good morning may it please the court my name is martha hall i represent mr banks robert banks aka pepsi in this case i will be spending the eight minutes in my opening argument on the  brown will address the statute of limitations supreme diamond de lay destruction of verbatim statements violated chinks in the due process as well as the erroneous admission of the summary an expert johnson and the false testimony of area and and project at tax returns ok so you didn't list of the definition of the enterprise which i think was maybe what we were going to ask about so which of you should be asked to that would be me ok and i  would say that the issue on the enterprise also segues with the jury instruction which mr lemon briefed on behalf of mr brown and we joined it so the main problem here is whether or not the government showed that the conduct of the defendants and we can say that the conduct was not good that the conduct of the defendants was for the purpose of to facilitate the management in operation of the enterprise and i'm taking that facilitate the operation and management of the enterprise from the jury instruction from young that cited in mr lemon's brief because it does go directly to the issue that was hotly to one of the issues that was hotly debated so do you think the instruction was adequate or do you think there should have been a more fulsome instruction on nexus to a criminal purpose or cooperation in a criminal purpose oh i think there should have been a more fulsome was one asked for mr lim and proposed an instruction and unfortunately a different and we're on the right and it is it appears and i will defer to him because he's more familiar with that issue however if i'm correct i believe that the critical statement was omitted perhaps unintentionally by the district judge in the actual instructions given but i'm going to defer those facts to mr lemon though i haven't understood his argument about the words that were omitted from what was agreed to what was said out loud to really deal with what you have in your brief about whether these people were really acting as independent criminal actors or whether they were cooperating together in an enterprise i don't really think the omitted words speak to that very clearly anyway well perhaps they're not clear because they're legal istook the facility to facilitate you know the intent to facilitate the operation amendment of the enterprise to me is the intent that your conduct furthers the purpose of the enterprise but i thought your argument went more to does the purpose of the enterprise have to be some sort of cooperation in criminal activity i mean if the enterprise is a group of friends i thought your point was that's not enough so i don't know i mean any way we can write no that's true you are correct that that is that is a large part of my argument the problem is we don't have an instruction that tells a jury a group of friends is not an enterprise you know it is presented to the jury and unfortunately  and we believe that those terms go to part of the problem in this case i think that there were several problems with the enterprise but one of the main problems is that the government just did not go beyond proving socializing and friendship of these individuals who grew up in north park to the prove to club but not again not an enterprise yes that's exactly what we would say and even the but you were able to argue that t jury well part of the problem is that i don't think that the instructions adequately addressed it number one and number two we had these experts coming in one unnoticed summary expert johnson that mr lippman will address in the other which is detective reach who came in and testified and you know their testimony really was problematic and i will talk about detective reese because he was the one that i address his testimony about the fact that they were all part of a cream criminal gang was really based on social media you know he would he would talk about looking at these text and hash tag black my black mob and hash tag scandalous means that they were one unified criminal gang and that there are two problems with that one is he's testifying based on social media and the other is he's invading the province of the jury he's not testifying based on any expertise that he has and as a matter of fact the expertise that he had about what constitutes again what are the and disha of gangs all of that weighed against finding that this artificial construct black mob scam us was a good thing a criminal gang all of it weighed against finding even that scandalous was a gang a he claimed that he recalled that scandalous had at one point been documented but he had no evidence of that he talked about different ways in which it was not a normal gang wasn't territorial it didn't get in fights with other gangs it got along well with both the bloods and the crips let me offer you an analogy and just get your reaction to this what if the evident in stead of pimm's we had street drug dealers ok and they occupy different corners within a defined territory ok and within that territory they established a relationship ok they celebrated the fact that they were all in that territory they advertise to to the world through tattoos insignia they on occasion work together as in offering rides to prostitutes and things and offering legal assistance in case an arrest occurred and they put they used events like a drug dealers ball to say to the world we own this part of the tour of the territory but there eats individual drug dealers they don't share their profits they may not have a common source they don't have common customers indeed they compete for customers are they acting independently like your clients or are they part of a gang that has the purpose of either helping each other in certain aspects or working together to intrench their control through reputational enhancement over a particular territory for a but common criminal purpose we're all pimping here or we're all selling drugs right so long where you really have to get into the weeds on it because if you had all these drug dealers and they were advertising you know th avenue in the gaslamp in san diego is the place to go for drugs and we're all here waiting for you all right that's one thing in the players ball no absolutely not in fact the players ball goes the other way mr banks goes to the players ball and he at no point saying you know advertising scandalous or black mob scandalize all his providers of sexual services his prostitute the testimony is that they often t identify there was no particular i'm sorry i'm sorry for interrupting you i guess i'm getting a little excited there was no prostitute who had a tattoo of that related to mr banks the tattoos related to the mr