v who represents scott here mr heron and his chest pain were charged and convicted of conspiracy to distribute methamphetamine the arguments for the issues i want to argue this morning were raised on appeal relate to the jury instructions that were given in this case is and three different instructions were talked about in in the palin's brief and i want to focus on one at this point because we're argument time always flies by really quickly so  instruction in question was number seven and it's based on a it's circuit uniform instruction and it pertains to ways that the testimony of witnesses necessarily wrong with the instruction under normal circumstances under in a typical case i think what's different about this case is that  the two of the witnesses to the cooperating witnesses had already entered you'll be pleased they'd been sentenced him and they were given reductions for providing substantial assistance so under those circumstances to give the last paragraph of the instruction in question were the jury is advised about the process this undertaking in order to for for a cooperator to get a sentence reduction which involves you know the prosecutor making a motion and then the judge approving the motion and  a reduction that indicates you know tells a jury what has to happen in order for cooperate or to get a reduction in then in this case the prosecution in the in their case in chief asked the cooperators questions that brought out the fact that they had already received a sentence reduction but you know when you when you say that it tells  substantial and assistance can entail it doesn't exactly tell them that it can come only in the form of testimony for example you could get substantial assistance for assisting the government other ways i presume like for instance being part of a sting operation or something of that nature so i guess i'm i'm asking you where can point to me where it indicates that it's some sort of outing for the testimony if the jury doesn't even know why the substantial and assistance  reduction was was given the the the the judge the jury instruction tells the jury that a judge has to approve the facts the fact of the matter is you could you could provide substantial assistance whether it be cooperating with the government some sort of you know sting operation or whatever and still be a bad person still be a non credible witness and so i guess my question is that really enough didn't non credible you could be a nightmare you could be a bad person right they often the police often cooperate with law enforcement often cooperate with bad people right to to put instance of the first cooperator who testified it was made clear that he the time cut the substantial assistance award was based on the same cooperation that was involved in the instant case another words it was all part of one  that in particular that there was a cooperation agreement that that they testified in court pursuant to the agreement is and the there was a prior reduction and so was all the same agreement so that would i think you didn't specifically say what it was for bit suggests that it's all part of the same batch of information so that i think accounts and you asked for only the first sentence to begin and right yes your honor in this way don't you want the sentence that says you can give the weight the testimony of these witnesses such weight as you think it is or that's a good one for you yeah that should be in there too ok we exactly are ordered because the witness has already been received a sentence reduction in the only way that can be done is if the court after a prosecution what supposed to be a cautionary instruction about the credibility can be turned into like a sword by the prosecution to basically vouch for the credibility of the w  one is regarding the elements of conspiracy to distribute that the agreement or understanding should really there should be or some allens of methamphetamine on a couple occasions council you see in our long list of cases that basically approve that and so i guess it gets to be shorthand but couldn't you get the point across an argument to the jury well we tried that of course but it would be nice i think is an accurate statement of the law that if unless there's an agreement that the distribution is going to be for resale as opposed to well you're here i'll give it to sort of thing i don't care what you do with the other the other instruction that is discussed is relates to clarifying that merely knowing about the existence of a conspiracy does not make a member a person of it this was construction number thirteen and the reason that is important i think is the preceding sentence in the instruction is appropriate to who has no knowledge of a conspiracy but happens to act in a way that advances some purpose does not become a member least at one point i think it might be the following paragraph that says that to be a member of a conspiracy an individual must and i'm quoting voluntarily and intentionally joined that that would seem to cover i'm a sacrifice in a language you wanted but that would seem to cover your concern mr heron has presented to issues for review by this honorable court one of them regard sufficient of the evidence asking the court to make a determination whether the evidence presented to the jury was sufficient to c victim with the court's and diligence i would like to leave that to the briefing and concentrate on the sentence that was rendered in this case which was a life without parole if you will because there is no parole in the federal system the court that we appear in this morning is arguably the loftiest court in the world say perhaps perhaps the supreme court of the united states in upholding the law and justice justice in the united states of america stems from the constitution in the united states which primarily is designed to allow liberty to human beings in many forms and one of those of course is to be free from imprisonment over the years many courts have made determinations regarding all kinds of issues related to liberty in our view the core and the defense and prosecution bars of the united states are the guardians