raised during trial two separate points and i also while the letter with the court seeking what happened here your honor is that mr davis filed his brief first and extensively brief the  client mr macon was charged the two main charges were conspiracy to to possess with intent to deliver a controlled substance and then the nine twenty four c there were some  john cho telecommunications and further and so a conspiracy charges that it was a very long conspiracy chariot from october of two thousand and ten until march of two thousand and thirteen wh separate from the video the video was a real problem so raises a different issue onto itself yeah absolutely i think that i think yeah i think they both or the admission of both of those pieces of evidence  when james murder evidence was an entire morning the entire morning of december second two thousand and fourteen for more than three hours they put on multiple e mails between the two very brothers their girlfriends coconspirators they put on they put on text messages all talking about that murderer so the jury and one of the text messages the graph friend says to mr conspiracy right so so my question is how was the evidence that there was in fact a weapon used in the shooting in a murder each additional shooting indicate this was for seeable every every shooting is not to live out the last shooting it's an additional point that shows this was for seeable cuz it's happening all the time you well i think what all she said that the government is allowed to put on their best evidence of the particular whatever point they're trying to prove what we have here your honor especially with regard to the video not being necessary is that do something different you had three hours you had absolutely three hours of testimony of playing recordings in which it was a stablished ad nauseum that mr military shot and killed take when jane some of the evidence coming from his own from the from his own mouth so with regard to and then and then when they went to play the video the four defendants all agreed that we would pulled into the four or three analysis there was so much there were there was so much evidence there that the government contended showed that as your honor said the government's intention was to shootings happened over and over and over again so that by the time that you got to this really really prejudicial shooting this murder at the end of the conspiracy that's where you go into it was needlessly admitted because they are they already had all this other foreseeability point under pinkerton is you've got to show that the acts of your coconspirators were something you could reasonably forsee how can it be cumulative to show that this happened repeatedly not just once or twice or three times does it every single shooting add a piece of independently significant evidence as to the forseeable of the use of gun violence in connection with the business of this criminal was not been for the rights of the ends of the conspiracy but to say it but that's a different argument than to say it's cumulative cuz holy smokes how many shooters do we have to hear about that's the argument you seem to be making now and and  my question few is since pinkerton is directly in play in reason the foreseeability is the issue doesn't every shooting have independent significance yes ok yes i do agree with that your honor in this case however evidence that was presented the problem in this case is this alleged conspiracy that and i can see that they've heard of a conspiracy the conspiracy the drug conspiracy that they've proven i can see from the beginning that there was a truck conspiracy i argued whether or not they prove my aunt was would show that he was a dealer or that he was it in force or he came up and said yes terry davis is in a force or for this guy however i presented in my closing argument i did a slide of every actor violence every shooting that took place in the shooting you could see mostly very shoot type with the names and we greet the stipulate to the fact that he was shot in the head and he was killed and we already heard other evidence of it now but that picks this way to the old point right that yes  broadly speaking yes what's your pushback on that the pushback is what we addressed the trial court regarding yes we argued that the showing of this video was unduly prejudicial that the only reason that they were showing this video was to arouse the emotions of the jury they already had other evidence of the shooting there was evidence in regards to their text messages their recorded conversations of the darts regarding the shooting but everyone knew the type when james was shot and killed there was no completely a four three argument because as we placed on the record after the government was done putting on their case when they played that video there was a guest from at least one of the jurors and we put that on the record and that just supported our position that the reason that that video was being played was to draw some kind of emotional response from the jury it was unnecessary given all the other evidence that they presented and i think it was an hour to allow that in and the judge even makes no sense and that's their yes is it ever that extremely prejudicial is you want the jury to consider the evidence now aside for just a second about that because i've included in the record i watched it it is a terrible thing to realize that it's a security camera video that you know this is a hollywood special effect had blown off kind of thing it was it's it's a terrible thing to see but it's not some really graphic gruesome thing in the room the way you know v or movies that's a real person losing their life right there on that screen i am more than great but is that that somewhat grainy