no evidence really that he knew the extent or was even interested in what his brother or brothers were doing but beyond that collie excuse me just a minute your colleague just told us that there was plenty of evidence that the brothers were very close yes great close they were brothers they were everybody knew they were very close they were all grew up and went to school together and while i don't know about waco i have not focused on waco he's not my client samuel mcintosh david gill and brian bell lived in the same place and park and they were very close that they had relatives together there they were very close provide any basis in addition to the evidence again given to all events that might be sufficient for a jury to infer that david had knowledge of the conspiracy no evidence at all that dave brian i'm sorry that david gill was involved in any of it the most that was shown as to david gill was that he may have done some isolated hand to hand sales of a little blast same bed there's no evidence where he got it there's no evidence it was continuing there was no evidence of any connection between those hand to hand sales at all and any conspiracy or brian  there were i don't know where they they won that he pled guilty to there was a sale he pled guilty to and it had zero to do with any conspiracy he didn't admit it it wasn't charged there is no evidence that it had anything to do with him it will be with the other brothers it was just part of david siad go a life of being involved in the drug market and living there on per kilo but all of the evidence showed and everybody said that that guy was the we dealer but i'd like to address the statement against interest because oh i'm sorry yes this is judge carney sorry it's a little tricky with being on the screen and that there and present i just wanted to follow up with one quick question there was some general testimony was there by mr ford that in response to the question what if anything did you see david doing around one sixty in the early ninety's that he saw david selling crack cocaine just generically which is consistent with the evidence is specific transactions but suggests a more general  conspiracy that involves a specific of a quantity specific date in specific amounts in a two hundred eighty gram there's nothing to show that david gill had any knowledge of that any knowledge much less an attempt to participate but what the government used to convict him was the statement of the interest interest and what they say what they say in their brief at page eight is all three brothers confronted dawson broke into his car robbed him of his drugs and proceeds and beating him up leaving dawson with an injury on his face respectfully judge a man should not have let that statement in the foundations  i discuss there is it's not against his interest in context and the cases say that you must love in context it's not there when he had a motive to lie because he was speaking to pull for who had thought he had stolen all his drugs and money so if you say to pull forward someone else stolen my brother's money that is a motive to lie to pull forward about that he didn't say he saw them break into the pull to the declarant to pull forward he didn't even say that he didn't say he saw anybody so when i break what i raise no personal knowledge there's no testimony that that the dead person told ford that he saw people he saw them breaking into his car or maybe it happened at a different time it's all very context he says he says he was beaten up and there was no evidence to support to corroborate that nobody as i pointed out showed said that there was any injuries on his face nobody corroborated that at all but can we take it can we consider the statement i was beaten up testified ford said he didn't even know and should have a said page transcript to twenty one which is in my a downed amid a four she said she couldn't even recall  if ford testified or if dawson had said to ford that it was his brothers who did that or a brother to me to say that judge ammon said well it has some attributes focused on them all i can say is ford did not say initially and the shonda did not know that he said in offering this statement that david gill was among the guys who did this so there are a lot a lot of inferences and that does not amount to strong corroborate sion which is required under this court's precedent there really was not enough evidence to convict david theall of this he did his own thing he was in jail a lot he was his brother's brother that doesn't mean he was his brother's keeper and he should his conviction should be reverse please the court my name is christopher can if and i represent samuel mcintosh on this appeal i do not represent him in the lower court i know your honors are familiar with the brief and i'm not going to repeat some of the arguments that overlap  that co counsel has made but i would submit to this court that the case against mr mackintosh is really different than the cases against the other two folks regarding this issue about the sufficiency of the  weight of the crack cocaine that was involved in the conspiracy and the reason i say that is because he was as the court knows acquitted of the subsequent cocaine conspiracy now that obviously occurred much later than the  four activity that is a subject of the murder charge but i think it's an important distinction to focus on as we think about the sufficiency of the evidence on the weight issue and that's the kind of the central point that we tried to make in our brief which is it's not only a question under this statute eight forty eight he won a of a conspiracy existing a crack cocaine experience conspiracy existing