good morning hours of may please the court as has been noted we have twenty minutes we've agreed to divide it equally i'd like to reserve three minutes for a bottom line in light of the fact that i have seven minutes we'll try to get right to the point  in this case there were thirty one people charged ultimately twenty nine people pled guilty to went to trial the government argues at great length in support of its position on a number of issues and number of joint issues that will argue between us that the evidence was overwhelming that anything that may have happened here that was potentially in error was harmless  light of the number of please i can understand why that argument is advanced but it's not supported by the evidence and if we look at the evidence globally that was actually presented when two of the defendants did go to trial what we know is the government through a series of witnesses sought to prove essentially two types of drug conspiracy cocaine conspiracy and the marijuana  prove those through the same witnesses the government introduced evidence of significant amounts of cocaine being moved being trafficked course all through words all what i call phantom amounts amounts that are acceptable if you believe the witnesses but not no real cocaine they did the same thing with marijuana same witnesses same testimony well lo and behold in evaluating those witnesses the jury found antonio rios not guilty of the marijuana consp the difference in the evidence on marijuana and cocaine as it relates to mr rios is largely one hundred three grams of cocaine found in his car and that's why the search leading to the discovery of that evidence is so crucial to his ability to receive a fair trial again through the government's witnesses and we have a marijuana conspiracy rejected we have two attempted murders for which he was found not guilty again all coming from the same witnesses who talked about cocaine or at least some  that's why the search is so important in regard to the search in reviewing thinking more trying to boil down what i want to say to the court about the search i would say this the moment that antonio rios left holland michigan on the day in question a decision was made to search his vehicle that decision was based upon a tip from an interested witness someone trying to avoid indictment when mr rios left town it was based upon a tip that he was going to chicago he was going to go to chicago to to do something illegal pick up drugs well he didn't go to chicago he went to detroit and the authorities knew that he went to detroit they knew that he went on an overnight trip they knew again from the moment he left his vehicle was going to be searched so whatever this court looks at to evaluate the appropriateness of the search it was information that was known when his car pulled away from holland michigan but he was stopped as i recall for some traffic violation was the police under randon supreme court precedent are perfectly allowed to do that stopping him is something i can't or with because he was speeding he was going very fast but rodriguez says if you're going to if you're going to make that kind of stop then you can conduct the business that is related to that stop they did that it's undisputed he produced his license he produced his registration they reviewed those items everything was fine they could have cited him he didn't have any outstanding warrants he had no reason to further the stop they waited so there was an extension of the not something that is it was it was a matter of getting the dog from one exit relatively close i think it was about fifteen minutes not something that in and of itself is so offensive what bothers me and what i think makes the search bad is that drug dog had been sitting and waiting with its handler waiting for mr rios to come back because in fact he was going to be stopped no matter what correct me if i'm wrong but i thought the supreme court case recent case that maybe it is rigged says that you can't extend a search to go get a drug dog and bring it in i mean is extended time frame but as long as it's going the police are going through the normal process of looking at the license checking for outstanding warrants etc that if the drug dog appears then the drug dog can circle around the car is that the law and then what's wrong with the search here if that is the law they were done and they could have released him before the drug they were they were done with everything else and that's in the record somewhere we have we have a very large record here is  a time frame basis were as the record shows the time difference was it was it was not a long time dog came it was not a long time it was i believe about fifteen minutes i'm going to look at that when i sit down but i believe about fifteen minutes isn't there is is there a case that says that that that is in permissible and what cases it well there's there are i don't have a case that says that fifteen minute time period is impermissible my position is that it's it's an extension of rodriguez because in fact the work was done related to the traffic stop and in fact the extension was solely for the purpose of getting the drug dog there but here that the real distinction is you know in the normal case the police have some reason when they make a stop they have some reason to call the canine which in this case was the tip it was your honor and my that's why i've attacked the tip that's why i've attacked the tip as as being improper because  inappropriate for a stop because in fact not only was there information about the tipster being and a party with an interest here in fact the information provided was all  wrong it was wrong in terms of chicago versus detroit i'm sorry your honor i would i would not feel a thing that was wrong you know or right and that but