takes seven minutes mr melcher will take on an appropriate additional amount of time and we're hoping to reserve three or four minutes for rebuttal we also have sort of divided up how we're going to address the issues with the court's permission i'd like to speak  primarily about the number of our first issue which is the vouching question and then possibly address the question of the improper expert testimony if the government really has taken a using the government's position with respect to a cooperating witness and telling the jury that the government gets to decide whether he's telling the truth and then implying to the jury that he is telling the truth by virtue of explicating the terms of the plea agreement would be impermissible vouching that violates due process unless the defendant attacks the credibility of that witness mr copley this is a great argument to make on behalf of faced with is if we decide that that mr harley opened the door and it's not improper valjean at least as regards to mr harley's client mr dang and under our case law it comes in even though had you been able to restrain your co counsel you wouldn't have gone quite as far as he did in going after the issue that opened the door on what we are i appreciate the court's distinguishing among the opponents but the argument that i'm making orally here is really whether or not it is correct that what you know is a denial of due process what is unfair vouching becomes fair game when all that happens is the defense attacks the credibility of the witness but it's more than that i mean our case law recognizes that we're a defense lawyer essentially goes after the motivation of the witness for testifying that it was up to the government to decide whether mr when they even when the the witness we're talking about here was telling the truth and if that happened we do not have a testimony here i would cite the testimony and there were a number of questions that the united states attorney asked me and there set out of pages the other set out in the second and third page of that argument i'll just just briefly refer to them here first the good government says to mr wynn so your agreement is with the government and i've emphasized that you understand this agreement requires you to be truthful at all times that's sort of neutral but then if you understand that the player requires you to be truthful with the government you understand will happen to you if the government concludes that you have not been truthful these things have nothing to do with the obligation to be truthful but it emphasizes that i the problem i think the embodiment of the government in this courtroom have to be convinced that you're telling the truth and when the lawyer when the prosecutor then argues to the jury that in fact this person is telling the different way assuming that i read the transcript correctly and where the cross examination was based literally paragraph by paragraph on the terms of the police agreement why wouldn't the government have been within its to simply ask for the admission of the plea agreement under the rule of completeness in order to let the jury look at those provisions which includes a paragraph that specifically  brief also i wanted to point out here that in the in the us with case what they seem to say is that merely doing what is appropriate testing of the credibility of a witness does not constitute improper attacking of the victim that draws because it's a due process issue i think it's an oval review but i think that every time a ruling permits what the court says is unfair conduct by the government i think every time that ruling would be an abus obviously a violation of due process it has to be right and what i'm arguing i'm asking the court to consider is whether the holding wetherspoon doesn't say the government can't any longer sort of get away with saying well you was fair response and that's what and that's what i think happened here because of you so much of my time the only other time and i'd like to make is the government doesn't respond at all in the briefs to our point which is that once the government was permitted to go over the polygamous show the jury that it meant that the government's prosecutor there was extensive attack on credibility of the government witness the government then did what i consider to be vouching and then in order just to try to come back to show why this witness is still not credible the defense was denied that my think i think that the combination of those things make the record here and example of an unfair with the question and recross we're i don't have the question i just have a cite to the fact that there was an attempt to continue probing wins credibility in light of his plea agreement which the government i place united states versus kill the engine in two thousand and six you know change the rules a judge can make a determination by upon to see evidence but i'm arguing that that's not the proper standard for this appeal it's still a jury finding of proof beyond a reasonable doubt and i'm conceding backwards forwards any way i can that there was proof beyond reasonable doubt of the eight forty six violation no question about that but on arguing there's insufficient evidence or not a lot to support the finding the drug on the finding because i recognize shivani eliminated any overt act requirement any type of conduct requirement but shivani never talked about or discussed the guidelines after application more than one point five kilograms of her and the same for a dane that was charged by the indictment that was found by the jury it was found yes our so i thought you were arguing that the jury did not here yet people are talking about