know yes your honor good morning and may please the court my name is seth ginsburg and i appear on behalf of a dony nina mr naina right now is sitting in a federal penitentiary in pennsylvania he's serving three life sentences plus thirty years and i suggested that the sentence in this case alone warrants that we take a closer look at how we got here because i fear that this is a case where the ends have been allowed to justify the means there's no dispute that the tragic and untimely death of the young woman i you should give us is something that is regrettable and should have been avoided but the collective desire for retribution should not allow us to bend the law to achieve that goal the love being bent is bringing it to federal court rather than state court that's that's the it's not a question of the law was bent to reach a conviction that otherwise not appropriate at least on your principle you have other arguments but on the your principle issue it's a question of federal jurisdiction that's exactly right your honor and i believe that you are using the substantive reasonable  senate's in this case when you start is a right that is an argument that's on appeal as well your honor it seems to be the pitch that you made that you get all this time but apart from the facts of this case which will talk about he was a criminal history category six and his sentencing right that's right his prior convictions for armed robbery firearms saw assaults and others so he had a very considerable criminal histories before this case even started no doubt well that's interesting because i i thought your primary focus was one one of substantive law essentially suggesting that the killing was not in relationship necessarily to the underlying drug offenses and as a two trials on a single indictment although superseded i think twelve times and a single sentence that incorporated the verdicts of both trials the sentence as i mentioned is a life sentence on a drug conspiracy with a concurrent life sentence on a murder connected to the drug conspiracy and consecutive third consecutive life sentence on a murder on the merck say murder connected to the same drug conspiracy under a different theory plus thirty years on firearms charges i think that fundamentally this is an issue of jurisdiction in that i think that the desire to achieve retribution here never mind what is i just tell us why it's not properly connected to the drug conspiracy that's your argument let's get to it it's not properly connected to the drug conspiracy because it was the the killing here was the result of a personal dispute between the shooter and unrelated over drug territory and then the relatives of bobby morell as these other women came back at kathy mar as because of her perceived harassment or whatever of bobby isn't that what the beef was that's largely correct the dispute was between kathy morality and a person named william vieira and she was using bobby morale us as a go between to deliver messages  shock in a but for sense i suppose you could argue that it's connected but in approximate sense i disagree there from mr nina's perspective there's no evidence that he had any knowledge that miss morales caffein morale as the shooter was involved in a drug dispute with mr vieira or bobby morale us there's no evidence that he had any knowledge that miss morale us used bobby morale us as a go between to deliver messages there's no evidence that mr nina had any knowledge that bobby morality and these young women with whom miss morale is engaged in this assault and in this fight him to get a gun right what did she say when she went to  gun itself is part of the drug conspiracy is there not evidence that there were guns that are part of what the crew has there are there is evidence that the crew has guns but in this part c c that's a he even said are you going to do it or a mile why would he do it i would like to answer that question but can i do with a little context here that's the exactly the problem that happened here your honor this case was tried with a very broad brush of these are violent people there's drug dealing everything they do is connected to this drug dispute this drug business and so if there's a shooting it's related to the drug dispute if the shooting results in a death it's related to the drug dispute miss morale  physical sexual relationship they have a boyfriend and girlfriend she was badly and publicly beaten by three young women she got when the dust settled and she got up she said on the phone to mr nana they jumped me she said why she wanted to shoot them because they jumped me she went back to mr nina and she got a gun this was argued to the jury and the jury was able to draw conclusions based on all the evidence about whether this was how proximately cause as you said yourself it's an a but for sense related and it's just a judgment call really i suppose as to how are we going to assess that and that's isn't that a call for the jury to make as to whether a shooting that results from a beating that results from a beef that is all on the bottom about drug territory is related specially related or not with due respect to trial counsel that argument was not really made a trial counsel attempted to argue that it was related to some other motive that had been disavowed at trial this argument was not presented to the jury and i think it's a legal argument i don't think it's a factual argument because you have mr nina's knowledge of what transpired here and the evidence totally lacking that he knew that there was a drug dispute between morales and these