sixteen seventeen zero seven usa vs david really sixteen seventeen ninety eight usa versus orlando johnson or argument to be thirty minutes shared by defendants and thirty minutes for the plaintiffs mr martin to start up because of time limits there are a host of errors in this prosecution but i'm going to focus on the unreliable cell tower science that was introduced to pinpoint the defense locations in the appeal and really it came out in two ways there was an expert that was qualified or certified by the district court that gave precise location data really flew in the face of a lot of warnings about this type of analysis also there was location analysis based on cell phone science from an f b i agent who was never certified or qualified as an expert the supreme court has given clear direction on this type of expert of evidence should never be admitted or that this particular expert some out transgressed advanced stating what this sort of evidence may show right that's might the second the second the witness did not claim as i read the materials that the towers could pinpoint the exact location of the firms but only that it provided a several range of where the phones my could be is that right that's right so what's wrong with that the problem is and i mean this is a very new technology and you know we think about in terms of the type of cell science that's used in federal court you know d n a being maybe the newest one was back in the eighty's and this is only been around the last few years and so i decided what i think is the first book textbook on that on the topic and it talks like it's an argument that the evidence should be permitted at all no and i that's want to read a portion of this book that talks about the need to do additional that what was done in this case which is that the expert looked at the bear record that they received from the phone company and they charted the path of what they put pins on the map on the maps or on the record of where in his opinion the defendants had traveled what joseph ploy talks about in his his textbook on this is that that's really the first step in identifying the location of a mobile phone and that for any real level of perception to be able to say what may have been in this town a precise were they trying to be here is my understanding correct me if i'm just misunderstanding the whole thing but my understanding was were trying to do is to show the progression of this phone across the country from from philly to detroit right and that was part of it but there were also a few portions of the testimony that did put them out as more specific location there was one where they said it was in new buffalo overnight and this was emphasized in the government's closing which is where they had some video evidence of a man getting into a car at a hotel it was particularly harmful in what regard thought that the fact that all the phones were located there overnight penned that particular that was just that is an aspect of the factual proof that proved to be unfortunate for your client i'm not hearing anything that's problematic otherwise about that the other thing i think that was problematic about the testimony is that they actually said that the cell to cell phones associated with my client's  were in the vicinity of his hosp of his hospital when he was hospitalized in philadelphia and so they asked him this is at the close of the government's direct examination of agent hass who was the person who was qualified or certified as an expert  and they asked him he said that agent max the other the case agent gave him the location of a particular hospital and that these two cell phones were in the vicinity of that hospital and when you look at how they use that have that evidence  closing the government talked about what do we know about the phones we know that through agent has his testimony and then the testimony of brian max that the phones traveled this did this traveling that you're talking about and then he says we know that about the phones they didn't couch this in terms of well this is this maybe where the phone was or this might be it could have been it was we know that this is where these phones were going or w these phones were and i think it's particularly dangerous and dangerous and all of the the other cases when you look at the cases from the seventh circuit the eleventh this court's own pretty critiques and reynolds talk about when you try to put somebody in the vicinity of a particular building you could and the agent didn't purport to say that they were at the hospital or that they were at any particular location the way i am look at th the fact that he didn't track did try to make it more specific should have arguably been to your benefit because he didn't quite more for the evidence than it could offer and so that to your benefit  free to argue to the jury that it could have been happenstance or that it could be unreliable i mean you'd be in much worse shape probably if a great deal more specificity had been climbing for the technology then would be actually be the case with new that's true and i but i think that even what was given was was more precise than what is should have been allowed  you would prefer imprecision but i'm not sure how it's a benefit to you to the stupid to be less precise they were in the vicinity of the hospital when he was admitted for his emergency i think that level of the other thing that i wanted to address and just real briefly is the fact that they let the case agent who never was tested and qualified as an expert judge back children present but the case agent also did win over some of these exact same things and i think it's that the government is conceding that he wasn't an expert that there's an emerging consensus that expert testimony is necessary when a case agent testifies about cell phone location data  they have not claimed that it would be harmless error the fact that he testified about all of the stuff it was if it was found to be erroneous but he they claim that he didn't render expert