convicted in the western district of north carolina for participating in a drug conspiracy involving crack three issues are raised on appeal i believe that the parties are in agreement as to one of the issues which is  and the second issue is this issue of the witnesses that the government used the benefits that they apparently were receiving and that defense counsel at trial was not permitted to fully explore or to explain to the jury which i believe deny mr allen a fair trial but the big issue is the nature of the allegation being that there is this conspiracy in the hill in marion in the mountains of western north carolina and evidence over three days as the trial judge pointed out involving that conspiracy in this location both as to the participants in on the hill who were distributing it on the streets the people they got their supply from and the people that those people got their supply from and they had successful investigation prosecution got all those people to plead guilty and then they go after mr allen on two transactions from may seventeenth and eighteenth two thousand and ten one one and a half ounce of alleged  there is nothing to cooperate what this witness miss anderson was saying about what she was doing about waterborne friend was doing and so the evidence to back days and that you have a lot of hits of crack cocaine or whatever the term is individual rocks that were involved in this transaction how to how do you get around the fact of the magnitude even though a few ounces doesn't sound a lot when you you distill it to the terms of crack cocaine transactions it's a heck of a lot of individual sized amounts so how do you how do you get beyond that problem well the government argues that as long as you have a quantity that can arguably be considered distribution quantities you're talking about about a thousand i mean i'm not too good on and you know drug quantities and how many hits but i thought there was something in this record that talked about this being a thousand is that correct or more i don't recall that testimony on  but we're talking about many many sales that can be made from this quantity are we not but it could be like ammunition if people expect to be a drought they might want to stockpile what they've got but i think that two and a half ounces of crack in a federal drug conspiracy is probably considered pretty small and some might say that well this is something that is more of a street level type of situation that  might not even get involved with because it doesn't really hasn't jelled into what can be identified as a a business a conspiracy involving you know a specialization of activities where there are some people work on the street specific streets and they've divided up their territories and they've got specific people that are supply them and it's a business when we're talking about two and a half ounces of crack on two days i'm not sure that would drive baseball and you know i've been doing a distributable or not just distributable but intended for distribution when you deal in those amounts just because they go after bigger targets really isn't relevant as well i think it's looking at the argument that was made in the trial court about this inference the one inference being that the size well it's small arguably it could be a distribution amount that mr folsom could not consume over a period  inference that relied upon by the government to say that they've proven their conspiracy at the hill in marion and they've proven or presented evidence  that in nashville on may seventeenth and eighteenth mr folsom allegedly bought two and a half ounces of crack from mr allen that they're connected by these inferences the rob well i would argue that even that's not necessarily and the amount that will be distributed in the hill marion  conspiracy where apparently the you add up all the quantities involved in group distribution by large quantities right i mean that's one of the factors that juries dive take into account as long as they don't just focus in on that fact and look at the totality of circumstances and the to tell you the circumstances have been reviewed by the court to make sure that there's enough there that the jury isn't being called upon to speculate about  a person's participation in this federal drug conspiracy and i think that the the inferences that were being used the multiple inferences that were being used here do critical in this case while the government seemed to argue that there were two conspiracies and that they could they are your work to conspiracy i think what you said that was my impression that what they were saying th that that there could be just that conspiracy between mr allen and and mr folsom and i guess miss anderson relaying gesture that quantity that a plate image of a jury found that he still be guilty because and i think that to say that two and a half ounces of crack buyer seller relationship is really a conspiracy is kind of pushing it but the bigger problem is the allegation in the indictment returned by the grand jury  and the venice entitled have the grand jury decide what that accusation is speaks in terms of the conspiracy centered on the hill in marion north carolina and  so i think the bigger problem is the fact that the government was relying upon that conspiracy and trying to say that this transaction over here was   both as to the prosecutor screening of jurors that were not willing to go along with the government's witnesses the shutting down of the defense in terms of exploring the benefits that these witnesses were receiving and you have to keep in mind these witnesses are not the type of witnesses that appear in civil cases as experts who've completed high school have completed college probably graduate degrees and probably have a clean record criminally we're talking about people who probably didn't go beyond ninth grade who didn't go to work after they'd left the ninth grade but one in two lying cheating stealing in order to sport the life that they become accustomed to and for them to use the system use the federal system to live that life to hit people in the head with with this testimony i think the jurors should be allowed to hear  me please the court the defendant in this case received a fair trial in the district court in this case as it stated there was properly denied the motion for judgment of acquittal because there was substantial evidence th defendant both knew of and participated in the charge conspiracy the this court has recognized that even a single transaction that is of sufficient quantity and there is enough to infer a and intent to distribute can support a conspiracy charge in this case there was one conspiracy and the defense did not request a multiple conspiracy instruction but i don't think it would have succeeded even if they had because the single conspiracy was