good morning i'm jay lichtman i represent mr brown we would like three minutes of rebuttal we being the defense side would like that i'm going to first start off by addressing the sensing issue regarding mr evidence as to his client so beginning on with the sentencing issue by the court to impose a mandatory minimum sentence on mr brown the court used an incorrect legal standard the court was under the erroneous impression that it was bound to impose a mandatory minimum sentence without assessing mr brown's individual culpability or the foreseeability element in this comes conspiracy charge it felt it was required because the jury found that the conspiracy quote involved one thousand or more kilos of marijuana the courts solicited more than that into him didn't they find a specific he agreed to distribute a thousand kilograms were one that was a special verdict of the jury which essentially tracked the indictment in the case but the court never really got to the special verdict issue because the court was under the impression that it was bound to impose a mandatory minimum sentence without assessing mr brown's individual cup ability that was a wrong legal standard that the court never used a special verdict to make that a because it believed that it didn't have to essentially significance to attach to the fact that the jury specifically specially found that brown conspire you agreed to distribute a thousand kilograms more marijuana and i did this in response to a jury instructions which called upon them to determine his personal foreseeable complicity but first of all regardless of what a jury may find a court is valid to make an independen under i understand that but i'm painfully familiar with you as your attic i use that as a as a citation in edwards on the one for the idea that any court is not necessarily valid by what a jury decides the court in a sensing proceeding is to make an independent assessment if you look at the first circuit case we cited pecans though because there was can certainly you're not valid by by accepting a jury's finding especially when it just simply tracked the language in the indictment  the police they trailed the truck they did not see it involved in marijuana or carrying now marijuana and in fact they found it when they traveled it and was under surveillance for a few days march sixteenth through march eighteenth that the truck was used to bring household goods store storage facility then the truck was rented again on april seventh the police to survey the truck from april seventh april tenth they then spend there was no activity that the truck was know what i'm saying is that had the judge used the correct standard and assess mr brown's individual culpability as he was required to do he may very well and should have found his guideline calculation to be well below what it was found to be and that the mandatory minimum should not apply to mr brown because if you assess the individual culpability as he should have the heat mr brown should not have boxes mr brown man and the others didn't eat now mr brown never had any boxes he wasn't a fed ex striker he simply was a runner you might be considering mr kizzy sentencing but mr brown the judge never considered the evidence of mr brown's individual culpability because he determined he didn't have to he said that because it is required by law because the jury has found beyond a reasonable doubt that the defendant mr brown was a member of a conspiracy to distribute marijuana that involved the distribution in excess of one thousand kilos of marijuana the mandatory minimum sentences required and that was clearly an error of law that is not the case and fact the government acknowledges it is not the case on page seventy three of its brief when they interpret this court's recent opinion in euston when the government says a sentencing court must determine that a drug quantity was forseeable before imposing a mandatory minimum sentence when as in this case the defendant has been convicted of only a drug conspiracy was there a special verdict in that case and used them i don't recall that the key here i mean the judge instructed the jury that the jury had to find with that particularly defendant reasonably foresaw and this particular jury found what your guy particularly foresaw but that doesn't require the judge to believed was once the jury found that the conspiracy quote involved one thousand a more kilograms it didn't matter what mr brown's culpability was or his forsee ability is long as the jury found that the large involved that amount of drugs the judge determined that that's all he needed for mandatory minimum sentence and that was clearly incorrect application of the law so he never got to the point of  based on this fairly minimal amount of evidence i don't think there's any way that the judge could find that this amount of drugs was receival mr brown simply taking address labels from new york to l a and simply renting some u haul trucks when the surveillance of the of the agent agent schiller testified that from march first april thirteenth the white house was under surveillance they never saw mr brown at the warehouse they never saw mr brown near the u haul truck celeborn betten a government witness who ran the warehouse testified he looked around the courtroom and he was asked is it identity busy i recognize anyone he looked at mr brown said i don't recognize anyone he that worked in that warehouse clearly mr brown didn't work in the warehouse his involvement was minimal so therefore had the