talking about the drugs and one girl or two girls or whatever what ashcraft and they had that interpreted that's correct and it seemed if you put all that together you build up something more than verbal conversations captured by a wiretap there's got to be some conduct i e hey oshie to a drug lab you know a lot of this stuff is mentioned in the guys there's a conspiracy now it's coming clear to americans are this is a conspiracy so you need evidence of an agreement but your if you argue that you need some sort of conduct of a drug dealing of some kind is that it precisely that even though it's only a conspiracy only even though it's a conspiracy theory if it was a forty six by itself they would need anything else but when the government opted to make that finding which they agreed was not an element of the conspiracy offense they need something more they need condo they need something more than mere words catch on that wiretap requirement that appears and shabani as synonymous with conduct that appears harassing the missions that if you're in the guideline calculations when you get to be approximating the drug quantities involved so and mere fact a conspiracy  commentary in the guidelines x and emissions are synonymous with condom you don't have to prove conduct or even a twenty six violation my whole argument is you have to prove some sort of conduct in order to stick these individuals with the quantities that they were stuck with by the jury determination and my argument again i think it's supported by the commentary which talks about the requirement a reasonable for see ability i'm reading this straight from the guidelines the requirement original for s ability applies only in respect to the conduct and then it says i didn't act on the missions little in syria the kind that from the fact that you know after they were heard on the wiretap talking about cooking meth or whatever it was that that evidence was that the defendants then went out and solicited people to buy and then reported back as to whether or not they had ready customers available and how much they can't the jury listen to that those forces or what thirteen thousand calls intercepted in this title three yes ok why can't the jury then consider that and assuming that they believe that the person is truthful on the wiretap that he actually did go around and solicit customers and then concludes that that's the conduct that you say even though they don't have to show it as an overt act in furtherance of the conspiracy why can't the jury conclude that that's in fact what happened well i think it mean a regular type conspiracy the government would have to prove an overt act and i'm all right i mean if the court disagrees with me and these conversations quantifier tavern's vision i lose but i think there's got to be something out there besides wiretaps and then opinion that based on my expert opinion are talking about certain quantities and based on my expert opinion a drug transaction to a place that was objected to even the prosecution there's not any wasn't there also testimony by october two thousand very long after the government proceeded my theory that my client had five hundred milligrams or more of a substance containing methamphetamine tribute to him based on three phone conversations to make a multiple of phone conversations that took place in there was a search of a lab site but it occurred at the end of the conspiracy and not at the beginning when when they amounts were attributed to your client that's correct i think that that lab that was  was not attributed in my client any way shape or form no but i did as i understand the government's theory because of the fact that they found a lab in october and they had the co conspirators testifying as to the quantities that were being produced out of that lab that the jury would be allowed to infer that the lab had been going cooking for some period of time which corroborates what the jury heard on the wire in the end is that what the government argued well i reviewed the argument and i don't think i mean they just talk very briefly about forsee ability and for c m villany if you listen to the conversations by my client with him when it's read for example there's starting to be more than five hundred milligrams of methamphetamine involved boom that's it no mention of that drug lab that was found in and what the jury heard on the wire taps and on the physical evidence that was found from the lab at the end of the drugs now i'm conceding if a coconspirator came up and testified that those conversations my client had you know was well the person i got in a plea agreement with unfortunately but he was only able to say there were some conversations he had about some unknown drugs in a time period that was completely irrelevant to my client i think it was before he went back to oklahoma and then that the court coconspirator was in jail from april of two thousand and two until september two thousand to so he was around my client during the relevant period of time when i'm asking for some sort of proof of surveillance there were were people watched going and coming from different there was surveillance and the only surveillance it could have and it was it certainly didn't tie into my client i mean i often see that some police reports i read investigating officers was failing officer that that third unidentified male agent who was seen with him when showing up at the budget for enterprise rent a car was in fact my client now sure if they prove yes that was the guy that be pumping objective concrete that falls within the parameters of conduct as i define that term which is supported by my interpretations of the guidelines but there's none of that