in the hill now mr allen was a supplier to that conspiracy he was a supplier to the second tier distributor and although he only supplied on two occasions he supplied more than a thousand doses and the testimony that yields that amount  is testimony i believe it's on five twenty four of the joint appendix that that says basically says in three and a half that three and a half grams you get forty rocks so they just extrapolated from what you get in an eight ball and none at all your honor and we don't need that evidence in this court's decisions make that very clear and strickland this defendant did not need to know the identity where those drugs were going or anything what he needed to know was that he was dealing with an individual who was going likely going to distribute those drugs to mr fulton testified that he did distribute those drugs the only way for the government to be able to get to the ultimate suppliers is to be able to get the conspiracy law recognizes this the government doesn't have to prove that the person at the top knew the people at the bottom or even where the bottom was and that would be an impossible burden to prove conspiracy but if if that were required because the very nature as you go up the chain is no knowledge they don't you know not but we charged a conspiracy in the hill and we proved that conspiracy and so it was necessary for us to prove it all and i'm suggesting to your honor is this case law in this court that this court has established in strickland in burgos and read in banks is that there is only knowledge necessary that you are dealing with one member other member of the conspiracy and that there's an intent to distribute and that you would reason the jury may infer that and the government served in this in this case was very strong but because mr folsom was charged in a separate indictment which was really sort of neither here or there but the government in this case proved the entire conspiracy in order to prove to the jury that not only you sold with enough there was a struggle amount to this person without any knowledge other than the fact that he said i'm having a big party in new york you're part of the conspiracy that went on with the brother in law in new york well let me let me say this  the question would be whether it was reasonably inferrable by the jury that the person in california was part of the conspiracy in new york the defendant could make the argument in that case somebody sold the journalist right and i and t answer your question directly church gregory i think that's enough evidence that you're you could in er that the person in california and then i don't it's not that i think it's enough evidence this court's case is established that's enough but the defendant in that case would have a much stronger argument to make to the jury that the jury shouldn't draw the inference that is permissible that that defend it was part of the conspiracy because in that case the defendant would be able to say if the defendant shows you know or maybe there was a witness there hey he told me it was part of this party now a party where they were going to distribute a thousand rocks of crack in one party it's quite a party and maybe that wouldn't be believed by the jury but if it were the jury might say you know this defendant didn't have any knowledge of that conspiracy and didn't plan to continue to participate in it but at a minimum the defendant was in conspiracy with his brother in law and that would be proven because the defendant gave a thousand rocks of crack knowing that if it was going to persist going to distribute it that's certain that father all of them were congress drafted the law and why it's been interpreted to to apply that broadly is because there is a reason that the government should be able to prosecute the person in colombia who else do we want i mean we want to be able to reach those suppliers it doesn't help the drug trade in marion is a conspirator with the hill that's right but they don't know each other absolutely not and there are supposed to conspiracies and all of that but we don't it doesn't help the community and marion to take the street level dealers off of the story and not address the suppliers this is a four teared conspiracy the government in this case i think the investigators part of why mr allen was charged later was because it took a while to start at the bottom and get up that far so the quantity actually the defendant benefited by in terms of the government held him only responsible for the amount of drugs that he actually transacted and the part of that recognition is the law that he was even under conspiracy law only responsible for what was reasonably forseeable the government didn't overreach in this case the government didn't try to hold him responsible for everything that mr fallston distributed because we really recognized in this case that these were two discrete transactions but they were in down and actually mr fulton lived in old fort which was between marion and asheville and so sort of right down i forty it old for right before you go down what we call old fort if you're coming from old fort to asheville  grade so in this case the evidence actually of the conspiracy in his participation in this one conspiracy was strong the government acknowledges that it was only two transactions but i know that they were on consecutive days it wasn't though it was only one transaction one transaction would have been enough under this court's case law but here we had two and the first one contemplated the second because it turned out that he was short and the defendant said well the next time you need it you know we'll make it up to you that next ten day happened to be that the day that he made it up to him so he knew that it was being distributed mr fulton testified that it was distributed if your honour's don't have any further questions about the sufficiency of the evidence as to the conspiracy i guess the only thing i would note about the fair trial issues is that the defendant in this case was given ample leeway and did in fact cross examine carefully and vigorously on the questions of the benefits that the government witnesses again in this case government witnesses were actually quite candid mr fallston was very candid and ms anderson was never prosecuted and so all that dispute about p s ours are thirty five fifty three s five k s didn't apply to her and all  what if you don't a probation officer there are story that he that he told don't want to or want to stay while you're on and that would suggest that they could just go on a fishing expedition there's no evidence in this case that there was an inconsistent statement they would know where th agreed your honor absolutely agree however the defendant in this case there has to be a burden on the defendant to at least know or have some idea that