good morning may please the court my name is kevin carlson counsel for darryl reynolds with me today is mr cody reeves mr reeves is a third year law student at the university of michigan law school of law students on brief on this case and he will be arguing this morning may please the court good morning my name is cody reeves on behalf of defendant appellant daryl reynolds i'd like to reserve three minutes of my time for a bottle please your honour's the government is prove its case in a way that should never be allowed in any american courtroom and out of court witness was able in essence to testify against mr reynolds though the government failed to either produce him a trial or to preserve the testimony by deposition because the court a lot of police officer to report his testimonial statements directly implicating mr reynolds in the crime charge if this court affirms it will create an end run around the confrontation clause effectively allowing prosecution witnesses to testify anonymously by speaking to police officers out of court leaving the decision of whether to subject these witnesses to confrontation entirely to the prosecutor's choice at issue in these kit in this case your honor two statements by ops are ferrous the first statement is review because counsel objected the second statement plain error because counsel did not object i'd like to go to the first statement which was that officer had received information that mr reynolds was selling illegal narcotics  out of state statement that you're talking about yes your honor a statement directly implicating mr reynolds in the crime charge what makes you think it was offered for the truth matters that there's another obvious purpose is offered to explain both under a plain error standard found that similar statements violated the confrontation clause in cromer case in this court in two thousand and four there were three statements issued the government addressed statement one in statement three in its brief but did not address statement to which is the one that is most analogous to the statement in this case and the first statement was that a particular residence thirty two eighty four buchanan was a residence associated with selling drugs the court held that statement was find it was background information to explain why they obtain the warrant for the residence however the second statement tied the defendant to the drug residence and said that he frequented the drug residence and that was not ok the court said it was not background testimony because fine the residents as mr reynolds reza however we also have the statement in powers where this court held that testimony about alleged prior criminal behavior was not necessary to set the context of a sting operation they're the under plan ar standard again a police officer testified the defendant was a well known cocaine supplier in the city of detroit the court said that this testimony about alleged criminal activity was not necessary to set the context for the jury and it also  charged with in this case it's unlike the statement about that you can in residence because the residence was not on trial that explained why the officers went there and took the action they did however tying mr kromer specifically to the residence went too far  informed the jury that someone had implicated the defendant in the illegal activities which is critical here because there was no other evidence showing mr reynolds directly distributing narcotics officer farris admitted as much in his testimony and in so your honor directly implicating mr in the crime charge when no other evidence showed him handling holding or handing over narcotics proposition an opinion by this court unpublished in two thousand and eight but if the court were to adopt the government's proposed rule based on pew then it would allow clever attorneys to elicit testimony passively in other words they could do what they did in this case say i had received information that x occurred or when a statement directly stating who the declare it was declared ex told me would violate confrontation clause and so just by eliciting the that it's whether a reasonable person in the declared its position would anticipate a statement being used against the accused in the investigation prosecute the crime that's not an issue related issue here whether this is an out of court statement and whether this was offered for the truth of the matter confrontation that mr reynolds was denied here he did not even know who indeed he would need to cross examine based on this statement and we think that relying on on pugh for this not being out of court statement would truly a visceral at the confrontation honors it was critical to the courts of terminations that the testimony explicitly albeit not directly informed the jury that someone implicated the defendant in illegal activities that's exactly what we have here where no other evidence pointed to mr reynolds holding handling or handing over narcotics  there yes so the second statement is actually two statements so there was one that the residence was mr reynolds residence and the second part of that statement was that other people in the community had told officer farris what was going on  honor on the third statement part of the community day yes your honor it very well could be invited the first statement however was not invited and it is the most damaging statement in this case especially where officer faris admitted that nowhere on the evidence in the evidence do we see mr reynolds holding handling or handing over narcotics when the government charged distribution had charged conspiracy somebody  however that's what the got what the government's evidence operated trial was right yes was that it was mr reynolds who was conducting this transaction he was describing the nature of the pills no on the video do we see him hand over the pills  also hear to one point see him speaking yes so you could identify him as the source of the voice you wouldn't have otherwise that was his voice correct the the jury never heard mr reynolds speak he did not testify in this case officer ferris's of videos yes obvious affairs his voice identification was based on his arrest of mr reynolds and his dislike of the jury of made a voice identification from seeing reynolds talk i don't know your honor that we ever see on the video mr reynolds speaking i could see how you could say that but when i looked at it it looked that six minutes and thirty three seconds like he was speaking yes it was just very brief but otherwise he's eating right he's eating but at one time the voice is his when he opens his mouth and seems to be saying that so a jury if there are as reasonable or unreasonable as i say that's evidence that a jury could almost certainly would believe there's certainly have been through your honor i would i would say no there is evidence that he's sitting at the table miss henson leaves the room and comes back we see him eating at one point in the video we never see him officer farris admitted as much we don't ever see him holding narcotics we hear him discuss the narcotics if that is indeed his voice but the counsel for mr voice is what i'm saying then there is a sure end but whether that would