morning honors planned schoenfeld on behalf of appellant angelo cassio you know nurses is a case where the system did not work there was an unfortunate combination of a heinous crime an innocent woman was killed there was a prosecutor who crossed the line in order to secure a conviction and then you had a defense attorney whose apathy and disdain for his client mr ocasio was clearly reflected throughout the record he did little to defend his client and did nothing to curb the prosecutor's abuses the result they got a conviction my client was sentenced to life plus ten years but he never had a fair trial and there was certainly not a verdict for which there can be confidence begin with the prosecutorial misconduct which was not the result of any mistake there were too many instances they were very specific and they were to me the evidence that they had trust was porton for somebody to have made a mistake and why were these abuses so important to angela's case there were two shootings here both which resulted in the murder the one in cameron street and the trench murder and the conviction for the discharge of a weapon as what led to the murder conviction i'm sorry which is what led to the life life sentence in this case confused not that's ok i'm glad you asked and this was the weakest part of the government's case angelo was never charged with murder by the feds he was not charged by me with murder by the state even though both of them considered it there were other co defendants in this case who were charged with my they were convicted of murder some pleaded guilty to murder but not angelo so this was a we part of the government's case cameron street and the government was missing a drug related motive for the crime they conceded the fact that this did not relate to an underlying drug transaction and in order to get a conviction on the nine twenty four c for discharging a firearm they needed an underlying drug related mode of otherwise it was not a federal crime and could not be prosecuted as such under the commerce clause and as to the  there is no angelos not connected again the government conceded he was not directly involved they can see to do is not a principle so what did they have to do you know they either had to get him as a nader and a better or under the pinkerton theory explained to me was discharge and they could just rely on the drugs for the other aspect but it does not make it harmless because as the government pointed out i sort of need to prove both that the reasons fission evidence or that both of those instances were not sufficient to support the verdict in order to get a reversal on this and you can you argue with regard to cameron street the evidence was insufficient to establish  related you're not arguing it was insufficient and the other respect but on the drug related illness of it was insufficient on the appeal yes i'm only arguing that they were missing the drug related i did know there are concerns as to whether he committed the crime at all given the ineffective assistance but i realize that's probably a twenty to fifty five but yes on the appeal that is correct so what was so why was the evidence as to cameron street the shooting what you don't have you have lance i'll just use first names because there's a lot of overlap lance testified in this case he's the only one who linked him who said that my count my client was the shooter he's the only witness he is the brother of kendrick and paul the two leaders of the conspiracy he testified he did not know the reason for the murder for the shooting he also testified that  this to maintain his position usually that arises in a gang case to maintain their position and in the gang that's not the case here they didn't alleged gang and there wasn't but separate issue from  they he didn't do it there was no allegation that he did it to maintain his position that's not what the government's theory was what happened here was there is what i just interrupt the question does it matter what the government's theory was in there was up there was other evidence that suggested that it was drug related i know that wasn't what the government argued but the fact that the person shot was a rival the fact that the shooting was planned by the coconspirators that the  all because i don't want to take your time but there was a lot of other evidence even leaving aside the expert so does the government's theory matter it does matter because in this case what you had you also had evidence or somebody said the government conceded there was no underlying drug transaction they knew that because ellison who was the the person who was the target he told the investigator it was a racial slur the whole fight started over a stupid racial slur which unfortunately in today's society that leads to violence and that was the testimony and cassidy testified he spoke to a lot of people when he investigated the shooting and nobody nobody said it was drug related the it wasn't there also evidence though that that ellis and the casio had had arguments over the course of a couple of years leading up to this event and they actually felt that that paul had been set up to be at those parties so that he would be injured all of which would be circumstantial evidence that the underlying drug rivalry was the motivating factor but the underlying wasn't there was testimony there was a it was over a racial slur there was a fight it was unfortunate and then they just retaliated for whatever reason and it was paul that ordered that they that the defendants in the co defendants go out on the shooting it was not a casio because he had these verbal disputes with