of liberty for those of us who have been around for a period of time and practiced in the federal court system before the federal sentencing guidelines were in effect we are somewhat disturbed often dismayed by the results that occur by application the federal sentencing guidelines which in our view in part were put in place for the sole purpose and i know there are other purposes but one of the purposes was to avoid judicial discretion fortunately for us the united states supreme court has taken care of some of those issues with booker and other rulings that allow the court to make a decision regardless of the federal sentencing guidelines however there are many judges including the judge that ruled in this case who we consider to be a guideline judge this judge in this case is one of the most capable intelligent  judges i've ever practiced in front of so it's not an issue of whether the judge knows the law follows the law but one of the things that we believe has happened in this case is that the federal sentencing guidelines are put someone in prison where she says in this quote i'm reading from now is on page seventeen of the government's brief if you just look at what mr heron chose to do had he not obstructed justice had he pled guilty he would have had a five level swing which means a swing down he would have been a level thirty eight criminal history one with the sentencing range to thirty five which is just under twenty years to two ninety three months he chose to obstruct justice he chose to put the governor to their proof and he lost the evidence against him was overwhelming well one of the things that they did you can clearly see that mr heron did make a mistake by writing a letter to one of his fellow defendants that resulted in me getting a two level increase restructuring the justice there's no argument about that however there's also a three point increase for the fact that he chose to go to trial exercise his right to a jury trial he did that and of course we've heard this many times i'm sure the who this court has heard many times that why should someone be punished for exercising their rights and there many arguments regarding this the point here is that it appears absent the federal sentencing guidelines and the conduct post criminal conduct that the judge probably would have arguably it appears given mr heron a sense of two hundred thirty five to two or ninety three months they're for it's arguable that the judge follow the guidelines the guidelines turned out to be higher and he ended up getting a life sentence without parole which we said respectfully submit in this case is just too much can we honestly say that life in prison without parole for a person who has a criminal history category one which i concede again that the judge addressed by saying that mr heron probably isn't really a criminal history category one because he has some prior things that are outside of the province of the feds the federal sentencing guidelines because they're too old and then she uses the term arbitrary to describe the federal sentencing guidelines in that respect so on one hand arbitrary nature of the guidelines helps mr here and on the converse arbitrary nature of the guidelines hurts him and it really hurts him when it takes him from a criminal history graphic category thirty eight to forty four which is actually above the highest level and kay has to come back down to a forty three books for the for the sake of just thinking about the us and in the terms of what the court has the power to do when looking at things we have a person here who was not actually personally caught with any drugs all the drugs that were found in this case amounts to thirteen grams or alex as i believe it again they found no ice it was all from a co can you know coconspirator codefendants testimony that they saw it so there are just certain things about us that start to say we now have a person that is going to prison for life criminal history category one with a whole bunch of things added on top of it by the federal sentencing guidelines again the judge renders a legal sentence but we respectfully submit to the court that the sentence itself is a and abuse of discretion a certain that's more than necessary more than sufficient to satisfy the goals of the sentence sentencing guidelines are there any  his right to go to trial primarily that's correct play also overall the judge has the right we did a motion for variance downwards one the judge addresses all that he's very careful articulate it's just that somehow it just sort of seems wrong to say that life without parole is a sentence of pollution but not more than necessary to satisfy the it's a different judge might have done differently it's almost a luck of the draw we don't like to speak in those terms but again on what basis could we say that the senses and reason well the only based you can say on judge is that this court has the power to look at the overall facts of the case how the sentence came to pass and say that this is an abuse of discretion there again well your honor it respectfully were before the court with a limited amount of time to say something and basically there's nothing more to say really done what the the develop proof but what specific purpose as the obstructed you objected to language accomplish what the purpose of the language that mr meyer objects to so with respect to the last paragraph of instruction number seven which is the challenge portion of instruction number seven and it's my understanding now that ms just deigned only objects to the middle terms how cooperation works in the federal system number one the prosecutor can file the motion of the prosecutor thinks there was substantial assistance number two if the motions filed the judge decides whether to reduce and if so how much to reduce it and then something that is in may respects favorable to the defendant tells a jury the jury is going to decide how much weight to give the cooperate testimony in the government's view instruction number seven is not a vouching instruction it's an anti bout chain instruction when we go and read the whole instruction as the court