security cam video really so prejudicial that it calls into question the verdict in the face of what everybody agrees is a lot of testimony in fact the argument here is cumulative testimony so much testimony that's over the top because young's testimony at trial differed from his prior statements and if we didn't have th right but my theory is if they want to have seen a video of ben there's unduly prejudiced that they may have second guess what the same because originally with when he gave his first two statements to the government he said he didn't really know my client he didn't have anything to do one weeks and the issues that have already been stated with regard to take when james murder obviously i agree with the other issues that i had ra shooting scene at four thirty six sort of envied what they called the back marilyn section of atlantic city and that that particular detective had been allegedly advised by the prosecutor's office a by the by the u s attorney not to testify to it and the first thing out of his mouth was a reference to the head stamp on the cartridge twenty two crutches that was recover said that the jury didn't even get away with that i mean if you read that transcript how exactly they were they were there was a syllable uttered and stopped right sorrow as well as my client because these these women that we had i think sixty witnesses this case and and each of them allegedly most of them with the exception of one section of kareem young were all and you've been able to identify two instances where something the real eat you clearly a man who's been in those ways round courtroom you handled this case as you pointed out you're on top of this thing i mean that's  in literally every incident of evidence that was presented by the government with respect to the eleven violent action shootings a comparison between  searches of every other associate of the caldera organization with respect to every incident involving trips to the shooting range the tropicana of pulling money to buy quantity supplies of heroin at lower cost there was absolutely no evidence at all that any of any of this tainted green valley and as this relates to my argument with respect to the appeal of the lower good under four or four before you before you before you were three the district court ruled that it was both intrinsic and the government's urging that it was proper for were via that's so i put it to you is it intrinsic there were no other people involved in that incident that were ever subsequently related were involved in that area organization it was a very isolated incident that pertained only to my client it client's connection with cocaine even kareen young the cooperate in witnessed it made it during his testimony that during the first two or three offers that he had that he had with the government the information he w made by your opposing colleague here is that we've got pinkerton liability in play for the use of the gun violence that your own clients use of guns in connection with drug dealing  wrong because your honor i don't think that there is a sufficient connection in the evidence he's using guns in connection with cocaine dealing a month before the start of the conspiracy but that's but it doesn't go to his knowledge and appreciation of guns in connection with drug dealing in your mind it does and certainly that's you know he was in i mean he had the gun at the time of his  independent acts of crimes of violence and gun violence that there was absolutely no connection with green valley so i understand in a very general sense the connection between drugs and guns but but with respect to the triage in this conspiracy which was a charge to distribute a kilogram or more of heroin in consideration of the nature of that charge and all of the subsequent gun violence that was it used during the period of the of the charge indicating that the dairy brothers or that the dairy organization was dealing in cocaine i recall that corinne young testified that he had initially identified my client during the first two or three proffer she had with the government as being a cocaine dealer and it was not until subsequent until subsequent far from meetings that he provided additional information relating my client's of the distribution of peril but i don't know i don't recall any evidence from him as a absolutely aware of that and we get around to talking about prejudicial effect are you saying that is your argument really going to be that you needed you needed the jury to see this guy shot and see the one of the reasons why it was that they they would stipulate they said they would stipulate that mr rudd james had been shot but they did not stipulate that this was a murder that was committed it shows that this was the kind of murder that would have committed he committed in furtherance of the conspiracy precisely the way that corinne young the government's crucial cooperator testified and his testimony was challenged every turn his testimony was that this organization used violence and not just you know sitting to two apartments or a sword but to use deadly filings for two reasons so you had that your you're making arguments or perhaps persuasive about needing to show there was a murder but that does not answer the question that's been put to you why did you need the video what did the video get you except for the casually it was done like terry rise up there's no confrontation it's clearly premeditated he shoots him and then lot nonchalantly rides off and finally it shows the efficiency with which this murder w yet all this seems to be so your argument seems to be saying it was important for the jury to get the emotional impact of this murder because everything you just said could have discussion to at some point try to say don't let