other men that the women with whom she was fighting had any connection to these other men and you have one witness a person who saw what happened michael santana a cooperating witness who was kathy morality is the shooter's ex boyfriend he was there he followed her back to mr nina and what did he say he said i pleaded with kathy to think about our child and not do this why was he pleading to kathy why not to mr nina he's the one that supposedly controlling this if this is a drug related thing in furtherance of their drug business why wouldn't he say nina don't let her do this please don't make her do this maybe he thought that she was more responsive to that kind of argument it's her child and his to and more and when friends child that's being talked about i mean these are just factual all inferences one way or the other they can be drawn in different directions but respectfully i don't think there are any factual inferences that can be drawn that demonstrate that mr nina had any knowledge that the underlying dispute was related to drugs that kathy's desire for  related to the jury that was the primary defense i thought and that was rejected and so i guess my question is where do you go from there well i think two things first of all that was sort of related to the to the jury the the young women who were part of this fight had initially lied to the police and suggested that there was some personal dispute between the people and between these women over a boyfriend in the that was why this shooting occurred and then they came back later and told the government no no we were afraid of telling the police this was really about drugs and so this so the argument at trial was they didn't really lie they told the truth the first time but that goes into the other issue that's before the court one of the other issues which was the admission of the other violent activity that occurred and i think this is one question you're essentially arguing that there is a mens rea a requirement with respect to the federal jurisdiction element have we ever held not in other words if somebody intentionally engages in a killing that is ultimately traceable to drug business  and the drug business is what makes it a federal crime is there a case that says that there is no federal jurisdiction it is not this federal crime unless the person doing the killing knows that it's a drug dealing not in those words precisely but yes that the law says that the the a motive has to be related to the drug business and that's i think motive but quite soon that  that construct to mens rea and there has to be meaningfully related meaningfully related not just tangentially related not just whose whose motive in other words if someone like mr who's the head of a drug organization hires somebody else to do a killing and mr nida knows that it's about drugs but the hitman doesn't he doesn't care he's just getting his money and i suppose there could be a different federal statute that might apply there but if they prosecuted the hitman under this statute you're saying he would not be guilty because he didn't know if somebody assists in a murder that the accomplice does not know is motivated by the drug trade but the principal who does the killing knows that it's a drug killing and it is a drug killing you're saying that the accomplice is not guilty of a federal crime would have to be separately prosecuted in state court because he lacked he personally the accomplice lacked the motive to further a drug that's an interesting question i think that's the question in this case isn't it because that's what mr nina is he is an accomplice to the extent that he supports assists in the shooting and if as you've suggested the underlying beef here is a drug you're saying this to nina cannot be convicted in federal court of participating in that murder that is connected to the drug trade and in further in the drug trade that is in fact his crew that there has to be proof beyond a reasonable doubt that he understood all the reasons why his crewmember wanted to kill this person i think that's right i think that he has to know that this is meaningfully related to the drug business that's the theory in which the government tried the case they didn't try the case on the idea that he tangentially was involved they tried the case that he was a person who enforced his rule through violence and they did it by introducing the acts of his underlings which by the way when they when they were crossed examined  incorrectly but yes they did charge it to the jury you wanted some additional time to talk about the three acts that were admitted yes if so the three other acts that were admitted i think play into the bigger picture here because those three other acts were just as with the killing of i e primarily motivated by perceived personal affronts and in each instance you have a person  was a cooperating witness and the supposed muscle behind the group who testified that he committed these personal acts now pretrial the government said to the district court judge we're going to show you we're going to have witnesses that are going to come here  this was done to solidify control and project strength but that's not in fact what the witnesses ended up saying and what they said with respect to mr nina was in one instance they approached mr naina to obtain a gun again and said well this is christopher he wants to go and shoot these people that shot him and what did mr nina say if that's what he want to do let him do it he wasn't directing it he didn't initiate it he didn't control it you have this so called