absolutely honor thank you and may it please the court my name is matthew ratified and i am the appointed counsel for the appellant stephen blakeney in this matter i was not the trial counsel but rather was appointed by judge limbaugh for the purposes of sentencing and the appeal now there are seven points that mr blakeney would like for me to address in my argument and for the purpose of saving time please note that the relief sought in each point is to vacate the sentence set aside that conviction and either remain on for a new trial or grant blake nice request for a directed verdict and or a judgment of acquittal where appropriate now the first two points of mr blakeney as brief pertained to the same primary issue of whether or not there were substantial evidence presented by the government to which a reasonable minded jury could have found mr blakeney guilty beyond a reasonable doubt of conspiring with another person to deprive another person of their rights and deprivation of rights under color of law that's counts one and two of the indictment although the remedies requested by mr blake challenging the existence of a conspiracy there must be substantial evidence of the conspiracy and not slight evidence or a slight connection a conspiracy means that there must be in agreement amongst the conspirators a meeting of the mind as to the object of the conspiracy and it is apparent from the government's brief that there is no doubt that some odd the owner of the pine lawn market did not have a meeting of the minds with mr blakeney and had no idea what the object actions were but either he succumbed to blakeney as well however the government claims that the only well grounded apprehension that only well grounded apprehension of death or serious physical injury would negate stands can spiritual intent but blakeney would contend that sam was just not simply a reluctant coconspirator but rather he did what he did because he was faced with a fate that some people a say is worse than serious bodily injury and that is the lo of his liberty and the potential of sitting in a jail cell possibly with individuals he may have had somehow at wrong or had a negative contact with while he was working as owner of the pylon market that was a threat a threatening enough proposition that he made the statements he made not reluctantly but out of extreme fear the next potential coconspirator put forth by the government is mario some odd well let me ask you this or i think there was fairly clear that if you are coerced into the conspiracy if you are the one who was coerced that's a defense to being a coconspirator but is it also a defense to the conspiracy if you that if you are the person who are exerts the coursen in other words if you force two or three other people to assist you in your unlawful conduct can you can you core someone into a conspiracy and make him a and then and then you know all that sort of and then and then come back and say well there's no conspiracy here because i made them do it your honor i think that's exactly what the definition of a conspiracy is that there has meaning on the minds and has to be in a  blakeney had a meeting of the minds he know what he wanted to do and he knew that he needed these people to assist him and whether he got them in voluntarily or involuntarily does is that make a difference as far as boy he's concerned it may make a difference as far as the coerced people are concerned yes around i mean if they had a defense as to if they were charged with well your honor i think there are other sufficient charges under the united states code that would would take that  consideration but you can't deem it a conspiracy if it doesn't have those essential elements and components that need to be met i think there would be other things other things that where well were charged here but you can't call a conspiracy if you don't have other  who are meeting those exact elements in order to take part in the conspiracy did the district court given instruction beyond the sort of general complete spears you know destruction that sort of highlighted this issue or was it  was a very balloonists case file i do not recall a specific instruction where in a conspiracy was was defined any further than just the general conspiracy instruction but lock ford up right away isn't that enough that he would have known what the object of the conspiracy was well your honor i believe we have other arguments they can kind of go as to what so i believe the testimony of stated that he he had knowledge that blakeney was was going to use what occurred in that pylon market to to have her locked up but there are very also very different layers of individuals who had reviewed certain evidence that certain things that took place at that pylon market that would have also been involved in the making of that decision so i mean when you're think i mean i guess when you're being questioned by police officer i guess there overreaching possibility is that someone may eventually get arrested and i don't know if that's what sam was specifically testifying to or not your honor because he was actually interviewed by officer brock at the pond market and not blakeney and that was prior to them going down to the police station to be interviewed further however there was conflicting testimony at well he could have been a  joined at the pylon market and that contradiction is important because it cuts directly into whether or not mario told officer brock what he actually saw which means which would have been no conspiracy versus what he claims blakeney made wanted for questioning for disorderly conduct in stealing under five hundred dollars and no warrant was ever issued for ford's arrest as a probable cause statement would have been required which then would have been signed by a judge the fact of the matter is is that there is alleged wrongdoing committed by play county officer brock interviewed witness mario and april brooks at the pylon market not blakeney their statements corroborated what was on the surveillance video from inside the store which was views  by prosecutor gray who authorized the arrest or wanted forward prior to any alleged false report and made there was no evidence ever presented that blakeney told brooks to lie then when the police and prosecutor gray went to volt on a wanted and take her back to the police station to be questioned at some point this happens every day in st louis exactly in this manner they had probable cause to question her some time within that twenty four hours and then a prosecuting attorney