a motion for a new trial based on newly discovered evidence and at the suggestion of the calendar work at least raise the issue of whether or not the court wishes to hear the appeal although indictment resulting in a conviction of the first the narcotics conspiracy count judge forrest just dismissed on a rule twenty nine counts two through five and the remaining count the jury hung on the primary argument by the government out of the summation was in fact that matthew davis was a his primary role was as a violent offender was made on the base the last day that evidence was taken and as a result of that the charges the charges of the judge the all would have been extremely different had not if the rule twenty nine had been ruled on by judge forrest at that time but the government argues that the evidence was overlapping in any event it was all background information to what this defendant was charged with well your honor i mean the jury deliberated for four days or three and a half days with evidence that in our view or counts that should not have been before  what it boils down to that the evidence is not exactly the same first of all the the summations would have been different the charge would have been different and what are those differences well who knows what what infection by kevin wilson's testimony whose what had a completely different description would have been a different evidence leapt over during those three and a half days of deliberation when the jury saw her heard about the murder shocked they want to her about the murder but whether they would have heard all about all the other murders in the case and whether the the charge would have been the same which spent a great deal of time there was a great deal of evidence having to do with  value of what money was was going to be expended what was going to be paid there was ballistics evidence there with gone evidence and if if in fact the rule twenty nine had been granted before the charging and and kevin wilson now i don't know during those three and a half days what poison or what infection might have leapt over from the gone up it ends from what he was saying into the  a per se rule that district judges have to rule on rule twenty nine motions before the jury deliberates absolutely not that's good and wouldn't and following up on that would you agree that it's it's at least common practice if not good practice to wait to you what the jury has to say move forward to smith's accounts well your honor i think in this case when you consider the whole record that there is a great danger that i am and i recognize the point that the judge's job is not to evaluate credibility and my my complaint would been that the motion for a new trial should have occurred right after the rule twenty not given the certain because i would suggest that that in fact the record was infecting who knows what the jury did during that time and in this it is we never know absolutely and that and that's why i'm saying that when you know that the judge who sentenced this individual that this is a situation where under the circumstances given the judge a strong view of kevin wilson and the last no value to his testimony my suggestion is the better course would have been and the fe please the court my name is jessica lark and i represent the united states on this appeal and i represented the united states below before judge forrest matthew davis was convicted after a failed fair trial and he received a fair sentence i'd like first just to comment on a couple things that counsel for the appellant said during his argument first he argued that the government acknowledged that the that the evidence of matthew davis's dealing of drugs separate apart from in force or evidence as he calls it was a week that was not at all the case as we've outlined in our preferred as we can discuss here even more briefly there was plenty of evidence about matthew davis's dealing of drugs separate and apart from violence and i guess i know the courts from earlier with the records i don't want to go into it too much but karim thomas testifies about a two hundred gram crack deal with another individual's remember the conspiracy referred to as pudge he testifies as well about matthew davis searching for a missing kilogram of cocaine after pudge was killed kevin wilson testified not only about the murder but also at in the same timeframe as that two hundred gram crack deal seeing approximately two hundred baggies of crack cocaine in the basement where matthew davis was say was staying in a true that he has an ideal in drugs it's just that he denies being part of the conspiracy that he was a drug dealer he was a small drug dealer and not connected to any larger group well i think that is part of his argument and i think that that that the evidence also belies that because for example karim thomas testified that he owed a drug debt to potch and when  believe that kareem thomas was selling crack too slowly he would text cream thomas things like i'll get mad on you and that would make creme thomas concern and that shows that matthew davis was a member of the conspiracy also after a wiretap recording matthew davis is recorded talking about he says about pudge he didn't have any problems in harlem and as the record made clear this was a large ranging drug conspiracy that encompass both harlem and the bronx so matthew davis saying punching have problems in harlem he's showing that he's intimately familiar with where pudge is dealing drugs who he might have problems with this is pretty  that's