to me is the only thing that matter the only thing that mattered because nothing else was proven to be true except that he picked up a pass and i mean the whole point was he's going to chicago to to meet his connection and lo and behold it goes right to my times thank you if you're sitting down if you could come up with what case you think is the best good morning your honour's merry surety on behalf of mr casea and if it may please the court i would like to reserve two minutes for a bottle thank you runners as mr graham pointed out we have a number of issues today i'd like to focus on three one that relates to the trial and that is the district court changing of the pattern jury instruction regarding reasonable doubt and to that relate to mr casey as the sentencing one related to the classification of an assault as an assault with intent to murder mystery as opposed to an aggravated assault and the other with the imposition of two additional points for criminal livelihood as this court is well aware there are pattern jury instructions that district courts are not required to follow but they are strongly encouraged to follow the pattern and jury instructions encapsulate the fundamental concepts of due process that every defendant is entitled to when they go to trial especially in a case like this where so much of the evidence did not directly relate to mr cossey s or mr rios those fundamental principles are so critical the pattern jury instruction for reasonable doubt indicates that the proof has to be so convincing to the jurors that they would not hesitate to rely on it in making pro or con your position in permissible change in jury instruction no case that directly contrasts that sort of wording but in response to the government's motion me the government's response we talk about other cases from the court so for example wilson versus united states which is the united states supreme court decision to thirty two us five sixty three in that situation the court changed the jury instruction wording and used the determination or the freezing in important decision but in that situation the court said that the jurors could find  reasonable doubt if it meant that low bar so for example the jurors could find reasonable doubt of considering merely an important decision in their lives and that's in direct contradiction to what the district court did here because in wilson the court put its stamp of approval on that language when the jurors would say i would have a reasonable doubt in making an important decision in my life with the district court did is directly contradictory to that and said you can convict mr coe c s and mr rios if only you passed that very low threshold of an important decision that i think is one of the strongest cases to show that the language chosen by the district court was improper in this case sure this court is well aware of the most important decisions in your own lives generally they relate to things such as marriage or children an important decision in my life might be hiring a new attorney at the firm certainly not a decision of the same weight and magnitude as one of the most important decisions in my life the phrasing i think is selected because it conveys to the jurors that there has to be a extremely high level of certainty before you strip a man of his liberty them yes moral park would be to use the pattern instructions yes i'm curious how came about  court gave us a packet before closing argument of what it wanted to read to the jury when we went through there because i had actually prepared my closing argument using one of the most important decisions in a juror's life because it conveys that level of certainty and how serious this is for jurors because it definitely is i think one of the most important decisions in a juror's life to strip a person of liberty to convict them of very serious crimes when we saw the pattern jury instruction we objected to that with judge bell and the court indicated that it did not care for the wording selected in the pattern jury instructions that it believed that juries wouldn't know what one of the most important decisions in their lives would be but all the jurors would be able to focus on an important decision in their life and they think that again that shows the error because as there are many important decisions that we make in our lives many in a week many in a month but there are very few that rise to that front of judge bell so i had not face that issue with him i have had trials in front of other district court judges in the western district they all use the pattern jury instruction so this is the first time that it's been changed in one of my trials is mr graham pointed out there are in this case there was tremendous amount of evidence that did not relate to mr rios or mr cossey yes so for example one of the other issues is the court is well aware the very first witness by the government was a national gang expert who'd never heard of the hollow latin kings which mr casey is and mr rios were members of and he testified about national latin king policy procedures issues their next witness was a gentleman from the latin kings in chicago who said he lost count of the number of murders he had committed after he got to twenty again vastly different than the drug conspiracy charges that mr rios and mr c s were involved in in the assault that they were involved so when the jury starts out hearing this sort of information and then the end of the trial has that lower threshold the conviction violates mr cassius is due process rights as i see my time is moving quickly i'd like to move on to at least one of the sentencing who had both assaults put to the jury and was found not guilty not guilty of both of those mr casea says assault was not put to the jury the district court found at sentencing by