is number thirteen five four seven seven and thirteen five eight seven two usa vs frank randolph and patrick smith and then also thirteen six three six one usa versus travis gentry which will be submitted on argument not to exceed twenty minutes per side and mr lieberman may know mr samuel and miss salinas and brant cincinnati we come from were it was seventy degrees yesterday when we left atlanta and i was able to find a coat fortunately you know frank randolph in this appeal raises a number of issues i'd like to focus on two of them if i may one is the rather bizarre and unusual verdict form answer and then the second is the money laundering calculation the sentence that you've been struggling with the verdict form already again and the verdict form obviously reflects the trial court's intention to deal with potential the prend the or perhaps you never anticipating a lane problems united states versus elaine trying to determine whether there are going to be any mandatory minimums with regard to the drug quantity so what the were what the job ordered form there was that asked initially was the defendant guilty or not guilty on count one which was the drug conspiracy and then it went on to add three additional questions in a rather unusual way not not the way we would do it in the eleventh circuit or the normal disk of georgia where i practice it asked specifically what you know was there any drugs involved any of the three different drugs that were listed in the indictment and supplemental instruction given and we cite that in our reply brief from the government doesn't spend much time addressing that meaning it addresses spend no time addressing it with the verdict form says was with respect to count one the amount of cocaine involved none it is conceivable it's a little bit of an intellectual challenge to figure out how you could have a conspiracy with not that drug involved not that i can be there that can be the case it is conceivable in the government and the problem was that the jury instruction that was given to the jury was actually quite clear it said if you unanimously find that a particular controlled substance was not involved mark not and that's what they did so this jury unanimously found assuming that they complied with the judge's structure unanimously found that there was no cocaine involved in the conspiracy not just that he didn't possess it not just that he maybe it's an undetermined amount but based on the jury instruction which is it i did sixty eight seventy three cocaine was not involved in the conspiracy with regard to rare brand of crack cocaine was not involved in the conspiracy ecstasy was not involved in the conspiracy they unanimously found that it was not well what was involved i mean we don't know what the jury found and there's a good reason why the jury would have that confusion because there was no evidence that frank grand off was involved let me were tracked that there was very little left that frank randolph had any involvement in any drugs at all it was no drugs found at his house during the search there was some cryptic phone messages that you know wiretap calls where you could interpret them as being kind of code but it was really not and by tom sentencing the judge says there's no evidence of drugs with him so the jury's conspiracy conclusion may have reflected may have reflected its belief that his involvement in the post drug activity which is the same as count ten that was the money makes him a member of the conspiracy but once they make the determination that there were no controlled substances involved in this conspiracy obeying the trial judge's during struction we contend that at that point the judge should have done what would happen in a civil case and that's why we cite the civil you know rule forty nine in our brief because that's the closest analog the court i'm sorry what's the practical effect if we agreed with you could well be very important questions as to go one way he's got the convictions and sentences on these other counts is there judgment which is unusual these days will thirty two point two usually says the judge does that but the jury was asked to render a money judgment under the forfeiture based on count one based on the drugs and and unfortunately for frank randolph it was joint several liability so he stuck with a seven hundred fifty thousand dollars judgment now which the government is in the process as we speak today of taking his home taking his real estate paid for home based on a on a conviction on count one the other defendants are in jail for life i don't know what their assets are but frank randolph was about to get released incidentally is going to be released with a seven hundred fifty thousand dollars judgment based only on only on the conviction on count one it would make no conviction so he's sitting in jail with conceivably for six months to go and you know police halfway house eligible and can't get out because he's got a drug conviction so it has that practical effect on me on how it makes a difference to your argument the verdict forms for the other defendants on the very sign one large we'll call it a wheel i guess was a chain this time conspiracy there are drug findings in each of the a as to that conspiracy well i think that demonstrate that demonstrates that our client was probably found or that arguably the jury found he wasn't a member of this drug conspiracy and was confused me understand this can someone be the bag man for conspiracy and after all that person dies you could put a jury would then still have to find that he was the bag man for a certain controlled substance you can't be a bag man for conspiracy with no no controlled substances if you look at the really a bag man for the money yes of a conspiracy in which you are not involved in the drugs but the other coconspirators are and you either know or put on i'm going to lose my money laundering or you can hear but i could interject the principle argument the government in response is courts don't review inconsistent verdicts in criminal cases these are not mutually exclusive verdicts because because we're not dealing with two counts of guilty we're dealing with that for and of more of an internal inconsistency i think the mutually exclusive verdict rule is best viewed as being an  analogous to our situation as opposed to the controlling authority it's the civil rules that deal with with special iraq tours that i think the court ought to look at as a good guide as to what should be done which is where the component parts the component elements of an offen everybody agrees he was never found with two hundred thousand dollars that never happened it was no and the judge during the sentencing