eight fifteen thirty seven and sixteen forty four one thing i should note i think that we have some judges here who are from the republic of georgia is that correct great thank you welcome it's it is a privilege to have you with with us today if we speak too fast or anything just raise your hand we'll try to slow it down directing myself to the first two are there and i should note that i'm going to add a fourth issue although if counsel wishes to comment on it afterwards you can each have an additional week to submit something and that's the question of the name doe being affiliated with keith harris yes or if i may i would i feel like to begin with the second issue because while i believe the first two issues are equally strong second issue is a bit simpler and i think it'll be a little bit less time consuming and what we have here is a simple believing egregious violation of a rule seventy one because what happened here was  gave an opinion of her in quantity regarding twenty weeks of telephone conversations hopes is recorded conversation three weeks the majority of those calls were not only not played for the jury they weren't even admitted into evidence wasn't it pretty clear from his cross examination that he was it was an opinion i mean he was heavily cross examined and couldn't the jury realize that you know his saying well of course four times sixty three that that really wasn't an accurate representation you know your honor not at all because that that is what the courts have recognize is that the opinions of a case agent are particularly important and particularly dangerous because jurors will tend to give great weight to those opinions because they will assume that the agents have tremendous amount of experience and have loads of information that they may not have so these kind of a problem that was a pretty specific statement opinion about phone calls that are not even in minute into evidence this court has put sharp limits as to how agents can interpret phone calls what about what about the stand purchases are they sufficient look at the stamp that purchase this court made clear or in many cases united states versus price for example being one for fifty eight after two harmless error analysis isn't a question of sufficiency so we don't couldn't and then explain why i think it's very likely that this opinion would have contributed to the verdict despite the stamp having and the government now accounts to twelve hundred seventy two grams on the perp on the basis of the six hundred seventy two of those grams belonged to greg harris from the other charge conspiracy the district court announced a great harris is seventeen that the government had not even proven by a preponderance of the evidence that gre harris was in a conspiracy with thomas hopes so if we subtract that six hundred seventy two grams stamp bags greg harris were left with well under a thousand so it's very likely or there's certainly a strong possibility that the jury in getting to a thousand grounds for thomas hopes and not for greg harris by the way before thomas hopes looked at francis his testimony it was the only evidence of hope his actual s and what the easily could have gotten here was the tomorrow we'll have our francis testify to one week of calls he came to sixty three grams he then told us that the other three weeks that we haven't heard was the same so we could take that sixty three grams we could say that's two hundred fifty grams a month and then we can look and say all right there's ten other nine another month of this conspiracy you only heard evidence about four of them but let's take four months and punch two hundred fifty grams a month and there are a few thousand testimony by which he testifies to three weeks that we're not even played for the jury and says you can take those three weeks and it's the same quantity of the one week that i played for you that's incredibly prejudicial gang and that there were certain ways that they identified with each other such as the you or the university of miami shirts whichever you want to setter there are several problems with his testimony in that regard personal knowledge he didn't he never explained to the court to the jury where that knowledge was coming from even if he had it would still be the court's all say if you look at the first circuit and misses the second  garcia this court most recently in the unpublished decision of will are those kind of opinions that's invading the province of the jury it's up to the jury to determine whether or not the government has proven whether or not  were sharing supplies customers helping one there was some evidence in that regard minimal but again you have the district court judge at sentencing finding problem here is that you have the case agent giving this testimony about up town but it's never substantiated we don't have any of ten witnesses coming non modern force that witnesses and nine of them say nothing about outcomes or testifying pursuing her immunity agreements pursuant to plea agreements and they don't have anything to say about up down this ends up being a trial by case agent a trial by lay opinion testimony and what the courts have said is that's entirely improper is invading the province of the jury it spoonfeeding the prosecutor's theory of the case to the jury we have the government has to present actual evidence all about town all of the different groups  clear with respect to a opinion testimony lay opinion testimony is ok to interpret code or code like conversations it is not ok to interpret clear conversations and it is not ok to interpret even unclear conversations if that information is equally accessible to the jury objections lodged there were two testimony that was not coded that you think is objectionable you know and we are clearly under play now ok so to that so what is a descriptor to you as this agent is testifying as to the meaning of the conversations is the district court really supposed to say wait a minute here i know there's been no objection but i think i do think this court has found clear and obvious error when there's been no objection so that certainly is has this court has found that and also they said there was no no objection well no farm it was harmless  situation where you just said it's enough error goes back but now i think i think this case is different but i'd also think i think what the series of cases that this court has been addressing recently shows that there is sort of a strategic reason for letting this go on maybe having an effect of this claim or some you know some kind of objection later on but it's a district court really supposed to police this and get into this the strategy of defense counsel i think when it when a agent is