yes your honor may it please the court my name is mark rappel and i represent to the appellants in this matter alan piping jr and a p properties i'm joined by co counsel bob krieger who's going to be representing a matter sharon elder the present case is an appeal from the united states district court for the district of nebraska involved an extremely complicated case extremely complicated indictment which included fourteen separate counts  co defendants there were forfeiture allegations or money judgment issues as a twenty one day jury trial it also involved a motion for new trial parties have submitted lengthy briefs in this matter including  myself i'm going to try to focus on a couple issues that i believe to be the more reported issues in this particular appeal i think the brief speaks for itself on the others if the court wants to steer me in another direction i'd be glad to do that it's my understanding mr krieger is going to have five minutes and he's going to touch on some of the sentencing issues here so the first issue i'd like to bring like to argue to the court is its position at the lower court did air in denying mr pike ment's motion for a new trial now the federal rules of criminal procedure rule thirty three does allow for the court to vacate any judgment and grant a new trial if the interest of justice so requires an appellate court can reverse a district court ruling for a new trial if there's a clear and manifest abuse of discretion and we can see that motions for a new trial as the case law suggest in our circuit is a very is a very unusual remedy to grant a motion for a new trial and it must according to the cases citing rule thirty three rule thirty three must be used sparingly and with caution and the court may grant a new trial only if the evidence so way so heavily against the verdict that a miscarriage of justice may have occurred now in this particular case there's little doubt that an error did occur at the jury trial in fact the district judge conceded as much he admitted that it was clear error for the jury to be able to hear evidence as to count fourteen which is this is the record reflect i didn't get it from the briefs does a record lead to how this was discovered because it goes to the whole trial it's not real clear you and so in this case there is clearly an error and the error was that the jury was allowed to hear evidence of the fact that mr pikeman was on supervisor at least for another criminal violation and that come to find out should not have ever made its way in from the jury the court admitted it was an error however the co at horseman one fourteen f thirty eight twenty two circle k says only if only if a jury may have been substantially swayed by the improperly admitted evidence must the court reverse a conviction and  embrace this very high burden this very rare circumstance in which a motion for a new trial should be granted we believe addressed address the government's point that this was your whole defense from the first miranda statement through trial you would put all this stuff on anyway because it's your defense i'm in jail how going to be run in this business very well your honor it's our position that first off that the state the united states is the one who injected this issue into the trial from the onset of the trial in opening statements the prosecutor for the united states mentioned the fact that mr pipe in was on supervised release and that be evidence and they walk the jury through what would be presented so in some respects it's a parent's position that this defense was forced upon them they really had no choice but to embrace this defense because it was injected into the trial by the state i'm right that it is miranda statement he mentioned it he does mention in the miranda statement and has a defense as short a point yes judge and sculp atory point yeah exculpatory it was an attempt to which arguably is hearsay i would argue that the defense very minimal when you can compared to the said stan szell unfair prejudice that would have resulted had it occurred but i think what makes this case so rare and why this is a rare exception case that would justify a new trial is again this evidence was admitted by the state  the state's case in chief the evidence was essentially the evidence was presented at trial as a crime and it really wasn't a crime at all and this all is this something that the should've been picked up long before we got to the jury trial i mean when somebody read the indictment looked at the elements and said is this a crime looked in the pattern jury instructions see there's no place where there's any jury instructions for this and that you know and even beyond that i mean you get to the point you look at it is like well what crime is that i mean you know i've been sitting around as a judge for thirty years i guess only twenty seven and it struck me when i first read the indictment i said what is that and so it's ok but when you were asked about whether what would you have offered up as your defense by judge cuff there was no response you know the response was well the defense always would have would have well what was left on the table was cups reasonable conclusion that the defense always would have been i could have done it because i was in custody and in fact that is a defense that is offered more than occasionally which are yes your honor and for the record i wasn't trial counsel and when i read it i was a little surprised at the slip past everybody as well i think there's plenty of blame to go around as to how it ended up this way but my response to that would be that mr president has a constitutional right to present a defense and that defense should be his choice not the government's choice or the courts choice he should it may not have been the strongest defense but it could be his defense in criminal cases of course the burdens of proof in the high standard of proof beyond reasonable doubt are things that the finance argue every day in courtrooms in front