says a lot of his income money in his bank account represents tinting his tenting business so th didn't did they not tenting business was maybe ten or twenty thousand dollars a year you're here per year and the judge says and demands that the orders that the p s r be amended to reflect that at no time does this judge ever say i find this two hundred thousand dollars in tainted money at no time did she say that that it was concealed i mean the fact that he has money in his house doesn't mean that it's money laundered money you could have dirty money that's not twenty one hundred dollars the question of money laundering so we can address that the three key issues of money laundering what is the total quantity of money how much of it is dirty and how much of it was concealed and therefore qualifies as laundered money as opposed to just dirty money found  specific findings of fact which i assume would encourage the judge to have a hearing on those issues where this could be used to have arguments we could have argument based on the trial record would be fine with that absolutely would resolution of count why would that make it please the court and melissa salinas i'm counsel of record for patrick smith and we have a student in the federal appellate litigation clinic at the university of michigan law school presenting his argument today thank you good morning and may it please the court my name is brian fetzer and i represent the appellate patrick smith before i begin i'd like to reserve two minutes for a bottle very well patrick smith should not spend the rest of his life in prison after declining to testify against travis gentry life leader of the conspiracy the government sought a life sentence against this thirty six year old man it then proceeded to try mr smith on scarce evidence and the inadmissible testimony of its case agent we asked this court to reverse mr smith convictions with my limited time i'd like to begin with the seven zero one issue the lower court judge abused his discretion by allowing the case agent agent richardson to interpret impermissible plain english words and phrases united states versus freeman was decided after mr smith's conviction and the district judge didn't have the benefit of its reasoning however it's binding on direct appeal and controls in this case because agent richardson establish an air of expertise and credibility at one point he said you understand the language completely as time goes on and that's it page eighty seven seven eight six he spoon fed his interpretations to the jury the jury was left in the dark regarding the source of his information in many instances in the words and phrases were clearly plain english you see me last night brother three this time all plain english words and phrases you save me last night is particularly troubling because the jury was clearly left in the dark regarding the source of information at trial the government attributed the information to amber stick an informant however looking through the record the government agent testified that he heard information from a source and that's how we knew patrick smith was going to the house and that's how they knew top to stop after smith and three this time in regard to three this time the government attributed that to mean that mr smith had three ounces of cocaine or was go of cocaine into crack and then in the regard to brother the government said that brother meant drug dealers in that these people were capable of throwing five to six ounces of all of cocaine on to someone at one time and that's it page id eight zero zero seven and if you look at united states which is freeman where the government agent interpreted we get rich ohio and situation is over with it's clearly an august so this case and it's really important in regard to mr smith's convictions based on the scarce physical evidence and other evidence implicating mr smith in this conspiracy no rational jury could have found mr smith guilty beyond a reasonable doubt on the conspiracy money laundering counts the evidence in this case was thin if you look as a whole it's really easy to cherry pick certain facts out of the record but if you look at the record as a whole there's some key facts that i'd like to point out to the court the government thought that spencer randolph's house was so important to the conspiracy alleged by the government that it installed a poll camera to observe all the goings on at the house on this pole cam and agent richardson sorry agent richardson testified that this was the center of the conspiracy at trial the government introduced a series of photos and mr smith was not pictured in a single one of these photographs and that begins that page eighty seven seven one two furthermore spencer enough to testify that mr smith was only at his house one time and it was to wish mr spencer enough well because you was feeling sick and that's it p j d seventy one twenty one at trial when spencer randolph was asked to identify mr smith he had benefited him as nick that's  seventy one twenty randy randolph got on the stand and testified and now randy randolph was the government's or sorry was travis gentry's right hand man he said that smith never sold or deliver drugs to him and smith never sold drugs to anyone else and that's it p j d eight six six eight based on these facts it's clear that mr smith was at most on the periphery of the conspiracy alleged by the government going specifically into the law and why the evidence was legally insufficient to prove mr smith guilty of drug conspiracy the government has to prove the overlapping of the participants in a mere association with the other participants in the conspiracy is insufficient for a finding of guilty and that's based on united states versus peers the government concedes as much in its brief that mr smith interacted almost exclusively with travis gentry there was no connection or very limited connection to any of the other coconspirators he was mr smith was friends with travis gentry through that association associated with some of the other individuals but not in any capacity regarding the conspiracy furthermore the government asserts that the common goal was generating thousands of dollars to sell drugs through a small tennessee town now if you look at the record mr smith couldn't have shared the school he didn't live in the same town and when he was arrested he wasn't found with any money on him he wasn't found with any drugs mr smith was motivated by a desire to get high with this friend he wasn't trying to generate thousands of dollars furthermore looking at the type of conspiracy you know your honor you identified it as a chain conspiracy earlier during my co counsels argument however