going is going on at this length because for example in jackson this court talked about there not being any code in a particular conversation and no indication that the court's test the agents testimony or that i'm sorry that the conversation was as broad as that in one minute you could say that they were misleading the jury i'm sorry misleading the jury well in that case it was also that i think it was also the bratt of his testimony and then i think here when an agent is essentially taking over narration of these cards i do think there is a place there's a place for all parties i'm not suggesting it's only the judges these are folks whether you're pointing to that went beyond the pale here well i think for example there was one conversation where he country is talking about he talks about where something matters the price i think the ice business conversation for example where countryman testifies that they are negotiating that maybe they're negotiating putting greg smack in the middle of the conspiracy and and talking about conduct and providing a definitive interpretation of that car when a perfectly equal  a different and possible interpretation is that it's two people talking about prices and how to negotiate but not together negotiating i also think the stash house car is perhaps the most egregious place where countryman added a definitive interpretation of the car where there is no code rafferty a stash house and he supplies excuse me where he says it is a stash house and they are unlike u nlike jackson where i should say unlike fulton where the government did not refer to it in closing the government here referred to countryman's testimony about it being a stash house as in he said countrymen explained it was a stash house and then restart might have come to that conclusion on their own i mean discussion about the fact that they were going to be in utilities and all they needed by the lights on and they threw two hundred dollars together no one was going to live there three two plus two is four when the jury have realized that on their own the jury absolutely could reach that on its own but it should have been supplied that interpretation should have been supplied by the government the jury might also have come to the conclusion that it was a bunch of friends man cave or crash or whatever something else there were other possible interpretating utilities for for that kind of progress i believe there was discussion about the change of plan about adding utilities if i'm remembering correctly but my point is there were other possible interpretations the government supplied a definitive interpretation of this one call and later in closing refer to it to countryman's explanation of it as if it were fact when it really was just argument that the government should have supplied also later saying is there any better evidence of conspiracy that puts the government in such an advantage it's such an  level playing field because the government agent which this court and many others have referred to the authority a government agent has sort of almost inherently even despite an instruction that they shouldn't weigh it separate  differently whereas the defense is left as luck with that interpretation it's very difficult to challenge an interpretation especially in closing when that when the case agent has already back to the to what was there an objection of the issues that we're talking about and to rule seven to one and two what was there not an objection first let's start off with the uptown good afternoon may please the court on pocus on behalf of the united states i want to take issues in reverse order just as they heard them but first i wanted it make sure it is the court clear were in agreement i guess on the standard review for everything because ultimately it doesn't make a difference i think to the resolution of the case but my oral presentation presumes plainer for everything wow ok the only reason i had so let me just be that there were some blanket objections that the i think both of those would for a district court raise the problem that there's a problem there so let me just address that if i can and if i could just add to that i mean there were a number of cases cited by your opponents and you know garcia green eyes the a host of cases and you only cherry picked on one which is slade from d c circuit back in  hundred there's many many since then and you didn't even touch them garcia for example well i was actually working on it trying to get under twenty six thousand words i was trying to get a word limit low enough that i thought the court would accept my brief there's a lot is that i didn't say wheeler even though it's great i'm not i'm a pushover somebody asked me for extension of yeah words i would only vote in favor of it so i know if i can there is no there were so many cases that they cited right and yet none of them did president who was testifying that a rape that occurred on the property was on preventable but he had no percipient knowledge whatsoever so everything that came out of his mouth was necessarily an opinion of some kind so when a court hears objections foundation speculation hearsay and it knows it's only hearing opinion then i think it's pretty easy for the court to understand the lay opinions of what's being targeted and that's what happened in the district court in her first but in here the two witnesses who are for the lion share the lay pinion testimony countryman and francis had significant percipient knowledge and interspersed with that were lay opinions so that's why the consul had to make clear it was elected it was objecting to something as a lay opinion to alert the court and us and a perfect example that is page two ninety one of this record because there you can see the key scalpels cross examining her francis about something countryman did well mediately da usa says objection hearsay thinking that this  times for watson that enough because they said well i don't know if that's necessarily and to personal knowledge or to the opinion it's so for example a well so you're going to be coming from on that in the end this is maybe a good segue to the merits and when is it speculative then the judge is going to say please first prong is just the rational basis and that's experience personal knowledge and then personal knowledge is the second prong of that well i mean if you look at what judge reggie wrote in garcia it looks like it's somebody that's right there maybe somebody doesn't bedded or you know the closest i think you can come is officer cata reno was in the homestead area for ten years and they knew the area fairly well but he didn't interact directly for the most part with the members of the so called uptown gang well