parker or the appellant good afternoon your honors jeffrey parker from helen carr award made it please the court this case arises out of a series of voice mails from and passing to my client carl ward in which  passing consistently failed to identify itself as a debt collector and instead stated that it was calling on behalf of mr ward's hospital and also consistently identified itself only as and passed rather than as an passing despite the fact that it shares that name with the abbreviated name and passed with another debt collector also operating in tennessee and passed solutions l l c and passed does not dispute nor can it that it violated the f t c p a if it is a debt collector but it argues that it's not a debt collector because  or customer relations incentives in order to to avoid dekel action abuses some other examples include exceptions for original creditors and employees of the state federal government's credit counseling agencies and congress included explicitly original creditors  collect in name other than their own in order to ensure that they had it because those individuals do not have a reputational incentive to avoid collection of use now and has relied on section sixty nine thousand two hundred and eighty six f three which excludes any person collecting any  quote to the extent that such activity concerns a debt which was not in default at the time it was obtained by such person the statute doesn't define when a debt is in default but thankfully the dictionary does black's law dictionary defines default as omission or failure to perform your honor i don't believe it's possible to answer that question apart from the agreement the agreement defines when the debt was in default and the agreement states that the debt was in default effective on the date actually rather twelve the one on the day after the date that the charge for service was processed the agreement provides a patient or guarantor quote individually promises to pay patients account at the rate stayed in the hospital's price list effective on the date the charge is processed and in this case it is undisputed that occurred well before the debts were sent and past that it does seem like a normal normal understanding that a regular consumer would have about when they were in default that it is women when the obligations promised you you you buy something on credit all the time and you have at least three talk to your example about a credit card the contract provides that the debt is not due for those three weeks or until that the date of the st payment and sometimes the st payment might be the st day after you use the credit card what plain language tells us that if the day that the hospital puts the bill in the mail is that missing your honor now what we're saying is that it's the date under this particular contract that the charge for service is processed and that date is you know the on which they actually calculate the amount due that they occurred before they build up helen's insurance mr one insurance and before they build mr ward both of which they did before they went to and passed in the plain language that we're relying on there it's just the word default there's only one definition of default that either party argues applies here and that definition is the omission or failure to perform illegal or contractual duty and the question is whether obviously mr ward failed to perform a legal or contractual duty with respect to these debts and black's law dictionary defines legal duty and gives us the answer do another to the extent that such activity concerns of debt that was not in the fall so the statute itself makes a distinction between when it's due versus being in the fall yes your honor that the statute treats a debt in default as a subset of debts do and that's exactly what the standard proposed by mr ward here does the standard across my mr ward here is that whenever the contract says the whenever actually better way to put it is whenever under the contract the cause of action for breach of contract a cruise is when the debt enters default and after the initial the default date as you would have us except your honor it's difficult to say what to make of those because they had absolutely no authority to set due dates that came before they passed the debt back to the original creditor in fact it says in the contract that a debt can't be past due if court sent back to the original creditor and yet they set a date let it pass and continued collection activity and then did it again and then continue collection activity after the last extension had expired so it's unclear what those dates mean other than simply being a misleading attempt to end speier earlier payment or rather they're not technically misleading because the debt was due from the very minute that they calculated the charge for the service processed process the server the service charge dollars debt is that right that's correct your honor why in the world was the suit in brawl her one hundred and sixty dollars because your honor and pass is attempting to squeeze its entire business model through an exception created for mortgage service and not for entities that have no reputational incentive to avoid abusive debt collection practices such as sending misleading op final opportunity to settle letters which they sent and then continued collection activities after despite the fact that they couldn't charge additional interest under the contract they have no incentive to do that and the legislative history although i don't think we need to look to it because the statutes plain language is so clear but legislative history tells us that this subsection was intended for mortgage service companies and other companies that service outstanding what impasse is doing here and it has going back to my he didn't bring this is a class action so what is your client your client is he trying to avoid the one hundred and sixty dollars or is he paid the hospital he's now just suing and honor at the time this case was brought we didn't realize then pass didn't think it was a debt collector we thought this was a your ordinary garden variety fairly low value case and then we discovered that