my name is beverly martin and judge rosenbaum and i are delighted to have judge by side with us here from the th circuit he hails from kentucky and he's been kind enough to visit with us i think maybe this is the th time to help us with our work and this is not really an honorary position it comes with work assignments which judge biogs is very conscientious about so we're grateful to you for being with us you all know our lighting system i assume redmayne stop i'm going to try to enforce that  may please the court mr shah lease case was a one count indictment the government charged him with a conspiracy to distribute a quantity of marijuana under age forty one b one c there was no specific quantity of marijuana charge he was charged in a conspiracy alleged to have occurred between january of two thousand and fourteen and june and seventeen he pled guilty i think the court should notice that there was no statement of facts in the case although that is customary in this district mr it that he did in fact distribute marijuana during this time frame he had admitted as much to the agents when they executed the search warrant at his house he initially gave some statement about the involvement of the co defendants there were nine co defendants in the case none of which went to trial so when the case came to sentencing upon m guilty plea there was no large scale seizure of drugs in the case there were some money laundering counts against the other co defendants and some amounts of money that had been wired to pay for the marijuana but no large scale seizure of drugs that left the court in the position where it had to estimate the drug quantity the law as i understand it judge a disadvantage is they're allowed to do that right i mean the a lot of times  these cases are indicted as a quote drag conspiracy because it and so the the law permits judges to do that but your objection is that what the judge didn't make sufficient findings about how he got to the number that's part of it judge the hearsay that was admitted at sentencing must be reliable that's the big question in the case was the evidence that was used to calculate the drug quantity reliable as i take it the calculation as i saw it at bottom was six pounds a week times at least forty weeks plus twenty pounds for afterwards from the shipments to johnson so there's nothing wrong with the calculations right that time frame reliability of the calculations the time frame was contested it was contested but i'm saying sometimes sometimes we get cases where we don't think the judge did the math right but the math here is ok the question is the timeframe during which these six pound shipments were being made is that fair yes honor that is correct and the only evidence to support that timeframe was this cooperating codefendant state that cooperating codefendant never testified before the court that's how this court can distinguish this case from the cases where the district court was not required to make factual findings that case was united states versus gordon this circuit said that the court's not always required to make factual findings when the reliability is apparent from the record and reliability is a due process concern here even before the guidelines this court had held and it acknowledged in the united states versus gertler that a defendant has a due process right not to be sentenced on unreliable evidence where you have you have conflicting evidence that's what you're so you're saying that the tax records don't jive with what the codefendant and we also have some assumptions on behalf of the district court the codefendant never made any specific statements about the timeframe when the packages began being mailed and that is not consistent with what this court has found to be reliable without necessitating factual findings what is reliability if you look at the case law it is consistency between statements of people and corroboration of that evidence there was neither in mr shelley's case the co defendants statements were not consistent with any of the other evidence in the case and they were not clear obvious shipping six pounds of they had lots of boxes with six pounds i mean to me the question is the timeframe of how often were these six pound boxes shipped that there are records of certain fed ex packages which corroborate that but they're not records to corroborate that many ship it's again is that fair ye honor the timeframe is the issue the frequency of the shipments is the issue so i'm sorry go ahead go ahead so just to be clear had mr cent elect actually testified personally and this had not been hearsay then we wouldn't have this problem is that what you're saying yes your honor ok so the problem is that we don't know how accurate the agent's recollection of what mr cent aleck said was and we point and that is the district court had no opportunity to observe the witness in this case to judge credibility it had to rely on the agent there was no chance for the district court judge to put his eyes on the witness if you look at the other cases the court has upheld these types of findings there was some type of trial testimony or testimony at another hearing of the witness on which the drug quantity finding was based in one case the cast a lot of case it was the defendant's own testimony at a co defendants trial in gordon the case where this court said that factual findings were not required you had three co defendants statements that were all consistent and the district court told the defendant that they were available to testify all this factors into the three part test this court has used which is really all about reliability was there sufficient in disha of reliability only started getting these things in april or so or in march because the boxes as i read the record the boxes corroborate one a week or close to one a week for the period recently before the seizure is that fair yes your honor could have said you know he'd already been convicted so you're not a self incrimination problem he could have said no no i only started getting these at such and such a time not that he's obliged to but when we're looking at a contradiction let's say mr challis had made a statement that in the pre sentence report that he had started receiving the packages when cinda lek moved to california at that if that's what they relied on in fact because symbolic the least according to simulate that they moved in  july almost a year previously right correct but then the lawyer says symbolic statement in the pre sentence report is that he moved in july challis statement is six months or so ago he doesn't give an exact shipments that you're willing to to cop to you might say i guess those are the the earliest of those is in october's that right yes you thereof there's a statement there's a statement in the various reefing i think from your side that simulink said they only used fedex and i did not i did not see only there was some reference to using u p s for other things but i do i read the record right that there's no affirmative statement of using u b s but i didn't find an affirmative statement that we only use that was i don't know again because he never testified how specific that statement was and used burden would it be to prove that they were shipped by something other than fedex it would be the government's burden to prove the drug quantity  i don't know so to prove the drug quantity would they i mean if they're if they