of juries reasonable doubt reasonable doubt burden of proof in his defense could have been where was he we don't know there's no evidence of where he was and so his fingers are all over this case but again he the fact is it was a twenty one jury trial nobody noticed it till after the fact  the jury returns a verdict on a crime that wasn't really a crime it was you know it's extremely the detail at which it came in was also concerning to to me your honor says again this wasn't a situation we're just merely mention that mr python was on supervised release felony that he was on three years of supervised release all this allowed for an extremely negative inference upon the jury upon mr pike and then again i believe the jury he testified part of my search did he testified he didn't test trial your honor he testified at the phase after conviction so he testified more to whether or not the judge should be imposed but what's what's so concerning about this case is the errors that were made allowed for the possibility of a century for propensity evidence and the courts throughout this country's history have always been concerned about the danger of propensity evidence a jury inferring that a defendant did it once he'll do it again and to allow this in to let someone and again the probation officer testified not only does she work with offenders she works with quote high risk offenders so this jury got to hear live testimony that he saw an exhibit that characterized mr piper as a prior convicted felon who was a high risk offender who jury trial is a balancing act between prejudicial evidence and relevant evidence and there are certain ways to handle those situations in a much less prejudicial way than was handed in this case there are limiting instructions that could be given and there are certain  instructions and the court can instruct the jury before they have its comes in orally this is admissible for a very limited purpose all of this evidence came in without any sort of safeguards it was it was allowed in without instruction orally or through limiting instruction so whether it be for a for evidence or even it's my position that this is almost allowing them to impeach mr pike men with his private criminal record to a certain extent without him testifying and in as a defense attorney and that's a strategy that fent the finish should be allowed to make i'll put my client on the stand if i do so i do it in my peril to open the door to possible criminal record the state was allowed to do that in this case without the defendant putting that witness on their client on the stand and i may be confusing this with other cases because i read a lot of jury instructions and briefs but it seems to me that the only reference at all about your defendant being charged with only the crimes charged in the indictment of course is just still only crimes only on trial for crimes charge language but there's never any other limiting instruction on any other information that's ever given by judge cuffe not to my knowledge or on a not absolutely not and that was part of the concern here is that the jury what the dangers of them being able to infer propensity i  think is the real concern that we have and that's why we believe although i again we concede that this is a rare case that new trials are very rarely granted exceptional cases i think this is an exceptionally rare case where you have a twenty one day jury trial this evidence comes in no one catches it and it's this damaging of evidence and i would say look if this if this case were there were different facts perhaps would be a different outcome look this was a case that was largely based as far as mr pike unskilled upon circumstantial evidence that there was not a lot of direct evidence linking him to for crimes this is not a case where you had a full confession by mr python or you had a situation where is a crime where there's a bunch of friends of evidence linking him to the crime d n a fingerprints or something along those lines but what wasn't and of a major part of pite min's defense that he wasn't part of the business because he was on supervised release it ultimately ended up being a major part of his defense you and i would i would concede that but it's our position that he was  forced to embrace that defense because the state in their opening statements and in their case in chief a sensually brought that issue in front of the jury and they're presenting live testimony from supervisor lease officers about his prior conviction essentially and then he had no choice but to embrace it when it when it came to this trial and it i think what's key is again this was brought up in the state's opening statements it was not brought up the defense did not open the door to this particular issue they had to respond to it because that door was kicked open by the government while the doors kicked open because it's a count in the indictment right and someone's going to give a road map of where we're going in the opening statement they might very well be expected to go through that charges and really the problem here is just that it was missed from the very beginning of the question is does that taint the whole process such that the dead that you can't get to a fair trial and it's our position that it does taint the process we cannot be warning me please the court my name is bob krieger i represent sharon elder at the time of the alleged offense she was in her mid to late sixty's took over her son's business after he was incarcerated was not particularly sophisticated but these were head shops in these head shops sold drug paraphernalia and things that i'm old enough to remember when they first became an issue so i'm really not here to talk about headshots i'm here to talk about the controversy that developed during her tenure over spice and that's important because the record evidence at least attempted in some part to say look i don't know what's legal or illegal so i'm going to ask i'm going to work with law enforcement