there is something in that p s r that he has started to say and know what the criminal record of convictions that in terms every one of those could be impeaching in terms that he did have the record he does know the defendants what the defendant stood to gain he was at they were asked to very specifically what they thing that your honor has mentioned that maybe he doesn't know about is whether there is an inconsistent statement to the probation officer but he just a statement god entitle to perhaps your honor but this court's case intervene no requires that the defendant have some burden because the the decision has been made right or wrong as a policy matter and this court's decision intervene or recognizes this that crisp recent reports contain a lot of private information part of which by the way is conspir dangerous in the hands of defendants that's why they're not always allowed access themselves like to take him to prison for example but what matters in this case is they had discovered if that defendant take that witness a given inconsistent statements to anybody but the probation officer they knew it they had all of you're absolutely but i'm not sure that any of those were overturned because of a statement to a pretty boat probation officer in preparation for a pre sentence report those are inconsistent statements that were given after the crime you know too they were never turned over because government counsel and prosecutors or or agents didn't do their constitutional duty to turn them over there is no constitutional duty to turn over a pre sentence report of a witness and it is dangerous to do so in some cases it can put people's lives  the case that requires that we turn over impeachment evidence absolutely so if the government knew that the defendant had given and given a statement to the probation officer that was inconsistent with having that exceptional at his present reported you don't have to turn it over because to remove cases your honor i'm not suggesting that first of all there's no evidence in this case that there was jenks material in any pre sentence report of any of these witnesses the guy only has no evidence and it goes nobody knows what's in them no the government does testifying witnesses it would have been turned over to the defendant and the defendant has it suggested otherwise but but and i agree with your honor that these are these are sealed and that the defendants don't have access to them but what they did have access to they were very ably able to make use of in this trial and that was a lot but there were all there was really only one witness in this case too if you consider nicholas wilkerson who was the witness that testified in the jail that he had a conversation with defendant it was a little incriminating but the only witness was wilkers had a pre sentence report anderson and this whole case could have risen and fallen on anderson we could have a lot put her on the stand only and we could have succeeded in proving mr allen's connection to this priest conspiracy and she didn't have a pre sentence report because she wasn't prosecuted and the defense suggests that he didn't have the opportunity to ask about that but that's flat wrong right read if the training they are the court were to review ms anderson's cross examination she was asked several times whether she was prosecuted the only objection was sustained as asked and answered it was not sustained because they the court wasn't going to allow that question to be answered it was asked it was answered she was asked repeatedly about various wrongdoings that she was not trying to  did she i don't she was never charged has she given immunity and i have no idea vest pocket immunity which you will be charged i don't know that she did what happened was there was to domestic violence history of domestic violence between ms anderson and mr folson she started cooperating because she said she was put in the hospital by him she decided she would start cooperating against mr false to what how much time to get i'm sorry i didn't send mr f it written down seventy eight to ninety seven months was that's hard shattered trying to think about i assume that at that point they would have calculated it based on the guidelines range that had been reduced under the fair sentencing acts so the guidelines would have been a political at that time but they were not the judges were not applying the lower statutory ranges even though i will note that the government even in the district court in this case asked the court to apply the lower ranges under the fair sentencing act because the government by than had agreed that the ranges in the act about the confidentiality of the information in the p s r reports and sensing memorandums the p s r reports of the same probation officer does everybody basically has the same section for the often conduct description that's used for everybody so it's no big secret and what's in a mr allen's often is context section probably is what is in all the other people's p s i report so i'm not too certain why it's ok to show it to him afterwards but not when he's in trial also for over five years now the prosecutor thought this has been very diligent about protecting the confidentiality of the discovery it provides and we have to not only be subject to local court orders maintaining confidentiality we have to actually sign an agreement acknowledging those obligations and following specific procedures to maintain the confidentiality i can't even give my client a copy of but because the defense obviously didn't have this information to know of what was going on with the government's not just a matter of of  information of one nature but also of what is the difference between what the probation officer found to be the facts and what they agreed to be the facts that's important as to the fulsom inference as to the connection between mr allen and the conspiracy and this is really industry wide liability like in the civil case where you got product liability  responsibility for our body in the industry that's what has been designed for the criminal justice system and i don't think it's a good system i don't think is an accurate system i don't think that it allows broad brushing of of these cases of gone beyond the details of the facts of each transaction and going into the nature of the transaction which is what this involves crack he sold crack if the guy who sold to was involved with anybody else that he's part of the conspiracy whether this conspiracy was in one community or on the other side of this continent or on the other side of the world he's liable i just don't think that's a good system to have thank you thank you but by going on notice that your court appointed and we really appreciate your work in this case other cases i think thank you we could not we could not write without you