cousin joshua norgaard took responsibility for the firearm and the marijuana that was in the backpack in the car that mr cotton was driving i'd like to focus today on the government's handling of mr nor guards testimony below during the closing argument the government and submitting to the jury overstepped in several ways the most egregious in my opinion is the government's handling mr nor guards suppose it collusion with mr cotton the government may make and asked the jury to make reasonable inferences based on the evidence presented at the trial below the government may not ask the jury to imagine things that are not in the evidence what the government did several times below was to ask the jury to imagine a scenario and when questioned by defense counsel and when defense counsel objected the government's retort was it's not completely impossible it's not completely implausible that is not the standard the government has a duty especially as a member of the u s attorney's office so stay well within the bounds and when you ask the jury to make inferences that are not based on the evidence that attorney has overstepped we know that the u s attorney's conduct in this case did have an effect on the jury there were several jury questions that were submitted and those are in the sealed excerpts of record there was four questions when the disc when the u s attorney made these comments to the jury they were preference with the u s attorney's statement that cotton and mr norgaard knew about double jeopardy principles again that wasn't in the record the double jeopardy principles explained to the jury by the u s attorney were that mr norgaard and mr cotton knew that mr norgaard could not be in trouble if he quote unquote took the fall for this evidence and mr c in later if he were acquitted in this federal trial and took responsibility for it later one of the jury's questions was it mr c he been and incarcerated since his arrest in this case did he pose bail meaning was he incarcerated during this entire time was the state aware that mr norgaard was a witness did the defense know that mr norgaard was a witness all of these questions are pulled from statements that the u s attorney made during closing such as the attorney said mr norgaard came out of basically the whole cloth we don't know where he got his information from did it come from the discovery one of the things that is indicative of these types of statements that mr norgaard and mr c commit perjury or telling him what to say there was no evidence of that the evidence at trial was that twice mr norgaard said when he was question by the government what were you told what did mr cotton tell you to say and his testimony was he told me to say the truth there were no tapes there were no jail calls there was none of that at the beginning of the prosecutorial the prosecutor's statement to you quote in your brief the prosecutor says i submit the reason why a few months ago norgaard randomly decided to research the law was because what's the evidence with respect to his researching the law mr norgaard stated that he began to search the law because he wanted to know what he could be facing that was the inference that came from that he wanted to know what his liability would be by saying that he by confessing to what he did but by confessing to what he said what he said he did ok correct and so just explain a little further the prosecutor told him as a habitual smoker of marijuana did he understand that he was committing a felony and josh norgaard suggest i know i know but i confessing i also just want to touch briefly on the government and this isn't just one thing the government also commented many times and shifted the burden of proof in this case with regard to comments on mr cottons failure to take the stand now i admit the government didn't specifically say mr cotton take the stand the government did it a lot tactfully when the government repeatedly said there is no other corroboration to mr nor guards testimony the only other person and wh comment it's not a fair comment in the circumstances of this case because the government knew that the defense could not bring in kaitlyn scott the passenger right so there's no of a pretty that's a pretty strong that's a pretty strong rule if if you can't comment on the state of the evidence you can comment on the state of the evidence but if doing so in a case where the defendant does not testify you cited in the government's brief and the government relies on it and what the government doesn't say in complera is that the defendant testified in that case so by the government right i mean i'd love to see a case where we re did not testify what what's the difference between the prosecutor saying there's no corroboration on one hand and his dad saying the only evidence we have is because i certainly can say prosecute and say the only evidence of this have that we have is the testimony and it is a fine line your honor it is and you can look at mr nor guards testimony and you can ask the jury to make inferences regarding his testimony and asked a jury to assess his carette ability but you can't ask them to imagine that he colluded and you can't ask the jury to say why didn't they bring in anything else why didn't they bring in any other witnesses why didn't they bring in this because the defendant never has a burden to do anything and in a case like this especially when the government knows that there was another witness that the defense couldn't secure we don't play an hour on this bits and pieces and i'll answer this in two part when an objection is made individually to part of a closing the review is under the manifest weight of the evidence when objection is not made to a particular moment in the closing it's plain air when review it cumulatively the court looks at it under a plain air when you look at individually you can do it under manifest weight but i think we submit under either standard whether you look at it individually or underplaying there mr prosecutors need to stay well within submit that there should be a retrial which is why i'd like to address very quickly the continuance issue on the motion to suppress when mr cotton his defense counsel attempted