but it has to a b one a conspiracy and i think when you look at the evidence which we tried to marshal you know our brief it's very clear that the cooperating witnesses who testified about the more substantially more than in two hundred eighty grams would you agree with that i would agree that the record suggests that you're on i think when you when you have a question that has become of the others to what extent if they know what i mean they there is evidence that they were involved to want to stand did they know the extent of what brian and lewis were were doing and there does seem to be evidence in the record that they were helping them over a period of time in some ways your honor  think the testimony from lewis and ford you know may be the best evidence of the lack of knowledge or foreseeable knowledge about that weight and again it's not a question of their knowledge of the activity or the conspiracy i would concede that there was general knowledge about that but whether mcintosh knew of the weight and when you look at lewis's testimony he said among other things that he saw macintosh maybe once or twice at once it won sixty parkhill during the relevant time period and only once observed him selling crack into your honor's point this is the guy who's with gil who the government put forward is kind of the leader of the of the  right hand man is saying i saw this guy once during the course of this activity and therefore your honor i think he was there on the dang of the shooting and was participating in the events on  well you need two things i think you're right you need a few days worth of that volume and you need to show membership in the conspiracy not just the weirdness not just association with the brother but actually participation in the conspiracy and i think again to go back to lewis's wasn't the evidence though that that lewis and ryan kind of alternated who was on days and nights and it's not the fact that he saw him sell drugs only once is it difficult to know exactly what to make of that i'm sure it's exculpatory but i noted also that mr york the security guard at one sixty said that that's about it he had seen sam many times on cartel avenue and that he started to sell drugs in kind of a generic way not just one on one occasion doesn't that tend to fortify that the inference that he was in fact participating in a more regular way i would say no your honor it may show that he regularly was involved in the sale of crack cocaine and it may show that but if you look at mr ford's testimony he says you know that he saw mcintosh so interrupt selling drugs at one sixty parkhill he kind of corroborates the testimony your honour's suggesting but he didn't testify there's nothing in the record from ford that he ever saw mcintosh selling cocaine with the deal brothers so again it's is it's kind of a two prong issue i think one is involved in the conspiracy that importantly for the statute because the statute requires it is he is it foreseeable to him that this be one a way was going on in the conspiracy and i know my time is up if i can just touch on the issue of the form for be evidence  think it's crucial in the context of what i've been explaining because in the absence of evidence of the b one a way in the one nine hundred ninety four time period and you quibble in the later to think it was two thousand and eleven the thirteen time period if i have that right that evidence becomes even more crucial i think in terms of the proof so to speak of this mr macintoshes drug dealing activity in this conspiracy and so i carney i want to ask if we were to agree with you that this federal crime was not committed for want of adequate proof of the drug quantity and wondering first when your client be open to prosecution by the state for his participation in the murder of mr dawson i don't know the answer that judge couric of will for once i don't know what the statute of limitations would be at that time because the murder is quite old  but certainly a you know murder in staten island is a state crime i was going to guess where i'm sorry my aunt did you have an i don't and now please go ahead just on the  the argument that there was not a forestry balancing done and i understand the argument that knowledge and intent sounds a lot like propensity and how what exactly is the non propensity chain that makes the maryland evidence relevant that it seems to me that and help me understand how i'm misunderstanding seems to me the district court judge pretty clearly did a four of the three balance she made reference to the evidence was cumulative or not she said i'm going to wait till later because i'll be able to do the rule for three analysis better then she may not have said rule four three explicitly when she returned to the subject but but we're you why are you concluding that the district court did not do the requisite balancing i gree with your honor th rahman spoke to the issue of the cumulative nature of the evidence and addressed and said she did not find a cumulative but i think there's a further component to it particularly in the context of of this case which is which is prejudice what is the what is there a risk that the jury hearing substantially similar activity by a single cooperator is going to naturally rely on that to say these guys have a propensity to do that and i agree with you it's a very fine line between what is knowledge and intent versus what is propensity if you look at the government's summation which we cited in our brief in talking about the  maryland activity they say why is it important it shows you the relationship between gil and mcintosh went far beyond being brothers and they say it shows you that a time