pittman who was not even on trial he was alleged to be a member of the enterprise but he was not on trial now if we look at those as to their relationship well the tattoos were not scandalous or plaque mom the tattoos were team tip tip being a nickname for pittman or miss lucy another nickname for pittman but not scandalous b m s not even you know north park or north which the prosecution wants to focus on  so what i'm having trouble is why aren't all these questions questions for the jury but you know you could say well the this isn't enough for you to decide that this was a common enterprise or something like that but the jury has to  er from the evidence right so our argument is initially that it's just insufficient but in addition i think that it does it does provide the foundation for finding that the jury instructions for this jury instruction on an enterprise was prejudicial leaving out certain information that was critical to the argument that these you know that just independent conduct by itself does not make an enterprise if we don't find a problem with the jury instructions that made that was outcome affecting as your argument on sufficien i don't know if the argument weakens i would just say that it probably is not as strong as some of the other arguments in the case what do you think oh so the jury was told it's not enough however that they simply met discussed matters of common interest acted in similar ways or perhaps helped one another rather the government must prove that there was a plan to conduct or participate directly or indirectly in the affairs of the church enterprise through a pattern of activity so do you think that's not enough or do you think the issue is that the jury just was swayed by the inflammatory evidence and found that with met when it wasn't i think i would  number two i think that the inflammatory evidence was really very overwhelming i think the evidence that it was overwhelming came at the very beginning of the government's closing argument where she says to the jury you probably feel like you you're in the matrix you've taken a red pill that reflects i think how inflammatory the videos the expert testimony and all of that evidence was in this case so because you  pointing to this other jury instruction but in what way would that have helped with adding to what i just read i mean it seems like what i just read is is that we really did to the truck argument you're making it it's related to the argument but i think more than the phrase that was well i think that the problem is is that the phrase that was omitted tells the jury how they need to find that any individual conduct did sister did are or could be said to be evidence of the enterprise does that make sense it has to they have to intend to facilitate the enterprise right there we're told one becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy i mean i'm just not sure that this omitted phrase is different than what was read or better than what was read maybe there's some other instruction that you'd like us to say should be in the instructions but i don't know what that was  and if it's not that then it seems like your argument if i understand it is more the videos the text whatever inflame the jury and then they went ahead and convicted under the standard that actually was ok but they did it erroneous admitted yeah so i was trying to figure out if if that's your argument so there's argument or kind of intertwined but like you have this argument that that the jury there was really no evidence of this cooperation it's there independent actors but then you also have this the videos are inflammatory argument i mean what do you think if if we were open to the idea of reversing the rico count which of those is better i think the forty three is actually better i  think that that is is is a very strong argument the amount of impress impermissible inflammatory and prejudicial information that came in through the experts and the videos was just very very troubling ok and i see that we still have some more questions and they just ask you what you what you think of the hope we have arguments here what do you card is the strongest argument or the actually the strongest argument in my favor i think prolonged traffic stop and then very close to that i think is the cumulative effect of the admission of johnson the summary detective johnson who got up there until the jury how he had spent hours and hours looking at you know not millions but thousands of social media i mean his self aggrandizing account of the investigation really set the tone for the runaway train so to speak johnson and asked of the arrest argument isn't driving without a license a misdemeanor and at that point can he be arrested i don't understand why you think that's your strongest argument but well the problem is they th problem is when did they know that he was driving without a license but then they know immediately you know the and i went back and reviewed the transcript last night what happened at the testimony a scowl and who was the one who was living because the other one it died the testimony of scotland was that as soon as they pulled him over he ordered him out of the car ordered him back to the police vehicle patted him down put hands on  before anything else under knowles the u s supreme court at the moment he patted him down he needed reasonable suspicion for a crime and he didn't the only thing he had at the time he put hands on him was an unsafe lane change over a car with four black individuals in los angeles on sunset boulevard they were not traffic cops he did not ask him any of the traffic questions he told him to come back to his car patted him down the testimony a scowl and said patted him down checked for id no id handcuffed him put him in the back seat of the car he was actually questioned on cross examination several times about you know when did you find out that he was liason and at no point did he say he told me he was unlicensed at the sto or i found out that he was on license at the stop and as a matter of fact at one point when he's asked what further ok at one point he testify scowling testifies upon further investigation we learned that the person driving the car was unlicensed then there was the question what was the further investigation and instead of answering the question scowling goes off and seventeen dollars he indicates skall and indicates that the determination that he was unlicensed was made when cottle the deceased officer completed his report which would have been back at the station which makes sense because he probably waited until he got back to the station to run the computer check there was never a traffic citation going to find that there was no license on  i mean you seem to be making a