preponderance of the evidence that the assault on a gentleman named mr allen various that occurred in texas rose to the level of assault with intent to murder where the district court made its mistake is determining that a reckless regard for a person's life which it said that mr casey has had rose to the level of scoring this as an assault intent to murder the sentencing guidelines are clear it has to be willful deliberate malicious and premeditated and it only is scored as an assault with intent to murder if the person had died it would have been a first degree murder so all four of those aspects would have needed to have been met in this case the district court used the phrase reckless disregard three times and says that a reckless disregard for human life almost rises be enough to show that because c is intended to die for a number of different reasons mr cossey assaulted mr all of various with his hands in his feet this was not a premeditated killing it was situational shoot my gun but i don't know if i hit someone mr q c s knew when he stopped that mr oliver was still alive but i thought that he stopped when there were other people around there could have been there  that wondering if the test is preponderance of the evidence why is there enough here for the district judge to me there were always people around so mr it's not like mr and mr all of us were isolated there are always people in that vicinity including the witness who said he heard mr christie has to make that statement mr all viruses wife testified for the government and she said she was there she heard mr swear but she did not hear him make that statement mr no one stopped mr casea snow and tried to stop heiress quite frankly he would have kept going or he would have stopped him from going to seek medical help when mr oliver was did go seek medical help he removed himself from the and put himself in the ambulance but the other critical point is that the district court even by a preponderance of the evidence did not find that mr intended to kill mr oliver errors the court said that it found that mr can see as evidence to a reckless disregard for m life and the court used that phrase three times so even if we look at the court's finding and it is not something where i can attack it be a preponderance of the evidence the court never found the intent to kill the court found reckless disregard you're saying that reckless disregard is correct because the sentencing commentary in the sentencing guidelines were choir willful deliberate malicious and premeditated reckless disregard including from a case from this court reckless disregard is sufficient for involuntary manslaughter excuse me involuntary manslaughter it is not sufficient for first degree premeditated murder so the court's finding of reckless disregard makes this an involuntary manslaughter had mr oliver passed away which means that he should have been scored as an aggravated assault and that would have impact his sentencing guidelines because the assault on mr al a verus was the driving force because of the base offense level and then if this court were to find that the trial court heard then the driving base offense level would be related to the drug conviction and that would impact the sentencing guideline range that mr i'll start i guess in the order that the defendants are presented their arguments beginning with mr rios and his argument regarding the suppression issue i think it's important to realize here that in the affidavit that was presented for the search warrant of the g p s location of the phone the tip was not merely that a credible informant had said antonia reus was going to pick up his girlfriend candy rodriguez and go to chicago to get drugs although the informant did say that the informant also harbor said that the cia has stated that the affidavit said that the cia has stated that he is aware of several trips rios has made to chicago detroit where he brought back over nine ounces of cocaine so info that the defendant went to detroit does not in any way implicate the probable cause that existed that he was going on a drug run to go pick up drugs to bring them back to holland michigan at the very least even if you don't find that there's probable caus this case there was certainly reasonable suspicion upon the stop that would allow even under rodriguez an extension of the stop in order to run the dog around the car where it made a positive hit giving officers absolutely probable cause to search the car so you're saying that because of the tip there was at least reasonable suspicion that would allow an extension so you're not arguing that it was within the limits that there normally would be if you're just stopping somebody for speeding i think that is our primary argument and that is our primary argument however i would also submit to the court that in the suppression hearing that the district court conducted the testimony of detective haglund who was the in the for the search warrant but also the mean officer who was working on the surveillance his he testified that he immediately called the canine handler who was at an exit the next exit up the highway on one hundred six from where the stop took place he called him immediately upon the stop and me dog handler testified that he responded in approximately five minutes so it is not clear from the record that the stop was completed and that mysterious was free to go included in the officer's report for the trooper that stopped the vehicle and the trooper indicated that he asked mr rios who has questions about where he was going and was given contradictory and inaccurate information that car that is largely the suppression issue although as i would like to respond briefly to the harmless error argument mr graham essentially conflate the evidence that was presented on cocaine and