testimony because he wasn't this is a from their brief didn't analyze where the phones were located but he really did he went through and said that he saw the same pattern the agent has testified to he was at the start and end of the case he clarified some of the things about the experts testimony and object to cross examination he was subject to cross examination both times that's correct but he was and there was an objection at especially later when he was clarifying agent has his testimony that what he says fin his expert testimony and he hasn't been qualified as one and the course of i don't see this is as expert testimony which given the cases out of the second the natal case hill from the seventh i think was a ruling and the way that the government used it as the same court i used before we said we know through agent has has his testimony and then the testimony of agent brian max this morning so he really they used it to confirm the accuracy of what their expert had testified to which really is backwards way to do things so thank you consecutive sentences that were imposed upon my client for two separate violations of nine twenty four c alleged in counts two and four of the indictment because according to the trial court they were  they were consecutive for different offenses they both are alleged in the indictment to have occurred in the eastern district of michigan it was the theory of the government a trial however that my client mr calhoun was primarily responsible for first the rental of a car in philadelphia the white v w precise which was identified as having been present in west bloomfield at the tempest jewelry store and also at  new buffalo area at both the gas station and the motel where the individuals were identified by officer testimony as having been present over night the conduct as to mr calhoun did not responsibility for the one twenty four c violation then based upon eating and abetting the rosamond case decided by the supreme court in two thousand and fourteen directly to help with the issue of what are the elements of the offense for aiding and abe g as applied to nine twenty four c and the court said that it punishes the temporal and relational conjunction of two separate acts on the ground that together they pose an extreme risk the court said that the defendant must participate in the charge the underlying conduct of the crime of violence in this case with knowledge that a confederate will carry a gun that case should be read read together with this court's decision each of the robberies the court analyzed that conduct based upon not the block berger double jeopardy analysis but rather on the unit of prosecution which  explained that focuses upon the underlying offense conduct in the case it said that the defendant must be responsible for carrying or possessing or using more than one time  order to be responsible for two separate violations there is further explanation in the case cited in that a function for support runs from the tenth circuit and unbox a decision written by a no justice course it in which he examined a similar case that is that is certainly distinguishable and facts from this because it involves a gun that was fired one time and caused the death of one person in the interim to another but  the analysis certainly does apply here which says that there must be focus again as this court said on the unit a prosecution but the court judge just as gorsuch explained more carefully that in order for there to be a unit a prosecution there must be a minimum amount of activity for which liability attaches and it must be independent the court  wonder what independent of what of another act for which there is an alleged responsibility for nine twenty four c violation there must be one wholly different from and more react reprehensible than the other and initial violation the courts that page eleven two one one one two s applied here to mr calhoun his conduct is of course is the aiding and abetting liability as explained in in the rosamond case there is no distinction this is not then a case that where the conduct is precisely simultaneous but is also not one that has been examined by the circuit in prior cases such as burnett where there were consecutive separate completely separate offenses and it's our position that when the court applies these two separate act by mr calhoun that took place in the eastern district of michigan as alleged in for that reason and that this court should then associate your argument with the act x you're talking about what to what is your what acts are you saying are independent by your client there aren't any that's what i know my position is is that i know but what what does the government say he did while the government says that he aid and abet it that he was there's no way that's ever aiding and abetting so what was the government's theory of the case as i try to explain as i understand it is that he was responsible for arranging for the car for a rental of the car in philadelphia and being present with the car during the course of this drive tracked by the cell tower this is c s l i information from philadelphia across the midwest and back to philadelphia and no  further involvement you're saying that he's really not there's no evidence of his having further involvement in either one of the two robberies or the attempted robbery and the robbery there's an identification by a gas station car he was in the vicinity of the car he was outside of the car yes at the just that somebody testified that he was in the back no no i did not say that you know the gas station it was in the gas station it was a gas station knew buffalo he was in the motel in new buffalo according to the government's evidence the way they explained it and that he was in the parking lot outside of the tempest jewelry store i don't recall that there's any evidence that places him the body identification of  because mr pembroke was injured at the metal robbery grand rapids that he'd done must have been aware that there was a gun present i don't believe that