distinction about between being that he had no license as opposed to he didn't have the license with him well i think that that's a critical issue distinction for whether or not a crime was committed what he said check for i no id after he patted him down ok so it's that but it was at the scene it was at the scene standing next to the police car correct but not having your driver's license is not the same as being unlicensed not having your driver's license on you is not a misdemeanor and he could not have then legally arrested him for the commission of this crime you know and when he's pressed on the critical issue of when did you learn that he was  unlicensed he goes all over the place starts talking about juveniles and then says cottle cottle found out when he completed his report which would have been back at the station well after the thirty minute detention and that's be the purpose of the trip so scowl and said scowling said it took about five minutes to handcuff banks and put them in the back seat of the car that's an arrest under also th circuit law then they go over to the car to question the juveniles which was the questioning was conducted by cottle not by skull and cottle the one who wrote the report who is now deceased cottle in his report nowhere says that the juveniles in the car said they were there to be street walked he only says they had changing stories about their ages and therefore they wanted to take the passenger the car down and the juveniles down to the station to find out  if they were contributing to the delinquency of a minor there was no evidence at that according to cottle's report at the scene that they were being street walked could i ask you back on the rico count so hypothetically if you persuaded us that there was a problem with the rico conviction what does that do to counts two through five they have to be reversed because of all of the evidence that came in to prove the rico you have evidence of othe persons pittman and williams prostitution and hawaii and dim for you have the big map you know that johnson testified with all the pinpoints everywhere about all the cross country pumping you have all of the expert testimony about pimping and prostitution which was relevant to the to the rico when you have the gang testimony the gang testimony that came in to prove the rico which is very prejudicial none of that would have come in especially other people's crimes and their association with mr banks and his other pimping activity would not have come in to prove those counts two through five and mr in march two thousand and one mr brown was arrested in los angeles on suspicion of pimping three minor females the d a in los angeles declined to prosecute that case pacifically citing insufficient evidence some time there after the videotape statements of the alleged victims were destroyed and that was routine apparently and we really don't that's though i believe was the proffer of the u s attorney's office but we don't really know in two thousand and ten the investigating officer who interviewed the alleged victims and who wrote all the reports was killed in afghanistan in nov th teen almost fourteen years after the incident the u s attorney's office for the southern district pulls the l a p d case file from storage and charges mr brown in the superseding indictment with three counts of child sex trafficking and about twenty four other people's understanding well except these three counts were specific to him so i for i'm focusing on these three whether it be the alleged victims or the surviving officer with any consistent statement because the verbatim witness statements have been destroyed and because the investigating officer was deceased so the two questions before this court are number one whether the destruction of verbatim witness statements videotapes of the alleged victim actual prejudice and number two there's a capricious fourteen year delay in prosecution favor of the united  states again the standard of review here is should be dyno vo because it is the failure to preserve at least potentially exculpatory evidence if not clearly it wasn't the united states that destroyed the evidence that right well it was destroyed because they didn't prosecute in a timely fashion believe in what again that's there was a really diverted the evidence on that but i believe the prosecutor proffered that by the time they got around to asking l a p d for it it would no longer existed so it wasn't the united states  destroyed it well i think they were certainly but for cause of it the statements would still exist had the united states prosecute the case in a timely fashion if they until they decided to  pursue the case right was there any obligation on the united states part to ask l a p d to preserve any evidence relating to the two thousand and one or a us well i mean i think that kind of stands this question on its head and this is that we have a prosecutor we have to find out if there was a duty the constitutional duty that was breached only well i mean i think that's the inquiry this court is undertaking now was this prejudice or pretty indictment  ed and again but what is the evidence that the united states had its theory i mean you have an argument that they don't have a theory anyway but assuming they have a theory about rico what's the evidence that they sat on it for ten years because they testified at several hearings their agents testified that they began their investigation into what they characterized as black mob sly scandalous sometime in late two thousand and twelve but we don't have any evidence that the that the video still exists in two thousand and twelve daily i mean that's way after it ten yeah yeah but i mean i think that underscores why the government shouldn't prosecute people fourteen years after the fact well it's so this is it seems to me that your argument this cluster of arguments is more like you shouldn't have a statue  limitations for this kind of sex crime that goes on this long and there's a due process problem with with prosecuting such old crimes but you didn't make that argument this is well i made a statue of limitations arguments completed is a different one yes yeah so so isn't it more in that the nature of that that it's just on it seems like your argument is fundamentally it's just unfair to prosecute someone this long after the fact when everyone has forgotten what happened no i think it's unfair when you have a delay that is this extreme which is unlike any delay cited by in any case by the government but delay isn't really the problem because by two thousand and twelve is too late so your argument i think is more like you just can't wait this long whether it's delay or just not delay but whatever it is it's too long the problem is