k agreement and the government utilized mr lee and setting a calculation of two point four kilograms they did that based on his direct testimony that he mixed heroin twice a week twenty five twenty five grams each time multiplied times two grams and they came up with two point four the problem of course is that during his cross examination testimony mr lee admitted that it was twenty five grams once a week so why does that bind anybody i mean he he wouldn't be the first witness in a drug case to testify inconsistently i mean what one or the other is correct why is it automatically the second thing or maybe neither one of them is correct for all i know but so but the government has some testimony from mr lee it's may be weak it's may be impeached but why isn't that enough it's not enough in this particular case because he's the only witness to provide quantity and he's not impeached through through other witnesses and he's impeached or the agents but other witnesses or other evidence is not giving quantity mr lee is contradicting himself on  quantity he's contradicting himself on the frequency that he mixed how often he mixed when he started when he stopped you know i understand these as well different things and it's not even clear to me that the twenty five grams he's talking about use a starting point of pure heroin that actually turns into quite a bit more by the time it gets cut or whether it's what was out there after it's been cut but but there is direct testimony that it's twenty five grams let's say twice a week and if the rule is that the that in sentencing we can't rely on anybody who contradicted themselves that would be a drastic change and in the evidentiary basis for sentences for verdict purposes the government has to prove it beyond a reasonable doubt and in doing so in this case they were unable to do so based on his own contradictory testimony but adding into that analysis is the fact that the district court we believe abused its discretion and not allowing impeachment of mr  addition to the other areas and ph and that were part of the record of his prior conviction under six zero nine that prior conviction was outside of the ten year limit but the rule does provide for the court to allow analysis to let an  y convictions but she said she just didn't see anything extraordinary enough to justify that isn't that a discretionary call it is a discretionary call but we believe that she abused her discretion and considering the factors one the the prior conviction had great impeachment value without it the jury is free to think that mr lee was simply got caught up in this drug conspiracy he's not cooperating and he learned his lesson in actuality he had served a prior term of imprisonment for attempted murder came out and picked up his illegal activity right where he left off and that's evident from his plea agreement and hard to think that the jurors thought he was a great guy i mean they they knew he was pleading guilty to this drug conspiracy he does at one point say twenty five grams two or three times a week this is heroin after all i'm you know it pretty serious substance so i understand why you wanted to convict and i'm not sure that it would have tipped the jury one way or the other can you direct just any cases where we've held a trial judge abused discretion in sticking with the ten year limit your i cannot but i would say for comparison sake you know at sentencing when we're considering the defendant's prior history it certainly goes back to fifteen years those things are pertinent for the court to consider in sentencing and i understand this trial issue and so the ten year mark is not a hard and fast rule six zero nine does allow for a discretionary call and whether it's right or wrong the idea is that a convicted felon may testify and truthfully given the importance and critical nature of mr lee's testimony on i can imagine what the defense argument would be right and the government would see how to go through the same analysis and the same factors and submit that to the court it would also depend on how critical his testimony would be for the defendant without knowing what it is he would testify on behalf the fact that it's hard to make that analysis because that is in fact a factor to consider the facts exactly why it's in the district court discretion because they just record here he looks at the six o nine the rules no no but the debates that the defaulters the ten years and assess is really assess is how this fits in and thinks i don't i haven't been persuaded to go outside  wrong call so what are we going to do with this mess with the eight fifty one and handsome and it seems to me that the purpose was certainly satisfied it's filed there's this terrible mistake made in the very you know very unfortunate on whatever adjective you want in the clerk's office but it seems that mr karr proceeds through the entire case thinking that the eight fifty one notice is there so his strategy for plea bargaining hasn't changed his trial preparation strategy hasn't changed so the purpose of the notice and the fact that there's actual notice that there was a filing exists even though it turns out the last minute it wasn't there so they have to cure that problem and put it back in again but i don't see in the statute itself any words to the effect of you know it has to be on file at every minute just as has to be filed and served and i also would note that we have found problems in this area to be subject to harmless error analysis in the williams case interestingly enough on like six o nine the dictates of a fifty one seem to be a little more liberally apply the statute does require a filing right and there was a filing there was a filing and it was removed but we do have the evidence that there was a filing from that copy that was retained with the c in the c f stamp on it i understood that you did not contest the authenticity of of that document