cases say we should do it began by talking about the credibility of witnesses and how many they may be quote impeached that's how it begins and then as a couple other examples the last sentence of the fourth full paragraph of instruction number seven whether or not their testimony may be influenced by their desire to please the government or to strike a bargain with the government with respect to their own situation will be for you to determine and that's again emphasized in the last sentence in terms of  at the end of the day this instruction is it as a whole is saying to the jury be careful with these sorts of witnesses it's a it's an anti vouching instruction in our view now  judges and instructions don't vouch the defendant doesn't cite any cases where a jury instruction was held to be vouching under this court's cases vouching is you know usually a prosecutor in opening or closing regrettably in the heat of the moment saying something along the lines of referring to facts that aren't in evidence implying the truthfulness of the witness implying some guarantee of truthfulness or expressing a personal opinion about the credibility of the witness you know counsel i think that his argument this chest pains argument was a little imprecise but i think the argument is essentially that the jury instruction itself doesn't fout but when you combine the jury instruction with what happened at trial and the testimony at trial then it becomes it has the effect of making the task to moni more believable or more credible so it's not vouching itself it just has the effect of elevating that that that testimony what's your response to that our response to that is under this court's cases there is nothing and permissible about asking  which approves of the language in the instruction although to your point judge ben i don't think the argument that mr or ms just jane has here was squarely presented in that case but i think that case gets gets us most understanding of a plea or witness immunity agreement is not  questions about that i'll move on to instruction number twelve with respect to instruction number twelve here ms just again asked for an extra phrase and  the one of the elements that is that the distribution should also be quote for resale as a judge been pointed out this formulation of the elements is been approved in a series of cases  and a defense of instruction because that's what that resale point would go to but the cases that talk about buyer seller don't apply here and the district court was not asked to give a buyer instruction but more to the point one would not be appropriate because under this court's cases the district court doesn't abuse its discretion when you have a case like this where you have multiple transactions not has testified that she went went out to las vegas to help repackage six pounds of math into smaller quantities and then drive it back to iowa and then would distribute ounce quantit where under a sufficiency of the evidence challenge a single silva have found of marijuana to a customer was held to be insufficient on the last instruction instruction number find you must find that the defendant voluntarily and intentionally agreed to join in the conspiracy and so that multiple times in the instructions and under this court's case law the court was not required to then stated again in alternative terms here in inverse negative terms so your argument as is sort of the wire raise which is that there's nothing wrong with the instruction they're proposing is an accurate statement the largest already covered that's portion of the sentencing the district court judge at least with respect to mr herring kalak characterize the evidence is overwhelming in addition to having these four cooperated witnesses from the inside the government was these by flight records casino records that are also those text messages so unless the court has any questions about any of the other issues in the case that would conclude my argument i would note with respect to the issue of obstruction the defendant is not alleging any procedural error it is purely a question of substantive reasonableness and the defendant did not receive obstruction because he went to trial he received obstruction for two affirmative accidie took in view in anticipation after the federal charges and trying to pin the blame on some of the folks that were testifying against him so unless the court has any other questions i will yield the balance of my time ok thank you we'll give you two minutes of but if you're if you and up before his time starts i find myself deepish or grand that overlooked the fact that both you and your colleague mr ago were appointed under the criminal justice act and we want you to the court want to know that we deeply appreciate your willingness  like you to accept these assignments as mister mcgovern said this is the hall of justice and without people who are willing to make that a hall of justice we would not be able to do our duties adequately and we sack both of you for that the purpose of that instruction is it's a cautionary instruction what factors should a jury consider in order to weigh the credibility of witnesses under certain circumstances  it's basically the language that i asked the court to strike under normal circumstances would not be objectionable it's nothing wrong with the jury knowing that sort of thing but in this particular case or this kind of case where the cooperators have already testified and received substantial assistance that's when talking about what process needs to be undertaken in order for the judge to make a determination that that substantial assistance reduction should be given and words brought out that they've already received a reduction had already received a reduction so what we're trying to avoid here is having a situation where what's supposed to be a cautionary instruction actually in a fact under the circumstances is vouches for the credibility of cooperations them thank you very much very well we thank all counsel for their presentations and arguments in this case these cases and the cases are now submitted and we will take them under consideration