to secure two of the witness on the suppression issue the magistrate judge went through the flint factors there was no question that his defense counsel was diligent in securing and trying to secure the witnesses the went back to regarding utility which is whether there would have been at least probably the defense witnesses that he tried to secure the security guard in the passenger would have been helpful to the magistrate judges assessment of whether those two witnesses would have been helpful to the magistrate judge had he been given more time to secure them or whether he could have obtained the subpoena on them we will we know the he probably would have been helpful or been able to subpoena them with regard to the security guard because the security guard was subpoenaed before and he was subpoenaed for the trial we think it would have been probably he would have met that standard for the passenger he only needed to this few several weeks to try and do so i think it was an abuse of discretion for the district court not to do that because they never tried or allowed him to try to use the court resources to bring her in now is that the best way to get a favorable witness into court no bring it to have someone you know as a material witness or have some bring contempt into bringer and no but is that a step that he should have been entitle to try and take if he couldn't get his own investigator in to bring her in when that is testimony live testimony that should have been used and brought before the magistrate so he could assess her credibility when that same magistrate already had credibility issues with one part of the officers testimony yes ok now you'd want to save three minutes you're down to two you want to see what you've got i absolutely do your honor thank you court's attention to page thirty seven of the excerpt of record this is from the from the government from the prosecutor statement he says now here's another thing and before i get into this i want to make a really important point the defendant in a criminal case has zero burden the burden lies here with me and mr smith the government mr and brits and the defendant can sit through the entire trial they can twiddle their thumbs and if we don't meet our burden we call fifty witnesses and they just sit there and watch and if we don't meet our burden you are duty bound to render a not guilty verdict that's how it works but here's the other thing in conjunction with that is that when the defendant elects to start calling witnesses and presenting a story it's ok for us to point out things that he could have presented in addition to that and in particular with this witness and with the story that this witness was telling for example he said that he left that he's the one who had the backpack with the drugs and the gun and he just put a bunch of the defendant stuff in the backpack and then he left it in the back of the car and that when he realized ten minutes later that he had left it in the back of the car he tried to call mr cotton but he couldn't get through the government said you know there'd be fine records to corroborate that there were there would have been a text message or phone records that they could have gotten if they wanted to come in mr norgaard said mr cottons car was towed back to the apartment that they shared and that he had to sign a receipt to get the car released to him and that's where he found the backpack with the note book in the back seat of the car you know where is this total receipt and what the government said is listen this this you bring this defendant that you bring this witness and at the very last minute when we did not know about this witness until until opening statement when and when the defense counsel said we've got this witness and it's his drugs and his gun and at that point we can't do any investigation right i mean we just got this one guy telling the story that is completely implausible that is contrary to so much of the other evidence i mean he said he testified for example that this was his gun in the bottom of this backpack and that he had never cotton about the gun that cotton did not know about the gun that he never knew about the gun and yet when the officer found the gun in the backpack and took the gun out of the backpack mr cotton who's sitting in the back seat of the police car says oh that doesn't even work the firing pin it's broken which it was but mr norgaard had said that mr cotton had no idea that he had this gun because he had never told him about this gun and i mean that you so so throughout the story that mr norgaard is telling there are just over and over and over things that don't make sense and are contradicted he said he was a very heavy marijuana smoker and that he bought an ounce of marijuana and he says he's a habitual marijuana smoker he said he bought an ounce of marijuana he also said that an ounce is fourteen grams and as we pointed out in our closing someone who is a habitual marijuana smoker would know that that's that's incorrect so that he's getting ripped off he's getting ripped up and then he said that he packaged it he would get this ounce of marijuana and then he would package it into a small bag you so that you have one for monday one for tuesday one for wednesday but then he had all of it in the bag and then he said that he had all of it in the bag because he was going to smoke it all that night while he was on his way to go to to a date and he said mr cotton was giving him a ride to the state and that the date did not smoke marijuana so i mean just none of the none of the things that he was saying he said that when and when he when the car was towed which by the way we had the release that mr cotton signed so that they would not throw the car i mean the evidence in the record was that the car was not  norcross said that it was towed and when they got back to the apartment he found the note book in the back seat well the police had seized the notebook so the notebook was in evidence so that was just not true to so what we have is this friend or i think the in the damn trial and says you know this is it's my it's my drugs i know it's packaged in a way that looks like it's packaged for distribution but