ellison for some time i don't think it was over the course of years i think it was only a couple but they were only verbal disputes and there was no evidence whatsoever that they lead to this the evidence was it was a racial slur it was a fight it should a number of happened and then paul the brother ordered the others to go and get him basically and when you say it's a racial slur are you asking us to look at completely no evidence and draw an inference contrary to what the government argues i mean isn't that what we're not supposed to do on appeal but if there are equal inferences that can be drawn that support the defense and the prosecution that has a reasonable doubt and in this case they did not have any evidence of the drug crime that's why they had to have martin to come testify lance testified that reputation what was important among drug dealers and you know with their perceived as weak you have to go in retaliate but lance who is the family insider he was the only witness to the shooting who said testifying witness to the shooting who said my client was the shooter he was the one who led them to the house he specifically never said that that reputation was the reason for that shooting never and there was no evidence that red lead to resulted from a drug transaction and everything that it did lead to was that this did not have anything to do with a drug transaction it's still a horrible crime i'm not i'm not denying that  but it was not it did not relate to a drug transaction this is not a federal crime and the state considered and dieting my client for murder they didn't there is obviously a problem with the evidence and the only evidence against my client in that shooting is two witnesses you have barnes who claims he was at a meeting and left with a gun and then you have lance lance who did not have to testify against his brothers and his mother who are the leaders in this conspiracy he only had to testify against my client and the other non family member so you have a bit innocence a little bit compromised and by the way he got after my client was sentenced he got time served for all his involvement and all all  you know i'm very sympathetic to what you are saying but it is part of the system that we have all the time i mean all the time you get a witness against a person who is before us who was very much involved turned state's evidence against a very low thing and the jury chooses to believe i agree and all of these facts and i'm going over now that's why the prosecutorial misconduct and the ineffective assistance  there are an awful lot of questions which would have to be asked about rubber of and having us and that also goes to how many of the things here are issues of plain error and you know all of  case yes i think that the ineffective assistance if you are going to consider it globally yes because there's a lot more that's not on the record however that there are very specific instances here that were on the record and it does show that it affected my client when you consider that in conjunction with the prosecutorial misconduct which was very directed at the we points in their case it was targeted given our preference generally with regard an effective assistance to look at on the full record why don't you trust the prosecutorial misconduct specifically ok so the three instances that i wanted to address specifically so the first one the government knew that there was an issue on cameron st like we did have a witness issue but they knew that there was an issue about whether or not it was drug related and they were concerned so they had cassidy testify he testified at a suppression hearing he was the investigator who a different way that was based on this investigative report so that the notion that he was actually launching which is what you say brief and that the government  is really stretching isn't i mean they're somebody testified to somebody thing years before and then ultimately he says he had no idea that one point he says the other thing with that is even if you say ok he had no obligation or he didn't go back and check the testimony which by the way it's only forty five pages it's not like it was one hundred pages you know hearing testimony but he said in that report ok sio tonight the killing and here's what's important casio's at the at the upon his arrest he was asked about two murders he said i didn't kill anyone when you're asked did you murder somebody and you said i didn't kill anyone that's saying a man involved ok if you start cutting harris and saying well maybe involvement doesn't mean killing maybe it only means this made his not a lawyer he just got arrested and to say that he should craft his answer with some type of legal ease that's not going to happen so it wasn't his report and even if you go back and look at that report and say ok fine so he didn't read the testimony that was sharp at best that was sharp and you might say it was a mistake except that you have the other two which were blatant so you have the becker testimony and the reason the back her testimony is important in the church murder which i know you say it might not be necessary for sentencing but we still have to prove it in order to get a result in this case and the government was also worried about cameron street so that's why they presented up the tense of both and they were both sort of interrelated so in the becker they couldn't get him as a principal because they know he was not directly involved so they either had to get him on eating and betting which required advance knowledge or they had to get him on the pinkerton which required reasonable forsee ability and