right our third case for this morning is united states against bradford and mr berman we are ready for you you're ready for us that led to the admission of inadmissible and prejudicial evidence against him at trial in addition mr bradford challenges the sufficiency of the evidence with respect to the drug distribution conspiracy count specifically with respect to the  guilty of conspiring to distribute cocaine and the first evidentiary error that the district court committed occurred when it improperly admitted evidence of several violent incidents that were unrelated to the charges that mr bradford we identified for those incidents in our opening brief so could you say a word or two about forfeiture of these arguments because you know there's some discussion about this before the trial but the judge gives us a somewhat open ended ruling he says says the evidence is it is ok if it's going to be ok more or less but he doesn't seem to resolve that enough or you can explain to me why you resolves it enough that you didn't have to you know mr bradford i don't know if it was you who was representing him but mr bradford didn't have to renew the objection at the trial your honor respectfully the di simply say the evidence is ok if it's ok the district court's ruling said that the evidence was that was discussed in the government's brief was quote relevant evidence directly related to the charges in the indictment and in the very next paragraph the court concluded that to the extent that mr bradford's motion goes to be relevant evidence directly related to the charges in the indictment it is do not so it where he says to the extent that what concerns me because i you know what once evidence actually comes in a trial some of it may be inside the confines of what's relevant to one of the charges and some of that may not be and i was actually you know i had some concern about some of the evidence for some of the reasons you suggest but if the objection wasn't sufficiently targeted at the problematic nature of this then we would be on a plane or review which is obviously more difficult well your honor mr bradford to motions at least one of them specifically referenced rule four zero four a piece of the objection itself was specific enough but the judge didn't think it was for a four b evidence the judge thought it was a direct evidence of the of the charges that's correct and that was made clear from the district court's ruling that the evidence that was outlined specifically in the government's brief was direct evidence and that direct evidence would  indictment it is granted doesn't that require the lawyer when trial comes to raise their hands and say i think this is a piece of evidence that comes within that last sentence and therefore it should be excluded now with respect to the evidence that was already ruled upon the district court's ruling that there's no art mention of any evidence that this curious reference to the government's brief doesn't seem to say everything is relevant because otherwise  meaningless that's correct and so the district court's ruling left open the possibility that other evidence that the government attempted to elicit could fall outside the scope of direct evidence but that the evidence that was specifically discussed in the government's brief fell within the district court's definition of what direct evidence was and therefore that objection was what do you think it's a definite article refers to to the extent that the evidence what evidence is the drug referring to that are other than the evidence the judges already talked about discussed by the parties should mentions i don't know exactly what the district court where well that's that's the reason why you need to object to trial them find out what the definite article means well i think that the definite article left open the possibility that there was other evidence that could not that the government could shoehorn in under this where you mean other than zoning the gun to harris and threatening debo and asking smith i guess to steal the car and robbing i mean that those are the four pieces of evidence so your theory has to be that maybe something else not one of those four topics or additional behavior in conjunction with i'm not sure where we're going  but yes i think that the district court anticipated that there may be other evidence that the government tried to get in and that if that evidence came arguably within the bounds of the rule for a party then that evidence would be ruled upon by trial but that the united states versus carmen in fact the language that the district court used to justify its ruling is almost identical to the language that this court used in the united states versus hicks but you know let's take loaning the gun to harris one of the charges is a drug conspiracy one of the charges is on lawful possession of firearms transfer of a firearm in the it seems to me if the government is trying to show that he has a firearm then evidence that shows he's loaning firearms to other people looks pretty direct to me why isn't that why is that under four hundred four b because it to constitute direct evidence that falls outside of the scope of rule for a for be the evidence must tend to prove the elements of the book that's one and one of the chart he's got a bunch of firearms charges and this is evidence that he has firearms and he's given them to other people so looking it looks to me is so that at least counts as direct evidence maybe not for every charge but that's not the standard it's direct