morning please the court my name is roger bennett adler i am appellate counsel i did not try to use my participation in the case began with a post verdict motion and the appearance before the defendant who is currently serving a twenty year sentence in the federal correctional facility as a first time offender when i moved to set aside the verdict and ultimately argued on sentencing there are three issues from my perspective that are worthy of the court's time point one deals with the application of section one hundred twenty four c and the exemptions set forth by congress in section nine twenty six b is and boy the second argument deals with what i would simply characterize as a nap you get a correct perjury jury is testimony in the withholding of brady material concerning trafficking in contraband by the government's key cooperat and lastly some guideline issues that may or may not attract the patent turning to nine twenty six b and the exemption this is a case in which the feminine at all relevant climes was in new york city police officer  shotgun operable on operable in any event the government lays out two scenes constituting this act of the indictment which is count two act one is during the course of the case the defendant carried a service revolver such service revolver position which was noted in the original indictment in the state court they took it away the feds took it away from the state court so they could add this count in it get exempted from the accomplice testimony rule in the state of new york and what they did was they had a discount and they believed and convinced the trial judge that nine twenty fourth's nine twenty six b which is the exemption for one forsman had no applicability this defend in connection with that so the jury but the but the point is that if the jury found that he carried it in furtherance of a drug crime that he had a purpose did not find it was his only purpose but he also carr his mental state so he lacked criminal intent because the penal law and the patrol guide were quite what the jury found the criminal intent because that was the instruction but nine twenty didn't the instruction by saying that there needs to be a finding that it was carried in furtherance of the narcotics crime suffice to satisfy this issue if if the answer was he only carried it because he was supposed to carry it even when he was off duty and it was not his goal to further the drug enterprise by carrying the weapon on these particular occasions he would not be guilty no because that that did get to that result requires ignoring nine twenty six b the government those nine twenty six b authorize the carrying of a firearm in furtherance of the narcotics corrupt provides a blanket exemption for one foresman officers at page twenty three of the government's brief they essentially challenge the breadth or that the distance that i am going here so let me weigh down the gauntlet clear and complete the congress in an acting nine twenty six b never said that the exemption for one forsman doesn't apply if the law enforcement officer uses the firearm in connection with a quite a statutory omission officer took his service weapon and went into a bank with it and held up the bank and shot the teller nine twenty four c would not apply no no he could be prosecuted in law enforcement officer is automatically allowed to use a firearm in furtherance of a crime based on section nine twenty six nine twenty six ip phrase it differently nine twenty six b creates an exemption that is not limited to cover this is an area that you weighed out i'm not suggesting it's inappropriate i'm simply saying the congress didn't do it what the judge did and what the government has argued is to read in that exemption that was not passed by the congress and because it wasn't passed by the congress the police officer in your hypothetical judge lynch could be prosecuted for murder could be prosecuted for robbery but not knowing twenty four c that's the position of the defense that's the issue that has to be resolved the congress didn't fix it it was sloppy and my answer is let him go ever adopted that the one nine twenty six p decision it cited in the brief is the order case from the order versus the district of columbia where the defendant was prosecuted  nine twenty four while the two were read together that was the intent to make sure law enforcement officers not so plain were really looking to the intent although i didn't mean i didn't mean to imply that anybody would need summer school in order to deal with the statute i'm simply saying that this is a glitch they didn't cover it it wasn't contemplated i'm not saying that my conduct my client gets a medal for his behavior i'm simply saying he's here saying what about me i'm not chopped liver right now to get the benefit of it the see they also we wrote this broad that started the problem but then it was he carried the shotgun was to a meeting that was called by a drug dealer to make peace between two lawyers because the beef was bad for business the plant business the issue at all i can't i can't quarrel with it but i'm simply saying that the statute doesn't cover a brief with a broad situation that's the core of what this was about the rest of it the impact upon the the business is something that they wrote in what it's about is what the jury decides as a factual matter is and that the jury is there to decide whether this was this shotgun was carried in furtherance of a drug conspiracy but it depends on the facts that were elicited and the facts that were elicited indicated it was a social dispute no drugs a resolve that there was a law that says that if one county is factually insufficient one aspect of account is factually insufficient we presume that the jury didn't return a verdict of guilty beyond a reasonable doubt on the count for the aspect of the count for which there was insufficient evidence that's different than when there is a legal defect in one problem where the jury wouldn't know that or understand well i'm indicating both and in any event with the court's permission can i just have one minute to just you and i won't discuss the sentencing guidelines you know going to have some time on reserve and you'll be able to tell us them and then i will follow the court's directive yes  your honor may please the court my name is thomas mckay i'm mrs united states attorney in the southern district i represent united states in this appeal as i did at the trial to address the points that he made with regard to the nine twenty four c count first nine twenty six b does not carry the blanket immunity that defense counsel suggests is not in the statute there is no case law supporting it and the hypothetical question th judge lynch asked about the import of that argument strikes to the heart of why that's an implausible read reading of the statute and also note that there are specifics in one thousand six be like the requirement that the officer be carrying his identification that make clear that what is going on in this statute is an exemption from state concealed carry laws and doesn't purport to supersede a statute relating to carrying a firearm in connection with a crime of violence