there was any other independent evidence of the presence of the gun before that time thank you thank you very much good morning runners martin douras on behalf of david bridling defendant in this matter i'd like to reserve two minutes if i could for rebuttal in the limited time available i would like to discuss the  identification of mr brierly as one of the individuals who were involved in this conspiracy and as the court knows we have alleged in our brief the his identification was suggestive and unreliable  into the person was identified as mr bradley went into the gas station at a proximately eleven zero one and left the store eleven or four days in the store for three minutes he approached the clerk sue graff and made a purchase that took about twenty seconds there was no apparent conversation with the store clerk there was no indication that she had ever seen mr brierly before or ever seen him after that particular brief encounter after the events took place in the investigation commands to the federal and state task force that was investigating the matter went and obtained various videos from the gas station and they learn that the clerk was in fact to graph they attempted to contact her about a month later she was unavailable and approximately two months after this event she ultimately was contacted by detective blued who was the state investigative officer and ultimately identified a photo lineup indicating that mr brother was one of the individuals in the gas station that night now the complaint that mr  burley has about this was the fact that there was a motion to suppress and at the time of the motion to suppress there was no indication that there had been any other involved woman by government agents with mrs graf until the time that encounter that she had that evening with this person and that she recalled it specifically because she'd heard she didn't have her glasses with her and then she couldn't really identify the greeny texture of the  tape it was rather difficult for her child done if i so they made blow up pictures of that or that the officer had blow up pictures of the individuals there and she ultimately indicated that at that point she saw the pictures which were blown up and then she identified mr brierly as much as the argument here is that this was a conspiracy and there was other evidence pointing your client mr brierly to this conspiracy with the other individuals they were probably in the picture to the evidence is more than her identification do you see that as as eliminating any evidence with critical evidence in the case being absolutely there was no question that me why please well because this was this i wouldn't it was the only individual who had an eye witness and identification of mr brierly as having anything to do with the conspiracy that had numbers called that were associated with him and his family but they never were able to establish that that was in his possession and in fact the state did apparently with this improper evidence track him along with the others  events and after the events had a telephone number sixty six fifteen which was still in philadelphia at the time that these events took place but in any event as far as the improper in suggestive identification and this information was not available when a motion to suppress took place and part of the reason that the court granted a rather deny the motion to suppress was that it didn't really have any complaint by the defendant about the procedure involved and here after y evidence to write i'm sorry or video evidence with respect to your client they show him coming he's in the parking lot of the jewelry store the villa video of his was inconclusive their own evidence technician who blew up these pictures even to five hundred that initially involved for conspiracy charges it was that there were two incidents and in both within a couple weeks of each other both the they charge a drug offense a drug conspiracy both offenses then they attach a gun charges to both the the both conspiracies at each location what the court said was you could only get one and that's essentially the claim we're making here they the nine twenty four sea offense both of counts two and count four or ledge have occurred in the west eastern district of michigan the one the first robbery where the codefendant was shot occurred in western division and no substantive charge was made on that they did the conspiracy involved both the both charges but the the substantive robbery charge was in the eastern district so that the the conduct such as it is involving my client in the guns is only in the itself but my client was never identified at the scene of the robberies at eight in the robertsons homes he was in code in the vicinity both the night before and then there was some testimony about to ha but the conspiracy the the idea that he's part of the conspiracy doesn't like him in here he he was part of the conspiracy but the gun large of the the conspiracy was count three counts two and four involve identical allegations about possessing firearms one related to the robbery subs in a robbery in the eastern vision and the second one in the eastern division relating to the conspiracy may please the court chris grandmama have the united states your honors this investigation and subsequent trial from the investigation rests upon reliable evidence and admissible evidence at trial i'd like to begin with the cell phone technology and i'll address each defendant's arguments in order so first the cast evidence or the cell phone location evidence that was him in this case i believe that judge given your analysis is on point here so the evidence that was admitted in this case talks about vicinity not pinpoint and so at no point do you see special agent has testified that any of the defendants is at a particular location now in the matter was jewelry store in grand rapids not in the tap or a jewelry store in west bloomfield michigan and not even in the hotels or in the gas station in new buffalo he use this evidence to actually put