judge done when he should have done and assessed the culpability i believe that the sentence would be below the mandatory minimum because it and mr carter was asked specifically whether he if he was instructed to follow to base decisions on the evidence and the court's instructions whether he could do that with the prejudiced if he was struck by  dispassionately decide this case he did say he wears his emotions on a sleeve i think was the way he put it he did say he might have some difficulty in being impartial however the fact that he's willing to bases the situation on the evidence and the jury they hope or they think they can be impartial or they believe that they might favor the government or a one case where the juror actually read about the crime in a newspaper and the the court said well that's not enough to excuse it your the fact that a jerk can follow the law court was alerted by a letter from george chandler regarding conversations in the jury room and also by mr mccance in who represented mr kids he what she said was like this is important she did say i think it started out because i think the district court misapplied standard and misunderstood that the issue was not racial bias but bias in the courtroom and so right off the bat after receiving george chandler's letter and mr mccance declaration the court it was going to hold a hearing but it forbids the defense attorneys and the government right off the bat from conducting any investigation from interviewing any jurors and biased before they even went into the jury deliberation room was there a prejudgment of the case and if there was then the defendants are entitled to a new trial and the inquiry into whether or not the jurors were biased because they prejudge the case or for any other reason that's not impact on the deliberations and and that's sort of thing like that you don't prejudge my twin you sat and the evidence and and whether or not the jurors you know the statement you know they're guilty and enjoy chandler's concern was that the jurors said you know we knew they were guilty when we walked in here and now let's just get this over with is that would be prejudgment of the case going to actually went into this liberation room or was this a concern about prejudgment of the case before the deliberations and because that the hearing was tried hated and no investigation was permitted we're not only for the district court to make its rulings look for this court to rule on what happened had the parties been able to conduct investigations of it at the davis and have a hearing have a broader scope thank you there are no other sufficient evidence to support the conviction against mr but in this case we have a situation with of fairly organized marijuana distribution conspiracy mr benton testified that he was in charge of the warehouse where that marijuana was packaged he was in charge of painting the fed ex drivers who were complicit in the scheme we had the testimony of three drivers who all testified about the scheme and how it worked and their involvement and how much they got paid the government would have the court believe that all of and in addition to that we had very extensive drug ledgers there was testimony that every none of this of labrat evidence that was presented with respect to the defendants who went to trial implicated mr butler evidence is that there were fifty calls that were attempted right ok i'll go to the same place because i don't think the calls really say anything one way or the other because there's nothing about the content of the calls but with respect to the evidence of a visit what mr butler picked up in his rouse the only evidence is that one box was seized from his truck they contained fifty pounds of marijuana the government then presented evidence that s supposedly four hundred eighty eight boxes that were tracked to his route from his truck matched a profile of boxes that were involved in the conspiracy but there's no evidence that any of these boxes actually contain marijuana and matched a profile is a is a term that the government uses throughout the course of the trial and there's no real evidence of what that means yes there were boxes that mr butler picked up that went to addresses that were similar to or in some instances probably the same as other boxes other addresses that moran used but  conspiracy count he was just charged in count one which was a conspiracy count he was found guilty of being a member of the conspiracy beyond that there were no special verdicts that said anything about his direct involvement or he did the indictment say the conspiracy involved so many people and i forget the exact amount but it was enough to trigger a memory of a mandatory minimum yes all right and you know whether there's any special i'm not that would not trigger the manito no and i'm i'm can i'm suggesting to the court that there's no evidence that mr butler had any knowledge of the contents of that particular box there's nothing that connects him to the conspiracy directly there's some inferences that the government argues the jury could use to draw to where you see the heat of a suspicion that the box might contain contraband he got to a point where he had developed a suspicion about miranda and he refused to september of that same year in november moran make goes through an elaborate process of trying to get butler to pick up some boxes he butler meets him at a particular location he tells me around but he's going to pick up these of the courier from your guy has a series of