not blakeney makes a decision as to whether or not charges should be issued against her and lo and behold miss ford did have charges issued against her for her actions that day in the pylon market but she didn't take it to trial and professor in a sense rather she hired an attorney who got one of the charges dismissed and then the other one was amended and she paid a fine so to be perfectly clear the rights mrs ford was allegedly deprived of she was actually charged by someone other than blakeney with those offenses and ultimately pleaded guilty to an amended charge steven blakeney was convicted on count two for the six hours that mrs ford sat in a jail on the wanted for questioning for charges that she was alternately charged with and then plea bargained away for these reasons blakeney his motion for directed verdict on count two should have been granted blake nice third point on appeal is made in conjunction with his pro se motion to this court to supplement the record on appeal to allow for the submission of former pine launch police ricky collins is at the david which states that a police report in pine lawn was not a final approved report without both the reporting officers and the approving officer signatures the reasoning for this request is that blakeney allegedly falsified the pine want police report giving rise to the charges in count three of the indictment however that document submitted to the jury at trial was an unsigned int on original copy of their arrest report of ford the issue with an unsigned copy of a police report is that is not the final approved copy now trial counsel failed to object during trial so blakeney is in this court to review for plane air as this affected blake substantial rights and seriously affected the fairness of the proceedings surrounding count three in order to get over the hurdle of affecting substantial rights when you have to come forward with some kind of evidence at this point to show that what the signed copy is different than the signed filed copy because if it's the un saw and it was exactly the same as a sign that was kind of no harm no foul seems to me you have a real tough time getting norm and your honor i believe in there and  from my client i can tell you my understanding of that is that i have never seen i've never been given a copy of a final signed report that is the issue so we can't we can't show you that there is a difference between the final signed copy and the copy that was introduced at trial because to my knowledge from my client there is no final signed copy and it would have been an unsigned copy that went to the prosecutor right and it's my understanding that that is correct your honor why would make any difference in the case then because your honor if it was a copy that went to the prosecutor then mr blakeney defense of i never falsified that document because it wasn't a final approved copy that i document the record is that police report had to be falsified is the same thing is and wasn't to be falsified versus an actual document i mean he knows the police reports going to be prepared he assigned somebody to prepare it he provides the false information that prepares and it goes to the prosecutor but then my understanding your honor is that when it all to me goes to the prosecutor it is the final approved copy which didn't occur so you can't have a possible case of a document if he didn't sign the final document a case that says that no your honor but actually the government the only case that they have the ability to rely and that they've relied on was a fist circuit case united states versus yasmeen that that state that relevant evidence submitted without objection made properly supported verdict so far it has probative value even though its exclusion would have been required an appropriate objection so your honor if you're talking about i bring forth that case because i don't think there is any case file out there that says that anything about a final approved copy of the police report is isn't until both officers the approving officer and the writing officer sign it that the case doesn't exist however that necessarily the report that was approved by blakeney officer brock testified that in the normal course of pine lawn proceed or it was typical for officer blakeney or mr blakeney to to approve his reports but there was no evidence  that document was actually signed by blakeney other than that testimony of rock which i just stated but but that case so that's brought up united states versus yasmeen by the government that's exactly what plane air review was meant the evidence exclusion would have been required upon a proper jackson then how can reversal not be granted the best evidence here would have been the final approved police report signed by blakeney as a supervisor but there was none and without that the government cannot prove beyond a reasonable doubt that the falsified any police report we would ask you that you allow blakeney to supplement the appeal record with the afore reference affidavit and without this improper police report evidence there is no grounds for the charge and count three i'm blakeney swarth point on appeal he argues that the district court committed plain error in allowing samsam odd to testify as to hearsay statements regarding former mayor caldwell without first establishing that there was any conspiracy between thereof is very prevalent in this point because the government specifically told defense counsel and the court during trial that the alleged conspiracy in this case was between blakeney and the store owners and managers however even with this affirmation the government still listed statements from their witness stand that contained hearsay statements from caldwell and this came after the government prior to trial sought to limit the amount of evidence defense counsel could get into regarding caldwell two with the district court agreed yet the government brought in sam to testify in this manner regarding cal the appeal this court would review dunno whether the government unconstitutionally commented on blakey's failure to testify and then the court would review blakeney requests for a new trial for abuse of discretion now even indirect references to a defendant's failure to testify are prohibited if it's a prosecutor's intention to highlight defendant's failure to testify or that the jury would have naturally understood them to be a comment on the defendant's failure to testify the government in their closing arguments brought forth that the defense counsel failed to bring forth