anyone in a particular location and i think the cases that have found problems with this type of evidence that's exactly what was attempting to go on so evans the same evidence that special agent has testified to in this case was actually admitted in the district court the problem that the district court found in evans was when they tried to do some type of granular ization theory and put it in a far more pinpoint location the same thing was supple bieda where the location the building was at the intersection of two sectors and so they were trying to pinpoint it more closely that is not the case in did agent hess testify to the imprecision of this kind of technology in did his testimony include that as as was the case in hill yes and so he testified both on direct and on cross i believe it's in cross that he actually said that he had seen in his experience that the cell phone towers power could reach five to seven miles away but i was never the argument that this technology you put anyone in any particular location other than the vicinity of new buffalo grand rapids west but about the argument that he never was qualified as an expert well he was qualified as an expert he testified as to his background his training and experience is the same as every one of the president shows so for example in the hill case they talk about special agent who's does the same type of work in chicago and they went through his qualifications special agent has testified in a very similar way in this case how many hours of training he's received from the cell phone companies over five hundred hours of training from th argument from mr martin that he was an appropriately he shouldn't testify because he wasn't and appropriately qualified expert i believe he was the questions the predicate questions were asked i believe it's a circuit thing he testified about in terms of cell phone is his investigative step which he issued earlier sought a court order gave the court order for what's known as a tower down and gave a general description of what  that the f b i asked for all of the cell phones interacting with that tower he did not give any type of expert testimony about how cell towers worked the final time that he testified after yes and so the second he the second time he testified about some of the evidence that was seized from mr calhoun and mr bradley at the time of the arrest but i don't believe he testified about any of the cell phone information at that time the third time was grand rapids area at the time after agent has left the stand he reviewed the information over here has he reviewed the cell phone documents and saw that there were calls there we asked agent max to also review the records which were already in evidence and we're talking about the series of fifty four a through i believe g it's the verizon cell phone records so after that cross examination before the government rested we asked the court whether we could recall a special agent hast to clear up what had been an error in his maps his ma approximately i believe it's seven or eight calls and this is actually page id thirty nine eighty three this is government exhibit fifty four see agent hesse's map said miss some cell phone the district court denied a request to recall especially it has to testify and so what the government did was call agent max to read these records to the jury essentially agent mats is last testimony was was reading these calls which had already been testified to by the rise in custody and mr fred powell these are admitted and so if the court compares special agent max's testimony his final testimony with the verizon custodial witness's testimony who testified about these saying phone calls and the same columns and he read the same type of information into the record that agent mack said that is the only thing that was transfixed it was it was riveting but it was why it was important was because when you compare fifty four see these calls that an agent has had messed with fifty four d specifically page id four thousand and thirty two you can see and this is the same thing that the court talked about in kilpatrick where if you are just reading voluminous records to the jury this is not the type of expert testimony we're talking about it shows fifty four c shows that it's the troy switch eleven cell phone tower two to eight you then go to fifty five fifty four d you look to cell phone tower detroit eleven cell phone tower two to a and it gives an address that's what agent did he wrote in the address now the address happens to be in grand rapids and that's why it was important for the government to cloak close that loop prior to closing arguments but that's what special agent max did he gave no opinion expert yes you normally need an expert to talk about what the special agent has talked about the operability of the cell phone network but that's not what agent max was doing that final time up in his testimony and now like to turn to the a drug conspiracy and they attach nine twenty foresees to that one they had another one and they charge that as a drug conspiracy and bribery conspiracy and attached to nine twenty four c so that and it was the same use of the weapon in both in our in both separate conspiracies here that's not what's happening here we have two units of prosecution here we have the substantive hobbs act at tapper's with the use of the weapon we have the conspiracy to commit high object robbery which extends from april twentieth through april twenty third and includes the matter was robbery in grand rapids michigan and we have the use of the gun there and so there's two different units of prosecution the substantive hobbs that and the conspiracy the verdict form and the reason that the the district court modeled the verdict form was to ensure that there was no double jeopardy that there wasn't a double counting of the gun for the tapper's robbery and so that's what the verdict form operated towards a double the double jeopardy argument which is separate and distinct from the venue argument so there's two