corroborated by other people and he puts matthew davis right in the middle of those people as part of this murder conspiracy and then for example bernard folks who is a member of the conspiracy a member of the rival gang he also identifies these individuals as being members of the rival gang he doesn't know matthew davis but he says for example kyle harris roger key there's also phone records that show contact between  phone kyle harris's phone to ring joseph phone all at the time that these events are taking place that's entirely consistent with the timeline i sat by kevin wilson and other members of the conspiracy matthew davis's name and and jail number are in roger keys address book matthew davis is it is surveillance video after pudge's death looking for as  thomas explains they're going to look for surveillance cameras at the red rooster to figure out if there's any way that they can try to establish who killed to what happened to that missing kilogram matthew davis makes a threat to  shoot ball the in the head because he cannot determine in terms of trying to figure out the location of the missing kilogram there's in addition there's testimony from kevin wilson that's corroborated by surveillance video matthew davis and other members of his conspiracy going to beat up dante barbour in the wake of violence that followed the terry harrison murder so we think that all of this establishes it's not just one incident but that he's showing a pattern of nappy davis's involvement in this conspiracy for two years from two thousand and ten to two thousand and twelve his testimony was important that he was not the sole witness he was not the sole witness who talked about matthew davis or his involvement in this drug conspiracy and also i think it's important to point out that kevin wilson was heavily corroborated by a lot of the independent evidence in this trial that he had no knowledge of things like cell sites phone records and surveillance video that heat when he told when he relayed his account both to the government and at trial he had not seen any of that evidence and so  while this appeal is pending and if she were to grant it or she if she wanted to grant it the procedure of course would be to notify the court this court that she wishes to grant it we also  hope she might decide that she has asked the government to respond to the motion in approximately in a few weeks so we believe that she is going to be considering it in the near future we might decide this appeal before she rules on that motion is that correct of course i can't anticipate exactly how quickly you will decide the appeal the whole course of events we might do that is possibly of the effect of that i don't not think that chance would not point out to judge far east that this court affirmed the conviction that motion was pending and argue that that is dispositive no your honor because i think that the issue that's presented in the motion for a new trial based on newly discovered evidence is a very narrow one first in addressing that motion before a judge for us we would argue whether or not about whether or not we believe that the evidence is new is newly discovered and then of course if we assume for purposes of argument that it was newly discovered what impact if any we believe it would have on the trial and then if she after hearing that argument tonight that motion for a new trial than the  defendant could file a new appeal of the denial for a motion for a new trial but we don't actually think that the result of this appeal is going to impact that thank you thank you very much basi in enforcer theory yet is that in fact kareem thomas testimony about the presence of my client at this meeting in october twenty fifth two thousand and twelve was anything but as a violent offender the new trial and obviously i cannot predict what the judge force is going to do she is given till november thirtieth to be precise for the government to respond that it was three or thirty thirty and and and she issued that which actually would be on your docket but at the same time the point being it goes to the very heart of the government case that in fact corinne thomas is really the only witness that they can argue is a credible witness on the reasons for the discovery corinne thomas testimony about his so called drug dealing is based on double hearsay and unavailable witnesses number one he never speaks to we never sees he may and she's a very new discovered evidence goes directly to the purina thomas testimony at trial why was matt davis at the october twenty five meet at on your lives takes three points  obviously the government is going to respond in vigor but the three points are won that night davis was there at the invitation of the family he was not there having anything to do with roger key or luci number two that he was there they weren't worried about the chemo i don't all they knew where the chemo was at the time he had no no role having to do with with narcotics and number three that he is there is that in fact the intercepts that davis as pointed as you explain now we're not in position to know whether the evidence is new or could have been obtained or anything else i understand that all i'm saying your honor is i want to make the point that in our view stand it is a very important motion being made and it goes to the heart of the government case is what was matt davis doing at this so called that the government meeting that the government has characterized him as a violent enforcer it goes directly against that and is based on