twelve six four to five united states of america versus right in the to look arguments not to exceed fifteen minutes per side mr west for the good morning you may proceed morning your honor may i please the court i'd like three minutes for a bottle all right response mr talks motion to suppress the government failed to meet its burden to put forth objective concrete and articulable evidence of it in order to demonstrate probable cause that a traffic violation had occurred this court must review tripper style o's testimony to no vote to determine whether it meets the political standard trip or style of testified only to his subjective conclusion that  laid on the brakes or if the vehicle in front on the brakes mr talk would not be able to stop in time instant credibility the kind of factual determination that we consider under a clearly erroneous standard credibility is not at issue in this case your honor the district court i'm sorry the magistrate concluded that the officer was credible and i'm not contesting credibility at all in this case what i'm concerned what i'm contesting is the fact that that testimony of the officer taken as true establishes the probable cause and sufficient ok that's correct and that testimony is insufficient that the officer did not recall the speed of the vehicles he did not recall the following distance of the vehicles he didn't recall if the vehicle in front was breaking or slowing down he didn't recall whether there were any curves in the road this officer testified only to his subjective conclusion that the mr talk would not be able to stop if the vehicle in front came to a dynamic stop sure he testified to a generalized list of things that he would consider in making that determination but this officer could not testify to any one of those enumerated factors that he actually did consider in this case so that enumerated list the generalized list does not save this stop in essence the government is asking this court to credit the subjective conclusion of this officer made within the black box of his mind without outside the view of this court and anyone else there's no basis to review whether this officer made a reasonable conclusion or not the jurisprudence requires that the officer be able to articulate the basis for his conclusion and he in the officer could not do that each of the cases in my brief demonstrates this example or that this principle each case indicates that the testifying in all cases speed and following distances are required the cases cited in my brief most often include testimony of those facts and that's not surprising because the tennessee driver manual specifically talks about those two factors and also the statute itself the tennessee statute specifically says that the driving distance must be considered with due regard for speed traffic and conditions of the highway those are obviously relevant conditions that's why they they come up on the case law know what he was no countervailing evidence presented barbara defendant the suppression hearing no your honor because the government's burden in order to establish probable cause to stop this vehicle and so that the government up held where there was only a subjective conclusion of an officer with no objective facts of the case law requires articulable concrete evidence in support of the probably cause of terminations and there was on the scase this court should reverse that denial of the motion to suppress turning now to the issue of drug quantity the starting point of this this issue is a sentencing guideline one b one point three which allows as relevant conduct all of defendants criminal conduct as well as all reasonably forseeable acts and missions of others in furtherance of jointly undertaking criminal activity so under the guidelines in order to be relevant conduct the kind of must be criminal page is an extension of this basic principle page indicates that drugs obtained by a defendant from a coconspirator are fairly countable as drugs that he reasonably thought were distributed conspiracy that makes complete sense because in order for the defendant to obtain those drugs from the conspiracy the drugs have to have been distributed that was a criminal act and so that's fairly countable against the defendant the corollary of the page rule is that where the drugs were legally obtained the not fairly countable as relevant conduct the four circuits decision in bell clearly expressed this this were what was implicit in page and what is in the in the guideline and that is that if conduct is legal it's not properly countable as relevant kind of for sentencing purposes bell like in this case dealt with schedule two drugs which can be legally obtained and consumed and where the defendant is obtaining oxy code on pursuant to a valid prescription that's exactly and consuming himself pursuant to a valid prescription that is exactly what occurs as legal conduct inappropriate for consideration as relevant conduct at sentencing the risk of any evidence put in by the to mr talk apart from the other defendants in this conspiracy where there was that evidence that they were dispatched on on the bank roll and orders of mcmahon to obtain those drugs mr talk was a long haul trucker that was going to florida anyway and visited pain clinics in florida on his regular route there and only deep into that kind of did he start to actually buy drugs from mr mcmahon as well so this is his kind of use different from the other defendants in this conspiracy the risk in this case is if this court allows every one of the thirty six hundred pills that mr tulloch obtained pursuant to a valid prescription in florida in the face of the evidence that mr talk took at least some of those pills himself this court would seeing the sentence through the use of this legal conduct as a sentencing factor against mr tulloch and that's that's not carry any burden to show how much with his consumption no your honor it's the government's burden to  show drug quantity in a disputed case and it was clearly disputed in this case that didn't make some statement that to the police regarding distribution and if he has it mended that he was involved in distribution this that somehow mean that he's has the burden of persuasion on how many he distributed and how many he kept or at least how many kept from sell there was a statement offered into evidence that mr talk stated that he was selling some drugs he also in the same breath said that he was taking some and so that evidence that statement where he indicated he was selling some cannot fairly compass all of the drugs because that very same statement said he was