statements that incriminated mr laurent in the robbery and murder of james mr laurent was not indicted or charged  for for that the what's essentially being raised in the court now is that the claim that the redaction that was made was not sufficient to eliminate and i'll use the word as this court used in jazz any name and the basis of this argument is that looking at the confession merit confession had a whole as a whole you know certain factors one is the confessions to pay long and the substitution of the words the other guy twenty two times so we submit on natural the second is that james the victim here was specifically identified as his actual name james by that the the confession it's self in a number of ways shows and indicates and signals that there was a close relationship between marriage and the other guy and therefore it was  natural and i awkward why is it that marriage would have continuity use this other guy rather than the actual rat out the other guy well but the confession itself was ratting out the other guy so it's  saying hey it wasn't me it was the other guy well doesn't necessarily mean that he's telling the police who the other guy is i would submit that if he's going down that road to blame someone else he's going to want to identify by name who that person is and in this there are many ways in which this close relationship was was indicated by name three does it doesn't matter at all that mr laurent was not actually charged with this particular crime and that th was it harmless and i think when we talk about was it was as harmless and i will give that argument of course there's a great deal of evidence against mr law in this case so there is there is from the government standpoint where's the harm was it that merits counsel argued to this jury it was as close as you can get it it was i mean it and there were problems with what this council did on that but then also now my argument with bruton has been very careful because i have not been relying on other evidence at trial which clearly identified that this this in fact was was laura on the cell site information the recorded the telephone call information surveillance video that sort of thing so once you when you step i submit that once you step into was it harmless not you can start to look at that sort of thing and say yes this this was something that harmed him in particular because you know the that if that that the fact that there is trial evidence that that provides this linkage doesn't isn't isn't to be considered yes yes i as i said i was trying to be very careful in not bringing that sort of evidence in and making this argument and maybe making the argument based on the statement itself that there was enough in the statement itself that  to use gray's terms a a sophisticated juror that that jury might pursue the inference that it was a codefendant at trial and in fact and indicted codefendant who was accused of murder in another crimes that were gang related crimes the government showed us very clearly what types of crimes this gang committed and they were complicated highly choreographed crimes the cell phones when they gang stole them or many people  involved each playing a role the money was then collected and the participants were paid for it merit mugged three people and took their cell phones there were three people who were alone and vulnerable and sold the phones and kept the money those are very different crimes and the jewelry store robberies as well just are another example of how this this gang conducted their their crimes and the same is and so that's that's one example of merits crimes being street crimes not the gang related crimes and with dr james that they that crime also does not bear the characteristics of the types of violent crime evidence that these crimes were bringing in money for the gang these guys stole cell phones sold them and kept the money which is different than those working with the gangs if you're one of the people in the jewelry store robbery that carried the sledgehammer did something you're working for the gang these seem to be separate crimes that the gang may not even have known of the other characteristic that we see of some of the violent crimes in this case is the bragging the bragging the killed someone because they're crips whatever the reason  was dusty james was not a crips nobody bragged about that crime in fact they dropped out of sight after that crime again it just doesn't bear the characteristics of this gang's crimes  group was searching for the guy who turns out to be kayo who turns out to have been murdered by someone named dulls right but he was part of that expedition even by bell's not that's the one of the strongest pieces they were trying to kill groups as well even by bell's testimony though that day when they went out with merrett violence was the object they were looking for the specific guy that mugged the other guy then they were looking for anyone from the vanderveer houses anyone who looked like they were from the van of your houses crips was in the thing but that bill didn't even know anybody had a gun he testified he didn't see a gun so murder crip cooperating witness didn't know that they had a gun so how is that a conspiracy to murder may have been to beat them up they were not out for good stuff but as far as the specific thing that he was charged with i don't think the evidence is there they did go out but i think it was a different i think it was a different crime as far as the oath if taking the oath of the gang is enough to sign on to murder and clearly when bell took the oath that's what he meant but if we're go