before they murdered dawson hielan mcintosh were willing to back each other up with violence with murder to protect their own drug turf they were willing to plan and carry out words together willingness i would respectfully submit to your honor that the difference between a willingness to do something and a propensity to do it is there really no difference between those two i see my time is well well up so i'll sit down and ask that the court reversed that conviction with the arguments made by defense counsel regarding the sufficiency of the evidence the government does not agree that this was a weak case or that it relied solely on paul ford for counts one and two  apart from mr ford's testimony which was over a span of two days subject to cross examination extensively by three able to fence counsel at trial it was his testimony was also supported by nine one one calls about six or seven of them if i recall correctly and these were contemporaneous two minutes after the shooting and which supported that three men with guns shot at mr dawson the mackintosh yes i think the evidence that this court has to view that evidence in its totality and drawing all inferences sure so it starts with i think the locations where this happened and the roles of each of the three defendants first i think it's important to remember that the evidence showed in this case that this was a very discreet area this was one avenue parkhill avenue which there was testimony you could get from one end to the other in about a matter of minutes walking and almost evidence that there was competition that there are dealers in that area indeed at that very address they're competing with each other to some extent so so the conspiracy was about was who could control that building who was permitted to sell there and who wasn't and i think it's important to remember that the that the underlying predicate crime for private parts for counts one and two is a conspiracy so we don't need to show that samuel mcintosh and david gill were right yes ok i apologize so starting with and following up on judge chin's question you do need to show that t hundred eighty grams of crack cocaine was foreseeable to both mcintosh and david wright yes that's correct but the conspiracy yes i know you'll continue to address that please yes so i think part of what shows  their involvement in the conspiracies is the actions on the very day of the murder starting with their wool among other things there was testimony they sold that one sixty but also was to back up their brother in with violence if necessary in controlling that building and we saw that from the very beginning now i know the drug amount i think they're winning i think which is the problem so they might have backed up each other anyway whether they were involved these people are just brothers it doesn't mean that they are knowing and willing participants in the conspiracy and that's why the four zero four b evidence was so probative in that case because it showed mcintosh and brian gill just two years prior  knowingly and intentionally engaging in a large scale crack conspiracy that involved ensuring that rival drug dealers couldn't take over drug spots that they control all and showed that it wasn't just about being brothers what happened that day on june twenty second ninety four it was all those actions were part and parcel of the underlying drug conspiracy and i think as far as drug actions you have for for having us one else's there you also have the testimony regarding the value of that building one sixty and that's what i was trying to get to in explaining the neighborhood it there was testimony about just how valuable it was to control a building and that's why you needed violence to back it up which so i think the jury could reasonably infer that that at this time period these these three men who were from that neighborhood grew up there and were all concededly by zero three defense counsel drug dealers in that neighborhood knew the value of what it meant to control one sixty and that that was well over two hundred two hundred eighty grams of crack cocaine  now i would also i know there were some arguments made by defense counsel that the evidence showed this was a spur of the moment murder and or single sale by mr mackintosh of crack cocaine that day and i think the evidence showed just the opposite because you have to look at it in its totality with everything that was going on that day and in the weeks prior which includes the statement against penal interest that mr dawson made to mr ford regarding having been beaten up and had his drug money and drugs stolen by brian gill and his brothers and just one point on that the i think counsel said that i when are you in this in front of judge am and i did i didn't even know if it was brother or brothers that wasn't attributable to mr ford that was a my mistake in the middle of trial that i couldn't remember at that moment exactly what his anticipated testimony would say on that effect but the testimony of mr ford was clear he there was no  it was brian gill and his brothers and to the extent that that's that the defense argues that's ambiguous there was certainly other evidence in the record that the jury could use to infer which brothers he was speaking of and that is a matter that goes to the weight ready and willing to murder rival drug dealers when their cracked eeling and reputation risk how do you explain that statement is not essentially inviting a propensity inference i think at the i think if i'm remembering which state you're referring to that i think the sentence before that was about this evidence is important because it shows you they weren't just brothers and so it