interesting cases on our morning docket we remind you we have also traffic rules when the yellow light coming from the podium you have two minutes left when a read like comes on we ask you to conclude your argument as quickly as possible we also appreciate record citations when you have those because we may not have heard the and we will not approve the entire record before we hear argument so for the first case it's discretion when it did not him the right to cross examine a witness crucial to the convictions in this case a witness the only witness who had knowledge of the issues central to the convictions but instead the district court allowed a police officer to testify to what the key witness told him which is also hearsay mr jarman were you the trial attorney no you're not was not frequent and frequent it during the daytime however office the shops had this location under surveillance mr call brown the witness that mr kids they would have wanted to cross mr brown and his vehicle car brown as he left the structure after a brief struggle with officer brown it was crack cocaine was found in call brown's hand after he struggled with socials prior to stop when mr brown and the call officers shots informed one officer wilkins that he should conduct a traffic stop find a reason to conduct a traffic stop run call brown was didn't taken to the police department where officers shots began to question mr brown and on page eighteen of my brief this is the scott discussion the central to the case the prosecutor at trial did not produce mr calderon the key witness who said that he received the crack cocaine from just accusing and in fact mr kinzie had been a distributor this is cause brown testimony the prosecutor asked did you go to the location the officer says ye what did you discover when you arrived the officers say we found crack cocaine in his cab and then he said what did you do that mr brown afterwards we had wilkins transport him to the police department did you ask mr brown if he wanted to talk to you yes or just a witness and why did you decide to transport him to the police to station station the officer responds to talk to and then the prosecutor asked once or at the police department did you sit down with mr brown and ask him a series of questions and the officer responded yes and then the prosecutor says is that what led you to obtaining the search warrant for nine six three trying to cut off this is the facility where a search warrant was executed on mr kids and this led to the charge the charges in this case specifically possession with intent to distribute and possessing a firearm with intent to distribute so it was only called brown in this case who was not produced at trial who had any evidence or any testimony personal knowledge at all is it correct that mr brown had been subpoenaed by the government well prior to prior to trial there was some discussion about it at suppression hearing that mr brown had told the government that he was not wanting to testify and also that he was not going to say what the government wanted to say and in essence he was retract clause the government maintains in the record page twelve sixty eight that these questions and this response from office assure that what mr brown say led to the search warrant could possibly obvious what those answers worse that it was so it was it was damaging to your client that right yes your own that's correct and there is a case in this court on johnson the fifth circuit it was o discovered in his hat from perennial keesey so he is at the right question that was asked at a trial did you ask mr brown if he got the drugs from the defendant and the answer was yes that right yes ok and that that's one of the questions that you're concerned about one of the answers that you're concerned with because the police officer pretty much said that someone had told him that the defendant was distributing trial but at the moment there was anyone else at the address besides mr kissy and call brown so by implication the only answer to the questions could be  process that the witness was testifying as to what mr brown would have testified had he been called at trial now the government when the objections to this line of drugs were found at the house want to render search warrant of mister house that were that were not drugs that could have been used for distribution which is an element of that's what i'm items tested in that house and none came up positive for crack cocaine what evidence is there on the record of any distribution by mr casey there is no evidence on the re hearsay violation substantially haunt his case and his defense because there is a line of cases that says mr kids would have to show hopeful era and in those cases the court with the in wa of the evidence against mr q c with respect to this hoffa testimony however in this case mr brown would have been the only witness that could have testified to this so then the case says when there is only one witness and that witness's testimony is significant to achieve the conviction been there has been substantial home when there's a confrontation clause and i hear say casey talking about there that is the brutal case of britain now let me ask you though there are cases that say if detective hilton talked to brown and then detectives show that you know i interviewed him at the police station and then what did you do i want to i got a search warrant then the jury could still unfair but he got the search warrant because brown and told him that his kids he was dealing drugs right i mean there are cases that say that ok that those cases you're gonna say that's ok when there is of evidence to corroborate this testimony in this case under the united states versus johnson case is specifically saying is the move for an out of court statement it implicates the defendant the greater the home in fact in this case when defense counsel objected the government had no answer as to why this line of questioning did not violate the confrontation