work if we're going to impute bell's intention to marit then what we're saying is just joining a gang is a crime joining a gang is enough to be a racketeering act because the oath is all that is is joining the gang so you can credit bell i mean if if if used by joining the gang you mean hey i get to wear the colors and be a member and that's one thing but during the gang means we sit around a table and say well what is this gang well the story of this gang oath or no blood on holy cards or no blood on holy cards everybody sits around the table and says well the purpose of this gang is to murder groups joining that and why isn't doing that gang and by definition a conspiracy to join a record during it rise well i suppose it could be i mean but that makes joining a gang what what do these god that's what you gang is and if you join a gang knowing that its purpose is to murder people of a particular rival faction i'm not sure why joining that gang isn't a crime but i mean practically that would be all of these gangs first just as a practical maybe they're all in these are not rotary clubs right but but if we don't look at the there are so many reasons why somebody living in every field houses might join a gang it might be for personal protection and you have to take yes that's what these guys are doing bill said i would be willing to do that but we have no evidence that merits that he would be willing to do that and i think it's important at this point to we're just go cooperating witness believes or says he believes to to everyone to get and my argument is that that notion bell didn't say mary thought this he said i thought this and that that is good afternoon or that if you want to that would be more like a i represent yes or ashburn mr ashburn was sentenced to an aggregate sentence of multiple consecutive life sentences plus one hundred twenty months and i'd like to focus my remarks on point one in my brief that this court should reverse mr ashburn convictions because the evidence against him at trial was legally insufficient to show that he committed either of the two predicate acts underlying his rico convictions unlike his co defendants there were only two predicate acts here that were alleged that mr ashburn was was involved with the first one had to do with the conspiracy to murder the cr and the only evidence that the government introduced was the testimony of kevin bell and what's interesting about bell's testimony is he claims that he was inducted into six trey folk on april twentieth two thousand and eight but he admitted that at that time six tray folk and six and crips were allies so there was no rivalry at the time that bell was inducted the testimony with respect to mr ashburn's presence was limited to that night there was no further testimony by bell that mr ashburn was physically present or involved in any other of the of the gang's activities so at the time of april twentieth two thousand and eight there was no there was no rivalry with the trip's a crips gang that didn't start until four months later in august of two thousand and eight and that occurred as the court had noted when somebody from the six train named dulls was mugged by a well i mean we would dispute that he had a leadership role in the gang after stood there was evidence presented to the jury he was one of the three leaders of the evidence came from kevin bell and as i indicated in my brief i mean bell was very close with de block who was also one of the leaders of the gang and there was a lot that was done to cover up for de block in terms of you know discussing a fight that allegedly happened where de block was the claimed he didn't lose any respect for ashburn there was a testimony that a few months after mr robinson had been shot that bell disposed of a gun in a river at de blocks order  to spec because at the time at the time that the attack on the crips first happened which was august of two thousand and eight mr ashburn hadn't been active with the gang since four months earlier there was no testimony was active and he was indicted for conspiracy to murder the crips specifically not to murder the bloods that would not be a fair and inference to draw wasn't what he was charged with it wasn't what the government was required to prove a trial and it's not what the jury heard so not to my recollection but i would have to go back and check the rule twenty nine and rule thirty three motion i don't recall specifically i mean like why is there was the evidence was also legally insufficient to show that he had intentionally killed  down the hall with a gun it is pocket toward we are the shooting took place it just happened almost immediately after it and see it but here the round go off or bell said that he saw ashburn walking calmly down the proximity of a murder with a gun minus any evidence any motive that directed specifically at this victim minus any evidence that would exclude in the violent atmosphere of this particular housing project with many gangs in a way that would exclude anyone else from having a gun on occasion if you credit thompson's testimony and i and i would say she was the more credible witness this was her apartment she had a party there that night she stated she was angry that her boyfriend's nephew was there because he was a gang member the fact that belle is testifying there was an induction meeting in a bedroom in thompson's house that she was totally unaware of i mean they they both testified that there was a fight that spilled out into the hallway but then bet bell suddenly even though he just got inducted into the gang and he's testifying that acts of violence elevate