was in the very context of the criminal relationship between these two men that was certainly a contested issue at trial and their reading readiness and willingness is is a matter of the type of relationship they had and was proof that samuel mcintosh was a knowing and willing participant in the underlying conspiracy did bad things before and can be viewed as propensity evidence i think the relevant question is what is the purpose it's being admitted for and is that a proper purpose what is what does the evidence  not that far away but it's relevant to showing intent because the defendants made it an issue at trial saying they were only they were each every man for himself can't to do what i that propensity of intent to join together because it's relevant to a contested issue of fact is about is normally propensity evidence is not allowed except when it is admitted for proper purpose and so that's in our view what happened in this case you're saying it was  propensity evidence when it is admitted for a proper purpose such as criminal relationship between the co defendants such as knowledge and intent and that is what the district court did hear  relationship so i think you know it's when you start calling up propensity evidence i think where you get into trouble i mean if you're if the evidence to show a relationship then th appropriate but if the evidence is to show an intent to join this conspiracy that sounds to me like propensity that that they're like they're more likely to do the crime in question which is this ninety nine fo conspiracy sub so how what why was it off i think because here the defendants were asserting what amounted to essentially a mere presence defense that what they were doing in that neighborhood was not connected in any way to working together in a conspiracy and so this goes directly to that i think the court's opinion in the saxon case is instructive in the in this sense that was a case where  transactions and the court said no the fact that you that you engaged in a drug conspiracy with the very same coconspirator is probative of your knowledge in that sense and i think it's a very similar a mortal way and i gather that the evidence showed that it went slightly more than a discussion that a u haul was rented but no no one was harmed it could have been tilted slightly in favor of the defendants in terms of the prejudicial effect as opposed to the other evidence about the conspiracy particularly because with regard to the murder that occurred be meaningless meaningfully connected to the predicate crack cocaine speed conspiracy and so that knowledge an intent portion i think is more directed to that portion showing that they were not just knowingly and intentionally shooting at the victim but knowingly and intentionally members of that predicate drug conspiracy as to the prejudicial nature of the maryland evidence first i do think it rises to a prior crime certainly  agreeing to commit a murder is a crime in and of itself second it's i don't think that the highly probative value of this evidence was substantially outweighed by its prejudicial effect and part of that is because i think certainly the charge crimes which were an actual murder that resulted in an actual death of three brothers shooting repeatedly at this person was much more alarming evidence then a murder conspiracy that never actually was consummated or carried through and and and we have to remember as well that this is an abus discretion standard so while there may be while a different judge may have viewed this evidence differently the question really is did the district court abuse its discretion in admitting this evidence and i think the record is abundantly clear the judge a conducted a very careful analysis of of this evidence it's and it's the balancing required and then additionally the limiting instructions that she gave both during mr ritter's testimony i'm number of times during that testimony and then extensively in the final charge to the jury did you address joss's statement forward and the argument that this is not doesn't fall within the penal interest except ssion because in context if i understand the argument correctly to the extent that dawson is saying i have drugs and drug money and i've been robbed of them that wasn't in speaking to forward against interest or even is that it is against his penal interest it it's certainly evidence that he was at the very least guilty of possessing drugs and drug money and drug money so that would certainly be probative in any trial against mr dawson i think you have to look at the entire statement as both inculpatory of mr dawson himself and of the people who robbed him and beat him up of that money so and with regard to i think there were some arguments made about whether there was sufficient corroboration the case law is clear that you don't need independent corroboration the statement itself and the circumstances of the statement itself are sufficient and i think and that in fact the kassam mental associate he was it was in the context of this associate mr ford seeing him with a black eye and inquiring what that was about and it was a short statement in response of what happened there was no reason he wasn't trying to  reason for him to believe that law enforcement was listening in any way those are the types of things the courts of look to to to determine whether a statement such as this is has sufficient indicia reliability and trustworthiness and in our view it certainly did here ms presider may i ask another question though i see your counsel some ahead of time i i wondered if you could just circle back for a minute to the drug quantity question i want to make sure i understand