holding some that's true i'm just wondering at that point if he has conceded distribution if the burden doesn't shift to him to show how many he kept for himself for example  pills were distributed this this the district court was taking one part of mr tulloch statement and and using that to count every one of the thirty six hundred pills where there is no basis for that in that leap that every one of the pills was being consumed that was the at sentencing that this was a vague statement with no no indication of how many pills were sold each occasion whether there was actually pill sold out of each prescription or not it's too much of a leap and the court  never thought your client told the officers in an interview about well obviously they had to get information from somewhere about his use of prescription drugs from florida and so client would would be the one who would have that information so what what would we do if if if if if you or your client did were not forthcoming with that at a before the time of sentencing your honor the the government cites the richards case as an example and i cite the richards case as an example of how the government can meet this burden without imposing on the defendant the the terrible choice of whether to take the stand and testified on sentencing and risk the consequences of that that the government has to show they were not medically necessary in the richard's case they brought forth medical testimony at today's sentencing hearing to in order to establish that fact and so if if the government did that then arguably at that point once there's testimony in the record that none of these pills were medically necessary at that point the burden would shift i would i would argue to it to mr tulloch because there's actually evidence in th case where your client would need to make an issue of showing that he used the drugs medically and how many and before anything was shift to the government otherwise they would be chasing the tail about this whole issue i disagree your honor in that's because the government bears initial burden and as the profession is phrase it assumes defendant has initial burden well except for this exception where he is claiming personal use for medical reasons burden should stay with the government as you nissho bird in that that's simply because it's always the government's burden in a disputed drug quantity case to come forward with the evidence first but in this case they have to know what they're rebutting how they're going to know what the client has made an initial showing on initial case as to what he is claiming is with respect to this particular exception otherwise how to how do they know what it is that they're countering  that that that really is the problem well in this case your honor that there was evidence that he was going to contest the drug quantity that was a statement that the second half of his statement was offered against him and there was evidence in the p s r that he was taking drugs at that point the government was fairly on notice that it's going to have to bring forth testimony to establish that that how much of these drugs he was taking what did you mention just a few minutes ago that there were as many as thirty six hundred pills in i'm not sure that establishing that amount doesn't throw the burden on him i mean nobody takes thirty six hundred pills for their own use if i may interject your honor that it sounds like a large number but this amount of drugs was a teen over a twenty month period one hundred eighty pills per month if you do the math on the average thirty day month that would be six pills per day  and agent thompson testified in this case he's seen people take ten or fifteen pills per day with high tolerance and so the fact that he may have been taking all six of those pills per day that he obtained is is completely reasonable in the circumstances good morning may it please the court can have a time behalf of the united states and i just want to address a couple of issues that counsel brought up first with regard to the traffic stop you first you go testify that first that he had extensive history and experience in dealing with traffic stops he said he wrote two to three warning tickets per week over the course of his career he was unable based on the length of time between the traffic stop and his appearance in the magi to give specific examples and he explained that because there's not always a speed that significant or a distance that's significant it depends on road conditions it depends on traffic conditions it depends on  problem that he simply testified to a conclusion but this type of traffic violation is very subjective there's no there's no objective way to categorize that necessarily we're talking about probable cause is the standard going to be the police officer need only a very experienced have seen this a lot and i can tell you that that person was following too closely or whatever other conclusion the police officer is drawn and that sufficient to carry your burden i think in this case it is sufficient your honor i think that trooper studio testified very clearly at the magic in the suppression hearing that this car was following too closely he said immediately upon seeing the car and he was notified ahead of time that there was a van a maroon van that he might keep an eye out for his immediate conclusion was that car is too close to the car in front of him or to the car in front of them and that's in this case the court found at the magistrate court and the district court found that he was credible that he was reliable and there was no testimony testimony offered to the contrary that in fact he wasn't following here's the problem what was going to be the testimony to rebut it the defendant getting on the stand and saying i wasn't following too closely i mean when you've got nothing concrete to say about it except he was following too closely well he's following too closely i don't see how you can put the burden on him to take the stand and rebut that i mean what can he say well in that case he could have i mean really the judge ruled based on the credibility of the trooper and his information in his experience and that day as pointed out if mr tomic was a long haul driver and had lots of experience driving he could have in fact testified that he wasn't that in his opinion he wasn't following too closely and then the court would have had to make a determination based on credibility of each witness but isn't that the problem is that we have two people swearing to something with that in the explanation or in the hope that we might call evidence  your opposing