these you know a lot of these out of the ordinary mainstream kind of calls to this actually actually the evidence in the record in this case is that they are fed ex drivers do regularly meet customers and make pickups at their locations it's not like a poster here locations being right there their business is they go they go to their businesses fedex drivers make money on their ability to generate customers on their own  so they have an interest in generating new customers meet you know accommodating new customers going and picking up packages from them where they might be as opposed to you know the hundred that x they call yourself a rant had butlers cell phone number and there were calls that were both placed and attempted to be placed there's no question about that that's a little unusual as you know i don't believe so because fedex drivers are all are at some level independent contractors in that they can increase their earnings as drivers by developing more business and so if i have somebody who's going to you know give a lot of business to me it makes sense for me to be able in charge in touch with him that story but it has nothing to do it certainly doesn't get to the point of demonstrating that he had knowledge of what my rant was doing with these boxes that he wanted to ship in fact butler testified that if he was a knowing participant what he would have done was to take somebody else's scanner and there's evidence in the record that as the other people were using other drivers scanners to avoid detection there was ways to make pickups that went into the fedex system without using a scanner at all there were a number of ways that butler could have made these pick ups without having that information traced back to him in any way whatsoever so if you're knowing participant why would you do it in such a way that is so easy to trace it right back to you here's four hundred eighty eight boxes which are supposedly meet the profile no trace back to him if he's doing this knowingly  he's going to do it in such a way that he doesn't get this information traced directly back to him that easily because there are so many ways to avoid it and that's wh may please the court when he was in south korea represent the appellee united states and there were a number of issues raised in this case and what i would like to do is within myself those issues that were argued today involving the transportation of hundreds of tons of marijuana from southern california to the east coast and mark moran was savvy enough where he was able to employ a novel method in getting his marijuana from southern california the east coast to use the fax system the system that's relied upon by businesses throughout the world and he was able to rely upon  and one was butler and i guess the other was ground well the first part of your question writer is whether or not the couriers were provided a thousand two thousand dollars a week the evidence i believe does show that now with respect to mr butler self serving statements that he only made one hundred fifty dollars i think that is not supported by the record ultimately the government submitted as trial exhibit eleven which was made up of drug leisure's that  seizures rights and you know i apologize that we didn't provide it to this court in our griefs i did not try the case below and as the court knows it's a very luminous record but since the time that we  filed a brief i have noted in the closing argument by now magistrate judge waltz the prosecutor made reference to of the argument that there were no references to reginald butler in the pa  it's attached to i believe the government sensing memorandum for reginald butler if you want one focuses on that because we have actually submitted an additional portion of the drive letters and that did not refer to reggie but if the court would like i can i'm just trying to follow this is i got the letter i see september eleventh i see reggie on here sister just before the jury was for the forgot that was before the jury your honor and that was cited by the prosecution  for the jury well we believe so the butler's first name is rational and so it's the sense that you have the name reggie being noted being paid the day after the seizure of a box that had been picked up by reginald butler we believe that a reasonable jury can infer that this entry corresponded to butler's involvement in the conspiracy but there was more than just these paino she's the number of boxes for miranda realizing how that implicated him and how that placed him in the midst of this conspiracy by the time that mr butler testified at trial suddenly he denied that he had picked up boxes from ran i don't say the fact that you have fifty contacts between mark moran and reginald butler during the time frame that the fed ex records demonstrated that he would pick up four hundred eighty eight boxes that were to fictitious addresses in the skies that often within the modus operandi that was used by moran and keep in mind that moran didn't need to go to unwitting couriers to pick up his boxes to transport them to the east coast he had a number of them already working for him and how do we know that we know that from least two of the couriers who testified of course for a lady from new york walter shaw a fed ex driver here in los angeles and then we had better testify about the other threat extras so we know that there were at least four five six fed ex couriers who were willing to be corrupted willing to pick up marijuana boxes in order for them to be shipped