correct early on when the issue was uncovered it was the clerk wasn't sure that i could get the document back in a later as time went on the government was able to retrieve that right so there's no question that that it was filed nobody has to be properly filed i mean the clerk what's  certain places or you know what did the government fail to do the government failed to check the record for eighteen months prior to trial to see if the notice was on file that's not an so the idea that the eight fifty one was removed might have been because they simply they simply improperly filed it now there's a lot of documents on the stuck it and the only three they get withdrawn are the eight fifty one notices that the government file which does indicate that maybe they just filed it improperly is there any evidence of the judge not there was no hearing in this matter there's no affidavit from the filer so let me let me just maybe i'm just repeating because the government did what it was required to do for of reality fifty one sentence so it's hope to put it to just sort of add what would the defendant have done differently if this thing had just stayed there in the c m e c f file until everybody's getting ready for sentencing instead of being polled a few days later and suddenly everybody discovers hoops is not there and that analysis is essentially a no harm no foul right because the defendant has noticed so so what well it is in the sense that it's and i'm relying on williams to say that there can be some situations in which a failure of let's say in the implementation of what the point of the eight fifty one filing yes there could be some situations where that was harmful so for example if if mr karr had gone back and and checked the docket himself you know a month or so after it was polled maybe he would have said oh there's no way fifty one filing here so i'm not facing the enhanced sense that could affect trial strategy so that's a path that didn't happen but that certainly would be a path where i would be much more receptive to the idea that it was a harmful mistake that but none of that happens here so i can see what he would have done differently if this hadn't gone awry i would offer a different perspective on the no harm will fall analysis if the untimely age fifty one were not allowed there's no harm no foul the government can still ask for twenty years the quick question if we agree that the twenty year sentence is vail would we need to address the sentencing guideline issues about quantity or organizer we do we've raised them a please the court good morning my name is kristen vick leoni and i represent the united states both the jury's verdict and the district court's determination of drug quantity was supported by sufficient evidence the government did present testimony the only evidence of quantity that the government presented the government also presented lou with a second cooperating witness he admitted on the stand that he was involved with eight hundred grams of heroin in addition the government presented evidence of controlled b and that evidence resulted in eighty nine point one grams of heroin in addition would show you i understand you to be relying only on mr lee's second statement that it was the twenty five grams once a week not twice a week sometimes he would mix as much as forty grams so taking just the most conservative amount of twenty five grams per week over the course of a year the jury would have ample evidence of over a thousand grams and the twenty five grams once a week ok that's one thousand two hundred fifty right grams and that's not to mention however that the jury would have weighed the evidence and determined maybe it was more based on the testimony of lee it does not bring in the testimony of lamar lewis it does not bring in the test the evidence of the control box the district court had additional evidence to consider in reaching its conclusion so i guess the other issue with if it's just twenty five grams a week is the duration sort of  year less than a year there were some just a few bout that yes your honor there is some dispute about that the testimony of mr the it was that he was involved in the conspiracy for a year he mentioned that he stopped being involved in the conspiracy at some point after his son was arrested in april he did not specify a date of when after and so the testimony came in that way and the jury was entitle to credit the witness and result in consistency as it sees fit and the verdict was supported by sufficient evidence in addition as your honor noted the lead testified that he mixed twenty five grams of heroin and he mixed it with the with the doormen the combination with thirteen grams of fry to four grams of heroin and that substantially increased the amount as the government argued in its closing arguments that amount would constitute a mixture and substance containing heroin and finally the wiretapped phone calls that the government presented corroborated the fact that lee and lou it's were small cross section of a larger drug operation second the jury and the district court resolved the credibility issues that the defendant is concerned with as i mentioned the jury's entitled to credit witnesses and resolve and consistency and they did so in the government's fate or lee and lewis although small players were individuals who were involved in sales and mixing in backing they had their hands on the drugs and could testify as to the quantity and the district court did not clearly error and its credibility determination they relied on the credible evidence introduced at trial and also the admissions in conviction so i want you maybe you're winding up to this to get to the eight fifty one point because it's going to concern that i have if you read the statute it just says that the united states attorney has to file an information with the court and serve a copy on the person stating in writing previous