evidence should have been allowed in a case that first was that first suppression hearing based on the idea that the evidence was tampered with and tainted violating mr lee in order williams due process rights also i just stop you right here because i know you're going to go deep on you'd like to go deep on that one but i wonder if it's worth it in as much as it seems the jury did not convict or did not find guilt with respect to the items that are claimed to have been tampered with the drugs from the home the jury said they didn't find guilty on that and they did find guilt they the tapes those that evidence including the audio recordings was all there for the jury so it is now so your due process argument concerns the all the back and forth with the drugs and back the lab in the officer going in but that wasn't there at i understand it to be the jury didn't convict with respect to those drugs your honor that is correct the jury was hung  charges absolutely are on after all of that evidence came to light the government to dismiss charges those were counts three four and five and the i believe third superseding indictment because that is an absolutely excellent point that i think misses the idea that the jury was still in truth deuced all of that evidence from the search of the home and when the jury or hook i get it now or hook is what they heard all this other stuff and it just made them they heard enough that might not have any and constitutionality rapped on it again i think the problem that occurs in a situation like that is that when the jury heard all that evidence we're not really sure what the jury used in making its decision we know that a mistrial was just declared because they cannot come to a conclusion regarding counts three four and five but the problem is when all of that evidence was allowed by the court despite the fact that there had been evidence of tampering and tainted evidence then we'll never know unless we were somehow the court was to bring back in all the jurors an obviously that would be improper to get their opinions on on what they considered and what they did it was one other thing that was no rule twenty nine motion filed but structure of the revealed by this court is what and there yes you're plainer and that's part of the reason why it's so important to consider the evidence in the first place with the motion suppress and while i understand that when you look at the alan case when we're dealing with the due process allegation on a motion to suppress like the alan case puts a hot high burden on the defense we understand there has to be a possibility of misidentification alteration that must be a limited it eliminated as a matter of reasonable probability and alan case also went further to say that where that where there is no evidence indicating tampering the courts presume public officers discharge their duties properly that makes it difficult for us we understand but absent video evidence of a police officer going into the property and evidence room and ripping apart baggies or substituting evidence or actually getting on the stand and testifying whether before a judge or a jury that yes i altered this evidence yes i tampered this evidence and here's the reason why there has to be some sort of middle ground to explain what happened in a case like this just to remind the court the facts i'm and i know the court has reviewed there's interesting this is the case where i have had more facts in the actual argument than a lot seems like but the facts are so in detail that it's important  consider the original seizure at the house on september twentieth two thousand and twelve is a situation where they say that there are sixty five grams of cocaine recovered the police officer  chisholm states that his dog or the police still alerted on a area where he found a large bag which he then tested the property evidence room and tested positive for cocaine and then we come back with a report from the tennessee bureau of investigations lab after indictment while preparing for trial that says not only is it not sixty five grams of control substance it's forty four oh and by the way twenty of those grams aren't even a controlled substance one of the jury's decision when we're considering actual evidence that has been presented before a jury that a jury declared a mistrial under the excuse me the judge a clear a mistrial on because they were out for several three days and could not come to a decision came back so they couldn't come to  if i can move there now and one of the things that i would take to have the court take into account is the government is correct in this matter and that mr williams was sentenced was deemed to be a career offender by the district court after being found guilty on count one two and so that is difficult to overcome however if the court will no guideline range according to the court was two hundred sixty two to three hundred twenty seven months of the career  guidelines and the court actually impose a sentence all things considered the taking the thirty five to three factors into account as well as the intent of the career offender guideline and impose sentence of two hundred sixty months if the court had instead of considering all of the evidence including the evidence of the charges that were a mistrial was declared and the government dismissed the charges if the gov if the court had taken into account only the amounts from the sales then the actual guideline range without being clear fender would have been twenty seven to thirty three months as opposed to the seventy seven to ninety six or excuse me sixty three to seventy eight months that the court was determining in looking at the variation between the career offender guideline and what the actual amount added up to when considering that it is not unreasonable to think that that read that that sentence of two hundred sixteen months would have been further reduced with the difference between sixty seven and seventy eight months and twenty seven to seventy three months that's your job is to have to convince this court that there was an abuse of discretion yes you're on a not very downward more yes because the court to though you are argument the words you're using don't talk really climb that hill your honor respectfully we believe there was a abuse of discretion the reason why is that when the judge considered that evidence despite everything that had been