different things operating here so what the verdict form did was ensure that the jury found two uses of the gun two separate units a prosecution and that's what was proved at trial now in terms of venue whether we could charge the use and carry of a firearm that occurred outside of the district the supreme court's already ruled on this and that is the rodriguez marino case the one thousand nine hundred ninety s which appellate argument counsel have chose simply to ignore and rodrigues marino says that is wanted you have a continuing criminal act and that's what the conspiracy was in this case the proper venue can be where the conspiracy began where it commenced where continued and where it ends and so the eastern district of michigan we had proper venue the rodriguez marino case says you can even charge the use in carry of a firearm even though that using carry didn't occur in your in the district if it's attached to the underlying predicate offense which does have been you in that particular district and that's what happened in this case so this is not a double counting this is not victim bossangoa where there's  that type of stacking of nine twenty four sees this it was to address two separate uses of the firearm in terms of the use of the firearm there is evidence on the record that showed mr pembroke was the first person in the door these are the videos that exhibit one mr pembroke was the first person in the door going into meadow was jewelers he had the gun out and he was followed by three other people going into metal wires he had the gun out and visible prior to ever entering that jewelry store i think it's also important to know that there were actually six robbers in this case the government was never able to identify the two of the robbers and so to say well my client wasn't in the store it's true they wore a mask they wore hoodies pulled down over their faces there's only so many people can be get away drivers there's four people one in the store there's six people to get away drivers for people in the store so mr pembroke went in with the gun are already exposed going into metal wires there is evidence when we talk about mr calhoun to his role within the conspiracy yes he rented the car and we have the phone call to enterprise rent a car april twenty first talking about the wiper side but we also have and this is where the cell phone records apparent council have focused on the location but there is so much connectivity between the identified cell phones before during and after these robber them among them and so for example the phone number that was identified as mr calhoun is the zero zero three three mr johnson's phone call's mr calhoun in the half an hour before the m jewelry robbery mr johnson's phone is ink connection with mr bradley's a seventy one nine phone before the metal wires robbery he's on the phone with the what about the argument that bradley is typically used to different phone and that this phone evidence is that's not his phone that was presented to the jury by the defense it was raised by the defense and rejected by the jury in this case so what we know about the seven eight one nine number the one that the government argued with mr bradley's phone was it was a prepaid phone that we brought the team mobile representative on the stand they identified as being a prepaid phone with no identif as to who had it but what the government did show it to the seventy one nine number is that it make contact with mr bradley's ex wife mr bradley's daughter a good friend of mr bradley a steven brown that he contacted numerous times case all the blood evidence lots of evidence connecting mr bradley to that phone will look at yes and so in terms of the six six one five number that was presented to the jury it was the government's theory and what was argue to the jury was he left his cell phone back in philadelphia and took this essentially burner phone with him to commit the robberies and that was a similar pattern to the other phones being used that they were all prepaid phones not in their own names for example mr johnson and this was presented to the jury using the one for three for a number actually went back to philadelphia and gave that phone to mickey a walker who then began to use that phone as has her own and we call miss walker to the stand she identify that mr johnson gave that phone and also identified him in some of the still photos from the surveillance from tappers and also at the gas station in new buffalo in terms of mr brierly and the identification of mr brierly both by mr graf and then larger in the larger context first in terms of had a hearing pretrial on this case and allowed that in and so under the clear air standard we believe that that was permissible evidence in terms of seeing other circumstantial evidence putting m there and reference to counsel's argument while it was only miss graff is really the linchpin of the government's case there's video from the gas station the jury could see for themselves who was standing at the counter they could compare that person to mr bryant he had on an orange plaid shirt there was evidence that after his cell phone was seized from the government in a search warrant was applied for there was a picture of him in a very similar if not the exact same orange plaid shirt that was presented to the jury mr brierly had a half beard both at the time of the robbery and at the time of trial so a beard with no mustache once again a distinctive mark that the jury could also take a look at when you add that in with the cell phone information and then if you take a look at the series of exhibits from the tapper's robbery and this is up to the videos at the government's exhibit eleven and i would particularly point towards government exhibit d in d and eleven k and then we use blow ups of those still photos at fourteen and fifteen what you see is the white person and the black many band traveling together through the various parking lots around tappers to individual step out of the wiper side they walk into the mall we believe