he said he knew the harris brother since youth football that was any test will you put up did he say there it's a drug gang no he didn't he was not asked that question in fact we never ever listed that it was a gang because that might was you know the clothing and the hand gestures etc be opinions about the drug part comes in through country men and francis but it but we have we just have these three defendants  here and some of them never really talk i mean the brothers never really talk to each other and the district court found that greg was in a conspiracy to hoax so if we don't have uptown gang being shown to be a drug gang that overarching conspiracy why do we have well the court found made that statement sentencing on the perp for the purpose of adjusting the drug quantity but it definitely did found that there was a least sufficient evidence to convict the mobile being the same conspiracy i mean if they had really found out why basis for agent francis's an officer to reno statements about the existence the membership the signals and the objectives of this uptown organization which apparently don't you don't want to call getting right well with it we didn't  it's so he offers the percipient piece where he he's the beat cop he sees this going on in the neighborhood he basically takes a city everywhere but the drug part little brant testifies very reluctantly that uptown exists it sells drugs when he's asked do you know how uptown packaged its drug page five o nine that's it i mean what harbor it was a bunch of leading questions were harbor stated which he's familiar with an organization known as up to him that uptown sells drugs i don't know where  quote and that the use symbol he believes is associated with up down right that's and and that's consistent with and then cata reno builds upon that some more because he has the clothes that he's got the photographs of the defendants wearing the clothes the stills from the videos where they are making the sign and he said you could hear aught of all references to uptown even though we weren't allowed to play the videos so all of that's foundation for that as far as the usefulness of it i mean you know last week played miami so it had that game occurred in pittsburgh you might see people wearing university of miami gear walking around in pittsburgh happens once every two years there are four it will talk about the game  while they photographed clearly showed that they were a gang for purposes of wrapping that they were a gang for purposes of selling drugs what was there to support that inference well it was then it was the phone calls at that point it's the the coded language in the phone calls and that's why we that you don't care all of those people that were pictured in that in the photograph in the video on the course you've got three here well we had trial we presented what we had of the three we had more but those guys became kind of irrelevant as they played out and  such so it's to streamline the trial we were relevant you've got to find a conspiracy among these three don't you correct yes and the verdict best evidence of that well the verdict your honor because the what the verdict and here's why  the fort harrison i say he's working backwards yeah yeah i'm sorry this is now going all over the place but so the verdict show that the jury found and hopes to have conspired it has distributed at least a thousand grams of heroin this stamp bags that the two of them purchased amounted to four hundred eighty grams thats it so even if you add to that the sixty three grams that franc testify to and multiply that times four for two fifty two you get something like seven hundred thirty two grams it's not enough no one ever asked that witness to explain multiply it times four and then multiply times four again one for each month he were only up on hope his phone for a month so that's brand new so the math doesn't get you doesn't get them there and as far as teeth and germany teeth in germany together had seven hundred and i want to say ninety two grams worth of stamp bag purchases if you had at multiplied the heroin purchases times four and added those two teeth to i'm sorry to germany's to greg's greg's conviction you have to show that somehow this is a group that's coordinating together in order to get those those numbers in your brief talk about the opposition to the help speak of page seventy six no twenty nine you say the law enforcement officers a fixed the uptown label in this case what do you mean by fixed i don't remember that honestly is a long brief i don't remember that sentence with a fix the uptown gave a f f yeah i x e d yeah just up but the rest i don't know the rest of the sentence are now brief i'm sorry i have it yet i will say in the officers were able to say you know cattle reno in particular was able to say this was the sign here's the street corner where you can see you know members of uptown doing the sign that's right in the neighborhood where this investigation occurred where he spent however many hours and then he has the stills and the social media photograph showing these defendants doing that what you're saying but no twenty nine is it's a long footnote more than your own statements and conduct it right that's right because so uptown is sort of a handy label for this association that you see happening among the defendants through the phone calls through sold on is testimony because remember she seeing them come in in pairs she was processing but possibly as was herbert well except he said he was familiar with the town so i mean it is a host of other inconsistences right right so but the bottom line is that is a handy label for the collection and the association in the relationship you see but if you take that away we still have the calls we still have the conduct of the defendants when you know we still have the the stamp bag numbers everything else to me before go on to the dough issue you know which again i'm saying the council can supply something within a week if they want to supplement the stash house isn't countryman's testimony about to stash out of step bags in the heroin packaging just like the testimony that was ruled inadmissible recently by a court in the jackson case the reason i think it's not is i think there is some code in the stash house testimony i mean they refer to as a spa day for a couple other pieces of code it's not dense code by any means but i will say the thing to remember is before countryman takes the stand we actually have an expert not not a late opinion person an expert named herb stro be l get up and testify that to the practices of hair of bagging heroin in western p a and stamp bags to code to even mention stash house that one point so countryman's testimony