impasse entire business model is premised on its idea that it's not part or not governed by the f and we think that argument is frankly from flawed we're here because we're also here because and passes sought seventy five one thousand dollars in attorney fees but lo because they argue that this argument cannot possibly be brought in good faith well if you if you provide a little you be entitled to and passed the call and pass isn't mentioned anywhere in the agreement he signed so he had no idea who and pass was and there was a possibility he would accidentally reveal healthcare information because they represented that they were able to lever from and more than one letter from in passing  name yes your honor but there's no evidence in the record that he ever saw those letters and it's unclear whether he did voice mails on the basis of the claims as there is no allegation denying that he received those letters no your honor sent a letter to the wrong entity because and past used the name of another company when it was talking to him and so he sent a letter to the wrong company trying to invoke his rights under six thousand and ninety two dollars c c and as a result of him sending that letter to the wrong company he was unable to enforce specific circumstances that you know was a letter sent by the attorney or by ward himself your honor was sent by an attorney who was retained by mr ward for the purposes of disputing and handling that that maybe it was a poor attorney who didn't read the passed solutions l's your honor it's my understanding they were working soley from the voice mails and there's a reason that congress included and it's and it's in the statute that in any telephone call to the consumer not even any communication about a but in any telephone call to a consumer debt collector must reveal its true nature must reveal it make it meaningful disclosure of its identity the only reason congress could possibly have intended to include that is in order to allow that got the consumer to enforce their rights and passed and then the any googles thing one of the revealed two and passes you think it sent a letter to both not just of the wrong on your honor that makes sense but it's worth noting that the st one that pops up on google is the wrong end pass consumers going to go with the st that collection entity the possible and google oh i wouldn't think that necessary support i just want to make sure i understand your argument about these billing statements because my assessment of the billing statements argument but i don't think it's necessary because i think that the voicemail themselves violated the f t c be a fairly clearly and if they violated the f t c b n there was a real risk of harm because for example maybe they had the wrong address or mr ward or mr or doesn't read his mail for whatever reason as long as there was a so the real reason is because this has really become a hot button issue until recently and we just didn't raise it and that may be our fault that we just chose not to at that point so the honest it was just didn't think of it i guess this standing as is determined from the face of the complaint and what i really want to focus on in terms of the standing argument is that the allegations in the complaint asserted by mr ward are what matters here and they may not be i eve fourteen of the f t c p a and as a result there are three paragraphs in the complaint that provide any allegation as to what potential harm or damage mr ward says occurred in all save her but the ability to enforce are rife with materially affected based on these complaint allegations the only alleged harm is confusion and while this is a matter of st impression in this circuit the issue of confusion in terms of standing has been recently addressed allegations of confusion are not sufficient to convince confer standing the th circuit recently held this in multiple cases but what about the th circuit the th circuit has not addressed confusion specifically the there is the difference between mr mr parker's argument on the make the case and whether that has happened application here is there is a different section of the a dispute and any waiver of the rights to do so additionally here in this case is a thing as well for me because the plaintiff in that case alleged that there was potential damage in the terms of  here there's nothing alleged we have to look back at the complaint and the only thing we have is confusion so i would i would request that the court look at the what the sec th circuit has recently held in in the form of  the brunette case in the penalty cases where they where they stated that confusion doesn't satisfy the requirements of a concrete injury even though there may be a substantive alleged violation of substantive rights confer the f t c p p a that doesn't guarantee standing and here there's no harm as to who they can who they sent the cease and desist letter to and whether that was a mistake or not there's no harm they could have fixed that problem there easily consequences occurred the potential would be that they continue to get called on that account there has been no allegation that they continue continue to get called on that account afaik even though she's just open terms of a risk and it would seem that if there is what you're describing certainly would be paid standard of being a risk that they would be materially affected well that would be the case a if they had alleged it which they did not in this case but the disc the difference between this case and macy is that waiver of rights to dispute is different than here where you just continue to get one more call or one more letter or something there's no there's no rights that you're losing in that instance so there is no harm the he could continue to not answer a phone and he'd be in the same position as if he had sent the letter to the correct entity but going back there the difference is that there was an actual allegation in the me case as or i have no indication that they weren't that have not been rebutted by opposing counsel or mr ward and it would be his burden to to prove that they weren't and so i don't have anything  that would that would that