we have to keep coming back to this but the reference point for this entire analysis is that these are verbatim witness statements but for the delay incident you can when the tapes were destroyed all we know was that some point one of the prosecutors came to court and so we don't have we think they were destroyed we don't without without so i'm using to late i mean some kind of intentional waiting there's no intentional waiting until two thousand twelve and we have no evidence that the videos were destroyed after that so it seems like your argument isn't really intentional waiting it's no longer find of it's just been too long but it doesn't have to be intentional the cases are pretty clear the negligence is but there is even negligent waiting i mean there's no way they are supposed to doesn't allow because we know that the investigation into the scandalous and related mob allegedly related mob gang club whatever did not begin until two thousand and twelve there wasn't any intent to knowing of the and criminal activity of these individuals associated in this fashion there's no evidence of let's just wait until our investigating officer dies and the videos get destroyed or let's sort of forget about it gets distracted and do other things and then  r after more time then due process allows has expired go back to it having dropped the ball but they're not it's not my client's fall that's it's the government has an obligation to prosecute people in a timely fashion or don't do it out limitations tell us well that except the statue of limitations the cases also say don't they don't resolve this issue in every case but tell me what is it that the federal government did wrong here they waited long enough for baden witness statements to be destroyed and now they are using the fact that they waited this long to prosecute the case let's assume that justifies the let's assume that it's the routine practice of the san diego police department once a decision is made not to pursue any criminal charge because they have determined insufficient evidence at that time that it is their routine practice sometime within a short period after that to get rid of the evidence because they're not going to do anything with it let's of at what point did the government have and did the federal government have an obligation to say hey i'm going to go after these people and i'm worried that anything to do with the government's obligations the question is if you just did this i thought maybe i misunderstood you know i'm saying that there's two proxies one is the prejudice yes this could be prejudice because verbatim witness statements of the alleged victims have been destroyed this would that violation certainly had the same it's ever been in the government's possession that's a separate question i get to the minute but there's certainly prejudice the nd is you balance the delay against the reasons for it so we have an extraordinary delay of fourteen years which is unlike the delay in any other case that cited by the government and the reason it's a length of time and not a delay it can't be a delay in the sense of intentional delay until the federal government even starts thinking about it which didn't happen to two thousand and twelve well i disagree with that because it's not the definition of delay is not an intentional to the way you could be negligent a failure to pursue something in a timely fashion of the case law so that's that's really the basis to be  the duty it's it it seems like maybe if you have other arguments you should move on to something else if you want to use your last minute and another point just i don't know if you do ok well i guess i'll save it for rebuttal not a new chance to address the statute limit rey for the united states try to think of where to begin here maybe one thing i'd like to to start out with because i'll treat quickly as the th amendment claim because i think i have a cite for that thanks  excerpt of record pages one hundred and sixteen to one hundred and seventeen because the issue there is about at what time did they find out that he did not have a license in his possession and i'm going to read verbatim and it's quick not license in his possession or unlicensed not licensed in his which we would argue is still probable cause that unlicensed to arrest to have probable cause you know if somebody doesn't have a license in the possession we would submit that that's enough but i'm here to have a misdemeanor yes the kalpoe vehicle code twelve if there is no license was reasonable for the officer to at least be suspicious that there was no license at all exactly you're saying it well we would find that it would actually come to probable cause your honor ok but it was any time i get stopped because i ignore the stop sign because i'm thinking about a case and i have forgotten my life well back in my other purse and officer is going to look at me and say i've got probable cause to believe you just don't have a license is that  did the fact that he had nothing on his possession was a deuced immediately in the question is what did you do after you had the driver come back to your car made contact with them patted him down checked for weapons checked for id he didn't have any i next question did he have a driver's license answer no and later at the bottom of the same page at the time that you encountered the defendant by your patrol car or the person who identified himself as mr kelly he didn't have a driver's license i don't recall any driver let what point and what was the necessary information or probably were inferences that the police officers had to have before they could pat him dow do california under this circuit's law right usually there has to be some kind of reason to believe that the person poses a threat and it doesn't look like that was present on this fax but i would say this to nothing was found from the threat of what threat to the officer safety in my circuit it is almost routine practice to pat someone down just to be sure they're not armed if you pass someone to get out of a car and it is not constitutionally offensive to in some cases to me if you have enough information to ask someone to get out of the car right and follow you to a police car then and then they are standing right next to you then you have a ability to check for weapons to be sure that officer safety is not compromised just stood in the court it is said so you're saying that that would not be the case under th circuit law i don't believe at the time of this incident was that clear but my understanding is that in recent d years the th circuit has sort of parse that out all right thing but of course we know under pennsylvania versus mims from the late seventy's an officer definitely has the right to ask the