and please court my name is jason was souci i'm here in behalf of miss eichler who was mr carter's codefendant i want to focus on three issues today the first is the district court's erroneous perjury and handsome and at sentencing second i want to dovetail off of some is of donnelly's arguments regarding the buy sell agreement defense and third the district court's erroneous admission of four a four b evidence which i think is in greater contrast in relie today as a result of counsel's admission which i appreciate so let's talk about for perjury first it's important understand why this error is even more critical today than it was when it happened congress just passed and the president signed into law the first step act december twenty first of two thousand and eighteen that act as the safety valve provision on earth section thirty five fifty three so a recent unsing in this case would the opportunity depending on how it goes underlying to perhaps fit within that safety valve provision which she may not have a originally so in this case the court needs to take a really really hard look at that perjury and hansen because it can have a significant impact on her recent is that a valid basis to consider the three c one point one that there may be additional unrelated really from recent congressional action it may be i only bring up your honor because what it does is it puts into you know very stark relief why this perjury unhandsome is important and particularly important now regardless of whether or not the first act this first step act had been passed the perjury enhanced it was erroneous and recent sing is necessary but i think it demonstrates why re sensing can be even more impactful in this case particularly if the court thinks that every sensing would have almost no effect if she's only going to get sentenced a ten year mandatory minimum anyway because she now my qualify under a broader safety valve it is it is more critical so how did the court air first it feel to make any finding whatsoever that miss i clear is testimony demonstrated a willful intent to lie that's the fun one of the fundamental elements on the under dunning donnegan even if we assume which we can't do as the appellate court that mistake was testimony was in fact false there's no evidence or findings on the record that she maker with the intent to deceive and isn't it wasn't elaborate it was just a handful of words but doesn't that suffice to show that the judge was finding that miss eichler testified falsely that she knew that it was false and that it was willful well i don't think we need to go down the rabbit hole of definitions but your honor i looked up the definition of prevarication and the definition i found was that it is to evade the truth just like a politician when asked a hard question on c n n or fox news or whatever might prevaricate in evading the truth that doesn't mean that they are actually line and so i think the court's use of the word prevarication may or may not have been intentional with regard to that definition but i think when the court is finding an enhancement for perjury the court is required to set forth various elements and make specific findings if they can that is the supreme court's preference and here there is quite literally two paragraphs that the court articulate how he gets to a perjury unhandsome and but there's never a finding of this is the testimony that i find was false i a lot i and i also find that miss eichler willfully intended to lock up those are two separate elements dunnigan and they require separate findings and hear the testimony that the court was referring to although we can't really say what the court is exactly referring to because he doesn't go through that process  the testimony that he is imply of the referring to is that miss eichler testified she came to wyoming to visit her children and came to wyoming and when she came to wyoming she partied i shared drugs with somebody else well both those things are true she did come to wyoming to visit her kids mr mckenna testified and corroborated miss eichler testimony and she did come and party did drugs with some of her friends will but isn't th it is there you know i go to say i have children in wyoming and i go there to sell drugs that i have a couple of kids that live in wyoming and i go you know have lunch and dinner with them and then on the side you know that evening i go and sell a whole bunch of drugs and then i'm on trial for conspiracy to distribute five hundred grams or more of methamphetamines they are just going to my kids in and party and court's mind under the precedent that binds this court and down the district court the judge was required to make specific findings and not just allude to or allow this court to speculate later on appeal which particular portions of her testimony not only were false but were willfully intended to be false to try and avoid some consequences of prosecution and the court just simply never does that and while i understand your honour's argument that well gee she testified that she didn't sell drugs at all what the court does here is doesn't flag that evidence what the court says is mistake where explained she traveled to wyoming to visit her children admitted to sharing meth with various people and that the judge finds contradicts other witnesses in fact that testimony is consistent with other witnesses and when the well really the other witnesses didn't say she just gave us drugs for free they did in fact all of the witnesses said that she would everybody would share drugs they also said that she would sell them drugs but the district court doesn't even get there and that speculate the district court says as i have referred to the testimony of gilson flores maced us and even mckenna and buried within that testimony is evidence that and fact she sold drugs right judge the district court judge simply says i've referred to the test move gilson floor as my ass to say even mckenna but the court doesn't identify what testimony he's referencing and in fact when you look at the record when you look at the transcript the district court