that's just how i package my drugs and it's my gun that he doesn't know about even though he happens to know that the firing pin is broken and and i didn't say anything for two years i didn't come forward because i was afraid of going to jail and now a couple couple  weeks couple months ago i think you said a couple weeks ago i started researching to realize that in fact yes these are felonies that i'm up here admitting to but now i'm not afraid of going to jail effort two years i didn't come forward because i was afraid of going to prison you know and now i'm just not because my cousin's been because my cousin has been in custody for two years and i and i just need to do the right thing so so when the defense chooses to put and we made that very clear to that we made it very clear to the jury they have no burden at all they do not have to put on any witnesses any evidence but when they do and when what they put on is implausible contrary to the other evidence in the record we have a present the backpack and the notebook and the other things that that would have corroborated their story we have the right to point that out with respect to the to the evidence from which we can infer that this was a concocted story i mean just because because that the things that he was saying do not match with the evidence at trial i mean there's the things that mr norgaard was testifying to simply or contrary to the evidence at the trial now this idea that the reason that they concocted this story and that the reason that mr norgaard you know said for two years he was afraid to go into prison and now all of a sudden he's not well you know it's plausible that he understands that he comes in and gets mr cotton off and then he goes to trial and cotton comes in and says oh you know what that was mine it's a plausible story there's there's  it's a plausible story and nothing in that no evidence in the record contradicts that and this is why it's different from bluford i think that i think the defendant is really just sort of  turning bluford on its head by saying i mean they say that in bluford at least the government had some evidence of phone calls and that somehow this is worse but in fact the problem bluford is that the government had phone calls and those phone calls did not i mean absolutely did not support the story and in fact in some cases contradicted the story and that was the problem with the government making this assertion in their closing argument when they knew i mean what they what they said in that in the closing was that these phone calls confirm that they had concocted this story when in fact they did not here's here's my problem not that the prosecutor can't suggest that this is a calm collected story there's plenty of reliable where the government says something that maybe doesn't have any evidence supporting it is that they know what's going to happen if norgaard is tried and on double jeopardy because you're saying they know this well maybe maybe they do maybe they don't so how do you how do you justify saying that yeah i think that what they i mean i just find exactly what  they mr ingrid's the defense counsel is a champion of this is that forty two excerpts of record as a champion of the constitution not only when my colleague was arguing but when we were arguing to you and one of the other things the constitution says is there's a prohibition against double jeopardy meaning once a person is committed if a court acquitted of a crime they can't be tried again so imagine the scenario and then he says mr cotton  plan where he'll come in and take responsibility in there come in come in and take responsibility and what he says is that this is it's possible now what i would argue is i would think that the better practice would be not to do  this i don't know i don't know that this crosses the line i mean this isn't like bluford we don't have any evidence that this is not what happened and in bluford the government actually had evidence that contradicted the scenario that they were painting but i would say that even if even if this is this crosses a line and shouldn't have been done in the context of the closing argument as a whole and in particular in the context of the absolute clear inference that place and and in reading through everything in preparing for this argument i think that was probably a mistake we should have and we had argued in our brief that that they were making an argument for the first time on appeal and they shouldn't the court shouldn't consider this for the first time on appeal i've read back to your dip to qualify yeah yeah like i convictions then the battery the categories the battery and possession of contraband of possession for sale yeah yeah and so so those are the two that we're relying on and to the extent that we that we just messed up by not arguing the other one i apologize but i take responsibility for that this or any reason why we should if we could  c well if if we get nevada battery with causing substantial bodily harm and nevada possession with intent to distribute or with intent to sell the drugs if we get those two then the and we don't have to wait yes ok ok so tell me back about ok so about a defines bat is defined substantial bodily harm as bodily injury which creates a substantial risk of death or which causes serious permanent impairment of the function of any bodily member or or organ prolonged physical pain what that what the supreme court said is that the for necessary to constitute a crime of violence has to be violent physical force that is force that is capable of causing physical pain or harm ok and the court of johnson also referred specifically used the phrase it is one phrase in one sentence that is quoting dicta from a second circuit case so what what they're saying is you know pain is a fluid concept and as the second circuit noted you know punching a gymnast in the solar plexus might not cause any pain at all but touching somebody with third degrees could third degree burns could cause excruciating pain that was a phrase dick that was completely separate from what the court said in collins what the court held in collins is that prolonged physical pain the term pain is necessarily subjective