lucian had killed francis it's hard to figure out exactly what the jury did what the jury found the jury found that he was that mack was guilty of a conspiracy to murder not guilty of the murders and then guilty of another conspiracy to murder with a was no murder it was discussions in a jail as well as guilty of some firearms possessions this appeal is so issue rich that i wish that there was some procedure by which i could make a motion to take some of the issues in this case and transfer me to some of the other cases in which i'm assigned in which the issues aren't quite so compelling i guess what i'll do in the time that issues are compelling what about the arguments well that's what i'm trying to persuade i guess i guess what i'd like to do i want to spend maybe my time on my flagship issue that is concerning the the the here's the hearsay statements the mack killed with that mack killed francis and then the glitch in this in the sentencing statute which i find really interesting and then if you guide me somewhere else and that's where oh go we just think that it's a violation of the federal rules of evidence to allow  jailhouse informant to say that miller told him that mack killed killed francis that he saw mack walk up and kill francis and the the  upon this exception that usually is the case when the defendant has murdered the has well that's that's the case with respect to france as the the trial court found that you know the government is at established by a preponderance of the evidence that the absence of francis so all of france has a statements come in and here are the plea agreement and i must confess i haven't seen one precisely like this but it provided that miller if you would lose the benefit of the agreement if  testified inconsistent to the statements made in the plea colloquy or if he testified to matters in addition to the facts proper and agreed on and i don't have any problem with with this saying that he loses the benefit he testifies inconsistently that obviously would be a fatal accept responsibility it would be another obstruction he said he said in his plea here's what happened if he comes in and says something else at trial i have no problem with that it's decision it's the combination of the in addition plus having a very very limited statement of facts the statement of facts is just i am ticed the guy down and somebody came up and murdered him but wasn't that statement limited somebody else did it yeah sure but but but but but you know as i say in my brief and this is maybe a little bit of exaggeration the second answer he gave when he testified would cause him to lose the benefit as part of his plea agreement when the clerk said to him state your name he would say is name in that that was within the scope where do you live as soon as he gave that that's information in admission to so so let's assume you're right and that  this was this that statement by farmer should not have been admitted this is a conspiracy charge she was acquitted of the of the actual crime of the subsequent crime right and so why isn't the other evidence here in the case of fis yeah i mean tae kwon lucian if you know type one lucian is is is to first of all type one lucian use that same fire on ten times between the date of the killing and the date that it was found in a house where mack was was asleep  lucian's testimony absolutely needs to be have some corroboration because he's just his niece he's not he's not a he was not a believer wouldn't you get all kind of he started off his testimony just by saying i'm a shooter i get my bitches and my rep through shooting he was not a believable witness by letting in this testimony you are you are you are corroborating tae kwon lucian's a strong corroboration substantive count suggests that the jury was not particularly persuaded by farmers testimony they acquitted substance you know and i've led you to believe that because in my in my brief what i do is i adopt a government theory that maybe what they found was makin speired to kill somebody americans by had to kill him but it wasn't that conspiracy that caused the death of he he died in some other way what i'd ask you to do is take a look at the it says he laid in wait with malice of forethought and killed him i think it could well be i'm just guessing what the jury did maybe they didn't find one of those that some part of the element of the second and third count which was different from the conspiracy was proven we just don't know at trial you did it there were there were argument made about the against interest exception but i don't think and correct me if i'm misunderstanding it wasn't raised below that there was a specific challenge to this provision of the plea agreement right we did not we did not make the argument that the government had caused his own availability you're right that was something i thought that would be a pla we'd be applying a player standard i guess you would think usually when i took real briefly about the about about that much of the statute the the this just this requires just statutory in the case of killing you go to the murder statute yet life in the case of killing it doesn't say in the case of a killing or if it's a conspiracy if the object of the conspiracy was to kill we go to the statutes in the case of the killing well with respect to the second conspiracy there's no killing there's no dispute about that the this was all just jailhouse talk that resulted in the government and the government's witness  the government's undercover guy coming in and pretending to arrange for a killing but but then with respect to the first count in order for the judge to find that there was a killing the jury didn't find that we can find that in the jury verdict he had to make his own finding there's a glitch in the statute and one of my favorite cases was decided in the year of my birth nine hundred forty eight united states versus evans in that case the supreme court said look this is a glitch is very different statute this is a glitch in the statute there's no sense in