evidence even for one of the charges that's fine correct it's your honor noted there was a nine twenty four c charge for possession of a weapon but it was possession of a weapon in furtherance of a drug conspiracy or a drug trafficking crime well if you're if you're taking on i do you it's your case but if you're taking on the notion that drugs and guns that guns can be used to further a drug conspiracy you have a serious mountain to climb i think well the government was required to show a connection between the possession of firearms and the alleged drug conspiracy and none of these four incidents that we're challenging on appeal bear that connection i thought the government indicated the slowing of the gun was to provide harris what if something to protect him and  area in the area of men where he was selling marijuana well there simply was no evidence that the landing of the gun to mr harris in this instance was related to drug trafficking it showed instead that the landing of the gun and that the use of the guy in a was to settle a personal dispute between mr harris and someone who had disrespected him right so there may have been something beyond the scope it seems to me exactly to get back to the district court's order the loan of the gun itself and the notion that the areas the area in which he distributes marijuana sounds central to the charges and in contrast the notion that you know harris also decides he's going to settle a personal dispute with somebody appears to me to be beyond the charges but doesn't that need to be teased out at trial and it wasn't his daddy right that's that's the problem it's you know and your honor i would just no that if any one of these instant incident incidents was found to be improperly admitted under rule for a for b or that it fell outside the scope of role for a for b wrote but was not direct evidence then that would be enough for this court to overrule mr bradford's convictions now just report also abused its discretion if i were you i'd still have to think of harmless error you would your honor and these errors were not harm the government spent a significant portion of its case talking about this evidence it highlighted the evidence during closing arguments and the government's decision to focus the jury's attend and on these violent incidents as opposed to the direct evidence of the charges that mr bradford face suggests that its case would have been significantly less prejudice significantly less persuasive without this evidence and that's the standard that we have to meet for to overcome the harmless  application all came from a confidential informant who later was revealed to be mr bradford's friend daniel smith would have done this of certain amount of background work too that had gone into that there had been a collaborative effort among a number of government agency a t f people receive audio recordings so it wasn't quite as stark i may seem it wasn't but the most recent information the information that had not information from the warren application the magistrate was unable to fill its role as a neutral arbiter as is required under glover and so under glover there was insufficient basis for finding probable cause and this evidence should have been suppressed now finally i'd like to briefly turn to the conspiracy argument mr bradford is challenging the sufficiency of the evidence with respect to be cocaine distribution conspiracy to prove mr bradford guilty of conspiracy to distribute cocaine the government was required to establish the existence of an agreement between mr bradford and another individual to distribute cocaine to others evidence of a mere buyer seller agreement does not suffice to prove conspiracy marijuana conspiracy supports the conviction on count one doesn't know what that's on challenge here we're not challenging the marijuana conspiracy on appeal the government chose to lump both the marijuana conspiracy and the cocaine disappear conspiracy into one count and just a controlled substance of the statute so why can't they do that they can do that but to find mr bradford guilty of specifically a class a felony with respect to his just  conspiracy to distribute cocaine there had to be sufficient evidence to prove the conspiracy and as we outlined in our briefs the evidence merely showed a buyer seller agreement which is insufficient to prove conspiracy we didn't know anything about the alleged suppliers who were mr bradford's alleged cocaine coconspirators with respect to the cocaine distribution count and as a result there was insufficient evidence to prove mr bradford guilty does this have any practical significance or leave even legal significance here of special verdict on the cocaine conspiracy the twentieth grams is vacated it does your honor because if the conviction on conspiracy is vacated then mr bradford will only have been convicted of two class a felony offense and because the district court but the marijuana conspiracy conviction i mean count one remains based on the marijuana conspiracy it's our position that the conviction the entire conviction for conspiracy will have to be vacated if there is insufficient evidence to support the cocaine distribution conspiracy because of the way that the government charged this case and because the district court imposed a sentence that was five years above the minimum of the guideline range it's plausible to believe that he did so and because he was influenced by the fact that there was an additional class a felony if your honour's have no further questions