your position he decides to disengage and calmly walk down the hallway and he sees allegedly mr ashburn walking towards him i don't think it's a fair inference to say that any that because of the nature of the thought i'm not trying to help you on what i was suggesting was is it not the case that the only evidence against mr ashburn is that he is in the vicinity where a murder takes place and he has a gun yes that is correct and there is no the fact that i mean i don't know with all due respect that you going to make much headway at least with me in denying that there is evidence that ash burn was in the vicinity with a gun the question is is that enough to convict someone beyond a reasonable doubt of having shot somebody and i would argue it isn't because this is a new york penal law offense and for one twenty five point twenty five seconds through green murder you have to have proof that that aspirin had the intent to kill robinson and you have to have proof that he caused robinson for death he was the shooter if he was the shooter it could be inferred that he had the intent to kill from the nature of the shooting right there's medical testimony that there are powder burns on mr robinson's back to it which would lead to the inference that the gun was up against him when it was fired at a vital organ the problem is if he is not the shooter then first of all did he cause the death of this some argument that just by being there with a gun he was aiding and abetting is that enough to infer that he shared the intent of the person who committed the fatal shot rather than just that he was involved in some bigger way we submit that it was in there was no statements that were made by him kirky robinson wasn't even a gang member i mean this was a fight that got out of control at a party that people were drinking and smoking pot is there any five hours before any evidence that in this fight there were two distinct sides and that robinson was on the other side from someone that ashburn knew was friendly with was in a gang with imply that they shot the wrong person it's the wrong somebody we shot that he but the what what you ask me judge is is there evidence robyn that i asked for knew either one of these people one person was omar who was on thompson's boyfriend's nephew who was in a gang but it wasn't the six tre gang and the other person was do one who was friends with bell but there was no indication he was in the six trade gang referred to a group that encompassed mr ashburn they could infer that they could also him for that whoever got shot in the hallway was somebody who randomly got shot because there was so much tussle and bustle and bottles banging over people's heads and there was a lot of people in the hallway according to thompson so the fact that he shot the wrong guy doesn't necessarily mean that it was a gang related incident in fact this was a birthday party that ms thompson had for her niece in the apartment she specifically said she didn't want her boyfriend's nephew there because she didn't want gang related people there and the fight that occurred had nothing to do with with a gang it was drunk her apartment for five hours they get in a fight they're throwing food at each other it escalates it spills out into the hall she actually kicks them out of her apartment into the hallway there in the hallway and at some point  morning your honor yes ma'am please the court my name is maggie and i represent the united states and i was also one of the attorneys at the trial in the instant case unless the court would like me to begin elsewhere i'll start where where we just left off with the murder of courtney robinson and i think that there are a couple factual issues that i'd like to address and also keeping in mind that that appellate counsel was arguing two different in for instance but obviously in the position we're now in we draw the inference as in favor of yes of course and it certainly is the theory and i think stepping back to in terms of the evidence in a question that you raised about whether or not there were two sides there were two sides in this fight and it was not an explicit gang separate sides but there were two sides and omar got into a fight with the one who was the boyfriend of the niece of miss thompson do on at that time was not a member of six trey but soon after did become a member of the six tray and the members were close and loyal to him after omar attacked a want of members of six trey then started to attack omar and it was the gang as a whole multiple members which was regardless of whether or not miss thompson knew who the affiliation she and kevin bell both testified that there were multiple individuals that the evidence established were six train members started attacking omar courtney robinson and then came to omar's defense taking omar side and the fight continued and they continued to go after courtney robinson miss thompson testified that she saw ashburn along with another a couple of other members of the of the fight leave the fight and run down the hallway towards a location that the evidence established was an narrator where the gang kept its weapons ashburn was a part of that group that left the fight to go in to a location where guns were kept then kevin bell sees him running back w gun in his hand and shortly thereafter he hears the gun go off the evidence as as the court already talked about said that it was a close range shot to courtney robins  i'm sorry was actually in the fight for me just refer to a couple of the other names that were that were actually in the fight a divine rodney was also involved who was another leader in