provision if congress does this it's up to them to correct it we're not going to step in and lie just  good morning may please the court my name is brian leming i'm here on behalf of united states this is a trial with a lot of complicated evidentiary issues a trial however that was carefully managed by the district court in managing these many issues the district court with one small exception made the proper evidentiary rulings that were squarely in its discretion in that the defendant's claims of errors are either without merit or otherwise harmless moreover the defendant's life sentence for conspiring to murder two different people on two different occasions now is not only constitutional but statutorily required pointed a gun and shot but here one man's getting out to use the bathroom and the other one and then he sees mack coming towards him so your argument i understand is that they're both evidence the participation in the conspiracy and that's why it would statement against people interest but the rules or the actual actions discussed are so different qualitatively that how can the state why was max conduct needed trying to see what you mean by needed but i think for purposes of whether it's a statement against his penal interests yes how did how did max conduct become part of miller statement against people interest because the emissions by miller  admitting to a conspiracy with mack in which the plan of the conspiracy is to murder in francis and the more that mr miller associates himself with that conspiracy by defining what role he played in it and what the role that it gave it that strong addition of reliability and corroboration through the trial evidence and testimony to put in context it's clear there was never any doubt that mr miller wasn't the shooter we even mr francis who had told his cousin mr bronson how he came to be at that point was he was driving in the car with mr miller and that mr miller had gotten out of the car and as he passed through the to the other side of the street and past the shooter mr francis came to the belief that mr miller had set him up and to give it that even higher indicia of of  seems to me and i understand your statement that you were concerned about miller offering false testimony but you seem to have ensured that he would or attempted to ensure that he wouldn't offer false testimony by assuring that he couldn't testify at all as a court probably for the record that guilty plea was entered after jury selection it was also part of what ongoing negotiation with mr miller's lawyers to which i directly participated in the issue there were two factual positions that mr miller's counsel mr miller were taking one that he was not going to testify and his claim was if he was called to testify he would take the fifth amendment because as part of the police negotiation the government was attempting to convince mr miller through his lawyers that he cooperate with the government because the government wanted mr miller to testify because if mr miller testified truthfully the government was extremely confident that the person that was lying in wait for mr francis was mr mack the second part was mr miller's attorney says he will not identify his friend as part of the plea colloquy he will identify the person that caused me some concern i already have a situation where mr mack and mr miller already conspired and in the government's view killed mr francis are they up to something else a lot has been made about the in addition to language i put that language in there because if i just said inconsistent you could make the argument is that by identifying him at trial or identifying falsely somebody else that may not be inconsistent because he didn't identify the person at the  in addition to was inserted to ensure that he did not provide false exculpatory evidence and it was clear all along that that was the intent of the parties that was the subject matter of the discussions that  early evening guilty plea on december second was because the government was concerned that mr miller i could take advantage of a favorable plea agreement by coming in here and attempting to exonerate his friend remember the context of all of these individuals involved mr francis mr farmer mr miller and mr mack were all friends at the time and that the context of i mean i would you would not have thought and i would think you would think you shouldn't make a provision of the plea agreement that mr miller or any witness agrees not to talk to the defense correct he was freely available to talk to anybody he wanted this was close to saying you can't testify for the defense i don't think testify to anything that's not in the plea column plea i don't think that's what it says your honor i think when you look at the context of how the plea agreement came to be it was certainly not in the government's contemplation that he would not testify i was being told he was not going to testify but i also recognize that he could change his mind down the road and at the time of the guilty plea for mr miller i can remember we were scheduled for trial that time for mr mack in a couple of months it was an i can't remember the exact date until other events transpired that caused the launching of the second conspiracy it was never the government's intention to prevent mr miller from testifying told you not not for the defense not adding anything not in any contradictory way he could testify he was just going to lose the benefit of the bargain that he got it which in this case it's you know that's that's is that a compulsion not to in effect a compulsory matter that makes him at least unavailable doesn't have he's not technically totally unavailable but he's incentives are not to testify under those circumstances i don't believe so i think he's served first of all he has his fifth amendment right because he's awaiting sentencing and to he may be losing the benefit the bargain but he at that point he had the government have reduced the charge to a second degree murder so who is no longer in contrast to mr facing a mandatory