presented at trial despite everything that in prison and the fact that those counts were declared a mistrial and dismissed later on when the court considered that evidence in imposing that sentence and and determining that's what the guideline would have been without the career fender designation when the court did so that was an abuse of discretion because the court was not properly taking into account the difference between the regular traditional guideline range based on the proof condom the conduct that mr williams was found and how can you say the court didn't when the court did take the low rent for the low end of that range you know even though it didn't lower range the court came out within that correct consideration of that of those substances gave the court a different sort of jumping off point where it would decide the proper sentence would be so if the court had actually used the proper guideline range of the twenty seven thirty three months  as the comparison to the career fender guideline then the court would have substantially varied below that two hundred sixty months and not considering the proper guideline considering that other stuff there's other substances that certainly have not been proven beyond a guideline and what the amount would have been had it had mr lee in order williams not then designated as a career offender that being said we do not know exactly every single factor i mean what the difference if he had used even if the judge had used all of the evidence all of the evidence that was recovered even though there was a some there was a mistrial on the count then the guideline range would have actually been sixty three to seventy eight months as opposed to two sixty two to three twenty seven we submit to get to this court your honor that if the judge had not taken into account those other substances from the conduct that was later dismissed that actually difference would have been between two hundred sixty two to three hundred twenty seven months with the christian or doesn't nation down to twenty seven to thirty three months which is an incredible difference and part of the problem with the career  that being said we would ask your honour's to take into account what was presented in that in court and in the suppression hearing and find that there was not here for it and he did with evidence here and that that violated mr williams due process rights thank you us and leaving on a pin a gallon range should have been fixed i think sixty three to seventy eight months  learned the tennessee bureau of an investigation is fine and he made an appointment with the mathis police department property and evidence room and he went and to to the property evidence room and had someone with the property evidence was tainted or manipulated and in this case the evidence was determined not to be cocaine not to be a controlled substance and the jury got to hear that mr bayle got to argue before the trial and and when you look at the counts with the jury big convict the defendant on they were separate in isolated counts they had nothing to do with the evidence that was recovered on september twentieth of two thousand twelve the first count related to a control by on september thirteenth of two thousand and twelve guards to that count of the west coast to the west tennessee drug task force had a arrange for control testified to that fact and his testimony was both both about the fact that we played the audio recording from inside the home were the standing list again and talked about the price in the quantity that he wanted to sell  the dates on the evidence are two distinct and isolated for there to have been any cause and and the only poison from the quote unquote manipulation and tank was evidence that what officers thought was cocaine ended on the other three counts i think that shows that the jury was not confused some of your was able to easily see what evidence was there which counts regard to  court just a few points to bring back up according the the original investigation with the search warrant i just want to point out that again the twenty gram difference sixty five to forty four grams between the amount of drugs that that detective chisholm stated that he had recovered as opposed to what was actually found by the t b i to have been recovered i do think that opposing counsel brought up something that i also think goes to the same idea of tampering with the evidence and i think it's important bring up basically after the t v i got in and i used to see bureau of investigation so that the lab tested it after it got sent off after mr williams was indicted  not only did that report say that instead of just possible they controlled substances and swell their work tablets found and that that that indicated to be m d m a also known as a street drug of ecstasy which was never reported by any of the police officers instead we also found out about the differences in the way and i think it's important that opposing counsel brought up that after that chills i'm whent back to the memphis police department property evidence room we only found this out at the actual suppression hearing but went back according to government made an appointment but there are no reports there's no documentation there's no tests that are shown there's nothing that's been turned over to the defense and in fact at the suppression hearing chisholm actually testified that he didn't know he thought the report was made but he didn't know that suppressed at the first suppression hearing protect the children stated that he had actually felt the bags of the hands to feel where the tablets of m d m a are ecstasy had them but then at the second suppression hearing he says all he did was observe the testing of the substances which his partner says lega who is the evidence custodian confirms he went back to that second one so there is something going on in this case with evidence disappearing becoming building from p jury argument ok your honor i do think and it was somewhat successful dance with your honor but i'd i do want to point out that there has to be a point when we're dealing with due process and it comes to tampering with evidence we're outside of a video recording showing somebody tampering with evidence but we've already talked about how we don't think that may matter to the in the end here can i think on that i think it should matter to this court when making a determination