evidence that was listed in his opening statement in the government probably should have stopped there however they continued to comment on the fact that this evidence was not contradicted by anybody and only blakeney alone would have been the individual who would have contradicted that testimony which thus is a comment on his failure to testify the court's instructions on how to treat closing arguments did not alleviate the prejudicial effect because it's the government's argument that blakeney asserts as air and not the evidence as failure to testify for a defendant is not simply evidence so next this court must then examine whether that comment then it will out this comment it is clear beyond a questions that reposed by the jury during their deliberations which we feel were not properly addressed by the district court and they should have been properly answered mr blakeney was not in the courtroom when the jury was asked a question with or not there were any trial transcripts they could have several of the witnesses spoke english as a second language and we don't know whether or not they're sure that we had any problems understanding or had met possibly misheard what they said and mr blake and you had a constitutional right to be there to object  to the court's instructions thank you good morning you may proceed thank your i mean it please the court i'm going to miss reginald harris i represent the government in this matter in this case the government proved beyond by competent evidence and beyond a reasonable doubt at trial that the defendant abused his power as a police officer by engaging in a conspiracy to falsely arrest and keesha ford who was the opponent of the then mayor at the time and then causing the and of a police report regarding better arrest on behalf of the government i'm asking this court to uphold the jury's burdick's and to affirm the conviction on each of the three counts of the indictment because the government produced  t evidence for the jury to find the defendant guilty beyond a reasonable doubt and because all of the district court's rulings and the responses about which the defendant now complaints were proper starting off with the first point of error that the the that the defense ranges here on appeal the government produced more than sufficient evidence to prove a conspiracy in this case it's important to start with the standard by which this court evaluates the evidence  the court has to view the evidence and in the light most favorable to the verdict resolving our conflicts and accepting all inferences that support that verdict here the government have to prove the existence of a conspiracy conspiracy the defendant suggests that there was no meeting of the minds i don't think that the meeting of the minds language is very helpful here we know that there was no requirement the laws that there's no requirement on the part of the from the facts in the case from the circumstances and the inferences that can be drawn there from that such conspiracy was in fact proved and i think if we go through some of the evidence in the case that was put before the jury we'd reach the you have never named the mayor as a coconspirator until final argument no the first off the indictment itself while it doesn't suggest the mayor's name in particular the indictment says you know a conspiracy between the defendant and ackerman and others known and unknown to the grand jury and i would note that even before we began picking a jury in the trial the trial counsel for the defendant at the time state this particular matter it's my understanding that potentially one of the conspiracy one of the conspirators would in fact be mayor caldwell so i do anticipate at least in our handling of the information that we would be referring to him in his capacity as mayor and the things that he did that maybe were erroneous or improper i anticipate that our evidence will show that the mayor was driving this as opposed to our client mr blakeney so even before we started picking a jury in the case i mean it's clear that the defense attorney at trial knew that the mayor was a potential conspirator in the case the discovery that was turned over also includes the statements that are some of the statements that are at issue in i believe it's point four here on appeal that go to mayor caldwell's involvement in the conspiracy so there was no ambush there was my who was the store manager sam testified that the defendant is the one who made him call nine one one and make the false report sam testified that he did in fact do that in the report was false in the from from city hall when in fact the sign was brought to the store by the defendant and placed in the store so it was false in both of those regards and he in so why would the source of the sign matter where it came from why would that matter well i mean that's just one of the that's just one of the things that was false about the report in fact that sam stop that doesn't have anything to do with whether the the poster was taken improperly well but if that's the basis of the arrest is not that's correct although sam some also testified that one of the things that mr blakeney and mr caldwell told him to say was that he got the sign from city hall and so i think that that sort of it colors or it it helps us understand the totality of the conduct in this case but the key is he was told to lie about whether he gave her it the campaign or well i don't know that that was really came up in the trial or was an issue at trial but the the store owner when mr blakeney came to the store and saw the sign was no longer up the store owner mario tolly testified that he told mr blakeney that she had permission to take the sign down and that she did not in fact steal the sun also the video surveillance of were coming to the store shows her calmly taking the sign down not ripping it down and running off but taking the sign down speaking with the owner for a few moments and another person who was there and then  leaving the scene so those are some of the some of the things that that show will and let me just go a little further both samson and mario testified that when they went to the police station to give their statements to the police prior to going into the interview room for the recorded interview they met with the defendant in the hallway each of them separately which time the defendant told them what they needed to say in the interview room and the east testified that what he told them to say was untrue but they were lies well you to the fact earlier that  only way that