supplemental motion for new trial in denying it without a hearing on the norman breedlove recantation the standard of review according to united states versus slimed is abuse of discretion and what this argument essentially comes down to is the fourth prong of the test articulated in united states versus miter only that is but for the testimony of norman breedlove which was the recanted testimony is there a reasonable probability acquittal but for that testimony and it's my position that in fact there is a reasonable probability of acquittal had not been breedlove not committed perjury in the district court at trial initially i had argued this case under the standard of sufficiency of the evidence in jackson versus virginia in looking at whether or not there was a reasonable probability of an acquittal construed in the light most favorable to the government could any rational jurors find the essential elements of guilt would prove beyond a reasonable doubt but when i came across a case united states versus risk and that test that i articulated conjecture and versus virginia  sufficiency of it the evidence in lieu of it or not the testimony that is under challenge undermines confidence in the outcome of the trial it's our position presley's that mr breedlove in this case was the government's star witness there are two things that i ask your honour's to keep in mind when evaluating how overwhelmingly significant mr breedlove testimony was the first being that i would ask you to consider is it significance in the mind of the united states attorney's office mr breedlove was an admitted member of this conspiracy and admitted member who way into a young woman accusing who sold heroin to a young woman oh thank you sold heroin to a young woman who shortly thereafter overdosed and died he was facing a sentence of as much as life and and yet the government determined that his testimony if truthful should result in a recommended sentence that is sufficient but not greater than necessary to achieve the thirty five fifty three goals for him of ten years that was in his plea agreement that is how significant the united states attorney's office found this three let's testimony to be the second thing we'd ask you to look at is the district court's own language in its rejection denial of the motion for judgment of a were in the district court on the record at two fifty eight indicates norman breedlove testimony if accepted by the jury is by itself sufficient to establish a conspiracy and mr presley's role in that conspiracy in evaluating whether or not there's a reasonable probability that a jury would have acquitted the jury would have acquitted mr breedlove i would ask you to consider that if mr breedlove testimony that was of such significance in the mind of judge kampala for him to make that statement and to utilize him in the diverse denial of a motion to offer judgment of acquittal in alternative for a new trial having heard him testify witness his demeanor and find him to be that significant is it it is not unreasonable to assume that the jurors who also heard that testimony who also witness i don't need this and what exactly do you want judge i believe he's entitled to a new trial and i believe he weirdest breedlove breedlove what what what will his you want breedlove to do at this trial i want him to explain why he recanted his testimony explain his pro se comments to the court that suggested or at least could be interpreted as suggesting that at the time he testified the government knew that the factual basis in his plea was false and that there he was not a member of this conspiracy because breedlove had huge significance judge he's no longer competent test correct he obligation to tell the truth he can still testify on matters that are in his personal knowledge but with breedlove he put presley right in that conspiracy however earlier than that in this corroborates his o recantation of the testimony when he was near presley in the oval county jail he was arrested he gave a three hour confession on video where he had an emotional breakdown when he was told that the heroin he had sold christina dixon resulted in her dad at that point he became mr cooperative he wanted to do everything he could to save himself and to help the government he identified mcdonald's being a member of the conspiracy how he identified cooper as being a here your honor is when mr breedlove was having that emotional breakdown when his motive was greatest to try to help himself with the government he indicated he did not know and had not heard of robert presley that dramatically changes at trial when he and not only indicates that he was a member of the conspiracy but then throws in a few times that he encountered him in the distribution of heroin in an argument about whether or not a certain amount of heroin had been from head to him by judge i would say not because he identified all the other defendants in the case he indicated that stephen mcdonell was a member of the conspiracy and was a conspiracy whose leader his brother nicknamed know his name confessing that he was a member of the conspiracy too i believe at that point in time your honor he was more concerned about should be no use to my question please i don't believe he was fasts he breedlove confessed that he was part of a conspiracy can you judge yes or no it wasn't the subject you're right i'm sorry judge the it wasn't the subject of the video old your video was about the death of this young girl and at that point it was presented to him that the best way to help himself was to cooperate tell him everything he knew about drugs and drug dealers and that's what he did it wasn't really a question of are you a member of this conspiracy mr breedlove maintained as late as his pro s e filings with the court that he was not a member of the conspiracy notwithstanding the fact he pled guilty to count one that charged him with conspiracy with respect to denying the hearing that we had requested with respect to mr breedlove initially the judge had continued this case for eleven months holding the motion in a benz to allow an opportunity for the federal government to restore mr breedlove to fitness after the case had been almost three years old mr presley was tired of waiting because in light of guttman it's our position that the district court could have proceeded judge kampala concluded that he was proceeding without a hearing because breedlove unavailable but he certainly was available even though he was in butner north carolina he participated in his own cell hearing by virtue of closed circuit television it did that as did the doctors at united states medical center in but either in person or through video further