person to come out of the car but our you know our point here is that nothing came of that pat down and that they immediately asked for the license there was no license and that much is at least clear from the record and of course we still stand on the point that this argument as far as the arrest is waived in the district court the only argument that was made was that it was an unlawful prolongation and here we would say the overall you know you have somebody who is weeps and say no breeze doesn't have a license turns out nobody in the vehicle has a license in that the record you know is also if you review that pretrial suppression hearing testimony of officer schelling he testifies that the girls in the back seat of the car indicated that they were there to be street walked in hollywood and i know the defense tries to quibble with how that conflicts with the the rest report all that went to weight and credibility it's not enough to do a where to find a suppression so at least wanted i feel like that part of the record was clear from banks excerpt of record one and seventeen now moving on to the definition of the enterprise minor standing the record the primary dispute the parties below were about the three boil factors that was what was litigated pretrial of course the supreme court in boyle in two thousand and nine says an association in fact enterprise has to have the three elements a common purpose relationships amongst those associated and longevity in this court is made clear in the christianson case that's not a very demanding read earlier it completely allowed the defense to make their primary claim that these people were just friends but you know what we wanted to point out i mean when you look to the relationships probably these gains you know the question i think of do you agree that the individuals in this enterprise that you're alleging needed to be working together or agreeing together to help each other commit crimes yes ok so what is the evidence that they did that well st of all and i know i believe it was rosenthal touched on it through their social media they give themselves a certain prestigious in what they do what we pointed out it's not just you know there were a certain amount of but it really doesn't help you have none of it is what we're talking about so where is the evidence that they were working together to defend a territory for pimping well for example do you have a subset that comprised members of both of them the y p f a b click to that was the enterprise that's not what was charged well not per se but the black mob scandalous working together was charged as an enterprise and this was a subcomponent i think it was within the juries well so how do we have evidence that everyone in bought black lie about black mob and scandalous were working together or had an agreement to further if the theory is or preserve a territory maybe the theory is some other thing i don't know what your current what your idea is of what they're going to do and why you would ever want what is  a police car he's talking to banks they're talking about this is how we beat the case i think that's important evidence you also have supplemental excerpt of record one hundred and sixty seven to eleven is helping after the fact helping to commit the crime well i think at that point because they don't know that that that it is a done deal now i think it does i think it's something the jury can infer it's not like you know i believe the prosecutor argued in closing it's just like oh what are you doing in this police car i go to arrest her to me it's like look they're talking about common cases one of them  talking about i had a case like this you got to make sure with the juveniles that you don't get you know attached to them i mean it at least shows them working together and they look at can you give any other example that actually goes to committing the crime rather than helping someone get out of jail later or not be this is the waffle house the waffle house that awful house i mean even if they're all at dinner and they witness one man telling one woman go put an ad how does that show that they've made an agreement to help each other do that well i think by acting in concert i mean i don't maybe now i don't know that you know i don't know that rico maybe when i agreed to it to what you asked me a few minutes ago i mean i don't know that it requires that level of specific it's a year and under him but go ahead you know just under boil i mean you've got the three factors you've got the common purpose the relationships and the longevity so what is the common purpose to promote prostitution i mean it's one of our territory in the north territory you know it wasn't just that you also have the i think it was a march two thousand incident where they sold crack cocaine you had tony brown together with members of black ministers basically a pimping case but that was the central purpose of what about evidence of shared ride sorry it to how does that play into your theory was it frequent enough to support the jury i shared rides i don't know if i understand that they rode together traveled together in a single car to take more than one prostitute to what las vegas or to come to a player's  something like that well i mean it shows them acting in concert for the same purpose and again like when you look at the social media it says black mob plus scandalous we're all we've got i mean i think you can you know at least on a sufficiency review looking at the light  favorable i mean you know it doesn't have to be the strongest case it just has to be something that a rational jury could find but when you say the purpose was promoting pimping so i mean if someone wrote a book saying pimping is a great enterprise  enterprise that we're pimping is a great thing to spend your time doing that would be helping each other in a relevant way for rico to be an enterprise together i mean even if three of them wrote books about how pimping is great how how is that i that doesn't seem like enough well maybe by itself it's not enough your honor but here what you have you know when you have evidence they said we've been doing this since the ninety's you have them together there celebrate they go to players balls together any plans i like reading a book isn't it i mean what's the difference between the players of all and writing a book well in and of itself i mean it's more it's more concrete activity i mean you know book is an idea could say hey you should go out and pip but i'm not going to do it a player's balls these are these defendants with their prostitutes actually going to an event that celebrates what they do which is illegal and you know it's they're there together there's a picture of aaron pittman with yasini i mean it's