life he could still testify if he testified inconsistent or different than what he had as far as the police colloquy was then he could go into court he wouldn't get the benefit of the government saying your honor we're going to this binding agreement but he can still testify truthfully and argue to the court you know what i told the government was truthful and what i told this court in this trial was truthful but i mean are you actually suggesting that if he had gone to testified at mac's trial in a matter that you believed was false by providing exculpatory testimony that you were bound by your plea agreement and you wouldn't at that point after what you believed to be produced testimony could not have at least raised to the district court that there had been some violate of conduct of the plea agreement at the trial i mean yes you would have the possibility that mr mack could have been acquitted and that may have been problematic for you but but did you really have to limit what mr miller could say you know if mr if mr miller had come to him testified at the mac trial and testified that it was somebody else that was lying in wait right the government would have taken the position that he breached the plea agreement and the government would no longer be balland under the terms of the agreement sentencing it said that he could not offer testimony in addition to what he had already stated so you wouldn't have to show to plead to rebut this plea agreement you would have to show perjury at the trial you just have to show that he added to what was in the and that was negotiated based upon again that the context of those discussions were even at that second please colloquy is attorneys are added he's not going to testify but the government was concerned that if he were to change his mind again because the government entered into a binding plea agreement if it had been accepted to the core by the court then that all the parties would have been bound to the range or if he had testified at trial that the person lying in wait was mr mack with that would have been violet  f the plea agreement would know it would have been in addition to it would in addition to i mean you may have liked the testimony but but my concern is you were you were limiting him from speaking falsely or truthfully be well we obviously weren't if he was to come forward and say i'm going to testify a trial that it was me and mr mack my guess is he would have his lawyers would have come to me and said can we work out some sort of cooperation agreement i didn't think he was to sort of come in voluntarily with no benefit to him but i was extremely confident that mr mack was the shooter and my only concern at that time was not to intimidate mr miller from testifying and not procure his own availability or to make him unavailable to anybody my only concern was at that point was to prevent the false exculpatory that was a possibility i didn't think that he was going to do it because his lawyers told me he was going to do it but i just wanted to be assured farms well the most obvious thing was the jury did acquit him of the substantive murder charges so if they had believed mr farmer mr farmer testified that mr miller had told him that he saw mack shoot mr francis by acquitting in the jury had come back and asked a couple questions on aiding and abetting so the first piece of evidence was mr lucien testified as to being in mr joining ins apartment on the street with a murder happened either the night of or the night before during which mr mack said he was going to kill mr francis and he said that he was going to have his cousin mr look on jones do it and then he directed mr journey in to remove the gun or take the bag out of the closet where the gun was and then removed from the bag you have the recovery of the murder weapon in the in the apartment where mister mack was stick was hiding out we have certainly testimony that multiple people use that gun but the witness leslie richardson saw mr mack with that gun prior to would seizure we also have mr max post what i call post miller guilty plea conduct there you have mr mack conspiring  lucien to get rid of mr jernigan and there are recorded prison calls where mr lucene is discussing with people that they believe that joining in is going to testify at trial mr jernigan had been a witness mr jones in the apartment on the night of the murder we also have mr lucien's recorded conversations with his cellmate where he makes where he doesn't know he's being covertly recorded makes very pointed comments that mr mack once c j gone that's german jernigan and there was no reason for him to make that up at that point he was working in concert with mr mack to get rid of mr journey again and in fact  lucien as vigorously as used cross examined the jury piers believed him and that because the evidence of the could of the second conspiracy was wholly based upon mr lucien's testimony and those recorded prison calls and the record calls or conversations with his cellmate so to a long answer to your honor's question is that there was ample evidence that the government reasonable doubt without mr farmer's testimony the conspiracy first mr farmer's testament related only to the francis murder had nothing to do with the second conspiracy and so even if there was if the court was concerned about the admission or th losing the benefit of a government recommendation that he only get sixteen years now the trial judge but the trial judge was bound this was one of those binding agreements of the the tranches was bound to give him sixteen years unless the trial judge on his own decided i just can't do i just say this this is a really important case because since we've prosecuted the whole federal criminal justice system has changed with the advent of the sentencing guidelines the the reliance upon cooperating witnesses just you  this case is a it is a really interesting case in the sense that there is some limit on which we allow these people to come in and say other people told me this or i told my so made this it's not