in the jury also believed and found that that was mr brierly and mr calhoun take a look at the still photos and compare them to the photographs you have in the photographic lineups and this is what we argued that was mr bradley mr calhoun and they walked past the tapper's on multiple occasions there and then another individual came out of the black van and walked past the tapper's this is all within the hour before the actual robbery occurred and that person from the black minivan with mr lando johnson and we presented evidence to that and that's who nicaea walker identified as being  orlando johnson so in terms of this all of the arguments here today about whether it's the cell phone location data or the photographic id it being the linchpin know all of these pieces fit together and put these four individuals at the at the robbery in committing the robbery and so we believe that in toto that the evidence supports the convictions in this case it was a reliable evidence admissible evidence and these convictions should be sustained and absent any questions believe i'm done we have not thank you thank you just waiting for that to just thank you just real briefly on the issue of agent max and i think it was the second time he testified and i'd point the court to page id two six six zero three two six six five when he does assert just like agent hass that the cell site records show that these phones were traveling to philadelphia then through multiple states stopping overnight in new buffalo returning to philadelphia and that in his opinion they're traveling the same route that requires expert analysis of cell type records also i just wanted to push back quickly on the idea that just because he said it was the general vicinity that that made it ok i point the court to the hill case from the seventh circuit and that the majority there in the court said that it's more problematic when they say something was in the general vicinity versus when they say it's not that's i take issue with the mr gravel and characterization of what a unit a prosecution is he refers to the two offenses as units of prosecution i think that the court the court and verdict function and also by reference to rense made clear that it is not just offense it is the minimal level of activity that's necessary in order for that underlying offense to have been something in which the defendant manifested his intent to participate as in it or to better that's what the court says by reference to rense and that isn't shown here i take issue also with reference to this case as one of double jeopardy that it says first pacifically says that it's a statutory interpretation matter it's interpretation of one twenty the offense took place in the eastern district of michigan and finally the special iraq a choice from the council site merino i'm sorry you heard counsel cite merino i did and so quarrel with that that's about venue this isn't ok this case isn't about this issue about the nine twenty four c is not the same as a question of venue charged in  eastern district of michigan it could the point that's right that's right so that would say that venue could be present for an offense that took place there but this is a question of what the unit of prosecution is not where venue was is to be located the special in a rugged story that was included in instruction ask if the jury unanimously found that the use and carry the farm was during in relation to conduct separate and distinct from the conduct charge and count one it i think that that's an impossibility in this circumstance the conspiracy included everything there wasn't any conduct in the eastern district of michigan that was separate and apart from the offense conduct related to the robbery the conspiracy included the robbery if the if the conspiracy had not been charged in this case and the only offense was the tappets robbery i think that the government would have been successful in presenting evidence about the travel from philadelphia to get t just a couple of points in rebuttal your honor the government's theory that the phone seventy eight nineteen belong to brierly you know is of the theory that they presented it to trial but one thing they'd have not explained is the fact that there were calls during this period of time between seventy eight one thousand and sixty six one five which was mr burley's phone which was also the phone that he possessed when he was arrested at that particular time and also the there was an e mail admitted by the government in the trial that indicated messaging from him to his daughter that the only phone he owned and to be contact on was sixty six one five the other problem is that at the time that the  certainly that's within the realm of probabilities but it's the phone that he always had in fact government introduced testimony from the pennsylvania department of corrections that mr bradley had used that phone to contact people there so it was it was  unquestionably established that it was his phone and other than the fact that there were some people that were called related to bradley's family there was no direct you know nobody came in and said i received a call from brierley on seventy eight one nine nope nobody a trial the government run one and as witness they just use that as a theory that it was his phone and that was following him along to this this robbery as far as the video goes detective thomas a a page on page eighty twenty eight sixteen  convictions thank you we're not talking here about what the government could have done in their indictment in the nine twenty four c s and count two it is in the eastern district of michigan the defendant count three were the conspiracy occurred elsewhere they say in the eastern district of michigan and elsewhere in count four which is the charge that will aides to the conspiracy they're talking about in the eastern district of michigan so late while they have may have had the power to have indicted more broadly they'd on the nine twenty four cs they charged only the behavior in the eastern district