they didn't have that the only link to get those two elements was becker's testimony about the meeting that supposedly happened in our house where she came down and overheard a comment by some unknown speaker not knowing who still was in the room about an alibi and that was the only link they had and the government knew it was a weak link because she said specifically i don't know if angelo was in the room so on some may charge me if i'm misunderstanding this but were referring to one statement in the summation that the government misstated  testimony was that he was in the room when i came back when in fact she didn't recall if he was in the room when she came back she had testified that he was there during the day of the meeting so so even if there was a misstatement of the record it was it was a single  small portion of the summation and the jury is repeatedly instructed it's your recollection of the evidence that controls and it's plainly are you to leave so i mean that's a that's a pretty big hill for you but when you look at it in conjunction with the three it's no longer little instances that's why i am faade is to my brief that it's the combination of the three when you look at it because now it starts to create a picture and yes it was only one amendment situation it was a due process it was a do prep fifth amendment due process situation where he commented on my client silence and the thing is there was a concerted effort here you have cameron street you have trolls and now you have the government saying hey he was confronted with these and he never denied his guilt that's like the next best thing to a confession so you have both of those things going on and then you have the government going on about becker to provide that knowledge element and all of a sudden you're looking at the elements start to fall together on the weak points in their case and i don't think it's sufficient to just say i understand it's in the cases where it's one comment oh there's no objection there is no objection because didn't think it was important and that's why he didn't object these were really really important issues and the prosecutor and the prosecutor focused on those issues thank you and we've taken you well over time but there are a lot of facts in this case thank you may please the court monica richards on behalf united states of america with regard to the sufficiency evidence i believe that the court picked up on quite a bit with regard to the adequacy in that regard there was definitely testimony which we have to take on appeal this court's review taking the evidence in the light most favorable to the verdict that lance plaza pierces testimony that was direct eyewitness testimony the situation with regard to the shooting with regard to the motive for the shooting itself the evidence there was circumstantial it was linked together it was because of these events and because reputations important looking at the entire history of this group's efforts to maintain their drug dealing to maintain their dominance over their competitors that the inference that that was requested was the direct link right between the reason for the shooting and it being drug related and i understand your  your adversary is arguing that this is in that category small category of cases where there are certain circumstantial evidence and the evidence is essentially an echo pose and in those circumstances  have on occasion deemed evidence insufficient for a reasonable jury right but i fully disagreed this was an we had a comment that was made to an investigator the flash point here was the use of the racial slur as having started this frankly that was something that was a comment that was made by one of the people involved people who were involved in the shoot outs and there was no witness testimony to that in terms i'm sorry he did not testify to that in front of the jury so that really wasn't in front of the jury that would be a  mislead for this court to call that an equity pose where the evidence as such wasn't sworn testimony presented to this jury what somebody said to an investigator throughout this case there was a lot of statements or a lot of stories that came up a lot of reasons for events occurring that were not true including in mr ocasio zones the investigator he said he was never involved in violence but we have lots of evidence sworn testimony by people who were involved with him in that violence that he was involved in violence so there's lots of instances here of people telling things to investigators that weren't fully accurate so to rely on that when that wasn't something that was presented to the jury a sworn testimony i think would fall flat in terms of that argument with regard to the claims of prosecutorial misconduct i can't say enough that that's fully unfair with regard to this case that the claims with regard to the question that was asked i think the court picked up on it and i appreciate that with regard to the testimony where you know sir your honor with regard to the testimony excuse me but the prosecutor who did try the case was involved with me in writing the brief he's on a detail in argentina right now so it was a little tricky but i wasn't touch with him during the course of this with regard to the statement at the hearing with regard to the suppression hearing that really wasn't even fair game that wasn't really even fair subject at the suppression hearing subject excuse me the subject of the statement that the details of the statement and what i would refer the court to with regard to the testimony at the trial the investigator at the trial i'm sorry the investigator at the