not just something that's in the ether or a st image is evidence that each of them individually was engaging in pimping but how is it evidence that this entire block mob scandalous group was were helping each other because you know i think it's something that the jury can infer there are in the same territory they every time or you know a lot of times they're using social media they say black mob plus scandalous like it's never individual tell me the rule in your mind the combination of the players ball which sort of celebrates publicly come with us and you make a lot of money or stay away from us because we really run this part of the world for a criminal purpose and the various social media exchanges in which they show huge amounts of cash and celebrate that is the proceeds of their illegal activity how does that sort of shared publicizing of their reputation their success their power over their their prostitute how does that specifically help you in your burden of proof for not by showing you know telling the world and look we're strong come join our gang this is what we do and we're very good at bragging about it and they get prestige and recognition homicidally at and it's all part of membership in the game who comes to the pillars ball who are they advertising to i mean that's a good question not having a bit so what i think there's going to be a certain amount of looking lose but there are obviously giving out awards but it sounds like you're saying they were recruiting was there evidence that they were recruiting well not direct but i'm saying this could be i think a permissible inference from the evidence for the jury to draw rational but right so you don't think the government had it had any obligation to connect the dots at all to say what the purpose of this enterprise was that was a purpose involved in helping each other to commit crimes and that you're going to see in the other obligation and i think you know when you review the closing argument that's exactly what the prosecutor tempted to do using the boil framework here you have a purpose you know it's not like half of them were robbing banks and have i mean they were really all in on this they celebrated together on social media you know  was evidence that one prostitute he once worked for a block long member than a scandalous member that was the breezy i mean you know it was all cumulative evidence your honor it's maybe when you look at each piece in a vacuum it may not be the strongest thing but our point is that under a sufficiency review looking at the law you know the evidence in the light most favorable verdict that that would be sufficient did did the did the defense argue that they were just individual entrepreneurs i believe they did with that there case that must have been extraordinarily difficult for everybody to try including the judge because you had a lot of people and initially charge yes you had heat very long delay you had one dead officer you had a couple of the prostitutes whose memories were indistinct at best and you had therefore to rely on sort of substitute evidence experts you had to rely on media the things that had been preserved well and so it it was a hard case to try it wasn't you know i just want to pick wrote it right up on that i mean you know i don't believe that i know that there's been a lot of talk that this was improper right ever did that question is does that make it improper to try given the kind of evidence you had to use in lieu of the evidence that time had obliterated or weakened but you know i would disagree your honor and i would if i hear your question correctly the way i see it you had all that you know the evidence from the victim the victims the the law enforcement experts were there to supplement its brooks taylor i think there's the case this this is not new that you know this court has long held that expert testimony on these matters is helpful because i believe there's a quote from one of them that the relationship between a pimp and a prostitute is not something that's within the ken of an average juror in here you know we should hope not if we assume you're right now about the experts the text messages but there's a lot of evidence that these individuals were engaged in pimping what do the videos add in terms of probative value that outweighs the prejudice given the background that there's not really a question that these people are pimping and the videos seem very inflammatory will i would say the following your honor the issue here was enterprise and we need to show you know people working together there are things ways that a video can show s picture cannot so i guess this sort of does this is why i think that thinking these issues are tied together can you point to something in one of the videos that shows that they are actually working together as opposed to that the videos are just celebrating pimping the way writing a book would be  thought you know in one of them when i reviewed it in preparation for this argument you have a scene where there's both a black mob member to scan the saying you know we did this we paid for all you know pimping pay for all of this i mean they're together and they're celebrating what they do and you know it in order to did together what they did together you know and then you commonly use the words we in fact i believe the prosecutor closing arguments and if you listen this it's never i did this black mile did this scandalous to this is consistently we the other thing is you know you look at those videos i mean the st one the one that i referred to i believe it was st in sequence so i mean i think i've watched that video and i think they do say like we got this money from pimping but that doesn't mean they worked together to help each other with the pimping well if i understand you know your honor has issues with our evidence i wish i could make a better case for it but i feel would say that all falls under what the jury heard you know we still this is it sufficient you know this element of a rico right but i but i know you know our  mean these videos you know let's talk about the players ball videos too you know these aren't things that the government made to government and put a gun to the heads of the defense say you know what you are pimps for decades you're going to go out and voluntarily choose to celebrate this lifestyle with these kind of a board you know and they were brief clips even in closing argument the prosecutor said i'm not going to belabor the point and it's interesting too there were a bunch of flat picture you know i keep saying flat out i'm sorry i have to distinguish from a video still photographs that were admitted that there is no dispute on appeal but that is why in part the video seemed so just inflammatory