kojak shooting you have an individual who's acting up on the block he's behaving in a violent disrespectful threatening manner what is mr name to do he leaves he's personally confronted by this person he says to the guy you're not crazy basically get out of my face and he leaves he doesn't shoot the person he doesn't tell anybody else as soon as i'm gone shoot the person you have this bicycle incident where a bicycle is stolen and the crew members go and get his spicy call and then one of them is aggravated that his bike was stolen and he wants to go back and shoot at these people and that's what happens and i'm very much a part of this conspiracy leaves this government and don't you think that in the in a conspiracy which involves this level of violence and intimidation the government should be able to introduce evidence to suggest that there is this level of intimidation and it becomes fairly fundamental to the existence of the conspiracy and the operation of the conspiracy because in fact it is used to control in this particular case the block i think that's exactly right and i think that that that should be permissible what i think happened here however is that you have these disparate acts that really were not connected to the conspiracy using the bicycles to sell drugs and to alert the presence of authorities that was part of the operation at least there was testimony that yes i understand the bicycles were a very sophisticated counter intelligence tool that these people were using to drive these are sixteen seventeen eighteen year pete kids basically riding around the neighborhoods on their bicycles when one of these bicycles gets stolen and they say hey we want our bike back all of a sudden it becomes this is an instrument tally of the crime and we're going after them and i think there's got to be some some time when you kind of pull the curtain back and look and say what was really going on here what was what was this really part of a drug conspiracy or is it i get it we have a dead girl here and that's a really terrible thing the argument all the time and you know certainly happy to acknowledge that it sometimes may seem strange that these people who run drug organizations need to enforce their will they need to protect the p well who work for them they need to throw their weight around if they're going to conduct an illegal business after all they can't get a lawyer and sue people who steal their bicycles that they use for their drug trade so they make that argument all the time and they get a little boring to us to hear but isn't it for the jury to decide if that is true because after all is it not in fact true as a general matter that that is so and the government puts into the jury that that is so in this case and the jury makes its call yes but in the first instance the district court let the evidence in when i believe it should not have because it was not sufficiently tethered if the jury could make that call based on this evidence then is that not relevant evidence that the judge had the discretion to a saying it's more prejudicial than probative no no forgive me i don't mean to be disrespectful excited know that they they weren't permitted to make that call your honor there was no they were the defense counsel couldn't stand there and argue that this evidence shouldn't have ever been before them because it wasn't really connected to the drug conspiracy the district court said it's admissible it's in front of them they can argue no other piece of evidence it's admissible it's before them and it's perfectly within them for defense counsel to argue that what does this prove it doesn't prove anything it doesn't prove that it's related to the drug trade it's not related to the drug trade it's you know it's in there and you should put it out of your mind because you're not supposed the judge will tell you you're not supposed to convict because they're generally bad people you're supposed to assess the evidence about the elements of this case and the jury does i think it gets back to where your honor started which is the jurisdictional issue here and i think that as your honor identified and you one hundred percent of these issues are sort of interrelated i did my best to try to isolate them as well as connect them in my brief but it's a bit of a nuanced and complicated argument that i admit i struggle to try to get across clearly but i think that this is a situation where we've really gone too far we're letting too much in in front of a jury and saying hey these are bad people bad results happened that this might be of concern there was no objection on the part of the point then of ultimately those summation and which the government mentions the fact that she was fifteen but this and say anything about the sexual relationship you've raised that as as grounds for an objection and my question is how is that good to be prejudicial in light of the fact that it was the court who actually raised this concern initially well again with due respect to the trial counsel who i think did a very good job in a difficult situation the probably should have been a timely objection but in any event he did make a timely motion for a mistrial when it was raised on summation and the government wants to say well they didn't actually say in summation that she was fifteen and there was sex and so they didn't make that connection right then and there but they made the connection very very explicitly during the trial testimony and then the very same assistant united states attorney who elicited that testimony stood up in the opening