the gang and and so i think all of it establishes that there were two sides but also it's clear that a jury could and there are there is evidence that tree members the ones you named are engaged in fighting a group that includes robinson yes i mean as as made clear they believed that many of them believe that they were still fighting omar and they did not necessarily intend robinson to be the one that was killed but they were engaged in that fight and i also think that it's important to understand that there's another element element with respect to i mean look in seems to me that regular courts where they try regular murders you don't normally have the case that is predicated on there's a guy with a gun somewhere in the vicinity of someone who's shot and that's sufficient to charge him with murder right there's got to be something else then he's the only guy that bell saw with a gun that night well i think that it's not just a guy with a gun in the general vicinity it is somebody who has engaged in the fight that's the point that you made that's what i'm asking you that's why this is so important to nail down it would not be enough would it just to say he was somewhere in the hallway with a gun and then somebody gets shot is it in is that enough to find beyond a reasonable doubt that he is the shooter a bit at least in a world where there are guns all around right but i think in this case it's important to to pay attention the specific testimony of kevin bell and it was not that oh i know that ashburn was in the area where the gun it was i started going down the hallway away from the fight as it really is running towards the fight we've got to get a gun and then comes the fight yes and he went down the hall to where the guns were miss thompson saw him leave the fight go down the hallway kevin bell testified that the direction that he was going is where one of the six tray gun stashes was kept and he also testified that as he left the fight ashburn was returning running but going back down the hallway towards where the fight was with a gun in his  hand just is there anyone else that we need to worry about in reading testimony the only people who are witnesses who were there that night or bill and yet yes as to the actual  s of the courtney robinson events and i do think as to your question about motive there is an additional motive that we discussed the motive for killing anybody right you're saying expert and was had recently been in a fight and so now he's got to kill somebody that's a lot different than an argument that he has a motive to have something against robinson or omar or anybody else who is in the room that night and i i think though that the the point being the question is why would he have done and is this related to the enterprise to question him having questions how do we know that he did it and one way we know that he did it is if he has some reason to do it and you're saying it's a enough of a reason to infer that he is the shooter that he's got a reason to shoot just about anybody in the world that night you know what i'm saying is when you look at the actual facts that were elicited in the testimony that he engaged in the fight that he left the fight to go to an area where the guns were stash and then he returned with a gun and shortly thereafter that when you couple that with the fact that shortly two weeks before he lost a fight and that there was a motive for him to take a fight in front of the gang members to the next level to reassert his authority when you look at that fact coupled with the clear testimony that is that gives you an inference that he was the one who actually pulled the trigger i think that that is another reason that you can understand why a jury found that he had intended to and did in fact kill courtney robinson you're saying that the fact that he was in the funnies before he went to get the gun supplies supplies at least part of the motive for the that he was fighting this person and he went to get a gun came back and the person got killed with a gun is he going back the the fact that he was fighting i think that the fact that the gang itself was fighting with him was enough to so to have that motive because he won't say but because he was fighting and because he left to get when he leaves having been involved in the fight and coming back with a gun i think the inference is clear from which the jury drew that he was in this fight he was with his his fellow gang members he decided to go and get a gun and take it to the next level and he did robinson with respect to his involvement in six trade there was there was additional evidence of his tattoos there was evidence of his jail calls that was admitted that showed that even up until the time when he was in custody and arrested he was continuing to keep tabs and involvement in his gang and so it's simply not true that there wasn't any evidence of his involvement in the gang after april two thousand and eight i do think that what your honor brought up earlier is an important key in understanding his involvement and his culpability on racketeering act one and that is his leadership role in the gang the evidence very clearly established at trial that the way the hierarchy and this specific gang worked he had to be consulted and he had to have approval for a set for the murders and the actions that the gang took the evidence in trial also established that a rivalry with the crips started in august two thousand and eight and it continued at a minimum through the summer of two thousand and ten and so a jury could infer that from the fact that there was a rivalry for over two years that