what you really think is there has to be some direct evidence that that links your client specifically and it have to be something more than listening to him talk on the wiretap or people talk about what he's doing on the wire why i'll give this government even circumstantial evidence as long as the jackson concrete something i'm all not s that we would rely on her as if it involves your honor on fourth and i can't find any but i'm just arguing some of the plain language of the guidelines and when you look at the approximation tables in that two d one point one where it says where there is no drug seizure or the amounts each is not reflect the scale of the offense the court can approximate and then they can consider for example it's not an exhaustive list but the price generally of pain for the controlled substance will that mean need something was testified to during the course of the trial on prior don't deals you know the normal price flow and then you can use that as a standard a starting point in order to abase this approximation i thought there was a test the way i mean there there were there was reference to price on the tapes and then evidence or testimony by the by the agents as to what that equated to i could yes but there is a price all over there's wiretaps and then the agents law in my opinion this is what i mean but that's the type of stuff that i don't classify as conduct which is required in order to prove beyond a reasonable doubt the drug quantity determination sure and it's going up there well in my opinion there's a bunch of drug dealing going on and based on what i heard comments that have went yeah i would say there's a couple boats a couple girls that were sold for two or three thousand yes that's my opinion but that's not the conduct that i feel should be required in proving up beyond a reasonable doubt announced by proponents you haven't seen but back then beyond reasonable doubt necessary over and above the mere conviction for an eight forty six violation and obviously the court feels i'm wrong i lose but that's the foundation of my argument steer him otherwise but it's been an exciting career for me if there are the seven years the fear also always and a case like this really ninety jury trial it's an extra extremely difficult prosecution never seen anything more complicated than this thirteen thousand interceptions and they're in vietnamese in english we have a very exasperated interpreter at trying to figure out what was said with not only can we talk about girls in spoons and have spoons and part of a spoon point it was when we talk about we have a north vietnam in northern vietnamese and southern vietnamese accents now different dialects but we have some part we make several points and i'll be very brief i know the courts read our brief we in our reply brief we try to restrict what our argument was we certainly adopt what learned counsel said on the three  pounds there were two different transactions or were contacts that mr dying is said to have had with this entire conspiracy and the first dealt with one pound leaving that alone for a minute the other was three pounds and our argument was in that regard that the only inquiry or the only discussion of that was on eight twenty five zero two where there was some question by delaying or some discussion as to  as to price and availability and then nothing further and then on one thousand and six zero two there was we see an argument or some grumbling by getting saying you know you told me about this three girls or three pounds and you consummated or were ever discussed again except by way of grumbling oh we have the other matter being i'm sorry that we have a course gibbs gives talking about about intercepted coded language calls but in an in the similar situation as in dating here on the three pounds the court and gives in the third third circuit found that it was much too speculated that a deal had been  fact whereas in gibbs the judge said in the rather the court of appeal said it's much to speculate of to determine or assess whether or not a deal had been calm consummated in our case we seem to know that a deal had not be consummated on the three found because it was grumbling about it later saying hey i'm here what cousin and i think i didn't get any you pushed it all off somewhere else and i do point out too that the gives case of course was a conspiracy case such as is this the conspiracy case seem to fall apart i don't know in this case when the when the court were struck between blakely a book or we've got blakely just having come down we've got booker coming down sometime and the court apparently one it to give a jury instruction that was going to be consistent with the state of the law under blakely and but in doing so seemed to considerably limit or restrict  or narrow the type of conduct for which a guy could be you know found guilty of criminal conduct by really turning a conspiracy case into an aiding and abetting case and  the jury instructions in our opening brief we point this out on page twenty seven basically saying that a defendant is responsible for conduct if you know if the number want to be does it but number two if he aids and  abets not talking about going into conspiracy so in this particular case it can't be anything other than that help i mean ending in a betting liability in that respect is better than pinkerton liability as well i think they aiding and abetting a do that after the as all of the evidence was in before the case with the jury after the case went of the year after the case with a referee correct but after all the evidence was in your own i want to start by addressing attention to the pages of the excerpts of show that starting