summation for the government and almost right out of the gate said she was fifteen he was thirty two and they then they tell us that their evidence though that he was using underage children to sell the drugs there was evidence that most of the people in the conspiracy were teenagers they prove they argued that that was somehow relevant and never articulated why to this day it's not clear to me why that was relevant there's no element in the if in the charge that has anything to do with age of the participants there was no argument that essentially the allegation is that your client is in control of this drug operation that he is much older than people who are in force with him is a significant evidence of the ability to control it could be your honor that argument wasn't really expressly made at trial but it could be but there was no real dispute as to there was a dispute as to whether there was all this drug dealing going on and whether he was behind it all but there was no real dispute as to where it please the court my name is christopher de macy and i represent the united states on this appeal and i also represented the government in both trials below on this matter there is no basis to reverse the convictions or disturb the questions were not ideal didn't judge sovan have a sort of better take on this that this was a flagrant foul i think the what the government is trying to say in its brief is the timing of the questions was not ideal yeah it was definitely not ideal because the timing of the questions to the extent there is some issue about manipulating teenagers in the drug trade or being in control first of all the ages were already in the record as you argue in your brief and the question the questioning was did you have an intimate relationship with any members of the crew yes it was your relationship with nina out in the open no why not because it was just sex how old were you at the time sixteen do you know how old he was thirty two now why on earth is that question asked at that point in the questioning if not to tell the jury that nina is effectively a rapist your honor the government conceded even at the trial level that the ordering of those questions was not ideal and it's not a question of ideal and i don't think it's in the traditions of your office to tell me that that is not ideal that is a bad mistake and i'm not saying that you know i made mistakes as a trial lawyer to i did things the judge called me up and said you know you really shouldn't do that again and i took it to heart but you don't come to this court and say you know it was it was not ideal there's no reason why that question should be asked in that order at that time except to emphasize the fact that this sexual relationship is illicit and improper and negative you know the ages can get in there they go in there at the summation they were in the record otherwise new you know with this sexual relationship and you know if somebody came here and said look you know this process has been told not to do that anymore we realize this was a bad mistake i want to bring it up i just think it's the wrong thing to do to come to this court and minimize that kind of conduct and you know i hope that that message gets back to your office i understand you're not i think we conceded at the trial level that it was a mistake we made use the words not ideal but i think it was clear that we believed it was a mistake and in fact i would just note that we were pushing for and it struck a lemon a instruction because of the nature of the testimony which is kind of unusual when the government elicits except that then  i think the defense counsel is in the ork weird position of having as a strategic matter which i think was the decision the council they and i think it was reasonable on the last thing we want is to tell the jury pay no attention to the elephant that you just walk through the court room it's a big elephant and it's a grail if and i know you're going to be concerned about it but really don't pay no attention to it you know most defense lawyers would probably say let's just let that let me just make one point  that issue which is that i think there's a reason why inference to be drawn that mr ginsberg not mr ginsburg here but league inspirit who represented mr nina in that trial intended all along to cross examine the witness about the sexual relations the sexual relationship is fine you see that's a that's what makes that questioning so outrageous it's fine to bring out her age at a different point because it's relevant to this other argument it's fine to bring out the sexual relationship because that is something that is going to be used to impeach aren't you just a woman scorned or exploited and therefore you're making stuff up that's a possible argument and the government can head it off it's when you right after the sex with the ages which again are already in the record is no need to ask that question at all at that point the only reason to ask that question is to say statutory rape to the jury that's a problem i do think it's also important to note that the jury acquitted the defendant of one of the three counts in that trial so i think from that we can and that doesn't want to find i'm not here to argue about it wasn't even really raised your adversary in the argument until the court brought it up whether this was harmless or whether it was prejudicial or anything else of the reversal i'm just raising the question of a what was done and b how it was presented to this court on appeal that's the problem i've got under said i'll take that not to the