the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session tour believed the two cooperating witnesses  something that's a deal with me personally because that's something that belongs to babble like saying if it's something that is not related to  a follow up questions really whether any confidence and be accorded to the jury's verdict given the fact that the government's case rely mostly on a mosaic of unfairly prejudicial peach that's a separate issue now in this case it's important to understand that the government had a very weak case and that's why it had to resort to this kind of extreme extreme seek evidence of very purportedly prove that me serco court received some form of a fee for letting other people operate the drug point the public housing project where he looked and those actually died and that's exactly what was charged against him specifically that he wants some form of a rental agreement going on now the government realizing that evidence w did the government attempt to tie the the murders that you are complaining about now having been admitted to control over the same drug points that are involved in this case are they different drug points do you know whether the government tried to tie them as the same drug raids yes your honor that is a fair question what the garment was i just put a pinpoint on it getting back to judge howard's question was it allegedly the same point because the intervening circumstances doesn't mean that he didn't continue to operate a drug point even though he may have been legitimately employed or receiving some other kinds of benefits yes these purport the murders took place in one of killed in a different year yes sir and so but as i understand it the court's concern about that was that it said can know england is a nickname it is very common so you haven't established the premise of your impeachment which is that the lawyer in the witness were referring to the same person it's what the on trial judge actually ruled out we could not when he was murdered and to counter that we had several court records we had prior indictment that we had a prior indictment that i a opinion from jury for the jury to make that determination whether it was the only person on whether was a sane person i'm imagining government failed to even prove bring all right thank you we'll hear from mister housey now hasi are you in the meeting can you hear us attorney know this could you please mute your video at this time attorney hasi can you hear us i'm sorry judge we can see him in the meeting but he can't seem to hear us or we're not hearing him we're going to try and get him back if that's ok all right and i still have a connection to mr novus i do to i'm i think i'm going to remove both of them more central part of this conspiracy but he seemed to be a guy that was brought in for one job as as the evidence was presented in this case he wasn't part of the overall conspiracy didn't seem to be a daily participant but he was then in this case really the feeling i get after after reviewing the whole matter is the government they indeed indicted conspiracy but i think it's a look at to come back to the individual who does is the individuals involved and they did and with this one murder that he was brought in for you and it page sixteen of the government's brief it says that they would be when he showed up to the commission news murder which they make a big deal about the preparation looking for polio banging down  his apartment and somebody else saw him smoking a cigarette and housing project and went with mister figure oh it showed the company with another individual the guy was already dead so i mean he might have been painted as a person that was a member to curiously to carry out this murder but when he came to down to brass tacks and doing the murder the murder was had been already done the drive by conspiracy is when there was preparation by a whole number of different people that seems to be gored self serving than anything else this evidence made after the shooting that probably it was some sort of a driving force in the commission murder when he really didn't have anything to do with the ultimate act and it's questionable as to what his motives were in terms of advancing the got to these of the conspiracy or was he just doing th with the rest of the figure lower than having him show up for this one supposed to hit which had already been carried out by somebody else didn't they call back to his house after the hit yet when it was it was raining the government made much ado of the preparation murder murder had already been done a lot of people make the reference that they sure they would like to kill somebody but that in doing it step to actually doing the killing are quite a bit different yes thank you judge thompson do you have follow good morning your orders may it please the court michael rocker from the department of justice i'm sorry i'm starting my clock there on behalf of the united states very briefly your honour's with respect to the drive by shooting hanson it's let me just briefly address the sufficiency of the evidence of aiding and abetting to prove a thing in abetting the government has to prove that the defendant knowingly associated with the venture and sought by his words or actions to bring it about and the evidence that the court was discussing earlier and that the government presented a trial it was certain sufficient it showed that mister bill ask his sponsor his place to phone calls to other members of the conspiracy specifying the whereabouts of the target and pointed out during one of those phone calls he provided a physical description of the target if you add to that the fact that he listened to the shooting in real time and then went to the home of the shooters the next day and complimented them on that certainly didn't act surprised or caught off on top of that opposing counsel mention that there was no other real evidence tying mister resto figaro to the conspiracy there was as was pointed out by the court there was evidence that he was involved in selling drugs that he stored weapons and drugs at its home again a rational jury crediting all that evidence had more than enough of a basis to conclude that he was a member of the conspiracy and that he aided and abetted that drive by shooting unless the court a spirit of questions for me about those two defendants let me turn to  carro and you know of course i'm always happy to jump out of order if the court would so prefer the argument here this morning was by my opponent was based on the idea that the government had a weak case and that we had to resort to what i believe he referred to as showcase evidence referring to these remote murders i respectfully disagree with both of those propositions the government's case was not weak we had three