at page six forty two of mr ows excerpts of record that's page two of six of that particular day transcript the fact that the mr when it pleaded guilty to a crime with a mandatory minimum that he acknowledged that he wanted to get out of jail fast as possible that he could receive from the government a motion to give him underneath the mandatory minimum sentence of ten years and even suggested that he might receive a sense of time sir then the government did on redirect what the ninth circuit this court has said in a long line of cases from the eighty's and ninety's it could do it introduced the plea agreement and it introduced a truthfulness agreement even though mr harley had already referenced we introduced the plea agreement we asked david about david when about the provisions of the plea agreement and we asked him about the requirement to be truthful and we asked him if you understood the consequences if he it was mr harley's final set of questions question does your behavior demeanor change in any way shape or form based on whether you are lying or telling the truth the answer i really don't know question is there anything you can share with us that we can look at that we can look for to make the determinant that the terminations when we're evaluating your credibility i don't know question absolutely nothing that you can share with us mr maccormack objection asked and answered your honor the court sustaining mr harley spoon has changed the landscape of the invited their doctrines to some extent i think that's probably correct whether soon rejected the government's effort to invoke the invited response do and it basically said you know the government while you can there's options certain situations where you're invited to the defense opens the door you're invited to make a response here the government prosecutor went too far and your callers are going to the case about improper closing argument and the closing argument not case is littered with textbook examples of way over the line about jane by the elites and that case here the government did something were predicated on truthful testimony and again the mr harley came back and fairly incorrectly pointed out on recross that it was the government that would determine whether he would get those benefits there was nothing in the record in which the government represents either during that cross examination or an argument that made a personal assurance of the integrity or the truthfulness of this witness and there was nothing in the argument or the government suggested if there was some sort of extra record evidence that preparing for this argument you know i think when you're preparing the government's answer in brief you're simply reacting to the arguments that come at you in the in the in the opening briefs and now i think six or seven months later it occurs to me that maybe maybe  ado about nothing and i'm not sure it's a unique posture for this case as as mr melcher pointed out this case was tried in september of two thousand and four and that was during the period between the supreme court's decision in blakely and the supreme court's decision of book because of that uncertainty in or frankly your honor there wasn't a lot of cases tried in that period because of the uncertainty but because of that uncertainty the government alleged in the indictment and submitted to the jury by prove beyond a reasonable doubt the issue of drug quantity to establish a guidelines offense level now it's clear now two thousand and six almost more than two years later that submitting the issue of guideline drug quantity to the jury beyond a reasonable doubt unnecessary of course made that clear and it's still the decision earlier this year so what does that mean looking back two years ago when we did something that now we clearly didn't need to do and it occurred to me looking at this fresh that there isn't a printing issue here government that the defendants were all sentence within a statutory maximum of twenty years that would have applied absent some sort of finding none of these defendants were submitted separate between the instructions that were given for liability and the instructions that were given when it came time to finding drug quantity the jury was instructed the appropriate instructions for finding whether the defendants were guilty of count one of the end of the third superseding indictment which was eight forty six liability and then the court instructed the jurors if you find a defendant guilty of count one you'd then have to find whether the defendant is accountable for drug emissions of others in furtherance of the jointly undertaken criminal activity and that your honor is that the language the government relied on with perspective these three defendants a trial that they were responsible for the a and omissions of the other participants in this drug trafficking conspiracy to the extent that the wiretap telephone calls and the other evidence showed them conspiring with the those defendants to traffic or distribute methamphetamine quantities so then we turn to the question is was the evidence sufficient and again the standard here is what do we have a court have to view the lot the evidence in the light most favorable to the government the jury heard cooperating witnesses four of them three men we david when tim berne margarito martinez the four of them told the jury in significant detail about the drug trafficking activity of the lead defendant in sources including a man named richard martinez also told the jury and with other evidence to corroborate this that mr martinez operated a clandestine methamphetamine laboratory on a street in the city of garden group gro plate methamphetamine