side taking up too much of your time that's quite all right turning back to the two main issues in the case which were discussed at length by mr ginsberg there was as the district court actually found in an order after the trial was over in this case there was ample evidence in the record for a rational trier of fact to conclude that at least one of the motives for this murder was the defendant's role in the drug conspiracy as it is the standard right primary just one of the motives absolutely it need not be the only motive and the court has held that in many cases in the past and i think what the district court says in its order is actually very telling and i think it shows that the the two arguments that the parties are making here are not mutually exclusive that there was disrespect as mr ginsburg has argued here and in his brief but that that disrespect at least in some parts flowed from the dispute over drug territory that had been percolating for months before this incident and as long as that was at least part of the motive for mr morales a mr ninnis involvement in the shooting that is sufficient for a and as long as a rational trier of fact could come to that conclusion that it's an issue rather question if in fact you create this kind of  to create an environment in which unfortunate pain is sufficient i think i think that may be true but i think we have facts in the record in this case that actually show contrary to what mr ginsberg has said that don't you know the defendant had personal knowledge of the ongoing dispute related to drug territory at this location there was testimony from several witnesses that mr nina himself went to the block confronted both mr morale us who was the victim's brother and he was dealing heroin on that block and also mr vieira along with  leader of this drug trafficking organization so there was evidence in the record not just about some kind of generalized use of violence to enforce drug territory but mr nina's personal involvement and knowledge of the ongoing drug territory dispute at one sixty third and simpson where this ultimate argument between the three women and this morales occurred and in fact at the end of the day as judge sullivan points out in his order to some extent the proof is in the putting the fact that she calls nina the leader of the truck conspiracy to come to help her rather than somebody else and that he brings a gun he makes a threatening gesture himself not miss morales but himself to these three women on the street before the shooting and then he provides the gun and says are you going to do this or am i going to do it all is additional evidence the jury was entitled to consider in this in determining whether this was in fact drug related and whether yes there was and i would point the court to pages five through eight of the transcript of the first trial there was not a written order from judge sullivan what were actually six different incidents that were breached by the government as mr ginsburg noted in his appellate brief there was an argument about this at a pretrial conference the judge asked for additional briefing the government provided that briefing the first trial the judge actually excludes two of the six incidents that the government sought to introduce on four zero three grounds and he basically found that those two other incidents were not sufficiently tethered to the drug conspiracy but also because those two incidents involved mr nina himself firing guns and fact shooting and a person and one of the two that the jury might take these two incidents that are untethered to the drug conspiracy and conclude from them improperly that this is a violent guy who has a propensity to commit violent acts and on that basis the court excluded two of the six and did a careful analysis of the other just two quick points the idea that there was evidence that mr min mr nino was aware of the dispute between caffie and vieira and bobby i think is a little bit misleading not necessarily intentionally so but but misleading i address it in some detail in my reply brief there is some testimony that there were some interactions between nina and vieira and nina and bobbie but there's no indication that as to first of all when those occurred in relation to this this this murder or killing and there's no indication that he had any knowledge that either of those individuals was involved in any dispute with kathy which would then connect it up to the shooting and the fact that kathy called nina following the shooting also was raised by mr de macy  the evidence is that mr nina and kathy were involved in an intimate relationship and the fact that following a brutal public beating she reached out to her boyfriend i don't think is evidence that she was reaching out to her boss and there was no indication that that was the reason that she reached out to him more generally i would just like to emphasize that he's her boss and her boyfriend right apparently though you would want to draw the inference that it was natural for her to go to him because he's the one friend and they want to draw the inference that it's natural for her to go to him because he's the boss when he is in fact both correct but there's no indication in that instance that that her calling to him his her words to him was were vague jump to me this group of girls jumped me no connection to any drug conspiracy no connection to any dispute between her and bobby or her and vieira it was these girls jumped to me that to me is a personal affront that she sought to seek to to avenge thank you  decision in this case and