exploration of what he meant when he suggested that the he had told the prosecutors that the first plea agreement second a plea agreement third plea agreement were lies that he was not a member of any conspiracy it one of the issues that mr presley asked me to raise and i felt it was just enough evidence on the record to raise it was whether or not the government had notice that mr breedlove was going to lie about robert pressley on the witness stand it comes from a couple of things that i cited in brief that he included in his pro se pleadings as well as one of the doctors that butler's doctor marine riordan's comments that he believe that there was a conspiracy among courtroom personnel to compel him or force him coerced to enter into a plea agreement obviously the standard changes dramatically if we have that type of situation under united states versus old will you get a new trial if there is any reasonable likelihood that the perjured testimony could have affected the judgment of the jury and there's no question that mr breedlove testimony could have affected the judgment of the jury plus there's also double jeopardy implications so by not having that hearing we were not able to explore what breedlove meant in those pro see violence and examining the other evidence in light of determining whether or not there's a reasonable probability a lot of the other gov the government evidence in this case was problematic and i had argued in brief about this being a trial by grand jury testimony and in that grand jury testimony numerous of these heroin it judge posner s me a question a few minutes ago if i go home and i tell everybody that the court asked me this question we all know because we're here that it wasn't all three of you acting in unison but instead it was judge posner and that was the areas with these grand jury witnesses where i was not able to effectively and fully and fairly cross examine to find out where exactly who did what we see two other examples in this case of where they had kept one of the testimony of gutteral white who at trial indicated that even though in the grand jury she was asked questions about j t and munchie selling her drugs for gun when it came down to it at trial she was cooperative in cross examination and she admitted that it was actually j t who sold her the drugs not robert pressley nicholas rielle the detective that testified immediately examination and didn't feign memory problems he said they had it was j d who sold him the drugs there was another man with him but he did not get a good look at it so certainly in that situation it wasn't j d and munchie  t and robert pressley selling nicholas ryall the drugs it's my position that under united states versus the caro i was not given a full and fair opportunity to cross examine these witnesses and it should go to the weight of your honor's consideration of whether or not there would be a reasonable probability under united states versus gonzales i'm still having a hard time buying that argument because on cross examination you brought out the fact that you know there were changes in their testimony that i mean you mean cross examine them on that and some of the issues your honour's correct however i'm other issues they claim complete lack of memory guarding what their grand jury testimony right but that gave you an opportunity to then argue that they could not be trusted and you did argue that in closing argument right but they still get the substantive evidence where it's right on paper in that's the way it's phrased by the prosecutor isn't it true  that you saw j d and munchie mixing here like i get that but that's something that you argue to the jury like the jury could see plainly that here is the grand jury testimony here's a witness now cross examination can't remember anything be trusted you make those arguments or words to that effect but then you also get countered with the arguments your honor that in the grand jury which happened years before it's fresher in that person's mind and maybe with time they it's and understandably these things were fresh in time so then that really is getting to the fundamental and we need them for the rule the rule is sound your honor and united states versus the carol are not allowed to do that you want to question the witnesses with the grand jury memory problems who in the grand jury said j b and munchie acting as a functioning unit to break it down and get into actually who did what contrived what do you want done about that seem contrived a new trial judge so seem contrived so that their grand jury testimony was probably accurate it was you know seem contrived that the memory loss was probably inaccurate you have frank freeman who knew skeet mcdowell well looking around the court room going who's speed who ski i don't know who steve is it was almost ridiculous it was almost ridiculous you could saying you had a lot of good arguments which the jury didn't buy now are you saying that he should have been acquitted your client should have been acquitted under the reasonable probability standard i  yes or no yes so that's what you really are you should have been acquitted were not enough evidence to convict no son ever especially with breedlove testimony removed with his king to testimony there my position is it my position was that the district court clearly erred in both the drug quantity calculation as well as denying the motion for a variance and in looking at that i understand and i agree with ms blue cheese argument that his status as a career offender drove his sentence however that would be more significant under a pre book or analysis post book or the stat the statute is twenty years to life and my position is that there was not evidence relied upon by the district court with the sufficient addition of reliability on sure it's probable accuracy and that the sentence was way more than what is sufficient but not greater than necessary to meet the societal goals s that section thirty five fifty three a what do you think with me that would have been the maximum reasonable sense i believe that something in the twenty year range twenty five year range that's similar to what steve mcdonald the leader who had a prior first degree murder conviction who formulated this conspiracy who was the leader and organizer of it received i think it would be a lot closer to what the government felt was sufficient but not greater than necessary for mr breedlove who sold heroin to a young lady and she died from it soon after she took it is sufficient but not greater than necessary it was ten years ok start by discussing the defendant's argument regarding the district court's denial of the defendant supplemental motion for a