that's where they're quoting the second circuit but then they say the pain falls within the statutory definition when the victim subjectively says experiences pain and some physical suffering now that is what johnson that is how the supreme court defined violent force force capable of causing physical pain no the defense is i'm as i read this decision or as i read there their argument what they're arguing is that the supreme court in johnson wasn't specific enough and that pain force force capable of causing pain isn't good enough and that's an argument that they need to take up with the supreme court because the supreme court said what it said and that's the law that this court is required to apply now just to be clear in pollens the defendant struck the victim in the face knocking him unconscious he had extreme pain in his head the cat scan sho right temple fracture and for weeks he experienced dizziness he couldn't bend over without almost passing out and had an army intermittent headaches for weeks so i mean collins is not a case where there was a mere touching of someone with a third degree burn that was a hypothetical that has never that has never happened as far as i'm aware of i don't know that that conviction would be sustained by it but it certainly wasn't and collins collins and the other two cases nevada cases let chance and hall and you know in holland which they say they cite as saying that that was a case where the defendant merely struck the victim well he punched him in his jaw knocking off his hat and glasses his screw up the alignment of his jaw and his teeth to the point that the defendant his job popsy has trouble chewing and he can't sleep on his left side without pain medication so so that again i mean i think that they the cases that they cite show very clearly that in nevada battery was substantial bodily harm you concerned about spitting was that a substantial bodily harm pace i don't think so i mean i think the one thing just to be clear i mean simple battery and this is what the court found and this is what the supreme court found in johnson and what we've acknowledged simple battery hundred nevada law does not qualify because that is the merest touching i mean that is any unwanted physical touching can be about i think me a bit yes but once you're talking about substantial bodily harm you know the other thing is this court has recently held that battery with the use of a deadly weapon in nevada law qualifies as a crime violence and that is because nevada defines deadly weapon as a weapon that either inherently or in the way that it is used could cause substantial bodily harm regard to the sentencing substantial but only harm under collins decides that we're not quibbling with the supreme court's finish and johnson that we're good to go on that  their definition that the government cited were we agreed with if you can touch someone who has a third degree burn and that's substantial bodily harm that's when broader than jonson's violent physical force so nevada's statute defining substantial bodily harm for purposes of nevada battery is just too broad the problem is is that talking to someone that you know has suffered third degree burns it's still not violent physical force even though it's going to cost you shooting pain correct it's just the way the statutes written we're going under statutory definition you're applying the categor approach so because a different because the government didn't challenge the conviction for and the and we can rely on that even though this is this is dicta the government says well that's it's it was just an analogy it was drawn from the second circuit case i don't agree that it's dicta they were specifically defining what pain is and what substantial blotter li harm is in the context of the definition for nevada they were that was a very short opinion it had a very specific purpose they were deciding whether the definition was constitutionally vague i don't think that that's dicta that was in about a supreme court setting that out for the court for the purposes of constitutionality but as i read johnson it says or force capable of causing physical pain or injury to another person well so a very slight touch will do it but there's no dispute that there's some touches that will cause very substantial pain i mean that's the point of the quotation but we're missing the violent physical violence so it's very specific it's not just the pain part it's the violent physical force but as i read johnson it's either violent force or force capable of causing the pain but there's you're so we're missing the force well what well force means slightest touch i mean it's it's not it's not violent force i concede that the but but th force that is to say there is some impact so it causes severe pain correct but then we're talking it's more missing of course because if it could be minimal touching so in that regard the nevada statute is overbroad well hundred about a law it would if it was inadvertent and not intentional correct well you need the intent but it's not there but someone who deliberately touched someone who had suffered third degree burns would would cause excruciating pain correct and that's still not sufficient a crime of violence that intent is not included first substantial battery you only need to you have the intent to do the action not the intent to do the harm or i'm sorry i have them backwards bodily harm rather than the intent to use force well the supreme court said i don't need to show a case if if the statute on its face says that it's staffed and that it's overbroad i don't need to show a real life case all right thank you could i can i just clarify one thing with regard to the government statements regarding nothing contradicting the collusion argument you're over but let us if you want to make that point please do it's not enough that there's nothing in the record that contradicts the fact that there's no evidence of collusion that's not how it works the government has to have a good faith belief that there was collusion the fact that there was no evidence that's not sufficient ok thank you ok thank both sides for their argument united states versus cotton now submitted for decision