cooperating witnesses who testified that m in fact that he owns two of these drug points and to answer the question that the court raised several times yes the murders that we were talking about were related to one of the two drug points that was at issue in this case it was the same drug pointed jerk proceeds so as not to reach a set all that that evidence by and by and large by itself was enough to prove that he was guilty of the church crimes but not being the me interject right there because i'm much sure i agree with the proposition you're putting forward certainly the cooperating witness testimony if believed would have been sufficient so in that sense it's not fatally weak but a case that rests almost only on cooperating witness testimony so i'm not sure if case that you would describe as strong and it could be weak in the sense that it's sufficient but hardly compelling it also that then gets my concern you  take a case that is predicated on cooperating witness testimony and then instead of putting in tangible evidence that confirms that testimony you put in a fifteen year old two hundred and fifteen year  when they try to impeach the person by showing that a guy named ken owing room was killed in a different year they're not allowed to because the burn somehow put on them to show that the two people at the same  seems like you're getting far out there which are relying on and then handicapping the defendant appreciate the question your honor let me try to address each of the components of it i don't think that having three cook cooperating witnesses who corroborate each other who testify i mean you can have the testimony of one cooperating witness that is that can be legally sufficient and that can establish a strong case when you have three individuals who are testifying to different aspects of cargo and you know its role in the conspiracy and corroborating each other i think it makes out a strong case so we don't believe that the case was weak and t the notion for example that so be the evidence of the the prior murders was not my opponent made much of the fact that the government was offering this for propensity purposes that we were trying to prove well he did these bad things in the past so he must have done them you know he must be guilty of these charges that's not the reason the government put on the evidence that's not the reason the district court admitted the evidence and most importantly that is not the jury was specifically told not once but twice that they could not consider the evidence for that the fact that he ran drug points but that he committed these murders sure the relevance was because it bore on his knowledge in a tent and if i could just take a minute to explain how that so in order to prove rico conspiracy liability the government under salinas has the burden to prove that a defendant intended to further an endeavor which if completed would violate the rico statute and to violate the rico statute we have to prove that this individual joined a conspiracy knowing and understanding not only that they were engaged in widespread drug dealing in the public housing projects but also that they use violence as a tool to both up team and maintain control or to or to control their turf or even to expand their turf so with that as the legal back drop the evidence that these murders were committed is relevant because it bears directly on the fact that he mister carter when you knew and understood the rules if you wanted to be a drug dealer in san juans public housing projects you not only had to deal drugs but you h that over ten years later when he wanted to join a conspiracy murder was a part of the conspiracy yes and this and i would emphasize the same drug points as well your honor that's critical because again the part of the essence of the conspiracy as charged to me today and it's laid out by the government trial was not just that this was a gang that dealt drugs it was a gang that dealt drugs and used violence that was part of the means by which they accomplish their objectives so mister rocker i'd like to ask you a question about that as well because i find myself in a box perhaps you can help me get out of the box you said you had a strong case but now you say this evidence is necessary to prove your case so which is it i apologize let me clarify i do believe that we have a strong case i don't think that this evidence was necessary but i think it was probative and relevant and certainly bore on legitimate legal issues that the jury had to decide remember as well minimize any risk of unfair prejudice to mister cottle and you know not only did the court exclude evidence of one of the three actually sought a proper evidence of three murders and the district court said no we're only going to let you put into the reason to bring that up as it shows the district court was taking this very seriously it certainly appreciate that there is a risk of prejudice from this type of evidence and it wasn't just going to rubber stamp what the government wanted to do beyond that when the government sought to present this evidence we did so through the non graphic oral testimony of a single witness that comprise a grand total of fifteen pages of the trial transcript out of two thousand pages and i want to bring up something that's very important cargo and you know it's counsel in his reply brief says that the government harped on this evidence in its closing argument before the jury i am quite sure that if the court hasn't done so already it will read the record in this case i read the government's closing argument five times there is not a single mention of those murders in our closing argument in fact it was mister cano and you know that brought up murders in his closing argument to sit to rhetorical he asked why did the government present this evidence and so in our rebuttal closing we devoted a grand total of one sentence to explaining as i just did to the court that members of the jury you have heard this evidence and the reason you have heard it is because it bears on his knowledge and intent yes but you like him conjuring up and the judge challenged bucks you haven't you haven't at least explained to my satisfaction why you needed the evidence in fact you're arguing the opposite i think your honor i think that we're entitled to present our case we presented to three cooperating witnesses and we felt that their test will know the standard specifically says you have one of the things the judge has to balance we can put it on its corroborative we can put it on its additional evidence that's a need in that sense it's not you know it's not needed in the sense of absolutely essential or without which you would be subject to rule twenty nine it was corroborative and in that sentence we had a need for the evidence and it was certainly