out and making sure that the record was complete by including a video that was a subject of one of the issues that mr kemp is raising that was no let's start with i mean it doesn't even if they were in the hands me stupidity your client would be off the charts but what is it about the video that you find so objectionable lou that he comes across as a really despicable human being but that's the point with which pardon me for interrupting i mean when you're showing evidence of someone's deplorable character let's use that term i mean mr kemp really isn't quite as horrible as he appeared to be on that but if he had you know gone out of he wasn't charged with being a drug dealer that was not the extent of the charge against him he was charged with being a drug dealer in a particular context that is as a coconspirator with more recent lives he was charged not simply being at the plausible person or someone who sold cocaine but as someone but he's a coconspirator in a large scale drug operations act that's the that's the accusation so that if you then just merely show that he's a drug dealer you have stipulation sir that we're dealing with i didn't get up and say hey look we admit we're a drug dealer although i did do that there was no objection to substantial additional evidence of mr kent's participation in drug selling generally and participation and he  o of philips cocaine organization although it's my contention that that evidence about participation in that immediate conspiracy was much more limited than the evidence that showed that he was a drug dealer in general if you can show that an independent act is a drug you associate with organizations why the fact the evidence that he's a drug dealer is still relevant sure from him with or not he's associated with that if you're going to have a balance if that means anything one of the things you have to look at is the specific piece of evidence how necessary is it if you have shown to a fair the well that the guy is a drug dealer not only through his own admissions the through substantial testimony five baltimore police officers who investigated the man for years do you really need to show this when it doesn't specifically tie him into the philips cocaine organization but simply into that the business of selling drugs and i remember in that in that video there was not a single person in that video who was named at any point in time as being a member of the philips cocaine organization no person who was a member of that organization was even talked about in that video you simply have this grotesque display of you know loud clothing cars and watches money cetera and some guy you know acting like a jerk and that's putting it mildly so when when you show this guy you have to gauge the emotional response of it you were particularly in eastern district the pennsylvania jury to a display like that does it really help that jury to determine whether he's part of that he when there's already been ample evidence from other people that he's a drug dealer and that's what i asked you to concentrate on the testimony of the baltimore police officers who said they investigated the guy for years they knew he was a drug dealer they chased him around town he was all them a leader arrested he was all of them at the prosecuted the jury knew that he played guilty to being a drug dealer now when you know all that already even if this little concession it was not a stipulation that he testified and said he was a drug dealer but well before i didn't know that that no your honor but they did know that they had called the police officers to testify that he was a drug dealer they did know from my questioning of each individual juror because we had individual sequestered for dear here that we were going to tell them that he was a convicted drug dealer and in fact that testimony was in front of them all of that you is if that balancing means anything when you've already got so much to show that he's a drug dealer at some point when you show a video like that you're going to get a conviction based  an emotional response and that there's got to be some sort of the less you actually needed to prove the point you're trying to make the more necessary the more you should consider whether or not the emotional impact of the evidence was something that would sway the jury you see i guess the probative value be he discusses transport by tractor trailer that's the way in the p c s the cocaine in money was like as as the chief judge said the speck of all human being and that there's a great danger that he'll be convicted on that basis rather than upon the basis that he was a specific participant in the conspiratori organization described in the indictment and this whole thing about drugs coming in on trucks anybody who thinks that the phillips organization is the only one that ever brought drugs onto the east coast in trucks is getting themselves and as it's admitted in the government's brief on page fourteen mr phillips used cars to bring drugs into the eastern district just as surely as he used drugs i beg your pardon trucks and so the baltimore police had testified in this case and they testified that mr kemp had been the subject of their investigation for years and that none of the people named in the indictment as being part of the phillips cocaine organization had been uncovered as a result of their investigation of his drug activities and that's why i say that it's so very important not to simply show that the man is a drug dealer if that's all you can show the correct verdict in this case is not guilty you have to show that he's a member of the organization i described in the indictment with your permission i'd like to address the sentencing concerns unless you have thank you the judge sentenced mr kemp on