this in and will stipulate and and your colleague mr escott he just have a none of it he wants it on he wants the jury to see somebody you are how to shoot someone in public in a way to send a message to competitors and to people within your organization that they better not withdraw or stray because how does it how does it tie to this conspiracy if your only issue was you had to see this video to know it was part of a conspiracy you've got to draw that logical wife rose because i'm not seeing it how does the video show it's in furtherance of this conspiracy because that's what you're hanging your hat i don't know your honor i don't have to show that the video does all of that work all i have to show is the video some of that work i don't have to show that without the video we couldn't of shown that the murder was in furtherance of a conspiracy that's simply were willing to go to and that's what you need this video for then you better justify you out of your way to justify how the video shows that it's in furtherance of this conspiracy because if it doesn't do that then what happens to your argument what do you got you honor i'm sorry i'm not making myself clear but a a drive by execution style shooting which this was in this video clearly shows so is that more than any other piece of evidence emotional wallop right you want to be emotional wallop that was the purpose that was why it was going to end and that and that's right smack in the middle of four or three land isn't it a couple of responses first of all the disregard that last comment here you've got it yeah actually have on the record the defense counsel putting on the record i want the record to refract that there was an i'm not questioning that says the court mr asking did you hear or ask mr spade i believe i did hear it but i don't know if it was from one juror i don't think it was from jurors from ten or twelve jurors but i did hear something so the court says it's on the record you want to be emotional impact evidence we got it at least one juror is horrifying enough to go as they see somebody getting shot your honor first of all i take exception to the  my questions to you are implying that i apologize and i'm not attributing no motive to the government think you are what i am trying to get at is it appears that the government wanted to have this evidence because it was high emotional impact evidence and you yourself in this argument have said nothing shows quite like the video does how brazen how outrageous this was so there was this aspect of we want emotional impact so let's just take it for the sake of argument for discussion that maybe we think this was an overreach by the government and that you've got a full three problem here assume for the sake of discussion that we think it's error for the court to have let this in you seem to say in your briefing that we should be came down for possibly twenty pages and then he addressed it several days later before the video was but did he address it he addressed it with three ballots saying about the video because the first three balancing about the video seems to be his comment at the time saying i don't think it's a problem under four three ten he says to be yes or no he said you are he said i've looked at the video and it doesn't it's not graphic and i it is graphic or not but we're asking about the as you rightly done the scruffs you rightly point this to the piece of this where we're asking the judge adequately on the record explain his for three analysis so leaving aside what the video does or doesn't show the question being did the judge do a sufficient explanatory job other than when the judge says it in the hearing focused on the video is there another place where he addresses the video itself precisely the same reason that this court on bog held in florence may hear that it's not enough to just tell the judge that he's got to consider these factors but what we're talking about here is the act with adequacy of the court's on the record explanation going on because i see that the court is not accepting our argument about the ride judge i read us didn't abuses this question here and we're talking about a judge with very extensive experience handling these conspiracy to traffic drugs really was overwhelming that kareen young was the icing on the cake you had conversations you had wiretapped conversations with each of these defendants act like that we're biased or act like mr venable did when he took direction from mr derry to go to the mcdonald's restaurant and sell harold went on it at a specific time in a specific place where buyers don't get information from the head of the drug trafficking organization like mr bailey when when mr gary said to him mills is getting out of prison and he's going to be strapped in i'm going to make sure that he's got bread so that he can join this conspiracy with mr davis i  of the of a drug trafficking organization who's telling the leader of the organization that just committed a murder that they've made arrangements to hide him from the police i don't know what else you and and davis is also  on video outside of the trap house standing next to another man who's got a gun but by the police roll up both of them on away davis chucks a gun the gun is for covered by the police and then to lease later the leaders of the conspiracy are poking about the fact that davis was arrested with a gun in front of the trap house these guys were completely buried by the riaa tap evidence in this case but it just so happens that mr young was able to also come there and add further drugs in the village with respect to davis he said when we were selling heroin davis was standing right there with a gun with respect to mr venable he said mr venable i would see him carrying around this very distinctive