because there wasn't really a question these guys were  in at least individual pimping and the videos are very very offensive but that doesn't mean they showed that they were working together as opposed to working as individual pimps so on this issue i just i'm not sure if that was the issue or i'm not sure what the videos were supposed one was that was done by was being run by all the people right and in fact we you know as we pointed out the jury instructions to i mean we don't even have to prove that these two defendants themselves personally committed the rico act but for purposes of enterprise and i know in our brief we decided cases from other circuits this also is not without precedent to the extent it shows you know people coming together and they were not cumulative of other pictures judge feel you know that's one point i wanted to clarify what i said a minute ago i'm just saying when you talked about the still photos activity that these defendants chose to engage in there was no agenda or you know at least not on appeal that's not renewed so another point of course we would have is that even if this court found issue with those videos they certainly weren't numerous enough or long enough in quantity to give to give pause about reversible error would be or so could you describe what kind of purpose you think you did need to show yes well that there was a conspiracy to promote an unlawful activity that these two defendants joined in knowing and having the intent to promote that and then at least two other people would you know commit racketeering acts then as far as the purpose i look at boyle the three factors you know the common purpose here as i said also there was evidence about some drug deals and other things that the unifying point was the pimping in the prostitution and they bragged about it jointly they bragged about it they helped each other out when they were in trouble with law enforcement they shared process even if the purpose is to promote prostitution as opposed to a purpose to collectively engage in prostitution i think those  or i think there needs to be some sort of working together doesn't there i mean i and so promoting i think working together to promote i'm just having a real problem with how that can contribute to the crime how that's furthering an enterprise of racketeering activity if all you're doing is writing books and celebrating and writing songs when i think you're the rector in charge is the pimping your own of the evidence that shows them promoting it is what folds into their knowledge an intent requirement and i gather your argument comes down to that helps you but it's not all there is there's also evidence of sharing pump prostitutes of cried at least on occasion offering to assist of somebody else gets arrested is that  mean that's a necessary to your case it's a good i thought i would say that's a good summary of our case but is there enough frequency to those incidents of sharing to support a finding of  been connection play the enterprise itself i mean that's a obviously a good question too and you know in some respects this case is a little sui generis i did the best i could to find you know i don't know if i would say it's enough especially under the liberal standard review it's a sufficiency challenge that the jury heard you know all the facts they were allowed to make a decision our position is that it is enough and you know we're a gang there's no question about that ye it they not all of the members of black mob scandalous were charged right correct so do you have any understanding of how many members there war i think twenty four were charged but how many  significant but what how does that cut well i think here again we have to ask under the lens is is it you know sufficient it doesn't have to be the greatest case in history just to be sufficient i think you had twenty four people you it upwards of somewhere in the twenty's most of them pled guilty purity but you know here you had this evidence of a lot of the you know it's in the appendix that's why i tried to lay it out so that i wouldn't have to repeat it every time and so that the prosecution defined a very large number of people as more than twenty four i think for the social media etc and so they were able to bring in the social media for this very large number of people so in order to justify doing that don't you need evidence that all of those people in the very large number beyond the twenty four had really agreed to enter an enterprise together for a purpose and i don't understand what that evidence was well and i i think you know it one point below to the prosecutor made clear that they didn't charge this wasn't just like you're a member of this gang therefore you're part of the enterprise and my understanding too is that every piece of social media that came in was from somebody who was either a charge or not an indicted conspirator there was not a enterprise well because these people you know the ones who were charged were all members of black mob or scam those are your argument is that at least these people use the black mob scandalous we're going ization to achieve their criminal purpose that is not is that  to so i have one last question because it's a not directly related to this let's assume for the purpose of argument that we find the evidence insufficient to support the rico convictions other than the count two as twenty one of the defendants for a brown one is served this time one is going to be released in february correct will the government ever retry this case do we need to worry about a remained very practical way this is my district court judge writing coming out i mean i can't you know and i can't speak for the government but i would not see your honor you know you have an entry problems would only increase so i will give thanks his counsel two minutes for rebuttal even though we took you over side enough that affects the court nature you're doing right now you have a minute left and i'm going to give you two minutes  to be fast st of all i didn't get a chance to address the statute of limitations issue which the issue is one of congressional intent congress did not express in the ten that this that it's revised that to the limitations should be retrospect this case the th circuit has never held that to the contrary the rd circuit case of richardson is directly on point this statute would have run but for the subsequent amendments to the statute and those those amendments do not run retroactively with respect to some of the evidence of the sufficiency question that is that is my co counsels issue however i wanted to point out that much of the enterprise evidence that your honor addressed in terms of the way that this case had to be presented because of some of the