does nothing to flag what testimony he's referring to in this court cannot is not permitted to speculate and was there an objects on the ground judge we don't understand what you're talking about this selling drugs before the judge made his findings his eichler is counsel said there is no evidence that she actually willfully intended to lie or that she testified falsely that when the judge was making his findings there was no objection interrupt the judge that is correct because my time is running so short i would like to briefly address the four hundred four b evidence if i might in light of counsel's concession today if it's intrinsic to even care about for b if it's intrinsic no but this evidence is not intrinsic and i think counsel's concession today highlights that point this sting operation was presented to the jury as a sting operation associated with a meth deal it was not it was a sting operation that only dealt with cannabis marijuana weed whatever you want to call it i see my time is up my finish my point your thank you and that evidence coupled with all of the other elder evidence that i've highlighted in quoted in my reply brief at pages seven three nine there was a very very simple way for the prosecution to avoid injecting this because no deal no transaction in this case was the transaction was depends and on the cannabis or marijuana transaction really what it was was a gratuitous injection of a quarter pound of marijuana here you know an ounce of marijuana there when all the prosecution had to do is say did you was forces testimony of how he when the government asked this force how did you come to know mr carter and the answer was well i asked miss i can or you know where can i get marijuana and she said well you can talk to carter and so you say well rick rick rick your brief welch the government instead could have said well how can i get more drugs well if i take they had if we if we hypothetically use your counterpart to the question that would have even been war and terribly unfairly prejudicial to miss on your answer as well as mr carter because that would have insinuated that this i care was telling flora's that she can get more methamphetamine from carter when the reality was it wasn't it was it was the less egre drug of mere honna and so is it isn't your own is that one example one where it really was an extra could be intertwined and to ask the alternative question that you would have hype a hypothetical pop without it we posited would have been brought in more prejudicial i don't think it would have been more prejudicial your honor because this case was about methamphetamine and so when flores or or even mr mccann are testifying and the prosecution injects into the case evidence of a different drug being purchased by these people often on completely separate occasions i think it was mr gilson but my memory may be incorrect in which the prosecution injected i think was eight different purchases three of which or two of which were exclusively marijuana purchases why is that even in the case it has nothing to do you suppose the relationship of the part but it's not inextricably intertwined into the conspiracy to distribute methamphetamine thank you intertwined evidence is not necessarily going to be prejudicial to the defendant and if all the evidence of marijuana had been excised from this case it indeed would have put the united states in a stronger position in terms of making its arguments because if the only drug that's mentioned is methamphetamine and then for example there's evidence of an intended meeting the jury is more likely to infer that that was a methamphetamine meeting exactly as you articulated judge bacharach in fact the concession that i made this morning really illustrates that point that if there had if evidence of marijuana had been taken off the table entirely then by presenting that all that evidence of mis i close arrested in the sting the jury would have likely infer the evidence was stronger of methamphetamine than it actually was so i think this case really doesn't illustrate why under these under these facts evidence of multiple substances is intrinsic is the be pro that a little bit further though questions about marijuana that that really could have easily been excised right i mean it did seem that the government was maybe it wasn't and suggesting that it was insidious or that it was intended  prejudice the cycler that may or may not be the case but it did seem that there were a lot of your relevant references to marijuana in the questioning do you agree or disagree your honor i don't know about irrelevant because i believe that i believe that it was all an extra couple intertwined now certainly there's a spectrum some i guess one would say that some of the references to marijuana were more important than others i mean for example i think i certainly could have let's take the example of mr florus the example of how he comes to begin dealing with mr carter and because it was a marijuana source for the reasons you articulated really that's important evidence to get out and not prejudicial will ok sorry  i was just going to say your honor that perhaps in then following up on their relationship i certainly could have only asked about methamphetamine purchases and left out the marijuana although to some extent i think that would have painted just not necessarily unfair but but certainly an inaccurate picture of the relationship these men had will be in that example that you're using the question was i mean that in a relationship was a looser data because of your question and that question was as i recall how did you become to mr carter well they were boyfriend girlfriend moved in the same house you know that might have been a good answer and so when you say  ie intertwined well yeah i was inexplicably going to twine for something that may or may not have been the tiriel to this charge involving methamphetamine and if it was it conduct was the less serious marijuana maybe that helps to draw the sting a little bit there and i lost my train of thought a little bit but the other point that the other