and law enforcement is going to be involved  in telling me what i can and can't sell because really you know from other cases the marketers of these popery spice the synthetic marijuana substances keep one step ahead of the law in terms of outlawing it and is the record in this case indicated of the product sees only a small portion of it was actually discovered to be controlled one controlled substances so if you're sharon elder and you're in this marketplace and you're taking over as caretaker for your son it seems reasonable to work with law enforcement and she did in there and the evidence in the case of the trial suggests and corroborates that what she tried to do or her lawyer tried to do at the time was to elevate that to a jury instruction defens public authority or entrapment by a stoppel and prior to the trial filed a notice and made an offer of proof that i wasn't the greatest it it laid out dealings with the city attorney's office dealings with law enforcement along the way to many letters were there are there are letters from the city attorney yes there was one but there was more than one but you say just one really i think there was one that was relevant to the discussion and it was done in an offer of proof fashion i don't think there were there was there as art but in long in the short of it is the judge said that look no rational juror could buy this defense sustained emotion and lemony and it kind of died on the vine and i can't find anywhere in the record where counsel continued to pursue it other than the admonition don't do this without approaching the first which is the typical way of handling that so it that issue sort of died but we do know that she was acquitted of the offense of selling controlled substances which even without that part of it the jury was i'm persuaded that the government met its burden on that issue so the question then remains would that defense of affected or could that defense have been applied to the other five other charges the adult the misbranded drugs and all that i think it it should it should have been permitted the evidence but even if it was the city attorney what authority did they have to make such an offer on her  the attorney prosecute felonies do they have the authority certainly they don't have the authority to prosecute federal crimes i agree and so the question becomes is would a reasonable person believe that the city attorney was empowered to  o to bind the city the state and the federal government actually your honor i don't know if there's a federal authority that actually can bind anybody the question is can and does a person who thinks that's the case use that maybe not public authority as an absolute defense but stop an entrapment by a stop thinking that the people that matter that are enforcing the law are saying that it's ok i imagine if she had a letter from guess whoever the attorney general is that says this is ok that might not be acceptable so i really in this case all she was saying is i want to give i want to give my a defense a chance but what happens is in the long run there are so residual sentencing issues my five minutes is quickly evaporation pretty questionable so let me just make one argument that i think is worth noting this acquited conduct issue is a growing issue i watched judge kavanagh's hearings and i blogged just last night where the blogosphere is on this question of whether there are now four votes in the supreme court to take served on a case involving acquitted conduct and i can't think of a case more interesting because in this case it wasn't just acquitted conduct that was used to egg or made a sentencing factor this case acts as if she was convicted of the of the conspiracy to distribute a controlled substance when that was the one thing that the jury said didn't happen and every sentencing element the money laundering adulterated drug is all based upon the drug tables not the base offense levels for those offenses and the two offenses have thirty six month maximum sentences so if there's ever a case in which fundamental fairness says you should not be sentenced for things that you were acquitted of doing this is it it's a sleeper issue in this case i know this court's position is with the majority of circuits but that may change and i ask you to look at it again thank you thank you for your argument you preserve the point misfortune we'll hear from you good morning i'm sara fullerton i'm assisting united states attorney with the district in nebraska in the lincoln office and i was trial counsel in this case and i think i'll maybe work backwards here starting with mr krieger last part of the point about the sentencing judge cup did what he was supposed to do he was required to consider the applicable guidelines he did that the applicable guidelines referred him to the drug quality tables as far as the conspiracy to distribute paraphernalia was concerned he considered those guidelines and he determined on his own that he that the t h c guidelines the one to sixty seven ratio was too high and he granted departures downward to both defendants based on that so i don't see anything that judge cup did that could be considered a error in terms of that sentencing determination with respect to this public  and all of her drug paraphernalia so it was basically an after the fact things saying don't the letter said there were two letters there at the identical they're identical one went to dirt cheap one went to island smokes both addressed to her and both of them said basically don't do this anymore and if you don't do this anymore we won't we won't go after you for a public nuisance and the agreements that she signed which didn't happen until i think june of two thousand and fifteen well after the april search basically just basically said there were no representations being made about whether or not selling any of these would violate any state local or federal law so on all the city attorney's office promised her was that if she signed the agreement