we argue that this is a wheeling hub conspiracy this wasn't a situation where a to b to c to d at least in regard to mr smith as as i mentioned before mr smith didn't interact with the other members of the conspiracy he interacted almost exclusively with travis gentry and when we're dealing with the wheel conspiracy in the united states versus swofford this court's who cooked cooked the crack with mr gentry that's kraft's there is some evidence that mr smith cooked craft and how does that relate to your argument if he's cooking large quantities of the drug and he knows that they're not using that much we are there is no evidence as to what exactly happened with those with those drugs and if you what do you think is is that a reasonable implication for a jury to determine that he cooked it it was sold no your honor based on other testimony at trial i believe it was nick white's testimony at eighty one page eighty eighty one forty two he testified that travis was helping mr smith cook crack cocaine into crack for mr smith's use so there is no evidence that mr smith was turning around and taking the drugs and distributing them looking at the phone calls as well it seems clear that travis gentry was helping smith cook craft for mr smith it wasn't the other way around your honor was it mr smith helping travis gentry cook crack to then distribute through tennessee well the least of the government's theory was mr smith was negotiating purchases and sales and checking quality of the the substantial drugs that were at least by the government's arguments that significantly more than personal use quantities you agree yes your honor and i'm glad you brought that up if you look at the calls and i encourage the court to actually listen to the calls and look at the testimony the cause don't support the government's argument for instance government argues that smith bought drugs for gentry and if you listen to the call that's a government exhibit twenty five it shows more clearly that mr smith b drugs for himself i see that my time has expired may briefly respond it shows more clearly that mr smith bought drugs for himself for personal use and then travis gentry was also looking for drugs in mr smith offered to share the small quantity that he had purchased with mr gentry there was no intent to purchase drugs for travis gentry for travis gentry to distribute the drugs and then in regard to inspecting the drugs called government exhibit forty one there's no indication that that was gentry's instruction without question there were conversations dealing with drugs in this case patrick smith and travis gentry discuss drugs but there's no indication at all whatsoever in the record that any of the inspection was on negotiation if you listen to the call again that's government exhibit twenty four and twenty five the negotiation never occurred there was no negotiation by mr smith in regard to the can speak for these reasons we asked this court to overturn mr smith foundation for interpreting words or phrases you may object to the district court of telling him lodge your seven zero one objection to particular words or phrases and he just didn't do that and this makes sense and a lot of the of freeman being the exception most district court judges want to see how the testimony is coming in what particular words are at issue or in dispute and so this is why defendants rarely get standing objections on the basis of number that's the easiest government exhibit twenty nine i'm going to do like to read this time i'm going to have them throw me another the phrase to the three is completely cryptic  is to an outsider to the conversation nobody has any clue what they're talking about it requires context freeman says when we have cryptic language the government can take seven o one testimony as long as that the agent supplies personal knowledge which we have in this case unlike the testimony unlike the agent and for the men who simply reviewed the wire to each of richardson here was one of our lead agents did the investigation he met with cooperators he monitors the pull camera footage he had far more personal knowledge than the agent and also the other aspect different and that is interesting wiretaps gave his impression that particular numbers refer to amounts of ore prices for illegal drugs same claim here it appears that the freeman panel had no problem with the  freeman that we did not commit here or asian to not assert that he was more qualified and jurors to interpret these calls and the complete quote my colleague started referencing it fourteen forty six realize what they're talking about and time goes on you understand it completely in this case the government presented one hundred ninety calls to the jury so it had a complete foundation to check our agents work as to the other two i can dispense with hopefully quicker for the set of brothers this were the young ones the dark one the older one for reference in call twenty four through thirty eight this is classic drug code in any event smith opened the door because they would even see  first reference to government exhibit thirty eight on cross examination and that paul smith told jeffrey you're trying to throw a little extra the little one the dark one and the older one i said no slow it down temple after agent what this meant and our agent said my interpretation is that mr fire tried to put six ounces of cocaine and he didn't want to meet his defense counsel that has tied the connection between the brothers a dark one an older one and a young one to drug suppliers we simply stressed that testimony on redirect final objection you see me to night government exhibit one thirty nine no objection to agent simply said that smith and gentry had an unconsummated cocaine transaction that night whether that meant actually had a transaction that night or whether the agent misinterpreted it it didn't change the overall proof in light of in light  substance involved maybe the jury made a deliberate decision to acquit randolph maybe they were confused maybe there was something else going on maybe it would compromise we don't know and for that reason that's why we did not review  understand that juries occasionally do that and this court has not reviewed them i actually can't could not find a single case where this court another court has faced a situation like this and said the  squarely resolved that this is also not a case indicative of a court that there may be a heap of mutually exclusive jury verdicts but that tape does not fall within the definition of the term and we have the supreme court had to use that term and well ok the i mean the first thing is do you find him guilty or not guilty and then the second question is