o he agrees or finds that the evidence talked about in the prosecutor's memorandum is relevant yes if i could just back up a little bit and judge easterbrook it's significant that the defendant's motion in limine it was very very general it was general to the point of it it just said they wanted the court to prohibit the government from introducing evidence that firearms seized in the case were involved in other  crimes the response of the government to the out was oh and then in a good object under for a four beat the response to the government was that the government doesn't intend to introduce four o four b evidence these are the eight of the indictment it's specifically alleged in the one twenty four c charge there are three firearms named the three that were seized actually on june eighth are the three that are named and counts two and counts eight i think that's what we need to do for these four categories to go category by category and then see how that shows the chart because otherwise what this looks like is we're trying to show the defendants wife style to show that he's leading a violent and criminal lifestyle and that's on ambiguously bar five four zero four b so we've really got to analyze evidence one by one the district judge didn't do that and that leaves us with some problems here well and i think and i agree with the court's earlier point that the district judge was simply saying well if the evidence is as the government suggests and it's reply it's admissible as direct evidence if it's not it's miscible well but that wasn't quite what i was least if you're talking about me that's not quite what i was saying because the government's brief as you just again confirmed does single out these four different areas and so a rational person in the defendant's position might think well i have a ruling about the four particular things that have been raised and under the wilson against williams decision you know i'm entitled to  rely on the specific ruling obviously there are other things out there other uses and maybe i'll have to deal with that later but the cold war of those four things has been identified and ruled upon that's the case then you know certainly still review it we're just reviewing it for ordinary error not playing here and here i didn't take the court's order in that manner that ok yes to these four areas it's ok and two other areas that might come up it's not ok there were only four areas presented to the judge that the that the government intended to elicit evidence when you say areas you mean types of evidence yes i laid out your honor for the court in my response which the court can of course see and the record the areas i thought the defendant might be talking about because of his motion eliminate was so general come in and here's the charge that it's relevant to and here's why it's relevant probably wouldn't be here the court and not all of that but that's kind of what we're looking for here well might you know i can only tell you what my understanding of the order was my understanding was that it all depended on the evidence at trial we were just sort of being this to the court's attention this is evidence the government again let's be specific sure bunch of people testify that bradford has an altar cation with debo yes in retaliation for stealing marijuana yes and so there's some violence in conjunction with that yes so if that precise evidence comes in the courts already ruled that it's relevant so the defense counsel surely has no obligation to raise yet another objection to that evidence i would respectfully disagree your honor that that is the law in the circuit that well and says when there's a definitive ruling actually the federal rules of evidence  this is a non ruling ruling i would agree i think i did that i just made it asides nothing right it is saying it is alerting the defense that given what the government says it's evidence is going to be it would appear it would be direct evidence but allowing for the allowing for the condition that maybe this isn't what the evidence is going to show if that's not what the evidence shows then the motion is a granted right the decision the two lines that constitute the supposed ruling  appears to be direct evidence given the government's response but we have to wait to see what happens at trial so i think the the question in my mind was open there was no contemporaneous objection to any of this evidence and therefore i believe the play near standard applies but let me get to the concreteness that judge easterbrook has asked me to get to i feel that the courts the court from what i'm hearing is let me then say why i think the mosque work was directly relevant to the charged crime one recent possession of the same gun that was seized from bradford and charged in the indictment i report the court to its miller decision in the candidate decision cited in the government's brief to pursue it to this court's thompson decision it showed bradford's protection of his drug conspiracy the continued success  his conspiracy they ability of his distributor to distribute in his gang's territory with out disrespect by others it showed the possession of the gun as charg count eight not someone else it linked the gun to the defendant as as a court will recall from the evidence when the gun was seized the mossberg it was in the hidden it was in the  the person using the gun in furtherance of the conspiracy those are some of the reasons your honor there are more stated in my brief i would like to get to the second one