there's proof that they were maybe older allegation they were saying they're not yeah i mean there's there's no reason to think that they were not sent there that happens as a matter of course and it's in the record in terms of their business records that mr ward is asking the court to ignore a lot of case law that says you should look at an agreement if it exists between the the consumer and the creditor here we have a contract we have a contract between stonecrest medical center and mr ward that states specifically that during the entire time meaning when they obtain it until some other time or with which is discussed in the contract that even though servicers handling the account which is then passed which  is in the affidavit by and passes senior vice president it's not in the ball it's not passed to it's not dealing with it's none of those things so that is exactly how they handled it and they agreed to handle that from the beginning of receiving treatment there is nothing in the contract that would indicate that if he did not pay a bill how could he pay a bill before they even bill there they be process is obviously and it's described in the agreement that insurance gets billed for treatment that a the patient receives and then after that then it talks about in the agreement itself the option to send it to rd party collection which is described as an service or who is acting as an extended business office with and past us that is all and past it has the relationship with the medical providers to merely service these accounts and so their relationship is that they mr parker mentioned that they they have no wasn't its business model to collect for a period of time where any sort of accounts would be you know the link went or go on for a period where they would be considered past due so the best and i understand your position you are service your and you are not the collection agent at that correct that is correct your definition in the statute to distinguish between a service or as a correction you can see there there there is not there there is a there's a debt collector and there's a creditor but the but the case law has indicated that not all not all entities are creditors are debt collectors there is some sort of middle ground and that's why there's been a case by case determination in these in these instances because there's this gap in the statute and so this word default obviously comes into play so frequently and so so because of that you know the pro debtor objectives but couldn't put putting accounts into default would you know subject those consumers to adverse measures such as credit reporting interest late fees and you're the perp the purpose of abusing an service or as and in terms of the creditor having someone else service the account as opposed to putting it straight to a debt collector is because they want to give that person an opportunity to he resolve their accounts sometimes insurance needs to be rebuilt sometimes there's a worker's comp issue that comes up that's that's the intent of any past being involved is that they are just an outside service provider doing this billing for or the creditor such a in these billing statements and that due date as i recall it changed a couple of times with respect to each of the two services and billing statements which do address why that's not you know is the sort of indication that maybe there is just intent to avoid the the act sure the there is no intent the business model is such that the the st few bills are only being sent by and pass though the e p o service or is merely handling the account for approximately ninety days and the intent is to not put accounts in the fall at that time because they want to give people people opportunities to to resolve their accounts sometimes for example letters aren't received the st time to follow up with phone calls as a result on a few occasions this these two accounts were specifically programmed to have two let and one you know one or two calls be made and that it be the target issue your you mention your honor in terms of the the due dates the the letter is simply put a if a date about fifteen days out to be a target to have someone respond to give someone an incentive to respond but in the terms of what's to fall that time period just doesn't necessarily have any relevance to under the f because all that matters is the time the point in time it which the the account was obtained by such entity and here and pass obtained it before a sentence or spill so at that point there was nothing past  tracking is this be me conditions of admission agreement specifically says this is what we're going to do we're going to send of this e t l service or they're going to work it for a while they're going to give you a final notice and when we get it back remember then we're going to put it in the fall and that's all laid we don't say this is an outstanding balance we merely say the insurance was the insurance was built here's the unpaid balance please pay it and then as as big condition the mission agreement says it's going to you they also have to send a final notice they do that in both of you the council about a month later the final notice language is just a little bit difference it's states we urge you to take advantage of this final opportunity so it's nothing inconsistent with what mr moore agreed that it would happen between determine whether they're going to keep using any below surface or or make a determination that it's in the fall and send it to a rd party collector a stonecrest send an initial bill typically stonecrest wilson initial bill i can't say that happens in every single instance but have been here i've i will i believe it did and your honor i don't still don't crest records aren't in in the record evidence but the typical process is that insurance gets billed and then as soon as that payment declaring as and of all well i don't think it unfettered discretion because they agreed with the the consumer mr ward when they potentially would do that and so if they're there they don't have i mean notice they're going to give you a final notice on our behalf to tell you and then only once it's returned then we