suppression hearing when when he realized that he was on this path with regard to the denials and what happened and what didn't and he asked for the opportunity to look at his report and once he looked at his report he said that's right he said i didn't kill anyone and that was out there a number of times it's not like this jury didn't hear the denials the jury heard it both during the prosecutor's questioning direct during the trial and then also again on cross examination and to call defense counsel ineffective when in fact defense counsel when he was crossing cassidy said so we didn't admit the shootings he didn't admit that he did this he said i didn't kill anyone all of that came out during cross and so this jury had the ample opportunity to observe that testimony to hear it twice both and direct and then redirect and cross excuse me that's in a eleven seventy seven of the record and the jury made the determination and so prosecutorial misconduct all the questions in the answers everything might have been in artful it might not have been perfect it really this jury heard what it needed to hear and heard the statements i didn't kill anyone but the found to the contrary and  me in this case they did not find the country in this case they found element of discharge was proven with regard to the in charge of the indictment so otherwise the claims regarding prosecutorial misconduct unless there's any questions all that those so that's where i have a problem trying to understand maybe i'm just missing the nuance but with regard to what the problem is when the jury heard the statement twice again i didn't kill anyone so commenting on a silence if the if the if the attorney said that during the closing and it was post  it was and but when and in the whole picture of things when the as your honor noted when the jury was instructed that the testimony or the excuse me the closing arguments are not testimony that in the whole scheme of things here there was no violation there is no due process issue noted it would have to be both arguments would have to be persuasive and if one is that we would let thank you the other go unless there's any further questions then thank you thank you just briefly on your question about whether or not you still have to address a drug quantity i would ask that you do the reason being if there is a twenty to fifty five any thing is changed and may come up at a subsequent trial or it may come up with the prosecutors could i just ask them what about the testimony about the drug quantity because we don't have the sar or at least i don't i couldn't find it anywhere and so i can only infer from what i have read that it's based on the involving the her when he had nothing to do with dealing the her when selling it packaging nothing not that wasn't he the enforcer for the whole conspiracy and it wasn't like he was the enforcer for the cocaine part of the conspiracy not like he was the enforcer for the whole conspiracy i know that that is true in terms of the conviction for conspiracy but when now you're in the sentencing context and you're looking to figure out how much of the drugs they are responsible for your responsible for the amount that was within your jointly undertak versus the rest of the month relates to the crack that's a separate issue and in that issue there was no testimony about it at all about what was purchased what was sold in the middle or the end of the month the only thing he said was at the beginning of the month i'm selling a lot i'm selling like sixty two grams every day day and a half so they extrapolated there for every day and a half the selling one gram at thirty one grams which would be half that's not the testimony there was no testimony he even sold later on the reason was that he gave at the trial for why he did so well at the beginning of the month was welfare checks that was that was the testimony so i would submit that they strive plaited way beyond what the testimony was for the crack for the heroin jointly undertaken activity he had nothing to do with heroin so he should not have been he should not have been hit for the entire amount of that her own conspiracy there was no testimony connecting him with heroin dealings at all and that was actually a huge huge bulk of of his drug sentence and that was that was wrong there was no and of course the lawyer at the time didn't say anything about jointly undertaken activity the lawyer objected and said there was no marijuana because he didn't realize there was a conversion table in the guidelines so that was his big objection about the drug quantities so i hope that answers your question the only other thing i wanted to get out really quickly prosecutor said it wasn't fair game to raise the testimony at the suppression hearing because when he went back and got his report he said oh you're right he testified that he didn't he didn't kill anyone but the citation that the government gave which is to page  forty one in the appendix when he asked to review his report that had nothing to do with whether or not he was he denied killing anyone that had to do with whether or not he said i don't want to speak anymore and had nothing to do with that statement whatsoever it was entirely fair game you had an investigator who testified one way and said something in his report and testified differently at trial what page of the record is that that your for eight to forty one that was the cite that the prosecutor gave for that  represent him for that because this is a huge case and a very difficult one for him to do by himself on a twenty to fifty five thank you thank you thank you thank you both well argued