involved a number of killings that that could not have occurred without the approval of the big homie and the leader of the game and we know that he understood and agreed to and asserting his authority because with the other rivalry with the bloods he specifically directed the murder of of a rival and so a jury looking at all of this evidence about how the hierarchy works the approvals that you have to get at the very real existence of this rivalry with the crips the number of individuals that were killed as a result of the rivalry with the cr there but i was hoping to find it that i'd overlooked it because then it would give me a page reference or something in the transcript to refer to but there is no statement in the portion of your brief summarizing the facts that says ashburn punch somebody hit somebody there was a group kicking and stomping omar doesn't say it was in the group then in the rather brief argument on the sufficiency of the evidence there's read the testimony of thompson and l and it might help if there is such evidence if you gave us a letter giving us the page reference so we could find it of course and i do you think that you know  does testify that there was the fight going out outside of her apartment omar scrambled into the apartment and then she saw ashburn do you block and could you and others run down the hallway away from and run down i think right i understand that you see i mean the i'm trying to figure out how much evidence there is that is involved in this factional fight and what is described in the brief and why i read it again because i was on persuaded by it when i read it the first time and maybe i overlooked something what's there is there's a big general fight and various people are kicking and hitting each other there's not a statement that says omar is being attacked by people that anybody specifically listed as being members of the six trade gang that's not saying it's not there may be in the in the record somewhere but i like to see where that is if that is in our act of fact that you're asking us to rely on concluding that the evidence is sufficient because this was not wasn't a six tray versus crips fight but it was a fight in which on one side there are members of the gang and i understand that once there are members of the gang involved in some way that says you have to go to the support of the gang members that that's pretty good evidence coupled with the opportunity evidence the jury can work with but otherwise i'm still wondering  if the most we've got is he's somewhere near the murder with a gun he went even with he went and got a gun slim i understand but i i do think that regardless of whether or not he was throwing punches even that testimony that you just read and i went through what it makes clear because this is not some open big area it's a hallway of an apartment building he is at the location where members he is seen running away from a location where there is a fight in the hallway where members of his gang are fighting someone else he is that that's the key that's what i'm trying to get at you keep saying that but it isn't said in  you understand what i'm saying it's going to be very important to me whether there is actual evidence that members of his gang are fighting against somebody as opposed to there is just a general brawl and more than happy to supply that to the court speaking for a moment with the language that i just lynch was reading i had read the words in the midst of a fight ashburn left the military as implying that before he left the millenia he was in the military in the midst of the fight now was not intended it was there is there evidence to support not just that he was seen going to a place where there were guns but three we put in testimony that we will provide the specific sites to the court to establish that he was there in the in the melee with courtney robinson in i believe that will be able to provide that i do you think that regardless of whether or not he was throwing punches regardless of whether or not he was involved in that fight at that moment the fact that he went got a gun came back and then shortly thereafter someone was killed there is clear evidence that he killed courtney robinson thank you we have a few rebuttal arguments to here  and mr rosenthal next you know i just wanted to make clear we were discussing the oath even if you keep that if you drop the cell phones and have evidence of merits in tension because in the world in which we live in this city there are many reasons that people join these gangs many reasons and to impute one person's belief that he joined a gang to kill crips two everyone is is is opening a door to this just that just joining is that is the crime we guard less of the oath and with all of the cooperating witnesses with all of the power of the government if there was evidence that merritt said anything that i want to go after crips i'm joining to go after crips let's go after groups anything we would have heard that but with all of  cooperation witnesses nothing was produced like that and i just think that's an important thing to recognize given the world in which we live given what exists in public housing in every field housing and public housing all over the you want some more time to addressing just the two main arguments that merit me first just to sort of as to what was just laugh that there were essentially criminalizing the it's dangerous what we're criminalize and i think that what's important here is that the evidence stablish that this was not just agreement to hang out with people and wear different colors it was an agreement that we were