with respect to count one of the indictment the amount of cocaine involved in the conspiracy was and then they asked the same question as to crack cocaine and marijuana and the jury finds none as to all the drugs so to to be ok is it a crime to conspirators have to agree that this is an illegal drug conspiracy i mean there has to be some drugs involved in the conspiracy but we'd be agreement to contemplate drugs so yeah that is that  shows that the problem with the bird it but it's nothing more than an inconsistent verdict form and while satisfying it's not reversible er reverse the criminal conviction on the basis of inconsistent burdick's are is that a good is that a good rule or i mean assuming we have the discretion to rule otherwise tell me why that would be a good rule in the interest of justice in this case when the jury finds there's no drums yet your honor because it's again there are several we don't know why did he did it defense counsel theory is that they intended to acquit it quick and they mistakenly convicted him under the first count maybe they were confused at the jury instruction that what know do you agree with lieberman that the only practical effect of this question relating to count one is the perfect your judgment that's my understanding so there would be no need to have conduct re re sentence seen in relation to this issue i don't think so but if i am if i am wrong right misstated something i will i  will notify the court but i don't think that correct ok i mean i think that your statement is correct all right is it your position that this panel is bound by a prior published binding decision of our court the six circuit or the supreme court was address this morning was the one hundred fun calculation and as the court can see from our response before we agreed that there was there were problems in the district court fact finding  at least to get up to two hundred thousand dollars problems of in the district court really didn't have an effect on that nettie she simply tied it to the testimony of amber stack which we think it telling because your let me address this inconsistent vertical issue argument about inconsistent verdicts is really just by analogy there is no case that deals with this particular facts because we are not dealing with inconsistent verdicts we have one verdict it's count one but we're dealing with is a jury which affirmatively unmistakably and clearly the gated element of the offense what do you and the government concedes that they concede you can't have a pointing to you mr lieberman the government has the government has acknowledged it's an element of the offense all right what's a best case well we don't use special verdict forms in criminal cases so i think that's the problem it is a problem but i just want to practice is not go over the criminals but this guy we've got the same problems we have in the civil i just want to make sure the court understands the mutually exclusive verdict rule in mr lieberman's absolutely right if you're found guilty of a you know a bank robbery and count one and a quarter drugs you can't be it's not it's not two different verdicts that are mutually exclusive the same one count that if it's not a verdict you need to find the nurse i mean it's not it's a finding on an element they were asked to make a finding with regard to an element of the offense and they made a finding unanimously that negates the crime let's say say they separated is he guilty of the offense and there's three elements of the offense and then the judge breaks out as the element number one did you find did you find it yes yes elma number two no i didn't find it element number three i did find it but the first thing says guilty of the offense is you would say that's not inconsistent it's just not guilty not guilty and it was out of a mistake check and i've had it i problem it's a zero to fifteen the judge says ok it's the lowest level thank you right now yes i want to go about that i'm enjoying the weather so i mean i'm asking are we bound by a case by the supreme court or six circuit on this issue and you're saying no i have not found a case and i think mr lieberman agreed we can't find a case in which an element was specifically negated and the judge said both who cares the general  controls and so neither of us found a case that said that i just don't want the court to start looking as mr lieberman suggests at the mutually exclusive verdicts and say that those cases controls there's so you say we have discretion here we should so i'm going to begin with the freeman and then transition to the sufficiency sufficiency of the evidence claim i want to talk briefly about the standard of review for the seven a one issue mr smith's counsel at trial before trial objected in a motion in l and the judge objected overruled the objection outright but left the door open to object on other grounds such is found speculation hearsay other grounds of seven to one was overruled without question and then the trial defense counsel further objected to these statements he objected they objected to hearsay and speculation and that's it page eighty seven seven seven seven and seven eight six one so abuse of discretion should be the standard view furthermore all of the evidence essentially all the evidence is based on these wiretaps and the government agent agent richard seen couldn't have known based on personal information anything regarding mr smith because the  smith wasn't the target of the investigation he simply got swept up into this larger investigation of travis gentry stepping back for just a moment the hearsay objection or speculation objection is  not doesn't challenge the admissibility of seven zero one testimony generally you agree with that that's correct your honor and that was the objection voiced at trial was hearsay or  speculation and this i think in relation to the to the government seeking to establish a context for understanding the testimony about the three instead of two  that's correct you are hovering conjunction with the motion eliminate the judge left the door open not on someone grounds but on other grounds and that's exactly what counsel did in this case and in regard to the language in freeman the language was we get rich sure any of the other words that the government points to whether it's clear based on the situation and if i may briefly turn to the sufficiency argument basically all the evidence boils down to a bought a buyer seller relationship between patrick smith and travis gentry all the evidence recited by the government links patrick and travis that's it it doesn't go any further than that and it in the sixth circuit a buyer seller relationship is insufficient for a finding