the this idea of coercion or door dress can overcome conspiratorial intent or the intent to commit a crime would be that if it be coercion or the course of conduct rises to the level of a well grounded apprehension of death or serious bodily injury i mean in this case there was clearly no apprehension of death or serious bodily injury i think that goes to the i think that goes more to the if you had charge d with with if you would charge sam surat with conspiracy then he could raise that coercion defense but i'm asking about the underline requirement that there be and agree on a criminal agreement and can you have coconspirator i think he had opportunities to say no i'm not doing this i mean that he was around officers for much of the time that this happen either at the police either at the store or at the police station and even when officers came to investigate this matter the prosecutor came as well so he had opportunities to tell police he had opportunities to tell the prosecutor look this is not right you know he's making me do this you know i don't want to do it but he didn't do that instead he went he went along and and did what mr blakeney directed him to do and i think that those things show that he was part of the conspiracy and i would also suggest that i think that it would be i think it would be absurd indeed if the result was that the defendant could could you know strong or force someone to do his bidding and then say well you defendant prior to going into the interview room and that he also agreed to law in his statement to the police so those are other indications that that's other evidence showing tacit yes and i suppose back to you to counter the argument the defense counsel make you could say well a defendant doesn't get to pick and choose the charges the government is going to follow i would agree with that your honor i think that's there's testimony that he was even there in one of the meetings prior to one of the some odds going into the interview room to provide their statement to the police i think that those that those comments a sufficiency of the evidence of conspiracy i think that they also that those that the evidence also shows that there was more than sufficient evidence for a reason widgery to find beyond a reasonable doubt that the defendant  was guilty of count two which was the deprivation of the rights of nicky for this idea that there was independent probable cause to arrest him a sport i think misses the mark the suggestion not that's just not correct because there is no it really is no evidence of what those statements were and we can't rely on the police report i don't believe to evidence of what these individuals told officer brock when they were when he interviewed them because that police report is exactly what the jury found falsified in this case and i don't think we should be looking to that brock when he came to the store to investigate but despite all of that aside from all of that we know what's not unclear is that the defendant is the one who knew the truth because he said it all in motion and that's what the jury determined after listening to the evidence and assessing the credibility of the witnesses he knew what the truth was asked of the thirteen i read the briefs i said you couldn't make up i agree with that i agree with that it was such an earthquake in crime that they had to risk this woman on easter sunday night at home while she was there with her twelve year old daughter i suppose the very foundations of the republic of pi and law been admitted because it violates the best evidence rule and of course as they point out that there was no objection in the trial court and so this issue should be analyzed under plane error analysis now the best used unless the rules provide otherwise and the rules do provide otherwise it's the very next rule rule one thousand and three which allows duplicate to be to be used in evidence unless there is a genuine question that's raised about the authenticity of the original or unless the circumstances make it unfair to admit the duplicate neither of those two circumstances were brought forth in this case there was no question raised in of the genuineness of the police report and there was nothing unfair about in admitting the the exhibit in trial the the defendant is asking this court to  accept and consider the affidavit filed by one ricky collins who purports to be the one time chief of police in pine lawn but ricky collins was available to testify at trial and they could have called him then it which would have given the government an opportunity to what it is he's trying to say in this affidavit and would have given the jury the chance to assess his credibility but none of that happening i don't think they can after the fact  try and and and put evidence in front of this court which was never brought forth at the trial level i want to move the amount of time i have left to the closing argument that was made in the case which is complained of here the comments about which the defendant complains that were made in closing argument in no way addressed his failure to testify the comments that issue are set out on page thirty seven of the government's brief and these were comments on the failure of evidence supporting the defense theory in the case not on the defendants they are to testify the defendant introduced a theory in its opening statement that it was anthony gray who was the pylon prosecutor at the time who made the decision to arrest in this case and that the defendant disagreed with that decision and that the defendant should issue a summons as opposed to going to her residence to arrest her and they pressed this theory when they cross examine two of the government's witnesses which were officers brock and lawson now the government was pointing out the failure evidence to support that defense theory and i think back if you look at the spander review which is an abuse of discretion here you have to find at the court abused it discretion in overruling the government's own overruling the defendant's objection to closing argument that is just not there the court did not abuse its discretion because as i stated those comments of the gun that were made in the government closing argument went to a failure of the evidence to support the defense theory again i would ask this court to uphold the verdicts in this case that were given by this jury and to affirm convictions thank you very well thank you leave defense counsel used all his time very well as the case is submitted and will take it under consideration