twenty two caliber saw jump in his opening statement he says my client wasn't arrested with a gun they didn't find a gun when they search my client's house now there's conversations where mr brayley's on the pharmacare saying you now bring me the black or that he's talking about a the logical chain of inference as you know a pretrial papers we explained the probative value and the judge gave a limited instruction when the evidence was admitted when the bailiff or for the evidence came then and his final charge and the prosecutor during both his initial summation and his rebuttal summation referenced that limited purpose for which the bailiff for be evidence came in to show that it was reasonably foreseeable to bailey that his would i would point out that in the albert case which involved a very very graphic forty five minute video there was a bit of a showing excruciating wounds to the victim in that case and that was that was so in the jury a crime that had been committed by the defendant the torture that it inflicted by the defendant remember here that this video is disturbing that is as it is does not implicate these  defendants in murder it just it was put into so it was reasonably foreseeable to them that it was in furtherance of your but it doesn't show that they committed the murder but even albert this court said that even if that admission of that gruesome video but i am interested in the chief's question to you about how we can appropriately get the message to the process secures in your office  repeat nothing in that you need this substance or the tone of my questions i hope implies that i think there was no motivation here but the concern is that a kind of aggressiveness about wanting to get just this extra piece in you know how how do we get the message through that you should be you should be tuned in to pitch you don't need to see the person shot yeah sure he doesn't need to gasp in order to make your point and you really are creating an issue for people on the oh heck it's any straighter than that then the district court judge saying you're making an issue for appeal well how do we get the message to prosecutors now to think about that we're not trying to you know that's your job your supervisor should be very good at it you've got high quality the end of the day the court wrote an opinion that the judge who were didn't use is discretion under rule for free in admitting that evidence even though there was also testimony about the defendants watching these these violation but it but i think i i think the court understands that this murder was absolutely intrinsic to this conspiracy it was it was carried out because these defendants wanted to keep the competitors out of  asking where is the case where you have to you have to find that there wasn't harmless there with regard to mr may and let's just look at the nine twenty four see evidence because mr macon is going ten years in as your honor quoted in my exchange with mr ask in and judge or a nice we we said to i mean i made out maybe we didn't say the magic words you did not do a proper balancing test but when he said to me why don't you let it in when you have an issue i said i don't want it and i was saying to well you didn't you didn't it's you didn't do the balancing test or the balancing test is wrong your honor i was saying it to him there should be no this isn't like the type of case where you have to have this talismanic statement oh you did not do the balancing test we said that's wrong we argued it three separate times we clearly clearly said to him that it was overly  the mr said he said oh we needed this to show the identity of the person that killed mr james and and you know the defense one step pilate that they had they had that they had all those for the three hours on december second where you know the dairies are talking about a murder basically right before it happens right after it happens installment mccall there is a girlfriend says you know movie head shot first homicide of the this goes to pinkerton your honor he wasn't saying this goes to the identity that's something that they came up with on appeal well there was some comment was there about a week you need to see the bike because the bike the city and somehow it wasn't could profit a reason right right but your honor it was not it was not a legitimate reason because there was all of this added instead i already showed everybody in that courtroom the jury as well knew that it was it was also crystal clear that our clients but the government wasn't saying that our clients killed the guy so why would we have not stipulate i would have stipulated to what i was never asked to stipulate to it because that wasn't the issue that was going on at that sidebar that was and  in that case they said i think in your own language it said they sanitized the video that is they took out you know cutting off the head and they had an agent narrowing what was happening i can see those videos but i'm assuming what they were talking about is when they got to the point of the wrist some point of the head coming off they didn't show that in an agent actually what i read from the opinion is that an agent the narrator they could have done that in this case and that would have taken a huge amount of the you know audible gasp aspect of it a way they could have just simply said oh yes ladies and gentlemen remember remember all those attacks in the e mails that we played you're showing them really very killed type when james we have a video we'll show you the bike leading up but then when you get to the real horrific part of it and i don't concede that it's not graphic horrific part of it was the guy dropping the gun and then the guy dropping they could have just narrated that like they didn't do even after d