and she agreed not to sell these things anymore they wouldn't go after her for a public nuisance it was made clear in the agreements that she could still be prosecuted criminally if these items turned out to be controlled substances and in fact the agreement specifically said they might be controlled substances so the public authority and entrapment by a stop all defen went nowhere because there was nowhere to go for it to go she made no proof of any kind that would have justified the court giving an instruction along those lines so then i would go on to this issue about the motion for a new trial  defense of i was in prison i was in the on supervised release i wasn't doing this because of those things started way before my opening statement ok started when was their arrangement did you show those at trial those videotapes are part of the part of them we had redacted out at the court at judge capps request we requested we rejected out any mention of what the conviction was for ok so he said he'd would have been in prison but there was no mention in fred the jury either in those tapes or in the exhibit that mr rapp talked about in terms of the supervisor release there was no mention of what that conviction was for there's a record reflect how this error was discovered not really is there a motion a conference about it  up what is it first brought up first it was first found i think judge cut found it after the court the trial had been completed and he entered an order requiring both sides to brief the issue all or was i mean i mean it strikes me as unusual that there's not a more aggressive defense being offered and instead the judge's has kind of acting on his own i don't think that's into it i understand what you're saying i don't think that in my memory that's that's entirely accurate as to how things went i think that there may not have been formal motions with respect to the some of that but i think those were things if i'm remembering correctly that we discussed in pretrial conference is that that could be i didn't i didn't go through and read all the records out you know i have scripts i think it may not be there may not be motions saying i want these things out and you know arguments about both sides i think those were things that we discussed during our pretrial conferences with those on the record with a record made of that the pretrial conference i don't know the answer to  in any event i do recall there being discussions about those matters and basically the parties kind of coming to an agreement in terms of these are the things that should be taken out because since those were videotapes that took us some time that was going to require some time in order to get that done and get the redacted copies available to everybody so they could review him so this was not something that happened on spur of the moment and certainly that's fairly common lawyers sit down they talk was that there were in fact discussions and that there was the ordinary kind of give and take between cultures right because it i mean if this is i mean i would have expected that if he had ordered me to read back something and i didn't think that that was appropriate i would have filed something so i mean as far as i can recall we had discussions since we knew this was going to be a long trial we knew it was going to take time that these things were reviewed by the court and bot counsel and we had some discussions and the redactions were made as a result of that did you find in a circuit case like this you know he did you check other circuits or even state courts for something like this where it goes all the way through the convict to the song that's not a crime i confess no i have not found anything directly on point but the issue i think here is less i mean we all agree that it was a miss it was an error it was a mistake the question is was mr price men prejudiced by it and the answer to that is no because mr price men long before all this happens before any of this comes up starts down this road where this is his defense his defense is that he was in prison he was on supervisory release he used to run this bad dirt cheap place but since he didn't want to get in trouble with his probation officer in fact he mentioned his probation officer b name to special agent vincent during that recorded interview he said i'm supposed to meet with matt gallagher today could you please every says words to the effect of could you please talk to her and tell her that i didn't just skip our appointment so he's starting this from the get go it's almost the first thing out of his mouth is i'm on supervised release i don't have anything to do with this anymore i gave this to my mom she's running it and then he goes into a later he gets more comfortable with the agent starts telling him look she's running it for me essentially the idea being that once he was our supervisor release he was going to take it back over again and she was going to retire did you put into evidence to supervise release order part of it ok and what part of and why i put it i think that we put in  order that as part of your case in chief you as the heart of our case and he has basically said what the terms of his supervisor release were did not say what the conviction was for it shows the top of it will it's in the record right  caught earlier there would have been all sorts of limiting instructions and that even if the same evidence had come in it would have come in with the judge saying to the jury you know sort of big stop sign saying understand he's not charged with crimes that may have been committed in the past or somewhere else he's only charged with the crime set forth in the indictment well if you look at the the transcript of the hearing on the motion for a new trial the answer to that clearly from judge cast perspective was clearly no it wouldn't not have made a difference at all he pointed out he pointed to the miranda statements that they both gave before they they had had a chance to decide what