point that i wanted to make on that maybe i'll hopefully circle back to your question judge bacharach is that by hiding the ball so to speak by excising the references to marijuana it also prejudices the government because it opens the door to defense testimony that then brings up marijuana which at that point the jury is left to wonder well why didn't we hear about marijuana before why is there now evidence that marijuana is being distributed and no one else said that and then you have to recall witnesses and why didn't i ask the questions about marijuana and example along those lines actually happened in this case your honor it's footnoted in the government's brief it had to do with xanax pills that miss i claire possessed when she was stopped in utah and out of an abundance of caution i didn't ask that the state trooper about the xanax pills i asked him about math and or what appeared to be meth and what appeared to be marijuana and i don't remember specifically if i didn't realize that there had been pills and it came out with this prep work or maybe i didn't know i don't remember the details but the bottom line and i was in a position where i really couldn't refute it i mean might by trooper testified he was on his way back to utah so that anecdote illustrates at least one potential pitfall for the government in doing that sort of thing well if it had been marijuana  marijuana we want you to revisit your brand of emotional in the short run your honor and i could have recalled witnesses who were in custody and then elicited the testimony and right so certainly that would have been possible seem really really your honor to circle back really to the point you made him that i lead with is that this in a strictly intertwined evidence in this case at least was not really prejudicial to the defendants there were arguments to be made that for example conduct because if we're only dealing with methamphetamine it's much easier for me to argue that well this bit of circumstantial evidence is evidence of of methamphetamine trafficking if marijuana is interjected it changes the game so to speak and really not in the government's favor so that's i think this case really illustrates why the inextricably intertwined analysis applies to this sort of circumstance can i ask you a unrelated question which is in the  close on efforts and the methamphetamine that she sold and you estimate four hundred thirty eight to five hundred twenty two grams and you know proceeding that there are there is an account of all of the transactions and the testimony and the estimates by the witnesses which far exceeds that amount and so i'm curious why where does that number come from four thirty five to five twenty two which of course matters because we're straddling what she herself had distributed so that he was methamphetamine that she distributes to flora's methamphetamine that she distributes to gilson methamphetamine that she distributes to my yes the methamphetamine that was seized in that traffic stop and then i believe i also included the methamphetamine that gilson traded or that he obtained when he traded vehicles his testimony wasn't entirely clear where that came from  but it seemed that she was at least she was involved in that transactions and see ended up driving the vehicle so as i was glancing back over the brief your honor i believe that's where i came up with that number was meth she  flores that she lost in that traffic stop and then the three ounces that allegedly or that mr gilson testified were involved in that exchange for the vehicle well i wondered if you'd taken mr gilson out because he wasn't charged because when i when i used the numbers that you i put those into mr carter's calculation instead so i think in dealing with miss i close that for thirty eight five twenty two i believe it was just it didn't include those midvale transactions honor as i see my time is almost up so i think the courts consideration thank you a bit of well i'm going to give so much your time so i'm going to give you two and a half minutes and the only reason i'm doing intertwined under us before with the charged offense the fact that for example which isn't even you know part of the evidence here but just hypothetically if if mr carter and mr flores you know got together every week to play poker and smoked weed that would be inextricably intertwined with their relationship but not with the charged offense and that's really the critical part here and this for a for be evidence is judge bacharach you point out is it this murder want evidence is all over the case but if there was ok let me ask you this if there was one instance hypothetically that we can point to and say well this what this one instance really was not gratuitous then we would have to reject your appeal for right let's say there was hypothetically there was twenty references during the trial to marijuana and we say one was appropriate one thousand were inappropriate well the but preservation of this error is not been raised by the government they did not in their brief say because miss eichler didn't object each time this evidence was presented that it's weight so i don't think that's an issue that this court can get to because it was an argument made but critically what i did hopefully exhaustively in the briefs was go through each instance when it was put forth and i do think and i stand on those briefs that  appearances transactions and negotiations that sounds an intrinsic capital lie yes i i mean i'm not going to argue that evans was it was incorrect i don't think it applies here and i think it doesn't apply here because this relationship amongst these coconspirators first of all the relationship between eichler and carter is obvious they live together their boyfriend girlfriend the cannabis evidence has nothing to do with that relationship the relationship amongst the other folks that are sold to whether they're charged coconspirators or not is simply we are selling methamphetamine and every time that the government wants to talk about methamphetamine they inject gratuitously this evidence of cannabis thank you