going to kill and take on other people's rivals it was something that mr merrett understood he'd been a member of the trey six group that was basically the babies the baby six trays where you're trying to get legitimacy into it but it's also something that you know that he clearly understood because he went that night to the vanderveer housing projects and i think the evidence established that that it was a member of the crips that it attacked that the crips owned that they had control of the vanderveer housing projects the way polk had control of its field and when they went there there was an intent to commit acts of violence against the crips it was something that merritt had agreed to when he joined the gang it was something he agreed to again when he went that night and simply bell specifically testified that one of the ways that the gang made its money and the type of work that this specific gang was robberies and drug deals and misrepresentation of the testimony and the evidence of the case to say that the was only involved in sophisticated robberies kevin bell testified that when he first joined the gang he himself had five cell phone robberies including one cell phone robbery with marriott and it was a common way that they would make money and they would build their reputation they were also required to pay weekly dues to the gang so even if the gang didn't specifically get a cut of every single robbery you committed a portion of it would go because they had to pay weekly dues and there one with merit and then as to the actual robberies that are the racketeering acts the very first robbery merrit said he committed with the same person who shot topes which is the nickname for das to james and so that first robbery another gang member that's correct and then both of those robberies occurred the first two robberies of of the cell phone ones were in a almost the exact same area within two days close to field apartment buildings one of them was an abbot's field resident and so not only is this the type of thing that they would do but doing something like that in public in daylight we have another individual one of which times was a member of the gang is another way to promote your reputation with the victim and someone who actually knows you exactly exactly and so i think that for those reasons we believe that there was sufficient evidence to show that i just wanted to just jump back to two points that the evidence does not support finding that the fight we're robinson was shot was a gang related fight to one may have become a gang leader later but he wasn't gang member later but he was not a gang member that night and this is abbott's field apartments whether a gang member or not everybody knows everybody mr thompson knew everybody because they were friends with her daughter and her daughter wasn't in the ga so the fact they knew each other and they were helping each other didn't mean they were doing so out of allegiance to a gang and that particular night belle he was friends with dawn he says he jumped in to help the one after the fight between friends but it seems to be not reasonable inference they work well with all due respect i would i would agree with you except that here to juan had not yet been a member of the gang he that the evidence didn't show he was not a gang member and also according to bell's testimony he jumped in to help the won because he was his friend that's what he said and if he you know was looking to you help the gag when he saw this tussle in the hallway instead of getting up and walking away and going back to his girlfriend apartment he would have stayed in help his fellow gang members that's not what he said he did he said he left and walked to the stairwell and that's when he claimed he passed mr ashburn walking towards him he was leaving while the fight was continuing and again fell said he didn't even know who omar was when he jumped in to help him on so it's not like he knew omar was a gang member and he was jumping in to help another gang member fight this guy he didn't dawn wasn't a gang member at the time and bell didn't even know that who elmer was let alone he was a lang member and i also just want to add that the evidence as i recall shows that mr ashburn was not part of a fight that preceded the shooting of kirky mr ashburn according to miss thompson had left her apartment at seven o'clock after taking some food into the hallway it was only after the fight broke out in our apartments built into the hallway that she pulled her nephew inside the apartment and as she was doing it she said she saw a group of eight people including ashburn and de block three people that were in the gang but five other people she didn't identify that were not necessarily gang members and it would not be appropriate or fair to infer that they were they were eight other people who lived in edits fields or didn't who were involved with running down a hallway towards an incinerator and all running back but the only people she identified in that group as i recall and looking through my notes was cous aspart ashburnham block and there were five other people that were on identified  be enough time and this matter would you like to be able to have the opportunity to file a letter at the same time saying why there's no evidence or insufficient evidence of the circumstances leading up to the for you again relation to it ok so by next yeah i think that's just one she was particularly interested in you know i think the government should include in the letter any evidence of the presence of gang members in the in the faith and also was their request for a supplemental