laboratory the judge home and referenced earlier and in fact it was a surveillance evidence showing mr hip when picking up narcotics or presumably picking up narcotics based on the intercept a telephone conversations did in the intercepted wiretap telephone calls between tip when on the one hand and mr out mr dank and mr tran on the other hand let me address briefly mr melters contention about the three pound deal that his client discussed with mr wynn on august twenty seventh but i think it's the last word of august twenty second nathan day had a conversation with  ones yes same price yes i'll ask around for you because i'm now mr denning argue the mr al make essential the same argument no evidence the deal was ever consummated and the government submit your honor  going to talk to me to try to find a buyer for my three pounds of methamphetamine we had conspired to distribute methamphetamine and it's reasonably foreseeable to mr lester that i have three pounds of methamphetamine where i could get three pounds of methamphetamine to sell t e contrast to take a radical example on the other side i asked mr lester to find buyers and he said why don't i don't do that or i can't do that or i'm not interested in that now mr meltzer argues that the subsequent call about a month later and which mr dank complaints didn't get any drugs shows that the deal was never consummated well to some extent that ratifies the earlier conversation it says you know what you stephanie last time around you had all these girls and you couldn't even leave half a girl for your poor cousin any of your honors those that with the evidence of jury her it was it in that transaction at three pounds transaction plus the one pound transaction that took place five days earlier four pounds sufficient for the jury to find in mr daines case that he was responsible for more than one point five kilograms of methamphetamine i could detail if it's helpful for the court the same kind of evidence for mr al and mr tran it's fairly well set out in detail the government the government's answering brief i don't want to to to take up too much of the court's time it was not necessary we did not touch on any discussed the disposition of methamphetamine or negotiate the price for methamphetamine that could be an overt act that's what was alleged in the indictment we allege overt acts in our indictments in the central district seems to me this whole case everybody selling amphetamine in the vietnamese community and in this area all these people were involved in some fashion or another perhaps or at least are alleged to be and it seemed to be such a loose kind of  confederation and it's almost like me going to nordstrom's and buying a shirt that doesn't mean i'm conspiring with nordstrom's to sell shirts i simply went to nordstrom and in this particular case  gang had gone to his cousin and simply asked about price like i just don't see with ten thousand or eighteen thousand interceptions here and within the stream really difficult transcript with regard to the the slang in the north northern and southern vietnamese dialects and all of that with many words meaning many things and then you had to worry about what a girl meant and all that it's a very very loose kind of conspiracy that's even and distribution for various regions or markets that when i was three have we had conversations among them among the three of them now well mr wynn was was looking into the three of them and relied on the three of them to assist him  we have here from this perspective the sport of the three defendants and mr when we have mr one of the top disposing of methamphetamine down separately in a park to three if they don't they don't relate to each other they're there to some extent so each of the had that there may have been some incidental contact but what i mean when you're on our on our conspiracy it's in terms of our evidence not i think the three of them probably knew each other had bumped into each other as mr as mr wins were being supplied when there was no evidence of that there are no evidence that mr owl for instance knew that mr nang was obtaining methamphetamine  and that would have been necessary which he had with three separate conspirators well what you had is one conspiracy run by mr wynn in which he disposed of methamphetamine through a various number of brokers and distribut the three defendants and when mr wynn fell out of our trial on the morning of trial we we were left with these three defendants to go to trial with so we had to prove essentially a conspiracy involving four people over like other let's just go back to your honor's original question which got us here which was the wheel if there's one person in the middle of the wheel and three different spokes coming off of it all of that's a conspiracy and have you have to in los angeles and it was you know you had to be in the middle and you had all these other people out there and you had to show that each one of them was connected yet put the rim around the wheel drug case too interesting you know so i had on the institutional memory around here but that's really a variance issue isn't it not not a sufficiency of the evidence issue well i guess if you're right it would be if if there was some concern that the government had not proved a linkage between agrarian people on the outside and there would be an attack on the variance between the theory that was alleged in the indictment versus what the proof such challenge the sufficiency of the drug quantity finding and that is simply the quantity of drugs that went from the center or the pop mr went down each wrong or spoke to each of these defendants and we parking lot across the street every morning with all