of the evidence relating to was was very relevant because it happened between mid may and june eighth june eighth being basically the second search warrant sort of the end of the conspiracy right before marijuana because it was stolen from him it established again how mr bradford conducted business his willingness to resort to violence to seek retribution  legal drug conspiracy judge in urdu saying the evidence in this way i was relying on this court's decisions and hicks how a conspiracy operated is relevant to there being a charged turf turf protection and retaliation caressed rivals etc it to me at all shows the fact that there is an agreement to distribute drugs and if you're into all of you something illegal i might just then because the methodology i can see could have some bearing on whether you are you know running a mcdonald's franchise which generally you can just do you know out in the open or whether you're doing your running in the illegal business right it's an illegal business and illegal businesses can't resort to police protection they can't call the police when there's a problem so instead as this court's line of cases have established firearms or evidence of drug trafficking the use possession of them because necessarily drug traffickers have to rely on themselves to protect their business see protect their business keep it moving forward get rid of rivals all of these all of these sorts of things so that for all of those reasons your honor and morse stated in the brief i would submit respectfully that the tivo evidence was directly relevant i would like to t testimony of jeremy harris in this regard jeremy harris was one of bradford's distributors he was the brother of raphael harris he said and wrists in regard to he knew about this and bradford's efforts to to get retribution from dbo and he said he testified street thug and those were his words required the defendant to do something about that that otherwise others brief that is in a circuit case rodriguez spelled a little differently that is directly on point with the pistol with me stating that you know pistol whipping is evidence of the  conspiracy when it's done in an effort to get retribution for theft or some other misconduct by by outsiders the robbery of the drugstore stats the other  evidence the government maintaining was directly relevant to the charge crimes the there wasn't a lot of evidence frankly your honour's about the crack distribution of bradford other than of course the two control bias were huge but raphael testified that he knew bradford distributed cocaine but he didn't participate in that part of the conspiracy jeremy harris testified that bradford distributed marijuana del hawkins testified bradford distributed marijuana the evidence of the cocaine just review sion largely came from the c i the continue to control bias and the evidence surrounding those two controlled by one of the reasons oh i see my time you have a minute ok one of the reasons that this was relevant is because it showed why this source of supply was no longer available to bradford she had suggested that bradford commit a robbery she was offended by that and in turn sick asked someone who used to be a coconspirator analyse i would you rob her of drugs and money so it showed his motivation for possessing guns why guns are important to the drug trafficking business because you might get rived you're likely to get they're always trying to protect themselves against robbery so i would argue your honor that all the evidence was directly related to the crime that the proper analysis is under plain error review of those evidentiary grueling some judge turned in and i would respectfully rely on my brief before you sit down and the issue of the cocaine conspiracy again one whether the marijuana conspiracy which is some challenge here that evidence is unchallenged well that's sufficient to support the conviction on count one and whether there's any difference practically speaking in terms of sentencing you're raising all the i think all the right i agree with all that these are all right points it makes no practical difference the conspiracy stands but also point out your are the crack cocaine was going to be relevant conduct anyway there is no challenge to the two controlled by and the special verdict came with the second controlled by the larger of the two anything further ms berman certainly yes i think you were down to maybe your last minute but you can make your points your honor during the government's argument and its briefs and referred you to a number of cases relating to roll four of four being referred you to hicks and referred you to thompson and i just urge you to take a look at those decisions because all of those decisions became our came before the inextricable intertwine meant doctrine was quote showed how the conspiracy conducted its business and that's exactly what the district court held here and that theory of admissibility was overruled in form and now with respect to the drug distribution conspiracy specifically the cocaine distribution spirity the government itself conceded that there was not a lot of evidence other than the to control it buys on the conspiracy element of the cocaine distribution and i'd urge you to look at the this court's decision in cologne held that although the guideline range for an underlying possession count and a conspiracy count would have been the same because the district court imposed a sentence above the minimum guideline range that the defendant was we will take this case