clause and  even when given a plea that they are given up their right to trial a significant right they and the right to cross examine the witnesses just for my own information i know the governor i know the defendant didn't have the obligation to subpoena mr brown but couldn't the defense of called him to the stand the defense of course could have called him to the stand but the government  chooses had he caught him would have had an opportunity to cross examine him but in this case the got them it has proof that it was a case technically so it had no obligation to of pursuit of mr brown in terms of subpoena or in him for the racket and as to the objection to the hearsay again there is case law this is just because of the police officer who never does not approach to stand and give verbatim testimony as to what it was saying that there still could be hearsay violations as a matter of fact there's one case i believe it's it's mentioned in my brief a supreme court case even in a sex abuse case where there's definitely a significant interest in protecting children in those cases even the protection that we give to children in those cases has to yield to a defendant's right under the confrontation clause and the supreme court said in that case that even the defendant has the right to cross examine the child in that case  time for a battle thank you could also backfill with some additional facts mr brown was not available to you answer your earlier question we had subpoenaed mr brown prior to trial the prosecutors had interviewed mr brown approximately two weeks before trial at that point in time mr brown stated number one first i do not remember where i got the drugs number two i am not going to tell you where i got the drugs and third i mr brown is there less than two minutes and he leaves the detective shows had a patrol officer stop mr brown just a few blocks away and just a few minutes after he had left his house there was no intervening stop on mr brown at the time mr brown was stopped someone named george sent a text to one of his e's three cell phones and said they just got karl at snags which detected layman me and the police just arrested karl browne it snags wrecker service a few blocks away from kids his house layman and detective blaming the detective jones arrived as the patrol officer wilkins was arresting call brown a search of car consent search a car brown yielded five grams of crack cocaine weighing in zero point five four grams in a plastic bag inside his baseball cap there was a brief struggle between officer wilkinson mr brown mr brown was arrested detective scholz asked wilkins to take mr brown downtown so they would not be interviewing a potential witness in the middle of a drug trafficking area when he was interviewed at the police station this year brown told detectives show it's i got the drugs from cheesy just now immediately prior to my arrest i had gotten drugs there before there are additional drugs in the house two weeks before trial the prosecutors interviewed mr brown at that point mr brown said i will not tell you where i got the drugs i do not remember where i got the drugs and if called i will testify on that i did not get them from mr kids and that's all in the suppression hearing of pages six forty three to six fifty two i should caution you there's two copies of the trial testimony in the suppression testimony so my record sides in this jones may not be the same at that point all of that is in the record put is not in the record unfortunately is that mr brown went further i got the drugs which is a i don't know where i got them i'm not going to tell you where i got them i'm going to plead the fifth we could not call mr brown as a witness simply to impeach him and we could not call him if we had a good fa basis to believe that he was going to invoke his right under the fifth amendment he was however under subpoena and at the conclusion of the suppression hearing immediately prior to jury selection in trial the prosecutors offered trial defense counsel to bring mr brown to trial if they wanted to bring mr brown as a witness agreed they have absolutely no burden of proof in a criminal case the lead trial defendant the lead good money lead defense counsel said my main interest in call brown was for the suppression hearing not for the trial itself essentially that ship has sailed the offer  transaction calls between brown and the very brief meeting consistent with his training and experience it's a hand to hand drug deal brown has stopped moments later and just a few blocks away  found in possession of half a gram of crack cocaine the logical conclusion is that it came from cheesy leaman questions brown at the police station and brown confirms i bought the drugs from his each is he has more drugs in his house i brought bought drugs from disease before it's a pretty trollop interview with the prosecutors brown said i do not want to be known as a snitch the huntsville neighborhood and reminded the prosecutors that his stepdaughter had a child with cheesy so there was a personal relationship between brown and his that is the reason the prosecutor ask five short leading questions which in no way shape or form contain either direct statements from mr brown or violate the confrontation prose but but they they did imply to the jury that mr casey was selling drugs they did implied of the jury that mr cheesey was selling drugs we stopped brown brown had drugs the moments after brown had left his house right but that's different information from asking the witness i mean there was plenty of evidence that they saw a hand and by that that we're observing the how high that he went to the house and shortly thereafter he left they found drugs all that was showing that maybe there was some drug dealing going on at the house but that the question that did you ask him if he bought half drugs from keyes the mentioning the defendant by name is different from the independent eviden that the police could observe and see that there was