or a drug crime in addition the defendant's conviction on twenty four she could count was based not just on the use of his service weapon but also his use of the shotgun during that meeting that the court was just inquiring about and as judge lynch and if it was a legal if there were a legal defect because of the nine twenty the argument then wouldn't that invalidate the count because it is technically duplicitous count but hard to tax the government for being so nice as to not george two nine twenty four c counts that would have led to one can do proper conviction of five plus a twenty five year mandatory consecutive sentence of but i'm not complaining that you put them in the same county but the risk there is and i wrote about this that that argument is a legal argument i don't accept it would we not have to presume that the jury might have returned a verdict on that rather than the other yes i think you correct your question to mr al i think you correctly stated the law about factual vs legal insufficiency we don't think there's a legal insufficiency with a nine twenty six b and then as to the shotgun we can't say we're not going to reach the nine twenty six b argument because he's guilty anyway under the other prong of the count is a factual sufficiency question the jury heard the argument that this was a beef about a magic dispute they rejected it the testimony suggesting that it was not in fact just about her romantic dispute that it was bad for the drug business is it to thirty two to thirty four and to sixty two to sixty three of the transcript if the court has questions about any of the other issues i'm happy to answer them of questions for you just as a technical matter in your brief you quoted government's exhibit seven twenty three and seven twenty six the recorded phone calls appellate record somewhere can we listen to those your honor i don't think we simply i'm sure that we did not some of the all your recordings of them we may have submitted the transcripts of them i will check that and if we did not we're happy to cement either the audio or the transcript that would admissions move it went from we tried to resolve a circuit split actually on whether you're supposed to look for a minor role that just meant to the average participant in a crime of this type versus this particular crime and the confederates and the district court said relying on your you're sentencing memorandum that's to minor role the commentary in case law says you look at whether this defendant is less culpable than the average participant in this type of offense but in fact standard but in your sentencing memorandum you referred to that question being whether he was more or less culpable than the average drug dealer so it seemed to me that reflected some continued confusion possibly about what a mended amendment seven ninety four does what is your understanding about what the standard needs to be now or is now imposed by the sentencing commission with respect to my new role your honor if i may first  apologize if there's any imprecision in our brief or in the district court's comments i do think as a factual matter that the factual findings that the court made were that the defendant as a police officer using his position to protect drug dealers as a police officer giving inside information to a drug dealer as a police officer escorting a drug dealer to a crime whether you're looking at it under either lens whether it's the broader drug dealing generally or this case pacifically there's no way to find that he engaged in a minor will so regardless of your political standard i think the factual findings which are reviewed for clear are clearly meet both standards and search the extent that there was some imprecision in our comments or in the judge's comments i think it would be immaterial isn't it the case  not clarified that we don't look at the average participant in the average drug crime across the nation we look at the individual with respect to the relative contributions of his confederates actually yes your honor and i would participant and she relies on the government's assessment and so stating said i was i was concerned about that and i do think that she specifically references the value that gave you already is put on alston's assistance in this drug crime which i think is something that is sort of unique to the particular organization that we're talking about here in this case was the tax with the entirety of the drug quantity for all over is drug dealing you know he was not he was assessed in terms of the drug quantity for calculating his sentencing guidelines with those transactions in which he was alleged to have participated no your honor there's three different possible drug weights the highest what we saw in our sensing submission was the full extent of races participation two hundred kilograms a compromise position might have been forty kilograms which is the quantity that race estimated the defend it was personally involved in helping race with at the end of the day of judgment i mean actually just said the five kil that he was taxed with much less than that and then the judge specifically said i can't conclude he was less culpable than his confederates mup and random drug dealers in san francisco i think that's right and you're saying there is sufficient suspici the on the issue a minor role and the application of the new sentencing guideline provision amendment seven ninety four i called the panel's attention to pay for twenty nine of my brief and the existing authority in the fifth circuit court of appeals united states versus sanchez villareal cited in the brief never distinguished by the government applicable in this case this panel should speak whether i want to lose on the point it's an important point for district courts and i embrace government's obligation i what i have characterized is in that pew era the government on direct examination let me repeat that on direct examination asked dick cooperator they can't come into a courtroom without a loose leaf book so it's a script it's not a one off it's not a blurred out on cross examination you got it would you know would you commit job right and then on cross examination the defense asked him about the car but my point is they didn't correct it it should have been corrected by by the the government right then and there and secondly in terms of the disclosure the day before sentencing that their witness ray as had been involved in possession and it's i like things that say under the penalties of perjury when i deal with that office for obvious reasons and i want i'm saying to the court is i never got an inquiry i asked the chief judge the chief district court judge who tried this case saying is i think i'm entitled to something if my coins do in twenty years a hard time no one on this panel should have to be doing hard time is a cop in a federal system it ain't pretty the records show the gesture i did hearings that are appropriate to flesh out when reyes to paraphrase somebody what did he know and when did he know it when did he do it and when did he start and what did he do that playing hide the hat i'm simply saying you don't tolerate this from them