can make that determination but it gives this it's pretty significant window of time were they specifically say it will not be considered in the faltering that time past and don't press agreement with n pass itself they agree with the credit in the deck like or make clear that stonecrest has the authority to retain any county ca it cares to in its own hands and that means that it could sue on that account without because it wouldn't have sent impasse and therefore wouldn't be required not to sue on the account by its agreement with might if there was there is an entirely legal way for and passed to do what it wants to do here all it has to do is provide a debt will not be in default for say one hundred and eighty d or say until after it has been serviced by an to be of service or but here that's not what the contract says the contract says that if we choose to send it to any of the service or it won't be in default while it's with the service or it says nothing about whether or not it will be in default before it sent or whether we have in default if it's never sent and it makes clear that the contract does not require them to send to any of the service or year it was sent and once it was sent if the agreement says you're not going to be in default if it is sent to in the service or wise and that the end of the case honor because the statute says that all that matters is when it is obtained by service or if sending something to a certain you have a contract that says that if i send it to a debt collector hell if you have some sense if i send it to midland funding it will not be considered in default one of other holdings including alibrandi cited by the end passed the problem is that you can't just take something back out of default when it was already in default before it was sent and that's what happened here because they had the present right to sue which is the definitional definition of the the only definition that's been offered by either party of the plain language of the statute and so it's the only definition that this court has to work from i would also point out that impasse does have unfettered discretion here because once again they can choose to send it or not to send it and they can essentially therefore covenant not to sue while it's within passed but the statute of limitations for their breach of contract action wrong from the nd that they calculate the charge for the service do no one's going to argue i think that this special occasions would run from after it was sent and pass and pass certainly wouldn't i mean  certainly would argue that in any collection action attempted to bring so it makes very little sense to make plaintiffs liable for the consequences of to punish plaintiff revoke his rights that he would have when the debt is in default and yet allow the consumer here was liable for the consequences of default from the moment that the charge was calculated i would also point out that and past states that there is a gray area between debt collectors and collection and original creditors with respect to collecting a debt this court has explicitly stated that that's not the case that's the holding of bridge we are in this court's most really it's only on point decisions here the direct holding of that case is that there is no gray area one must be either a threat creditor or a debt collector and there's nothing there no rd option and here it is very clear which one impasse is more like it is not like a creditor it doesn't have ongoing relationship with consumers it has an ongoing relationship with stonecrest medical center the end is that congress intended to regulate are those who have more important regulation relationships with the creditors than with the consumers and they intended to exempt those who have more important lesson for the consumers than with the creditors essentially because the reputation matters more to those ones that's why good sellers and other regional creditors people who extend credit have to deal with consumers for a long time are exempted  also it's worth noting on the stand in question and pass appears to be working from the original complaint and not the amended complaint because they cite a handful of paragraphs and say that all this alleged confusion if one looks at the amended complaint i recommend looking at paragraphs benefit namely his congress his counsel's time also the harm is that he continued to receive calls after this so he was unable to enforce a right that congress was entitled to elevate the level of  the record only shows one additional call but yes that would have at least one fewer call that a bad additional call would not have been made that's correct your honor so there wouldn't have been an invasion of privacy such as congress was entitled to and did and did elevate to the level  afternoon your honors tina pacelli appearing on behalf of opponent this is an appeal from the lower court's decision granting qualified munity to defendant state trooper he sli threatened or attempt to flee from the officer at all she testified that because of the young cops she had sustained being too tight she had sustained marks to wrists and that she suffered a torn rotator we submit that the lower court committed reversible error in granting qualified immunity as there are genuine issues of material it show the handcuffing of her laughter which is an issue in this case additionally as the court probably is aware from the audio there are portions of the audio missing and in fact i believe it's at twenty six minutes and some seconds that it goes out completely and it's interesting because the how he testified that when the video and audio were he actually heard miss you we tell him that the handcuffs were too tight this was outside of this testimony and he claims that white he checked the tightness of the cars we don't hear that on the video even though that's his testimony that that he had a bird so there is traffic noise as well that prevents us from hearing everything that takes place on the on more over the lower court seem to focus on the testimony appellant of the opponent when she was asked a question as to whether she suffered any injuries to her arrest she