marijuana in the case and says that the cocaine conspiracy charge which was part of the one of the underline acts in the rico charge was only different from the marijuana conspiracy as to his client and that they found cocaine in the stop wit to mr casey as his arguments the first of those is the reasonable doubt instruction we have in our brief cited a number of cases that use varying language regarding reasonable doubt this court has never said that the pattern jury instructions are some talismanic incantation that must be set over the jury but it does seem like there's a real difference between saying the most important decisions of your life is there a big difference i don't think there's a big difference and i think that these standard that the court has to apply is whether or not the district court lowered the burden of proof and that has to be looked at in the entirety of the instruction that's given  and it's worth remembering that this is a two paragraph instruction regarding reasonable doubt the court can look at it so i won't read it but there are at least five sentences that discuss the concept of reasonable doubt moreover numerous courts have talked about in a big and important decision in your life or an important decision in your business affairs which seems less than what the court gave here i think the better your best case is for saying that this is  the fourth circuit case which is twenty third to seventy six in that case the four circuit approved in a in an important matter and your own business or personal affairs i believe in that case it's also the willingness to act language as opposed to be hesitating act language i understand that the courts have made some distinction between those two but and here the six are going to pattern instruction is a willingness to act language instruction as opposed to hesitate to act instruction similarly vargas is keen which is a second circuit case eighty six of third twelve seventy three talks about important business affairs again that seems like less of a standard than an important decision in your own life we've cited a number of cases in our brief that talk about an important decision as being a standard that has been approved by the court credited that testimony and this court can affirm on any basis supported by the record so do you think first of all i guess there's the question what has to be shown and it's an intent to kill  s so if you're punching somebody and you say die i hope you die is that enough to show intent to kill or could it be just that you're angry at the person i mean you couldn't now but the hypothesising way outside of the facts of this case but you could imagine people getting in a fight and somebody punching somebody and not intending to kill them but saying i hope you die because they're just so angry absolutely however in this case remember that this man did almost die he had to be airlifted to a hospital his one of his ears was almost torn off he was gravely injured and but for the intervention of medical technology would have died that was the testimony i believe a trial of your opponent i think was at least alluding to the idea that he walks to some ambulance or he walked somewhere in my eye i don't recall that from the record i'd like the court this is a violinist record and i don't want to make a representation on that front but he has my recollection is that he was actually airlifted and there was testimony from his treating the the doctor at the emergency room at trial regarding his the greatness of his injuries is there a problem that the district judge apparently was using a recklessness standard as opposed to an intent to kill standard i would say that the district court at worst his language was somewhat ambiguous in terms of the standard that's used he was responding just as  response to the leaving this man to die but that unlike in most cases we actually have a verbalization here of the intent to kill mr all of our eyes and that by itself is sufficient ms also talked about the testimony of officer bakley and mr vargas i'd like to respond to that just briefly which is to say it is worth remembering that in this case the defendants were indicted as nation the national organization and there was testimony that linked the overarching national organization to the holland length kings the chicago is the base traveled with him to i want to go organize another chapter of the latin kings there was testimony by other members of the latin kings that they went back and forth from chicago in order to prepare drugs and that the chicago land kings were a source of the drugs so the message in the briefs by the defendants is that the information that was given about the length of a nation was irrelevant and and prejudicial but it was intrinsic to the case and that the homeland kings didn't exist in a vacuum they were part and parcel of a greater organization now there are a lot of issues in this in this case as the court has said and i want to be responsive and responding to questions that the court has for me  had a chance to look at the record and in regard to the question of how long was it before there was a stop and then the canine unit arrived he it appears that all of the relevant evidence is that page seven thousand and twenty seven zero two zero and the time period according to the officer of the canine handler was five was that it was five minutes he was wait five minutes from the time the canine officer was called until he arrives right right then there's testimony according to your opponent that he was called immediately upon the stop and there is testimony has has to that however at page seven thousand twenty six there was an undisputed proffer regarding the presentation of the license and the registration so whether those facts but usually if when the police stop