difficulties and the delay came from detective johnson who was a hearsay conduit testifying as to what he saw on facebook and what he had been told by other agents almost exclusively he acted as a gang historian he offered opinions as to how the gang functions and he did all of that based on what he was told by other officers by prostitutes and hints and gang members and based on what he wrote on facebook that is not proper testimony for someone who is not an expert witness just as  one quick point and there was a discussion of the sharing of prostitutes i tried this case there was no sharing of prostitutes that i recall in any instance there were prostitutes who changed pimps but they fought over that they competed over there was never it was a competition there was never any sharing of women that did not happen is that part of it is the gangs operation that i didn't hear women know it i think that's a pimping thing and i believe we had expert testimony from the government on that point opinion is a solitary activity that pimps don't share they compete and then finally there was a question about black mobs a documented gang scam this was not a documented gang we didn't really contest in the distinction between dance clay can gang below i mean clearly it's a  whole choose you know it's right there for them to choose another one but it wasn't the evidence that they chose up with in black scandalous members i think the evidence was they just shows up with whoever happened to be there i mean i think that there was and they happened to be scandalous members based on what we see in the record that show one prostitute moving from banks to brown or brown to banks and then finally i know the court is not keen on this issue but my co counsel just handed me this passage from what the district court observed where he said no reported cases been found in which the federal government adopted in resurrected a local police department's eleven year old criminal investigation with the intent to use local law enforcement officers and witnesses develop during the course of that local investigation to support three substantive charges in an overt act including a rico indictment all the while knowing the videotape witness statements related to those charges were destroyed prior to or at the time the local case was adopted thank you  thank you your honors before i get into the rico i just want to briefly state that as to the arrest and traffic to detention in the reply i cite to the record to show that there was waiver there was a full on motion with regard to the th amendment and at the hearing the attorney for mr banks who is not me specifically said that he attacked the detention when he was put in handcuffs and put in the backseat of the car but he doesn't say probable cause to arrest i'm challenging whether there was probable cause to arrest in the motion the in the motion they say it is the government's burden to justify any arrest detention seizure and they must either show probable cause or an exception so in the motion they lay out this is the government's burden they have to either show probable cause  suspicion or an exception so i think they did just in the motion not those specific words at the hearing going on to the rico st of all to pick up on the sharing of the prostitutes there was evidence that you're saying armand taro chose people who were named who i don't believe had any connection to black mob or scandalous in addition the evidence was that the prostitutes made the decisions on who was going to be there pam if there had been evidence that you know banks said to brown i'm going to give you breezy then that would be evidence of the enterprise or a joint venture but that was not the evidence the evidence was soley with regard to the prostitutes choosing and making decisions about who they wanted to go to who they wanted to be their parent and that was also corroborated by their expert as to why p fab the young fuck a bitch very offensive name mr banks was never a member of that that was a sub click and that incidentally was where they began their investigation and then they just kept sort of expanding it and our position is is that they just got greedy they just got greedy and they just kept wanting to bring that you know bring all these fields so in so committed a robbery and so and so committed a murder and this guy was apparent and that guy was apparently spring all together they're all from north park they're all african american as to the shared rides those are two incidents within one year the rico requires more than two years for longevity and at the closing argument the prosecutor in the opening closing actually told the jury that after that they went their separate ways she realized thanks bro thanks and brown she want to move to arizona right brown moved to arizona she realized that she had made a  mistake and started backpedaling and saying well not really went their separate ways but they sort of develop different you know different business styles but she was right they went their separate ways and they did their own thing and different places and the different was and that was argue that was the prosecution's argument i mean as a slip of the tongue long after was some period after the two thousand and one arrest but before the arrest in this case but i just don't know exactly when he moved i think that would be brown again the players balls those are videos that are made by real flavor don't even know who that is and they just profile various pumps there is no mention of scandalous b m s or north park and in fact in the sort of awards  acceptance speech of mr banks he nowhere thinks his home is in north park he doesn't talk about scandalous or being a mess and he doesn't promote them he's not bragging for them and these yeah these are arguments that were made to the right and we would contend that you know with the onslaught of testimony about gorilla pumps pumps mind control the plane of a video with the emotional music about the mind control the videos from the player's balls that represented women in incredibly offensive postures and they even played a clip they played one of those players balls clips during the expert testimony and during closing when no one in that clip was at all related to anyone in this case they're the clip where the they talk about how the prostitute is is looking away because she's not allowed to make eye contact neither the prostitute nor the pep featured in that click have any connection to this case other than it's a pimp and that's it and that was played in closing and also during the experts testimony i think we've taken you way over so i better stop you thank you very much you're both sides for the helpful arguments these difficult cases are submitted