the basis of the totality of the cocaine determined to have been distributed by the phillips cocaine organization we objected to that at the time but the judge went ahead and ruled that the totality of those that amount of drugs could be attributed to mr kemp i think that that's plainly incorrect on the evidence that we have in front of us here and i want to particularly point to the sentencing guidelines one b one point three the application note that deals with the illustrations of how that guideline i intended to be employed and those application notes were approved by this court in the case of us price thirteen if third seventy one the application note in particular deals with a situation where someone like mr phillips is distributing cocaine to two different people those two different people in turn do whatever they do with their cocaine and  it's specifically in illustration number four that somebody in that posture should only be deemed responsible for the amount of cocaine that he personally received and in turn distributed and that's an i and it's  critical here because the phillips cocaine organization was described in great detail and how they brought the cocaine from texas how they split it up and then gave it to people to sell and so forth how they received the money back how they counted it how they packaged it mr camp was never involved in any of that he was soley someone who received cocaine from philips if we believe the testimony and in turn point that wasn't really debated before the judge who imposed the sentence because of the way he approached the sentencing and i think that the judge did very downward in this case he might have very downward even more had he determined that mr kemp was responsible for a more discrete amount of cocaine so that yes there's a theory under which the government could argue for the same sentence but that's different from a determination that that's what the trial court would have done  should petition for commutation of sentencing it's entirely possible that in a new sentencing hearing a less severe sentence would be you know sod all the way around in this case i can't speak on that that would be something that you know happy would have to be argued in front of judge joyner but since he didn't use the correct approach to calculating the amount of drugs it's our contention that a recent insane hearing would be appropriate i see well called kenny jenkins in this case who the government called as a witness mr jenkins was somebody who received cocaine from our research and in turn distributed however he saw fit and he h yard he gets lumber for some giant corporation he brings it into his shop then somebody comes around to him and buys it because he intends to do a job for someone whose home needs repairs in turn someone whose home needs repairs pace this individual contractor all of these people have a business relationship but they are not members of a conspiracy they are not that they are not people who are part of the same maintain that on the evidence all that we had here was that the buyer seller relationship as it's described in the cases that i started the weekend came just position to be both war distributor if i can characterize it that way that think it's suggests a relationship between camp and the people who used to be the buyers from philips but i don't think that it makes him into something other with respect to phillips than i than a partner that would be our position you know there clearly there's a line of demarcation somewhere between the that the nineteen year old young man who's selling drugs on the corner in philadelphia right now and whoever's ahead of us in a low a cartel in mexico i mean somewhere along the line we these people are all profiting from the same distribution of the same product it's all passing through all of their hands but we would all agreed are not part of the same conspiracy and at some point there's there's a dividing line and i think that if you've got somebody who's buying from one person and then turning around and selling to whoever he wants and his obligation to the individual from who with regard to the evidence that mr camp was a member of the p c l there was direct evidence of that from members of the pieces and that's something that wasn't mentioned and is discounted because he makes credibility arguments with regard to the witnesses who testified mr kemp was in the p c l that he was part of the organization members testified mark harris shamil cunningham lamont smith they all testified that he was a member of the well she talks about that she talks about when the organization got together and decided to have social events how mr camp in fact was one of the individuals who organized the social events at least one of the social events and that week are he suggest to the court that mr of the mr phillips did that because miss cunningham was one of the receiving large amounts of money and she received large amounts of money repeatedly from from mr camp in maryland and from anthony ballard and both of those instruction every point was contested it was a fight from the beginning to the end this or george repeatedly argued that his client was not a member of the conspiracy said that he was a drug dealer but not a member of the conspiracy the date of the of the video makes a difference the video was produced in two thousand and four now mr kemp was a drug dealer he was a convicted drug dealer organization in two thousand and five and in two thousand and four when he was talking about a hundred thousand dollars when he was talking about when he was pulling money out of his money that out of his out of his pockets large amounts but this amounts of money out rather well that was that was relevant your honor in order to show the source