new trial the district court here is in the best position to view the evidence at trial and in fact viewed all the evidence at trial including mr breedlove testimony but all the other evidence which included testimony from the people who resided and were visiting the long awaited street apartment it included people who had bought drugs from that in apartment meeting looted the landlord of another apartment from which the defendant sold drugs it also included significant physical evidence that was found tried this case a couple of times was that right just part of this case was only tried once ok there's been other proceedings with breedlove but this case was tried once and after evaluating all that evidence the district or determined that under the miter on standard even if assuming that breedlove had committed perjury there the existence of the perjury would not have probably have led to an acquittal had it not been heard by the jury or the district court did not abuse its discretion in making that finding as the district court noted the evidence against the defendants was legion and it had committed perjury so there was no hearing needed on that issue and assumed that breedlove was not competent at the time of trial so there was not a hearing needed on that issue as the defendant has argued that hearing should have been allowed to determine whether the government knowingly put forward perjured testimony there's absolutely no evidence that the government knowingly put on false testimony at the defendant the only evidence that the defendant has even cited is the breedlove pro se submissions months later and as the district court determined none of those proceeds submissions none of the allegations in them brought into question whether the government had knowingly put on fa now is that if that if he was sixty five when he was released he would go back to the drugs business it's possible it is it possible that are there any sick are there any sixty five year olds and  sadness that keeps them incarcerated beyond the age at which they would actually pose a danger look the district court found that he would still pose a danger well one of the witnesses here frankie freeman he was of an elderly age i don't know his exact age but he was of an advanced age he wasn't merely in his thirty's as the defendant was here and judge kampala found that the defend just or no regard for the law and that a lengthy prison sentence was necessary in order to protect the public from him and give him just punishment and as well as a deterrent factor and some of the did the judge say that is i am not sure if that i don't believe it's in the record that the government specifically cited the age that it would give the government to recommend a length of sentence the government recommended that the defendant how people change over their life and whether heroin is the kind of trade in which sixty year olds and gage since it's a dangerous business it is a dangerous business and here the court found that  defendant had no history of ever having legitimate employment you know but you're missing the whole point which is that people change between their twenty's and their sixty's is there any discussion of that the judge said you know i know that there aren't many sixteen year olds in her that her own trade but this guy is you know exceptional and he's going to do it until he dies at whatever age the court did not specifically where is the evidence the judges ever think about in this case the aging problem the court did not specifically address that and it sentencing if you can are saying specifically as if there were some of implicit discussion of age which there is the court did not address that the court looked to the defendant's past why and what what were the prior convictions and what was there or did it did he just go from one to the next to the next assumes he got out or essentially his career if he had his first conviction at age sixteen he was convicted of manufacturing in delivering controlled substance he had a home invasion with a firearm arrest for which he received a sentence of ten years he had an aggravated battery conviction he also had several convictions for soliciting it unlawful business in which he was found on the streets yelling to cars passers by asking them if they wanted weed or other drugs is there were there any shooting there were shooting chips cheated with this drug conspiracy that he was linked to there yes the shootout that happened on december first two thousand and ten the defendant that there are witnesses that put the defendant in that shootout he also is your honor previously mentioned he had a naked forty seven assault rifle this is after the shoot out right yes after the shoot out she said she saw them leaving the apartment with guys and then some shell casings we cover in cooper's car the guy pressly believe that the shell casings were recovered from the apartment from the arrested so he didn't just barely get over the sentencing hance what aspect of the additional convictions he was he had many more than necessary to meet that he had in total he had seventeen criminal history points including the convictions that resulted in qualifying the court also found that the defendant he would get out of jail on one sentence and then within four to six months later he would have another he would be can breaking the law yet again and that would be back in jail  a ten year sentence hadn't deterred him and the court found that it within guidelines sentence was therefore necessary unless the court has additional questions for me i will close by asking that the court affirm the with one exception that being a bottle of lactose some type of vitamin or supplement that had one latent print that matched pressley is fingerprints were not on any of the drugs any of the baggies any of the gloves the scales the guns any of it which i think also goes to the issue of whether or not thirty six and a half years was sufficient but not greater than necessary even though rita in a line of cases say it's presumptively reasonable when you're talking about the heartland of a man's life being taken away from him it should still be evaluated with some degree of scrutiny and with respect to the comparisons to breedlove and to make doll who ran the conspiracy there's no question the mr presley quantitatively has a worse criminal history however he didn't murder anybody like like macdonald that he didn't cause a young woman to die from heroin overdose or heroin he sold her for a hearing with mr breedlove on the recantation and alternatively to that remain and with instructions to consider a greater i mean a sufficient but not greater than necessary sentence which i