just plugs into that we never argued that there actually was a stash as we weren't able to find one i mean isn't that just really particularly damaging to for example greg in germany i don't think there's any more damaging than that if you just want to look at the phone call you talking about you know well over the hundred grand threshold if it's long as he's linked to hopes in any way and we have him back saying he's like making sure pooky is processing heroin for hopes and at least one other call so that one call is not the only thing linking him to hope's what about the dough identification so that and they dry you brought that up and i'm not sure what that issue is because this is the first time how do you have keith harris identified with other then the statement of one of the agents who else said that mr harris had a nickname but by what people call it was though well how we as i have to check i know some of the if the calls the actual call transcripts you can see them they refer to doe or kido or but they did they based on their general investigation and it drew a link between doe and keith harris but who said who gave the foundation that said that keith harris has a nickname of joe i'm truck i think it might have been country men and it's the way the foundation was laid was it was somebody who'd listen to the calls and knew what their voices sounded like and you can tell by looking at neighboring calls you know where even that call itself whose voices are on the phone well in your opposition brief you say there was sufficient evidence trying to conclude that though was that the name of keith but was that evidence ever presented to the jury to make the determination and you can when you get back you can add that in as i'm having a yeah i'm sure there was if i can find anything yeah ok don sure that there was because you know it yet if you look at the even if you circumstantial evidence if i have someone who recognizes my voice on the phone and they can hear other people referring to me by my nickname and maybe even me answering to that nickname i mean i think that's that's pretty direct that's not as direct is one testimony i agree i actually think something's wrong with it i don't think it's a seven zero one problem per se because to me when i looked at this it seems like the issues you have somebody giving a lay opinion based in part on a summary that's not coming in so as we know from eichorn when that happens the lay of the testimony has to satisfy both seven zero one and one thousand and six and i think the issue here is that as we know from the lynch case which i think your honors were on that panel this year the a summary is fine even if the underlying evidence that it's based on doesn't come in but it can't refer to information in the original and that's not in the original evidence and that's what i think the problem is with with asking that question of francis and getting that answer as it's a one thousand and six problem but in the wheeler case that counsel cited the same kind of situation there was opinion testimony that was arguably arguably based in part upon a summary that shouldn't have come into evidence that violated one zero six but there's not a proper objection on that not under what one thousand and six and there's no cross examination on that issue and we have kind of a similar situation here they cross examine him heavily but not on any extrapolation and we never act we never advance the extrapolation so that's another reason that that makes all of this harmless all right so i've only used about a minute and ten seconds are the other more blanket objections to anything in particular where there are specific objections as to any of the seven zero one but there was you know one of the the first two issues were preserved in this case so if we start with francis testifying to three weeks of calls that and made in heaven and there was an objection right at the moment and the objection was it assumes facts not in evidence and without putting those calls then that's an improper opinion to speculate on that perfectly preserves that issue as far as the uptown testimony right at the beginning of francis's testimony and up down there is an objection i'm going to object he hasn't made a foundation as to how we came to know this conclusion and what these conclusions were based on her you know the same thing as soon as you started testifying to the fact that individuals make this kind of a sign when you're a member of uptown  count greg harris's stamp bags from the other conspiracy so it's that's the key facts here are not in dispute and when we look at the two the first two the galician really the third is well the issue for a whole two is if there's an error and wisdom is there clearly is on these issues then when looking at the harmless error analysis the government has to show that there's a high probability that those errors did contribute to the jurors coming to a thousand grand to the jurors now counting greg harris against hoax or coming to a thousand grams and some other improper way so when we look at the uptown issue for case agents that there is a bridge between these conspiracies in the bridges up town they all belong to uptown these groups all work together and that's why you can count greg harris against hopes the problem is that agents testimony on that point that lay opinion testimony was completely improper and there was never any evidence to support it and yes there are some evidence of them working together but again the issue for a harmless error purposes is to francis's testimony and we think we all could this improper testimony about three weeks that all the courts are greed on you can't have an agent testifying giving opinions about phone calls that aren't even admitted to the jury a lot of the courts say you can't ball but they said the agent's improper testimony could have contributed to the verdict the same here i mean when we look at this again the issue is for the government's point of view they have to have great heritage drugs being attached to hopes this record says there's not even a promise of the evidence and then you have francis well how do they get to a thousand in this case against hope they didn't get to a thousand for greg harris which seems to indicate th five to fifty over the course of one month and then possibly start speculating as to the other months all on the basis of this improper testimony that never should have been allowed over objection thank you very much take you to all counsel for a is each side could submit if you wish by four pm a week from today a five double spaced pages as to if there's any other evidence in  finally we want to with thank our colleagues from the republic of georgia