somebody it's my understanding that it takes a little while for them to check the license and registration on the computer that they have in their police car well it could but it was on because in this case there was going to be a search no matter what there wasn't testimony from the officer regarding exactly for example did he did he run the plate when he from his car before he went got the information we just don't know because again they were waiting and this canine officer was waiting since seven am for mr rios in the stop was made at one pm so your opponent argues that even if it did extend the search that because there was reasonable suspicion based on the tip that that was enough to extend the search purposeful and i disagree with with that because in fact it's undisputed that this was an interesting witness it is undisputed that in fact he claims he overheard a conversation and that conversation was we're going to chicago and they in fact went to detroit this generalized suspicion i guess my point is i don't think the generalized suspicion and the police did suspect mr rios and many others of being latin king members of this time you know most certainly but i believe the information was so inaccurate that it did not rise to the level of allowing any thank you one point of clarification mr christie yes and mr rios were indicted because they were alleged members of the holland latin kings that actually had been an issue that came up when we had jury instructions being read the indictment specifically it was only about them being members of the holland latin kings as it relates to the reasonable doubt jury instruction to two paragraphs or not reasonable doubt is the standard that juries have got to meet in order to convict a man and strip him of his liberty and in one of the cases cited by the government baker versus krikorian from the four circuit while the court had referenced an important matter in the jury instructions it then went on to convey to the jury that they needed to consider the more important matters in their own lives i was unable to find any case out of the six circuit that put its stamp of approval on lessening the reason about reasonable doubt standard to only an important decision as to pose to one of the most important decisions we all do a lot of trial work all three of us we all know each other very well jurors take the jury instructions extremely seriously in my opinion and whether again it's two paragraphs or two pages the spoke us on what the court has instructed them to do and here the court lessened the certainty that a juror needs in order to convict two men and have them stripped of their liberty as it relates to the mr al mr all of eris was he got into a motor vehicle just so i'm clear and he was driven about a half a block to a convenience store and then nine one one or an ambulance was called he waited in the parking lot with his wife when the ambulance got there he walked himself to the ambulance while he was in the hospital for a few days he was released with absolutely no restrictions and the sentencing guidelines are clear life threatening injury does not equate to an intent to kill mr cause c s was scored and enhanced seven levels because there was a life threatening injury to mr al a verus but that does not equate to an intent to kill and whether the district court was replying to an argument that i made or not it used the reckless disregard language three times and said in this is a quote now referring to reckless disregard that's almost as much as saying an intent to kill certainly reckless disregard for the life of another person the court indicated that's to close call but almost having an intent to kill is not the same as having an intent to kill and that's what's required to enhance that scoring for mr cossey s to assault with intent to murder so if the district judge was mistaken as to the standard and thought that it was reckless disregard and says almost intend to kill with the proper remedy be to vacate and remain so the district judge could reevaluated this evidence and decide whether there was an intent to kill or not no with all due respect john i think the proper remedy would be to remain for re sentencing and the fact that the court already determined that mr c s exhibited a reckless disregard and then it would just be a mere recalculation of the guy if the district judge is mistaken as to what he's supposed to be fined why shouldn't we give him a chance to make the correct  to know what the law is and correctly apply the court i believe took all the facts from the court was the one who heard all the evidence a trial in her arguments at sentencing so the court evaluated all the evidence the court then found that mr casey as had exhibited a reckless disregard the court believed that it could take that and then extrapolate out into determine that reckless disregard equals assault with intent to murder but the court already found that mr casea says mindset was a reckless the end of it should be the end in this regard because the court will have a chance to recent in some mr cossey s and then will either determine whether he the sentence it imposed was proper or will it would want to one restrict them to the language  if the court had wanted to find an intent to kill it had the opportunity to do it at that point in time when the evidence had already been presented to the court understand thank you your honor thank you thank you all for your argument and  i understand that both of you are a point in pursuing to the criminal justice act and we thank you for your representation of your client's interests just as we thank you all for your argument the case will be submitted and the other cases that are set for today will be submitted  o a number of cases on the briefs and would you the clerk which are in court please