convictions so it sounds like you could file it and serve it and then fifteen minutes later you could pull it off the docket and you'd be in perfect compliance with the statute but that would be an absurd way to read statute in my opinion the purpose of the statute is to give full you know notice to the person you know to have something that's not in the court record would be a very irregular practice so so how are we to deal with this mistake sometimes when mistakes are made as you know a number of supreme court decisions have have illustrated boles against russell comes to mind people just have to take the consequences this was the government's job to do and maybe you don't get the enhancement here because you when you got that and obscure notice from the clerk that there was something going on nobody took the five minutes to to pop back into the docket and see what happened yes your honor on as you mentioned the the purpose is what's important here as opposed to bowles which dealt with a jurisdictional issue there is not strict compliance required for section eight fifty one and here the purpose of providing the defendant with his due process rights the opportunity to be heard and and reasonable notice that occurred in this case but there was a real risk that the defendant was going to be misled if anybody had gone back and checked the docket to see if there was an eight fifty one notice there sometimes lawyers change in a new lawyer comes in in israel viewing what's been there and if we were to find this is harmless error what possible incentive would the government ever have to comply with this again your honor on the government would come with complied because the government takes its obligations to follow the statute seriously but in this case the government did comply the government filed and provided notice and the fact if the defendant were to go back and look at the docket docket entry fifty six stated from the very time of the first filing through today notice of penalty enhancement by prior drug felony by usa as to keith car and then but then if they click on a nickel when they are during this long period of time they find nothing so they don't know what the prior offense was they don't know whether there's some objection they might be able to make to it which happens all the time by the way you know with a fifty one's they find a vacuum and so it really is troubling yes your honor well in this case as as you say your concern regarding counsel in this case dependent has had the same counsel from the start through today and so that there was no change over fourteen to that it could be lost and the facts of this case as fact the government's refusal to remove the eight fifty one was the reason for this case proceeding to trial so in this case there wasn't an issue where there was confusion over whether the government sought an eight fifty one and there was no confusion regarding the underlying conviction and in fact the defendant knew what that conviction was and never objected to it and then this issue was briefed extensively both before sentencing and it was it was argued at sentencing so the defendant had ample opportunity to be heard but in any case when you say this you mean the problem with the clerk removing it the deliver the of the filing but in any case the government section eight fifty one expresses allows for  there is a clerical error with the filing and so the government did just that can excuse the prior to sentencing when they realized that the document was no longer attached the government alerted counsel and then immediately filed the identical point the district court did not abused its discretion when it properly applied a federal rule of evidence six zero nine two the fact that this case this case does not present any rare or exceptional circumstances there would be no danger that the jury would think that the defendant was caught up in this drug conspiracy that i'm sorry that leave was caught up in this drug conspiracy they would be aware that he had pled guilty to his involvement in not only  conspiracy but two years of involvement with a drug conspiracy so that's the difference between a drug conspiracy and an exceedingly violent act which is what the prior felony was and so the jury might draw the line between somebody who doesn't mind making their money by selling drugs and somebody who's going to blow someone else's head off yes your honor and that is a prior teleni conviction can only be used to demonstrate a willingness to break the law right and i mean what you're very willing to break the law if you're that's violent in so too are you willing to break the law if you're involved in a drug conspiracy but something like attempted murder is inflammatory and the jury could use that improperly or give it too much weight in addition built into the rule is the idea that a more recent conviction is more probative and the jury heard of the most recent conviction and also w instructed as to the credibility of lee and to take that into consideration for these reasons the government asks that this court affirmed the district court's judgment and the jury's verdict thank you thank you duration of the conspiracy is also a problem with mr lee he testified that he stopped selling drugs when his son was stopped by the police in april was the april date correct and then on cross examination when asked when it started he couldn't say for sure whether it was june july august or september fifty dollars for mixing when he told the grand jury hundred and he just said i just picked fifty those are all indications of his lack of credibility that goes to duration that goes to quantity and for those reasons we've asked that you respectfully  matter thank you thank you and you accept an appointment for this case right so we thank you very much for your assistance to the court your client thanks and thanks as well to the government will take the case under