did say no at that time however the deposition continued and when question and as to the injuries she sustained she specifically testified that when she went in to try and the officer finally took the hand the triage nurse said what's wrong with with her arm what's wrong with her hand and because she quit  bring it around and she sees the rings around my wrists where the cuffs were on to try and he tells her that's from but and then she was questioned some more about that and she said yes but she had rings and she could see them closing so they only claim that you have about the handcuffing being too tight is the rings around the wrist is that correct and the left shoulder rotator we submit that this amounts to credibility determinations in awaiting of the evidence which is improper at the summary judgment stage we submit the summary judgment here was not her shoulder how well good how long after this incident the g go to the doctor about her shoulder her testimony was within the week rather what then according to her testimony at the emergency room when she was there on the date of the sense of that but they were valuating her for a psych evaluation and they said betts not what you're here to be treated for but he testified she made complaints about the arm your shoulder much it was the surgery for her left shoulder well they tried to treat a conservative way it's my understanding and it was i think and i think it was within the year but i'm not mistaken but i now hear it stick are her medical records in the record other than i know there is one doctor's report from the other side for her medical records in the summary judgment record there is one medical record that we attached to our response to the motion imrie judgment and is that what records that that is one from the surgery ok and i just saw one page of record and i correct that this correct of when those complaints were made the court indicated in its opinion that it was on the way to the hospital that was not the testimony the testimony was when she got in the car the testimony was also when she was outside of the he admits that he heard that and did she also complain about the soldier because yes he told us that the only result of the wrist being these two claims they rotator cuffs claim and the too tight handcuffs or marks on the wrist plane or is it really all kind of one claim under excessive handcuffs and it maybe doesn't make a difference yes i don't think it makes a difference but i think it can be analyzed under being one playing it was part of this handcuffing process and i believe you know when looking at her testimony and taking it as true for purposes of the motion for summary judgment there is at least a genuine as shipman your material facts that must go to the jury to decide based on the testimony there can't be any credibility terminations here and that's what happened in the lower  she had surgery she complained of pain right during the incident to the officer to the little and that it you know she had the surgery went to the doctor question effect for the jury to decide court for two reasons one that there is no genuine issue of material fact as to the tightness of the handcuffs in two because there is no genuine issue of material fact regarding the way in which plaintiff was handcuffed i'll start with the nd of two these two issues process of handcuffing her as would be required under and be kinder to support an excessive force claim it's not disputed that this court must review the facts in the light most favorable to the plaintiff in this matter which normally would were plainly contradicted by the record the the require me being that there not be no disagreement as a fact but no genuine issue of material fact here any allegation that true pretty slick use any objective only unreasonable force against a plaintiff is plainly contradicted by the dash cam video i didn't say i'm a dash cam video any indication of what was happening to the plaintiff arm arms when she was being here was there video of her arms as she was being here in paps well your honor there's no no video of her left arm during the cuffing process it all relevant moments other than possibly seconds her right shoulder arm hip and leg are in the frame at all times during the coven process which begins at approximately the fifteen minute mark where you can actually see her bring her right arm back to begin the cupping process ok but the problem is her left shoulder is the one that she's complaining is the one that is the problem and i didn't see the website at all  no you're not wrong your honor however i would posit that here plaintiff is alleging that true pretty slick pulled her arm hard enough in twisted it hard enough so that it tore her rotator cuff and required recurring shoulder surgery at no time during the during the video showing did it show any action on the right set or body to suggest anything so violent was happening on the left side of her body or her i don't think that any reasonable juror could construe this video is showing something so your truth is on the left side and not having any indication on the right side of her by washers being cuffed but she says the cheaper range right away  that her arm was hurting her left arm was hurting her and as i recall in your client's deposition at the end he agreed that his report had said that she complained right away while she was getting into the police car that h arm is hurting my correct on that you're out of that's my understanding it should be noted though there is no requirement that there is a subjective feelings of pain are not sufficient to necessarily  indicate that she is either suffered injury or that the actions of the officer were objectively unreasonable given the facts and circumstances here as plainly showed by the video theresa opens the door which time the audio is a little bit ahead or mess outside in but after immediately following the handcuffing process you see the plaintiff being guided back to be seated in the front seat of the patrol car by trooper eastlink during which time there's clearly no visible indication of any of any discomfort she's walking upright she's not favoring any part of the