have to corroborate his testimony even assuming that he did say u p s which we don't and i don't finding on the record by the court of y and if you look at the leak case it was remanded for additional factual findings about credibility but no ten in the leak case explains what those could be and it could be additional evidence corroborat g the statements one final point i would like to make is that symbolic statements were also inconsistent with one of the other co defendants as it came to how many shipments occurred during the later time period when mr shelley returned to that that  statements referring to marsa lowness yes your honor but wasn't more of the inconsistency is that marsh the lowness said there was much more so if you if you say well there's an inconsistency and we could look at the inconsistent side you'd be in much worse it's better for you in that marcello just gave a wider range judge he said that sometimes it depended on how much money mr showed if you took even the low end of what of all of more saloon as his range is you come up with more than he that's the way i read the record again we don't have a time frame for those statements mr maher slowness never testified to the court and there was nothing to corroborate that good morning your honors i mean please the court steve butler for the united states and listening to the discussion that your honors had with my colleague mr teresa there are a whole number of points that came up in that discussion that i would like to address  if i may but i will point out maybe the most obvious issue which is a matter of form about our standard of review here which is clear error i mean just your honour's would be have to would have to be left with a definite and firm conviction that judge events and recent discussion and move in moving backwards i was sent to you that that evidence that mr tracy was talking about about the fed ex packages i don't believe that mr cent aleck ever said that those two addresses that were used were the exclusive addresses at all and if mr cent aleck said that that's not our understanding you know of what the evidence was that the point that our usa made to judge events in the sentencing hearing was that we were not at all didn't your honor because we didn't have those other addresses in the like the other defendants in the case where we had more confidence in where they were situated where the shipments were going to shipments we know the money shipments coming back out but just w to put a fine point on it to answer your question right in general the decisions of the circuit in the beginning were that the judge shouldn't you know you're going to rely on hearsay huge the judge should make explicit an explicit credibility finding and give the defendant an opportunity to rebut and did that happen here the judge did not explicitly say that for example in so many words and not here by firing back you know the united states would concede that however we don't ultimately concede the point because the case law as it's developed over the years and mr tereza made some reference to that the gardner case the gordon case i believe that if that doesn't happen is the record otherwise sufficient to demonstrate reliability is the evidence materially consistent is the is the evidence reliable there was a in this case just to put it in perspective there was a really a good exchange between r a usa and judge vincent about the reliance on mr cent aleck's information and that he was truthful and that he and that that information was corroborated not going talk about the corroboration because that did come up in the discussion with mr wood mr tereza let me take you to your st point if you don't mind would you agree that in order to show clear or if there is an error of law that would suffice in erro law yes like if there's an error of law in reaching the facts and how the factual findings or are are reached or actually not reached in this case would you agree that that's a feiss to do to satisfy the standard i believe that of the district judge and making its quantity determination applied the wrong law i believe that that would be the case hypothetically that didn't happen in this case what i'm saying is if the district court did not follow the law as to how to arrive at the quantity wouldn't that be wouldn't it wouldn't that be an  law that causes the any kind of factual findings that result from the process used to be clear or affected probably under our case law yes your honor a bubbly i believe that it  would in the general sense although i've never viewed this case as raising that type of concern because you know i was submit to your honor's that the judge events and followed the law scrupulously in this case this defendant was the th defendant to be sentenced by judge events and among all the co conspiratory mr senda lack had already been sentenced judge vincent was very familiar with this lack sentencing when he sentenced mr shelley did he that is correct so we know it really rely on that then can i know but i appreciate that but i do think that it's important from from a practical standpoint when we talk about the judicial deference you know that this is a judge who was very well versed in this case from the beginning and i have no found out about them i have tremendous respect for judge vinson so that's not what this is about us but we still have to follow the correct procedure and  so maybe you could focus on why st of all do you agree that there had to be some kind of either reliability finding or corroboration or something other than speculation with respect to the evidence concerning mr senda lack and his testimony or well not his testimony his statement to the agents of the agent's testimony about what sent oleksandr regarding mr shelley yes your honor and i would also submit though that that was followed and satisfied in this case and so can you maybe it would have been helpful to me if you could tick off exactly how that was corroborated yes or there was a demonstration of its reliability certainly so what you have in this case is that you've got the statements by mr cent aleck and then the question is where those corroborated you through documentary evidence items that were seized or witness statements you had all of that in this case you have items that were taken during the search warrant which showed that there was a lot of large scale you know ongoing marijuana operation so that's true except that i don't see how that shows i mean from what i read about that it looks like there were three dog beds that were  recovered but there had been three deliveries that month which would have included a dog bed each even by mr shah lee's testimony so i agree that that the search warrant backs up the idea that this was an ongoing conspiracy but mr shelley pled to that how does that show us that mr cinta lexx testimony concerning deliveries that allegedly occurred before the twelve that are verified by fed x occurred yes because you have to look at the specifics of what mr send a look told us he told us that he had been involved with mr shyly sense as early as two thousand and thirteen that challis typically receive six pound packages  typically you know one to two times a week and that was certainly up until the case up until the time of the search warrant at mr such ollie's residence which was in april two thousand and fifteen percent are an interrupt but i just want to make sure that we're on the