be enough without this statement we think that's the key your honor we hear him discussing narcotics we hear him talking about them but we never see him and in the over and with out this initial statement at the outset of officer ferris's testimony that someone whether it's a confidential informant someone told law enforcement that mr reynolds had distributed narcotics he was selling them and so without that statement i don't think that the jury gets to a point where they convict on distribution again maybe conspiracy to distribute the fact that he was in the room while this was taking place but to say that he distributed that he transferred the narcotics based on just the boy said invocation we're not sure that the that the jury would have got there your honor  order not to get there they would have to suspect there was something else correct in council for mr reynolds pointed to parts of the video where it sounded like that mr franks was saying hi robert or hi rob and the government said he was saying hi mom which was a nickname of chatty henson and if i may just finish finish answering your question and so on the tape your honor we on the video we pointed to a number of places where we thought mr pole was there and indeed i think it's telling that in the first video big jury saw off kevin franks on his drive to mr reynolds house and heard him talking to linda poll on the phone robert posed wife who he busted for drugs in making out this wasn't a fiction of his imagination this is someone who was real whose wife was dealing drugs who also conducted a controlled by with mr franks after that after this in the same the same month in january  may please the court greg rosenberg on behalf of the united states the district court to not interfere with respect to its evidentiary rulings or instructing the jury in this matter as we've heard from the  appealing to challenge to test pieces of testimony from officer faris but neither one implicates the rule against hearsay or the confrontation clause because neither one was offered for the truth of the matter asserted now the appellant has offered a bright line rule for distinguishing between permissible mere background and the testimony that's offered for the truth of the matter asserted and the appellant's rule is that if the statement or testimony at all implicates the defendant in any sort of illegal activity it must be offered for the truth of the matter asserted while these type of bright line rules have a certain appeal to them it's simply not the law what courts actually do here is they look at the factual context and pay attention to three important factors one would be is there reason for the government to have to set the background or set the context the second is does the testimony establish an element of the offense charge and the third factor is was this testimony a significant portion of the witness testimony and relatedly did the government subsequently rely on that testimony now in this case with respect to both sets of testimony at issue on all three of those factors they all counsel towards finding this that officer fares had information the defendant was selling the legal narcotics there was a clear reason why the government needed to provide this type of background or context setting here the entire theory of defense from opening argument through cross examination and closing was that the government and the confidential informant mr franks had basically conspired to set up mr reynolds when the true culprit was robert po so when you have this sort of theory of defense and i think the united states versus silver case cited by the defendant in its opening brief goes to this very point that kay says yes the  government can introduce this type of context or background information to show that it didn't have some nefarious purpose it wasn't out there meddling in in people's lives and in targeting this person there was a reason why they were investigating the defendant and so that's exactly what we have here the second point establishing an element of the offense i think the court should take special note of this because i think the government defendant's rule is far more broad he suggests if it's any sort of illegal activity mentioned in that testimony it must be offered for the truth of the matter asserted but that's not what the case you know looking at united states versus gibbs is a good example here in that case the confidential informant that statement which was specifically attributed to the confidential informant in the testimony was that the defendant had long guns in his basement bedroom now clearly this implicates the defendant in some sort of a lead activity but the court nonetheless found that this was mere background not offered for the truth of the matter asserted because in that case the defendant was charged with being a felon in possession of a pistol not a long gun so if in gives that you know which i would argue  is much closer to implicating the defendant in the elements of the charge defense then what we have here if gibson is permissible as background information so too is the testimony here i think it would perhaps be a different case if what was charged was you know an ongoing conspiracy to distribute hydrocodone because then you could you could say well past drug dealing activity could be evidence of an ongoing conspiracy and the defendant's connection there too but that's not what was charged here here what was charged were two specific dates of distribution and on the second date also possession of a firearm so what the defendant had done in the past with respect to drug distribution could not establish any element of the offenses charged by the government then there's the third factor was this a significant portion pieces of testimony the witness did not return to it and notably the government never mentioned it again in any questioning of any other witness or in its closing arguments so one would think if this were so important to convicting the defendant that the government would refer to it in its closing argument but there is no such mention of that i given gibson is instructive on this because in that case there was a reference in the government's closing argument to the out of court to confidential informant and even with that one passing reference in closing arguments again this court held no it was not offered for the truth of the matter asserted it was permissible background so once again if if gibbs is permissible side of the line so to must our case beyond that on the permissible side of the line i think united states versus barry scott provides a good contrast there the government in closing argument highlighted and emphasized the out of court to clearance identification of the defended in the crime charge so in that case  yes that's not mere background that is being offered for the truth of the matter is certain again i think united states versus warman is another good example because it has testimony on kind of both sides of the line the court noted that the were multiple statements from about the f b i s investigation into this outlaw motorcycle club and the defendant's involvement with that organization and that was fine that was mere background what was not