body and she returns the patrol car but you're you're ignoring that both she and the trooper say she said and she was having shoulder pain right  well your honor i believe the issue isn't isn't so much whether whether she did or did not allege shoulder pain in this matter it's whether his actions were so objective leon reasonable that a reasonable officer on the scene would be put  notice that what they did was unconstitutional here i think any such supposition is plainly precluded by that clear video evidence again which shows and they discuss other matters however during that time of then this allegedly brief interaction of where she said her shoulder may have her there's no other indications of any pain on the part of the plate it clearly trooper he slick under o'malley the city of flint would would reasonably have thought that his actions were consistent with the constitutional  with the constitutional rights of the plaintiff to be free from excessive force in this and cutting process as a score determining the city of troy even for nonviolent misdemeanor actions  what do you do with a police report the police report says in two different instances that she complained being in her shoulder again your honor regardless of whether she complained of pain in her shoulder or not it's not so much that she felt pain it's whether the actions of the officer were objective legal reasonable in light of the circumstances here and it maybe it's entirely possible that she may have had some subjective feeling of pain however the trooper eastlink as long as his actions were objective reasonable given the facts that unfortunately a situation that can't be helped by arresting officer and it comes down to the balancing of the equities between the need for an officer to be able to conduct their duties and the rights of plaintiff or the rights of an arrestee to be free from unnecessary and excessive force here we believe that the district court was correct in its ruling in granting summary judgment based on the excessive force plain as there was no showing of material fact with respect to any unreasonable use of after coughing and as i understand and she's placed in the patrol car that her shoulder was was hurting as your argument is essentially that was that doesn't create a disputed factual issue as to whether the handcuffing was excessively forceful in light of the indisputable video evidence duran or the mere fact that she even if she did it even even if she did in fact feel pain from the cupping process a subjective level of pain isn't sufficient enough to show that the actions in the coming process were objective leon reasonable but i'm looking at the video  my recollection is the officers body obscures much of the handcuffing process so it's hard to man i know that a reasonable objective person looking at the video and just asking the question would conclude that it was not excessively forced so is the video that clearer i mean you're court reviewed the video and found the same again this is a matter of a reasonably significant shoulder injury being complained of by the plaintiff as you see fit as you see in the video there's a sizable size discrepancy between the plaint being arrested and tripper it's like again at no time do the portions of the plaintiff that you can see on video indicate that any extreme violence or any i do violence or want to force it all irrespective the word violence anyone who forces be using her left side of her body to indicate that it certainly was not any good or a side of her body that no i don't believe that any reasonable juror could see that videotape  having his body obscure the full view of the person being arrested and hypothetically the officer could dig his hands into the arm of a person to get control over that person hypothetically wouldn't that be a fact question for a jury to decide whether there was objective reasonable force and not hypothetical situation inferior in that hypothetical situation  i suppose it could be however it's important note that no such allegations of misdeeds on the part of true precent had been indicated here the plaintiff testimony is that he merely pulled and twisted her arm to place it as shown by the plane the plane viewing of the videotape she's clearly not any pain when she's walking back to the arrest there's no visible showing of jerking motions there's certainly no indication of under force arguments clearly fail under bain's to show a sufficient inquiry with respect to any showing of actual harm any showing of actually injury to her wrists as this court determined in were not sufficient alone to show an actual showing of injury it may be instructive to look at it some of the cases that were where actual showing of injury was satisfied under bain's to show the difference the factual difference in this matter and i was of the city of dearborn heights this court did consider the redness of the plaintiff's wrist but it also made clear that it was only considering the readiness of the plaintiff risk in conjunction with the further to further allegations of carpal tunnel syndrome in both of the city of keigo harbor this core entertained the idea of bruising as being sufficient  injury to satisfy the bains factor for showing of injury but again here we have no such showing we merely have read this or on the rest without an indication of bruising we have my understanding is that she said that there are rings around her wrist is that is that correct that she says she did say that your honor and but i would argue again rings around your reversal is for wired up for what exactly did she say is the harm that happened to her wrists the harm is as well as she describes in her deposition that she couldn't move her arm when she got to  hospital when the cops were taken off and i guess the question is we have cases that think bruising is but are these rings bruises or is there no evidence in her record as to what rings are there's no evidence in the record as to exactly what the rings are the closest we got to that was when she was describing how the nurse was saying you know what happened to  her what happened to her hands and noticing that she couldn't move her arm