same page sure  so i understand what he said but what i'm not seeing and what maybe you can help me see is how that shows that more than twelve deliveries occurred and that they occurred from the time mr shelley said they occurred and till the fed ex records pick up yes i know what mr cinta lex ad i just don't know how it how the other evidence corroborates that right because you because you had evidence from  himself that he was dealing with six pound packages with dog beds you had information from shockley himself that he had had ongoing dealings with mr send alack going on prior to the time johnson you had information from the brown nose you had information from the trash pools which were not gone into in great detail in the present report or fleshed out but if you put all of that information together you've got a common which is if you if you take all of the the information what it distills down to where they were consistent which i think is your honour's question and i'm not i'm not trying to be difficult i just so the us so the trash polls there were three of those that occurred but they occurred during the charged time period which is during the period that the fed ex records cover and i don't see how the trash polls show in any way that the conspiracy or that deliveries were made of drugs to mr challis prior to the fed ex records time and with respect to the fed ex records i don't understand also the government's argument that they're not complete because my understanding from reading through the record is that the records for fed ex were obtained for the two year period or could be obtained for the only the two year period from which they were requested but they were requested in may of tw and if mr cinta lacked didn't move until july of two thousand and fourteen it seems like that period would have been covered so that's why i'm having this confusion let me i'll answer that last question st if i may of course if you accept the idea that the twelve fed ex packages were accurately reflected the entirety or scope of mr shyly is involved in the conspiracy then what you would have to accept is that is that he was only receiving packages within an eight month period actually if you look at the if you look at the the records in this regard you've got two different sets of fed ex records the st ones w about a month after mr shah is search warrant in may of two thousand and fifteen and that yielded seven packages sent to ms rector's address which was the next door address those in judge box touched on this earlier that encompassed only a six month period from october of fourteen through april of two thousand and fifteen so what does was the reason it encompassed as only as early as october  because that's when when the records were requested for is it because that's when the for st shipment showed up on the records that were requested for the prior two years i believe that as i understand it that it was just simply a matter of  records and that's all that we guy based on that the that particular address did i did i misunderstand the testimony below from what i thought was the government saying that the records could be obtained that fedex had records only for two years from when you requested them generally yes yes so i did not misunderstand no that is that is what we said and we explained it to judgments and asked that asked that question and you know we didn't have complete confidence that the records would go back any farther than generally that time period and those were all the ones that were sent to pace florida with that those were sent as the right ones your honor i just on the ones that i just described for just  judge rosen bomb were the st seven of the twelve right right and they were sent there were the ones sent to pace florida's yes or in the and that those were requested about two years later because those those considered and if you can if you look at that the date stamp on when they were generated it said july of two thousand and seventeen obviously the requesting of subpoenas for these records for all defendants was a rolling process i think we could all understand that the investigation was about two and a half years total but those records the nd set of records for pace were covered july through september of two thousand and fifteen which is only two months or so so the reason why mr xai and he was situated a little bit differently we didn't have good addresses for him unlike the other defendants said that he was econd that nd set you said were pace yes i thought those were the ones yes those are the ones that lodging circle on yes sir that is not his rector that was this ruben guy well there were all kinds of names that were you settle of them were rude yes yes or yes or so it wouldn't have been right mr you know see my town is running short there's a lot more that i could say but missed in the judgments and understood that mr shyly would have received a windfall by only being accountable for twelve packages during an eight month period when we had strong evidence that he was actually involved in ongoing regular systematic consecration of conduct with six pound packages at least one to two times a week going back as early as two thousand and thirteen we couldn't allow him to have that kind of windfall the scale the scope of the records that we were able to get for the other defendants were much more in line with what we understood the scope of their involvement to be that was not the case with mr challis which is why we didn't travel almost on those twelve packages i think thank you sure thank you all residence there was no other information about where packages might have been sent what their packages may have existed single act in provided he wasn't called to testify and so let me try to follow up on that we've clarified that there were seven before the time that they were fed ex records for seven packages before the time of the search warrant and i think those are the ones that are be referred to in forty two  or may well be and those were sent to ms rector now the post search packages and we have the i have the shipments for those all seem to have gone to a different name and address on lodging i thought he said they didn't ask for those records until two thousand and seventeen which is why those may start up in two thousand and fifteen is that fair that may be judge but we would be you know speculating on what happened before that goes down but i'm just asking is that settlement i do believe that they were requested until two thousand and seventeen there are two sets two separate requests there's no way to be sure that that is the pace address that was even being referred to by mr symbolic it's certainly the only paste address and the only of mention of a pace address in the conspiracy the only records that were subpoenaed but there was no testimony before the district court about your saying in fact rector's address is not in place it's in pensacola yes you are thank you i am the government used the fed ex records for every single other coconspirator in the case except for mr shelley why those records were not found to be reliable for m is something that this court is forced to speculate on and that's why explicit factual findings should have been required thank you thank you it's mr to we understand you are c j appointed and we appreciate your service to the court as we do most from the u s attorney's office so thank you mr butler as well