ok was an out of court to clearance statement that the defendant had supplied narcotics to the outlaw motorcycle club drug conspiracy because that was the offense being charged in that case so again you see the you see these factors being applied not a bright line rule but at least three sets of factors all of which weigh in favor of admitting this testimony here now  with respect to the first statement that officer fares had information the defendant was selling illegal narcotics in addition to that statement being mere background and not offered for the truth there's a second re that it does not implicate the hearsay rule or the confrontation clause which is that it doesn't even put before the jury a statement of an out of court declaring to begin with i think united states versus p u establishes this in that case the officer testified that he was given the name of walter pugh as a possible suspect the court said in addition to that being mere background information it didn't even put before the jury a statement  of court declaring so if you don't even have that first kind of fundamental piece of a hearsay violation you don't violate the rule against hearsay and you don't violate the confrontation cla have two grounds nominate challenges one is that it's hearsay and the other is that it's propensity evidence under the rule that prohibits and so anything wrong with doing it under hearsay maybe thinks he has a stronger argument under hearsay well by definition it isn't going to the elements of the defense it's going to some other fact is there anything wrong with with with the defendant attacking it on hearsay  grounds of the fact that it doesn't go to the elements of the offense you see them saying some things are going to be relevant facts that don't go to the elements of it's i would i think that if the argument is  really one of propensity one of character evidence then the objection should be made on that ground should be able to do it on hearsay grounds wrecked it seems hard i mean if they have too strong maybe it's clear hearsay all right  me that he had a propensity to be able to throw that out on the propensity grounds without saying well that isn't offered to show the elements of the offense and therefore the hearsay ground is gone and you have to win or lose on the basis of the propensity should i mean that i don't think i don't think the defendant would be forced into that choice i don't think anything's said he should have to do it the other way but i don't think anything would stop him from making two arguments in the alternative to him but what should stop him from making one of those t but your argument sort of does because it's as if the hearsay objection is based on a fact that doesn't go to the elements of the offense than the hearsay objection lucis right now you see what i'm saying i think yes you know and it's kind of unremarkable that an argument on one grounds may undercut an alternative argument that you put forward i don't think anything stops the defendant from forcibly putting forward both those arguments and the judge is well equipped to consider those arguments independently saying it so your argument seems to undermine one of those two very you can't make it hearsay objection to some fact that doesn't go to the one that's of the crime i think that it goes to something by the defendant below was adopted from the conspiracy instruction your honor is correct that there's similar mere presence language in aiding abetting there's also mere presence language in actual versus instruction this requested instruction by the defendant essentially would have created more confusion than clarity and the district court had a import rounds for relying on the definition of distribute to inform the jury on what they would have to find in order to convict on the two distribution counts the definition of distribute says the defendant has to deliver or transfer the controlled substance and there's simply no is no basis in the record to believe that the jury mistook delivered for something that could be confused with mere presence i think the briefs lay out why mere presence is relevant when you're talking about possession offenses but because it draws that line between constructive possession and mere presence or joint possession and mere presence be don't have that issue when you're talking about distribution and so i think the reliance on cases that charged possession with intent to distribute are in apis it here because in those cases i your honour's i want to go directly to the three factors that the government laid out that they said it in and con contrary to a bright line rule the court looked at these three factors first whether the testimony was to set the background we see in powers that a statement about prior criminal activity was held was was held by a competition was under a plane or standard second the government discussed whether it went the testimony went to an element of rendell i received information that mr reynolds sold drugs yesterday that would not violate the confrontation clause because it doesn't speak to the direct act of selling on this day i don't think that crawford supports such a fine reading especially when someone's constitutional rights are at issue third whether it was a minuscule portion of the testimony contrary to the government's brief in its argument today the government relied on the statement the second statement that it was mr reynolds residence multiple times on page ideato one to eight ten during the closing arguments and so he did return to it and to the point that was brought up when i was first up here in  it over in the building where he was the whole time your honor we think that we think that whether it was mr reynolds house or not gives some weight to whether he was indeed selling drugs there or not if it's not his house maybe it's less likely that he is sitting there selling drugs out of this house that's actually not his and indeed officer farris admitted that he was not really sure whether it's mr reynolds house or not that would seem to be helpful to  and that was elicited on cross examination but it's still that was something that the government returned to in closing argument several times he stated that officer gave the money of the home in those videos we believe you are that it was believe so your honor and also with regards to whether it's an element of the offense charge that's not cited in any case law as a factor in it because again it makes no sense it would require someone to speak about future conduct you will see mr reynolds frankly all of that seems to me to make something that is really simple overly complex i mean the court should go first whether it's offered for the truth of the matter fact at this statement that he was selling illegal narcotics directly implicates him in the criminal behavior charge not that it's an element of the offense charge and that it could only be offered for the truth of the matter asserted to establish when no other evidence did that mr reynolds distributed narcotics and for all those reasons we respectfully ask that this court reversed the decision of the district court and remand the case for a new trial thank you we thank you both for your argument