and that she had the rings around her breasts and i can't find the specific testimony right now but it is in the record you know that well the excessively tight handcuffing case and i also think because we don't have the full video and audio again it would be speculative to and we would have the what's going on on the left side are genuine issues of material fact here there's just too many questions to find qualified immunity for the officer at this time this is a case where at this point with what's in the  records and all reasonable doubt being given to the appellant in this case it has to be decided by a jury because there are genuine issues of material fact thank you so much for for your time today ok counts involved and the facts are somewhat interrelated but suffice it to say there was a jury trial here the defendant played not guilty  in this case the starting with the conspiracy charge mr burris signets that there was not sufficient proof of any agreement between him there's no text messages there's no conversations there's no finding of the two men together none of this type of evidence  the only evidence that connects potentially connects mr burris would be this common phone number and i would s had drugs and even if mr burris knew that mr davis was retrieving drops from his fall even if you prove here that what's the agreement where's has to be an agreement between  and what's the agreement how do you come to an agreement well it could there be a good agreement to engage in the sale of drugs what what would be the what are the activities that they've been gauged to show circumstantial evidence well i think they're i mean circumstantial evidence could be enough tacit agreement could be enough you have to look at what the people actually did and you have to start with some type of ongoing agr case the conspiracy was alleging that this group was excluding all other dealers from their from their own territory snowshoeing their joint so i thought that was a pretty good tease assuming that we agreed that that  good case is there a fundamental problem that your client did not move for judgment of acquittal well it appears to me under the court's current president fundamental value that we have our justice system that we're not going to take away someone's liberty unless the government is proven guilty of every element of crime charged and i would s panels actually considered whether or not both jackson be ginia and one of which sets up the clean air standard whether those two cases were ever considered by a panel explicitly on the not only did not make a rule twenty nine motion but actually did so after the district court expressly advised him or asked him do you want to make a rule twenty nine motion at that time he your honor i have seen this happen before and it's the defense council believes that the evidence is there sometimes they don't move for the rule twenty nine is as attorneys you and i may sit back and say why wouldn't you just move forward as a general sense so that you preserve an issue and i've seen people not do it i can't get into this defense counsel said and plain why he did it in this case but it was brought to his attention by the district court and he expressed we did not want to raise it at that time that do you consider that it is not a waiver even if if mr zale has a good argument that he is too bad in this case or are you well i've had other cases on different issues where there is there is a distinction between what is a waiver and what is a for which are sometimes in the cases it's not really clear whether it's a waiver or forfeiture but it to me a waiver is a knowing it intentional waiver you were asked specifically if you want to raise the rule twenty nine motion now  nt says counsel says no that's not something that somebody just forgot that's not something that i would consider something forfeit in other words just not race when you mak in this case because they didn't make it it does limit the standard of review before this court and it makes sense because we have we have the rule twenty nine for a reason and the reason is to let the district judge determined based on having just heard the same have an interest that the jury or whether or not the district judge believes there was proof beyond a reasonable doubt that a rational juror could find that the district judge with no explanation why he's denying it wouldn't we be in exactly the same spot on appeal that we would have to be making a determination based on the cold record yes we would if the if there was no actual rule and that is that there's a ruling the adverse if there's an adverse ruling to the defendant with no explanation we are still in the terrible situation you're describing that we have to be doing it at the co director yes you're absolutely correct but in this case even just looking at the cold record in this case i believe that the evidence presented at trial does meet the elements of the offense with respect to the distribution methamphetamine there was a direct basic hand to hand by by the undercover police officer he called the number instead of mr davis it was mr percy that's direct evidence of mr pearse's guilt and if the jury believed the police officer there's really nothing more to say with respect to the possession with intent to distribute on that occasion the defendant was after a deal with mr davis mr davis went to the defendant's house and he didn't go inside and didn't get it go anywhere but the front yard because the police came to execute a search warrant the police observed mr burris running outside the house through the backyard and jumping over a fence and then he was arrested a couple blocks later when they saw him running through the back yard he had what one of the officers call his left hand up in a football carry his left hand was up against his chest and his right hand was in his right pocket he was wearing sweatpants and they could see his right hand and where it was because of the way that they were angled coming around the back of the house they couldn't see his pper bag and it was opened and inside that was a closed plastic bag of methamphetamine in this case because of his flight because