nobody seemed to with respect to that no as to shot no as far as that the the circumstances as far as the business records as far as the pay and all sheets yes little corrupt a bunker with one hundred fifty dollars and others there being paid off in some way for two thousand dollars a week while the position of the government was that reginald butler doesn't say two thousand dollars x two point five it along with it is ok and so i argue it would have been two point five thousand dollars versus you know one hundred fifty dollars and there would have been testimony at trial with respect to because the drug letters never said specifically one thousand dollars two thousand dollars they would notice as a two they would notice a point to it and so in the case of rational butler the evidence was there for the jury to draw the in that his self serving statement that he received one hundred fifty dollars was false and this isn't the jury could conclude that resident butler's self serving statement the trial that he had never picked up boxes from ranch was also false and that that was consciousness of guilt that he was aware of what he had done on forty eight for four hundred eighty eight boxes your honor if i may then move on to some of the other arguments that were raised if i can address the argument by verdict the jury special verdict as to the defendants and note that in this case for the jury to conclude that the defendants were involved in at least a thousand kilograms of marijuana marijuana and then the third point was to determine the quantity ok and and with respect to the quantity the judge had instructed the jury that the amount of marijuana involved in the particular defense commission of the offen the total amount such defendant was directly involved in distributing plus the him out he or she agreed understood or reasonably could have foreseen would be distributed in furtherance of the conspiracy so combining that destruction with their findings then the jury necessarily found beyond a reasonable doubt that the defendants were accountable were criminally responsible under the standards that this court has as as  cases within our brief which support the government's position and the most important one i believe would be the cat from the seventh circuit with respect to what weight can be given to a special findings by a jury only based on admissible evidence to the defendant's was criminally responsible based upon instruction to the given form was going to thousand kilograms as such it's just kinda turned around and said you know what i know that's the jury found  and the evidence substantiates only one hundred pounds that would be legal error and and that we would have to reverse and you know i think that what happened here is that the jury verdict we believe that in the case of a situation where there's insufficient evidence to support a jury determination that in that case the district court may be able to but in this case in fact judge king said that i find that the juries if the judge felt he was valid to follow that special verdict and in fact said the judge was obligated to determine whether the evidence supported the special verdict and that's consistent with the supreme court case in edwards which to know he's he's he's committed the qualify for mandatory minimum and the judge felt he did not have to go further that was the judge's era he needed to go further to find mr brown's individual culpability and he never  participant in fact that's what even the government agreed that he was a minor participant he was a runner that transported some address labels and rented a couple of trusts and that's especially when he didn't this case i think if you look at the evidence had made an independent assessment he would have not found that mr brown was was should be on the hook for a thousand kilos of marijuana i don't think it is even close to that i think judge jane unfortunately laboring under a wrong legal standard  here was going on well he was convicted of conspiracy so that's a sort of a back question i think that bratton was was just a very minor player i mean he was a courier the transport of things and rented a couple of trucks and a car i think in miami using his own valid driver's license so and the jury was somewhat troubled because a lot of the jury notes over the course of the liberations had to do with with brown's testimony or read backs that related to mr brown so i think that you know if you look into that perhaps the jury was concerned about the de minimus evidence on mr brown and i think that had the judge king used the correct legal standard and assessed the evidence on mr brown that he could have he should've and would have come up with a sentence that was not a mandatory minimum sentence was what was an appropriate guideline sentence which was well below the ten years and i think you should remain under emilie not only because judge king made a wrong assessment as to mandatory minimum but now if we're going to have a reset in saying it should be done under booker emilie's standards when you look at three five think i mean the use of the government's words corrected mr brown numerate when they grew up in jamaica many years before and then there was a connection that they had years later through i think a mutual friend did national description of mr brown was obviously a different individual plus we've introduced some wiretap transcripts that show there were two other individuals in the conspiracy that used the name fatah sort of the weight rather than