counsel concedes that it's not a credibility issue the question is the quantum of evidence right and so i guess i would ask you again you know to help me with let's ignore credibility let's say this officer is imminently credible did he did he put enough in the record to carry it would be nice if he hit if he had put some more stuff in there but you know he was questioned on this and he answered as truthfully as he could that you know a lot of time had passed and that he didn't have specific speeds that he could testify to he just was basing it on his experience and his assessment of the situation he didn't write a citation is that right a warning ticket only that's correct what did the warning ticket say it was a warning ticket for following too closely but it didn't say what led to the conclusion that he was following too closely no it was just a it's a basically i think i've checked off y know and basically this court has to find that there was clear error on the part of the lower court of the united states and it's that there wasn't in that case with respect to the sentencing issue i couldn't find any evidence in the record indicating a tie between matt mohan or toll luck in the intox trips to florida is that correct that's correct mr tulloch was independently he had known mr mcmahon before they had dealt him some marijuana before he was not charged with that he was independently taking trips to florida to get pills by his statement to use and to sell and then at some point he realized that mr mcmahon also had this pipeline to florida with the people that he was sending and so mr tulloch started purchasing when he needed more purchasing pills from mr magma hand in the spring of two thousand and ten and how can you count the florida pills for the purpose of the sentence as relevant conduct of mr tulloch spill distribution if they were for his personal use doesn't the law also otherwise if they were for his personal use but he gave a statement saying that he used and he sold some and there's no way for the united states or the court to know how many he used personally for a legitimate medical purpose and how many he distributed doesn't the burden begin with you the number distributed and and the united states put forth that information and basically based on his statement that he stopped cold turkey as soon as he was arrested and the fact that he didn't i mean he stopped going to florida after he was interviewed by the police in october of two thousand and ten two thousand  ten and stopped obtaining pills and didn't obtain them from anywhere else and so the united states did put forth that as proof of his participation in the conspiracy in and his total number of pills that he was selling it's given the and this is in the record but given the inherent addiction qualities of oxycodone pills it's unlikely that somebody is using as many as six a day and can just stop like that so the united states did put forth a total quantity so there was no medical evidence provided he did not state here's my doctor here's my clue you know here's my diagnosis here's why i need the pills he just said said he had back trouble right back injury but right back complaint which was common for almost everyone else who was going to florida that's the reason they gave to the pain clinics down there as they had some kind of back injury in and that's why they needed the pills and without any specific information from mr tulloch the united states was in a position to rely totally on the quantity that he admitted to going to florida to get in order to distribute and the court used that money and this is distinguishable from the bell case which is cited by the defendant in for that very reason that there were medical records submitted there were there was documentation submitted showing that she had seen a doctor she had a legitimate injury what's clear on the record is that the district court misapplied the page case page does not apply under these circumstances obtaining drugs illegally from a pain clinic pursuant to a valid prescription is not obtaining drugs illegally from the conspiracy on that basis alone the score should forward if that is the law in the circuit that he should have an opportunity to meet that burden with new evidence or we may end on the evidence that existed at the time if there's everybody get a second bite of the apple everyone should have a second bite the apple if that's the if that's clearly the the law or the decision of this panel because under paige these drugs could not have been counted as they were so let the government attempt to meet its burden anew and let mr attempt to meet his burden if the if you hold that the burden shifts and the government indicates that you know there's no way for the united states to know how many he took the case law on the subject what indicators any number of possible avenues to govern could take to prove that he  wasn't taking the pills or how many he took there is the evidence from the pain clinics themselves that would indicate how many pills that he was being prescribed and why and there may be statements in those records as well that could be used there's urine screens offered in some cases mr talk may have offered urine screens at his pain clinic appointments in florida we don't know the government didn't get those records and put those four records forward and then there is no medical or that they could offer medical testimony as to what is a medically necessary amount in across what line does it become abuse or not medically necessary or make it implausible he was actually taking that amount maybe that amount that he allegedly took you know is crosses some medical threshold where it's not possible that he actually took that amount we don't know the all those are the types of evidence that the government come forward with to meet its burden well one page if not the case that the  sort of distinction should have been incorporated into the district judges finding at the at the sun the swing and in this particular case or did that come up at all  the first part of your question about page not applying to prescription drug we that's our reading of pages well in that page page on its face would apply to illegal drugs obtained from the conspiracy and that's because that act was  criminal act to distributing those drugs to the defendant and the defendant did not cite bell to the district court but the defendant clearly objected to the notion that every one of these pills was taken for i'm sorry it was distributed and service to the court and i think you've done a good job with the case this morning so thank you very much case