the methamphetamine was in his flight  flight path because of the way the officer saw him running from the house there is evidence that the senate did possess methamphetamine on october rd with intent to distribute it and because there was a stipulation in this case that it was two hundred and seventy five six grams of math and i mean and that was far too much for personal use quantity the intent to distribute is also established so the hard one has the conspiracy which is the claim that your opponent has focused on exactly and i am now well there next so in the final three counts that he's challenging the conspiracy count this this is  mr davis had to go back to the birth residence in the middle of the transaction when the undercover police officer asked for more meth and during the middle of that he and the officers observed him going to his house about five minutes later coming back right to the undercover officer doing the nd for her transaction so given that mr davis comes and goes for mr versus house search warrant which was after the over rd deal it was mr burris who ran from the house mr davis did not run from the house mr davis didn't even get into the house he got only to the front yard where the police completely consistent with just being two independent drug dealers as opposed to being in a conspiracy well that their primary evidence of the conspiracy is that they're only calling one phone number if if they for example if mr burris were the source for mr davis then mr burris would not be showing up for want to mr burris or one of mr davis's customers to do the deal himself so that shows that there is some connection but in addition to that we have to remember that mr hurst himself testified in this case and mr berger stated under oath that nobody could come into his house that davis did not live there and he did not have a key and if he wanted into the house he would have had to knock and let into the house by mr burris basically you would have to the only inference here is that you would have think that the that the drugs are being stored  bruce's house and based on mr versus own testimony if the drugs are being stored at his house he is cooperating with mr davis in the possession with intent to distribute and distribution and his cooperation through conspiracy it is because as long as he's doing it knowingly in that he's knowingly joining the conspiracy we don't have to have  direct conversation between evidence of direct kuan conversation conspiracy can be inferred from circumstantial evidence which may reasonably interpreted as participation a comment on the fact that the evidence in this case was reasonably interpreted to mean that mr burris had the drugs at his house and that's why mr davis kept going there would indicate it was on the plan so it would be enough if hypothetically somebody  a drug dealer to keep drugs at the somebodies house that somebody would be a coconspirator in my very short limited hypo happens all the time stash houses people have stash office where their only role in the conspiracy to store the drugs and what is your best case would you say under similar circumstances were there's no explicit of a direct evidence of an  or i didn't look for that i'm not ready but i will tell you that there's a six circuit pattern jury instruction which is number fourteen five which was read in this case and is read in all of our cases and what it says is that the government must prove this that there was a mutual understanding either spoken or unspoken between two or more people to cooperate with each other to distribute are possessed of the tensest discrete math and i mean a an agreement can be proven indirectly and circumstances which lead to a conclusion then agreement existed but it is up to the government to prove that the facts and circumstances exist in this particular case so the issue is could a reasonable jury based on these facts conclude that a conspiracy exists and i would state that although the government argues that the than in this case is miscarriage of justice and void of evidence in reality the government would prevail on any of the standards even if we used pioneer stances as suggested by district the evidence here is sufficient because we're only looking at basically one reasonable the i'm now prepared to go through each of the defendants in that case i would indicate to the court that you know it is a fact based driven analysis and in this case the government's facts as i as i believe them the most telling facts are the calling of only one number and having one of two different people show up to do the deal which would indicate that there is they're both using the same phone to distribute t or that mr davis who normally has the phone is directing mr burris to his tribute on that one occasion i also think it's very relevant that mr davis is seen coming and going from st residence and on the day of the search warrant it's at the paris residence where mr burris leans out the back when the police are coming in font and he's the one who has the wired quantity of methamphetamine i think and many many cases we see a circumstances and then we see communications between the participants in the conspiracy to support a conviction that's not this case that's you could look at that testimony of the officers and if you and look at the black bag and the gallows if they contain that ten ounces of methamphetamine and one officer is close enough to mr burris to say he recognized him from prior contact and yet he doesn't see him carrying a pretty large favorite with the ten ounces of drugs in a gallon ziploc that's a tricky one because we're we're we know that davis goes to and from the house i'm not so sure that it's clear that he's going to fire his pocket he doesn't want to be around the police that's for sure does that mean he's aware that does that mean he's an agreement to distribute drugs to somebody else i don't know that that's he might respond to thank you ok thank you counsel for your arguments this afternoon we do appreciate them and mr table and thank you for taking this case on in the criminal justice act so real service your client into our private post argument conference