of his income you are entitled to that inference if he has all of this money and if he has one hundred thousand dollar watch as he claimed that the other source of that serve one master and that was the book ok an organization that didn't change until afterwards until two thousand and he left the organization and sometime in two thousand and five we'll see evidence like two thousand  it was very controversial and in baltimore city but when the district court performed a balancing act in order to make a determination whether the danger of unfair prejudice  was substantially out what or substantially outweighed the probative value it in fact it will not you can't talk about the name of  in there but the jury rejected mr george's position with regard to him being a member of the organization and that's what the evidence was one thousand nine hundred ninety eight to two thousand and four he served one organization because mr phillips was incensed at the video he was incensed and he told a coconspirator who in fact testified to the jury something to the effect in the bill she was my and so he in fact was in since because he knew what the jury determined beyond a reasonable doubt that the ring the timeframe that that video was made that mr  depicts a lifestyle that maybe you can't hold his lifestyle against them and that you should make a decision based on the evidence but i suggested this court respectfully but that's what the jury did you know i think we have to give jurors more quit i and i in music clothes on and i said wait a minute we have to yell i don't want to hear this necessarily but this is something that is it is common place now and i think that we don't get jurors enough credit if we in fact say that you will not be able to make a determination you won't be able to discern between what you may consider often self lifestyle or behavior and  necessarily went to his book out and that's what he said in it and it was the reaction and the timing of it was two thousand and four and the and the reaction of the person who he worked for who the evidence he saw all of the evidence and in relationship to it it made a determination and i and i believe that it was a correct term a nation that it was not unfairly prejudicial and when you look at their presence of course is a type of two thousand and four and the reactions of and his membership in the conspiracy as not only demonstrated by what he showed in the video but in his statements in the video but also by the reaction to the other every other for two years and even if you take four kilograms that's over two hundred kilograms there and then there were then there were tens of thousands of dollars later on in the conspiracy while he was still a member  went to i he knew what the organization was going that doesn't take into account that the keys that were distributed through through anthony ballard and julius wagner part of them being incarcerated which occasion  point where they're discussing because they have a discussion one point about a but a batch of what was called lyons here cocaine that was a bad batch and they were on the phone and they were commiserating about help at the back of cocaine was and  called him buzzard i'm not sure whether it was one of both them at the time but when they were out you know the model was everything must go and so he was well aware of the scope of the organization he knew what harris was doing he knew months myth was what chanel cunningham was doing he was involved in there in the social events the protocol he's in the to the organization and he knew it was a multimillion dollar enterprise and i being conservative production value so amazingly low carmelo anthony is actually in the video standing with a bunch of drug dealers he apparently knew from the neighborhood camaro and think he was in one of those n that you saw but in the full hour and a half of nonsense that contained in the video he appears at one point and it certainly wasn't mr kemp who was the director or gave it her name or film these other people in addition i'd like to just comment that attending a social event with other people that are in the same business as you are and does not phillips and mr kemp is evidence that mr kemp it was nothing but a higher do that would you say he said you you put all these barriers between you because you don't want this guy to be part of the inner circle that makes decisions as to what cocaine to buy how to bring it to the east coast how to repackage it how to distribute it how to take the money what to do with the money issue whether or not they get his managerial role is different from with or not you to review the evidence and draw the conclusion that's appropriate to the court but if there's anything if there is any validity to the distinction drawn by this court and by other courts between members of a of a conspiracy and  and between buyer seller relationships i think all the evidence shows here that at all arm's length that's the way people in the legal business world deal with each other mr phillips dealt with mr kemp i'm going to sell you my product if you can pay for it was your argument against the enhancement for your client's being a managing member well not enough people under him no additional recent under him simply work for oh yeah and hanson and none of those people in the video i remind you had anything to do with phillips cocaine organization they were all drug dealers and none of them had anything to do and none of the names whatever were ever mentioned in any point in time during the trial the sole person that he was asserted to have managed this in this thread and as the baltimore police testified this guy's drugs came from multiple sources and it's no indication that the drugs that were in the basement at the time