probative of the purposes for which we offered it which were not propensity but proving knowledge intent so i hope that i have tried to give your honor a key to help himself out of the box i don't think that need means absolute essential need i think it means a legitimate purpose for offering the evidence and the district court of course is well know that it seems to me that the image that there's an obvious difference between those two relevance need are are are different well your honor again i perhaps i think what i'm really getting at is is is your argument that you had a strong case without the evidence you want to stand on that yes your honor i believe that it i mean i would say this as i argued in my brief so i'm not retreating from that let's assume as a hypothetical matter that the court were to believe that the remote murder evidence should not have come in at all i would still submit to you that that error does not require reversal of the judgment because the evidence the remaining evidence would be sufficient there's no reasonable likelihood even if you excised that evidence there is no reasonable likelihood given the purpose for which the evidence was offered which was important but not the only evidence and given the fact that the jury was told that it you know let me emphasize that as well the district court made very clear to the jury not only that it was offered for a limited purpose that mister carro and you know had not been charged with these murders he was not on trial for these murders and the jury was not to decide his guilt of those murders it was a very limited piece of evidence within a much larger mosaic of evidence that proved his guilt and one of the what if it was hearsay wasn't it one of it the witness didn't even have firsthand knowledge that's extensive latitude to impeach the witness regarding his you know inconsistent recollection of the year of the murder he said ninety three said ninety five he said ninety six he said the mid one thousand nine hundred and ninety s there was an ample foundation for that for the defense to argue that the witness's testimony was not credible as far as the specific testimony that was proffered by the lawyer as your honor himself pointed out it's not that they had the burden that we were shifting any burden but but they were the ones that were proposed proposing this evidence and before fifteen year old murders murder and your witness identifies him only by the name kendall ingram right and they know there's another guy can knowing them who's don't kill the different circumstances in a different year and they want to put that in and then you say well because we did put in the gusts not nicknamed you can't i mean it seems well and while we're letting it in those conspiracy evidence and some other conspiracy  it seems like a lot of very little leeway is being given to the defendant to respond to some pretty major prejudicial testimony appreciate the question your honor i do think the record shows the district court did give him extensively way to impeach on this specific issue as far as the point about to know ingram yes there was no specific evidence presented as to his actual name but given what we had to work with given kamil ingram given the fact that it's a saint nick name the defense has to come forward if they want to put on this evidence to show that it was in fact the same person it just reported how the one hundred and four hearing outside the jury's presence it made a finding that there was not a sufficient foundation that's a factual determination that it's not clearly erroneous and therefore it wasn't abuse of discretion to exclude that particularly given the latitude that the court gave defense counsel to impeach the witness regarding his inconsistent recollection so i respectfully disagree i think that the defense did have ample latitude on the question about the hearsay point though i do want to just reiterate for the year old here saying testimony that some guy named can always in certain circumstance it isn't oh you can you can impeach but only by questioning him you can't bring in evidence that the same name was killed in some other circumstances i  don't think i'm sorry that doesn't sound like someone's trying to be particularly protective of the defendant well i respectfully i think that i think that the court was and all i'm saying on that here safe point is if the defense disagreed with the admission of this hearsay statement they had every right and every opportunity and every ability to argue that in their opening brief but they can't come in for the st time in their reply brief and say oh the government didn't just this point you have to brief the issue the district court made findings we could have brief didn't explain why we think the evidence is  missible why we think it's reliable why we think it's trustworthy and why there was no error and i just don't think that it's properly before the court i don't think the court's precedents will allow when there's been inadequate presentation of the issue so our position is that it was not as far as the remoteness of the murders i would just emphasize as we pointed out in our brief under this court's decision in fields there is no firm temporal cutoff date and the district court is best position to decide for itself to weigh the probative value to balance that against the prejudice and to make those sensitive determinations this core tradition would give the district court great leeway and broad discretion it's not unlimited but it's quite broad and i think if you look at the record as a whole if you look at all the steps the district court took to safeguard know rights and to protect him against any risk of unfair prejudice i think what you'll see is that the limiting instructions which were given both during the trial and in closing you look at the curative instructions that were given about what the permissible uses of the testimony were you look at the fact that this evidence was not going to shock the jury ok it was fifteen pages non graphic non descriptive compared to the drive by shooting murders which were graphic and gory and gruesome i don't think the jury was going to be  swayed by hearing this evidence and so the idea that this was the showcase of our case i simply think that the record lies that claim and i'm confident that when the court goes back and reread the record you will reach the same conclusion as well according to my clock i have about two minutes remaining i'm more than happy to answer any questions the court has but if not we would respectfully urge the court to affirm the judgments in all three cases thank you thank you all thank you ron that concludes the arguments in this case attorney ramirez attorney novus attorney hacienda sorry roger you should disconnect from the hearing at this time