your argument about the value of the building was there specific testimony that you're referring to that anyone who controlled that location could be expected to have been dealing and more than two hundred eighty grams of crack cocaine therefore that mcintosh and brian would have known and that's a reasonable basis for the jury to in quantity from it seems to be there are several steps of inference that you're asking you're saying that it was reasonable for the jury to take if that's the basis for your quantity argument so it could you just make sure i explain to me where five misunderstood yes you're certainly i think there was testimony from pull forward who controlled a building right next door one was building one forty one and his testimony was that he had two main buildings in the park you know neighborhood that were his main competition and one of those buildings was one sixty there was plenty of evidence for mr ford about just how valuable one forty one was and that he made tens of thousands of dollars from it and that and so i think in context that one sixty was his main competition certainly evidence of the value of that building in addition there was testimony from donald lewis about the value of the building about how many thousands of dollars he was making from that endeavor and again this is and then there's testimony i believe from some civilian witnesses about the extent of the drug dealing at that building and other buildings these are this was like a constant thing of people coming to buy crack cocaine in this time period and for mcintosh and brian gill would have been aware since there in that neighborhood the quantity is the dollars the value and therefore they can deduce the drug quantities that were at issue is that is that your yes and yes and it's not just that they were in the neighborhood but that they were drug dealers in the neighborhood crack cocaine dealers in the neighborhood we had testimony from paul ford about that as i think one of your honor's mentioned there was testimony from civilian witness who was a security guard  was certainly in a position to know get being someone who patrolled the the area and so that taken all together viewed in the light most favorable to the government in our view is sufficient thank you thank there may have been evidence of the value of the building somewhere out there but there was none that my client david theall knew about it or cared about it further at page twenty six to twenty eight of my brief there is evidence that if david theall was interested all what was going on there and he spoke also to david lewis he would have found out that david lewis was doing his own thing and getting his own quantity from somewhere and they were all doing their own things and there was no hold on the building and one point in my reply brief page seven i believe there was a finding in the another case in the eastern district a discussion of how one sixty park avenue was a free lance building so maybe they were trying to gain a foothold there and maybe they were not but that's all speculation because there was nothing to show that my client knew that now judge when i asked about the brothers it went to the issue of their activity on the day and the shooting the brothers came together the government argues that that is evidence that they were in on their narcotics activity together well if it was really whether or another way of looking at it that they were just brothers coming to each other's yes that's i think because there was evidence that lewis said that that brian gill who was there himself said just stew wait i'm going to call my brothers so they all knew what was going on there that's mere presence there is nothing to show that my client was involved in any of the drug dealing conspiracies that his brother or brothers may have been involved in and i just want to say one thing about the maryland conspiracy it was only offered as to the other two defendants but when you have evidence from which it's argued that this showed that the defendants intended to kill people that really goes to prejudice as against my client even though he was told they would jury was told he was only admitted against the others there's no doubt that it added to the to the issue that my client faced and exonerating himself thank honor just a final point on this issue of kind of the wait and the brotherly association and i think the government at times in their argument leaned on the brotherly association of the two to establish a conspiracy and what i would take you to is what i mentioned during my main argument which is mr mackintosh was actually acquitted of a conspiracy that his brothers were in so this theory that the brothers knew everything that they were doing and the three brothers were selling crack at one location and that there were times they at the davis shooting think think they came together and given the evidence that that there was competition there was some value there could not a reasonable jury concluded that they must have been working together i would say not dropped i would submit to your honor based on the evidence that the various cooperat provided in terms of testimony about mr mcintosh no that would not be a reasonable conclusion they could have concluded that mr mackintosh came to his brother's defense because a beef had erupted on the street that day but i don't think you can extend t eastern district and southern district and probably nationally not to find way determination on the murder charges counts wanted to say there is no jury determination of that thank you all very well argued and and we appreciate you battling the weather to make it to court i'll ask the clerk to