drug dealing going on yes or your honor perhaps admitted lee not one of our better selections although i would hasten to add on in no way shape or form conceding that we did anything improper nor do i wish to second guess the trial prosecutors the detective precisely as judge jones said they stopped brown brown and drugs and got a search warrant which was executed the next day during the execution of the warrant the first car arrived and found cheesy in front of the house kids he saw a marked patrol unit with the lights on and immediately ran inside and slammed the door shields slammed the door and bolted the door the police had to break down the front door which took approximately forty five to sixty seconds during that period of time one of the officers at the rear of the structure and another in the in the brief that we both called it a house it's apparently under pressure up owned by mr chisholm's mother the building is perhaps six hundred to seven hundred square feet it's not a traditional house there was no kitchen there's no bedrooms pouring water from a five gallon jug into the toilet because there was no water to the house so what does this have to do with the questions that were asked at trial i mean are you arguing there is plenty of other evidence to convict him so whether if this is admissible or not there's independent evidence where a jury could have convicted him is that what you're arguing is the question was proper and that it was admissible but even if you assume that it was improper under the johnson case there was abundant other evidence of guilt there were too small a functional why fals one of which was loaded in the corner of the house within easy reach of both the front door in the bathroom of cocaine in a plastic on blow up in the overflow of the sink adjacent to the tone at the kids he was furiously pouring water into when the officers investigation and there were three cell phones hindsight we could have truncated the question did you hindsight mind i mean this is you know i i'm not going to tell you i'm an expert on evidence law but you plan your you being the government plan your prosecutions well in advance and you know you have a script of the questions you're going to ask and it just didn't come up by accident but the guy keeps plowing after meant what mr brown you know the interview with arrested so he saw the rest he saw the seizure of the five crack woks which mr prime minister pushed during the arrest process it might have been better simply to ask precisely as you said earlier you were arrested reasonable jury can infer that there may well have been additional drugs that went down the toilet in the forty five to sixty seconds that mr brown had to deploy his five gallons of water or there are there any additional questions has nothing to do with the merits of the case how many fifth circuit arguments to be given no very near and have you kept track i know it's been a lot not a precise number you're just curious to know where forty to page five hundred and fifty nine to five hundred in sixty two this is taken from the suppression hearing the evidence produced at the suppression hearing shows that mr call brown in phone the offices that they had made a mistake because he never implicated q c during their question and brought also informed officers that he would not testify the way they wanted him to and then officers shot threaten brown saying i'm going to make you my special project so at the suppression hearing that was some argument that mr brown may have made himself on available to the government as a result of just a short statement that i'm going to make you my special prosector my my special project now also in the record twelve fourteen and page thirteen forty nine detective lance schultz and agent lehman those other two officers that observed brown go to this structure in the case and they both testified that after a brief encounter with keys at the home brown left in a gold piece on pathfinder there no testimony from any officer that they observed a drug transaction take place and the government says that that's the only logical conclusion that could be drawn here there are other conclusions that could be drawn and will as well because in this circuit of we did not convict based upon inferences and pollen inference upon probable that this was a suspected known place where drugs were so they had to have under observation they saw mr brown go there shortly there after he left they stopped them they found drugs he ran the search warrant there were guns there were drugs there was a lot of cash money that he had in his pocket what do you say to the argument that there was aside from this statement whether it's incorrect or not assuming that it's improper that there's enough independent evidence for a jury to find him guilty aside from the questions that were us of the officer with regard to the interview with mr brown one of the one of the things that the government speaks about is own water and the rifle i myself am from east texas and this is huntsville texas when a home does not have water in my grandfather's the water is oftentimes used to flush the toilet there were no drugs found in the toilet as a better effect one agent even testified that the pipes were taken apart and no drugs were found in the toilet in that area  because they didn't find anything anywhere except that small two tins in the sink and officer shows the chief officer during the search warrant execution said that there was no evidence of someone using credit and that would no items consistent with the use of crack cocaine sit the bathroom shelves microwave politics cups anything in there that could have been used look take drug trafficking wasn't there was no drugs found there and i would like this court in reviewing this this case to bear in mind that the charge here is not a possession the charges here have to do with drug trafficking and there's no evidence of drug trafficking in this case thank you thank you ma'am you were