else they were going to  do in terms of the fact that this was the this was the story they were telling mom's doing this for son she's run his business for son so he doesn't get in trouble with his supervise release officer that was their joint defense strategy and i suspect part of that also had to do with mother was an elderly woman and they thought well if anybody gets convicted we'll have to make it be her she's a poor old lady they're not going to give her a sentence she's going to get off with probation and we're all going to go along with her merry business that's what their joint defense strategy was and that began at the time well  before but it was first stated that the time they make their miranda statements right after they get arrested so there was no way they could be mr postman could be prejudiced by what was going to be his own defense and it was probably his best defense hey i wash my hands of this i can't be involved with it my probation officer told me i can't be involved with it and so that's the reason that the mom it that was their joint defense strategy he wasn't prejudiced by that information he would have broke it would have come in for two reasons it would have come in as part of the miranda interviews and judge tough was quite clear that he found that those statements those statements about the fact that he was having his mother run it while he was on supervised release the fact he was going to take it back over from her when he was done  the fact that he was doing this to stay a good with his probation officer all of those things would have come in along with his statements that he was telling her how to run the business while he was in prison he made phone he talked about phone calls he made to her telling her how to check out suppliers telling her how to go about various things telling her how to run the business he's telling her how to run this conspiracy from prison so this whole scenario what it was going to come in anyway it was evidence of the conspiracy it was evidence of his part in the conspiracy and so those statements would have come in and judge cutts said and i think was right i would not have had the that information redacted out because it was relevant evidence to the conspiracy charge back to the record sure if you look at the record is there any time in the record the defendant indicates what the defense is going to be a trial i would say no sorry this is of course elder point did she give notice of the public authority you i think the notice is required on that isn't she did she did yes well before trial and that's when we had hearings on that  again this was the defense he was going to use because it probably was his best offensives hey don't look at me i can't be involved in this stuff i was just trying to stay clean i can't be responsible for what my mom did and so i think that this is this testimony was going to come in the evidence was going to come in he called the number of witnesses or or between the two of them they called a number of witnesses who were clerks at the various stores and those clerks came in and testified that mr postman they only saw occasionally once in a while maybe he'd come in and pick something up but oh mrs mrs elder she was the one who was running it she owned it he just stopped in from time to time and one of them said he brought them cheesecake and bacon did the clerk say he was in jail yes i think the clerks did least one of them did mention something about in direct examination in direct examination to fast not that you got it right about what happened after a j got out of jail so yes they brought it in and they would have brought it honor from from a pure public policy standpoint it would be completely and improper to create a precedent where i defendant must be strapped with a defense that they introduced during a law enforcement interrogation without counsel  defendants are constantly in law enforcement interviews trying to come up with explanations and reasons for their conduct but to suggest that now that if an at trial must be strapped with that defense come hell or highwater would speak completely and improper and with it with all interrogation room thought that this explanation might be his best defense maybe after consulting with an attorney which he certainly has a constitutional right to do when he's facing criminal charges the attorney me after strategizing come up with a different theory as to what the best defense is so it's a bit  concerning that the state's trying to again straddle the defense with the with the defense that was made during law enforcement interview and another problem i have with the united states argument this case is you know not all explanations and and this justification introduced into a trial by the state at trial criminal conduct of the offender or criminal conduct of the defendant the state wants to suggest that the defense wanted to introduce evidence that the mom was running the show for the  son there was running out for python and that she's older than him she'll get treated more favorably the state could introduce all that evidence i just mentioned he was running she was running for him and she was older without introducing the fact that he had it essentially a criminal record and a document exhibit number sixty two so again i think you just can't look at this as a situation we're all explanations are the same and lastly i would ask the court to consider again there was an error made but the burden is on the state now to prove that the jury was not substantially swayed by this improperly evidence in the state other than speculating cannot meet the burden that the jury in this particular case was not substantially weighed by the improperly admitted evidence we asked the court to grant a new trial in this case thank you thank you counsel for your argument the case is seventeen days twenty seven twenty one twenty seven twenty two twenty seven twenty three and twenty seven sixty eight are submitted for decision by this