our second case for this morning is united states against jerry brown frederick coleman garrion capers and nicholas clarke i think we have a couple of people morning may please the court my name is anthony vapo i was trial counsel for frederick call many represent him here on appeal today i'll be arguing the joint issues before the court today mr bell will be arguing during cheaper separate issue of sentencing and materials and it's our contention that the government intentionally withheld discoverable information for the purpose of attaining an advantage or trial is there any evidence in the allegedly brady violation  that the jury did not hear at some point during the trial not to my knowledge and and that gets to one of the problems in that we had fact we had discovered on and through cross examination of mr hart and miss anson this murphy and mr collage all of these various issues we had issues with mr aldridge the fifth witness and so of the thirteen non law enforcement witnesses that the government presented we discovered five issues among those witnesses what would you have done differently well one of the one of the things that we probably would have done differently is that when the government says that they made full disclosure we would stop looking and so one of the things we would do differently would be to continue to request for various police reports and other materials that that should have been there and it appears were there specifically the files that mr schuler referenced about the illinois state police having to leave it was the illinois state police forgive me if it was in a different agency having records of the confidential sources and how would that have affected the outcome of the trial it would have affected our planning that may or may not have affected our cross examination it may or may not of blood into the to the other aspects of the trial and part of the problem with this is that there is no specifically measurable or quantifiable way to to say that any one piece would have helped or or would have hurt or anything like that and that's part of the problem in that we know that when as these issues just kept coming up during trial and kept drawing all the focus of the trial towards these discovery issues they were pulling time and attention and resources away from instance the fact that collaton had sustained a head injury that affected his memory that was new information to the government as as well when it came out in trial and you were able new very helpful for me to do this witness by witness and i have the same concerns about kolob of the government representatives brief that this was news to to so number one there had been a failure to disclose a number two considering that brady is fundamentally a trial right it's out at the trial and so there's cross examination there's exploration of that and the jury hears it all so so why is that a brady violation on the government's of his recollection and then he began using crack cocaine and then he began involvement with these defendants but the problem was that all of his memory was affected post car accident so from the summer of two thousand and seven thereafter  and so what's your what's your evidence that the government knew about this car accident in the memory effects and failed to turn or what is it that they failed to turn over to you we believe that there that there are or should have been some sort of police report some sort of documentation of brady is not an investigation command for the government it's a disclosure man right that we find it hard to believe that if him when it came out i believe within two or three cross examinations of the defense's case it seems incredible that we don't have any report or any record that says the government didn't know that i mean that that's simply just never going to happen so i can't give you that the answer i want or maybe that you want it with respect to that but it seems incredible that nobody from the government knew that he had a closed head injury when it comes out on mr bell's cross examination so how clearly did you attack you know the government's good faith before judge darrow did you tell her they're lying when they say they didn't for you some of that or what that sounds like that's really what you're saying that they were simply concealing and misrepresenting to the core of what they knew which is a very serious allegation sure and judge one of the  most one of the easiest ways to to get to the heart of this there was an exchange between mr taseff as he began to cross examine and specter well that and this resulted in a an extended sidebar and spoon fed and the court said they did the issue came up the pretrial conference and i have what the judge darrow said in the context or in the body of the brief so i won't repeat it all but she said they did ask for th stuff and at the same sidebar it was mr bell who said that you know we don't have these reports so contrary to to spoon feeding the defense that the government is claiming what actually happened was that well officer reid had testified first and then for example mr hart testified and then the government blamed the defense for not properly and peaching mr hart when the when the person who would have done it had already testified before mr harkness she gave you a chance to recall officer reed did she know she did it and what did happen was the government and the defense reached an agreement that inspector it was my understanding that the government did disclose well before trial the fact that he had been arrested and that he had the crack pipe and that he had not been prosecuted for that that's the essence of the impeachment information that you wanted and it was in your possession yes they did disclose a letter to that effect and then when mr hart was on the witness stand mr hurd denied receiving any benefits at all and so as opposed to what i'm saying you knew in terms of the government's disclosure to you what did the government do wrong mr hart may have been lying but you know what did the government do wrong when mr hart testified falsely we believe the government made  steps to to correct it the government but they do already given you the report no they didn't they gave us a letter which they said disclose the information ok i so you're drawing a distinction between getting the actual rest report and finding out the substance of the information in a letter correct crap because we can't impeach and judge best evidence rule for brady year what we can't impeach mr hart through a letter written by an assistant u s attorney that says another officer has knowledge but you could have asked mr hart you just said you didn't get any benefits but isn't it true that you had a crack pipe and you were charged for having that crack i've been your released if you could have asked that question highlighting the specific benefit that he received yes we could have we could have asked the question any number of different ways and i believe all four of counsel asked him about these benefits in other ways and here again it seems incredulous to believe that mr hurd didn't know exactly what what was being talked about and in fact judge darrow going to to pose in counsel's brief posing counsel says that at best this was an inconsistent statement but that's not true  that the court found that it was an inconsistent statement and she didn't think that it rose to the level of perjury but it was an inconsistent statement and so judge as i see my light is on i would sit down and serve additional t i think that we were unable to present to the jury the the timeliness as far as when he decided that he was going to cooperate with the government i don't believe that we were adequately able to address if there was anything else aside from non prosecution that he might have benefited from and things of that nature thank you thank you  bell please the car my name's mary bell i have the privilege of representing mr capers in this case we are talking about the sentencing issue today for mr capers this is a case of the conspiracy that lasted approximately thirty six thirty seven months the four defendants went to trial were pry own and coleman who were basically the leaders of the of an organizer crack attributable to capers isn't it our position was that mr capers was not responsible for eight hundred grams and that in thinking that the court was being can conservative on all things the court was not conservative in fact was hard to mr he was in the conspiracy for four weeks and maybe or four months or maybe two weeks clarke was in the conspiracy for twenty six months what have they how do you know how we could propose calculating the quantity reasonably foreseeable to mr capers for those four months the court i do not think the court made a refining about reasonable foreseeable now how would you propose calculating th well i think it would be fair to calculate based on what he was involved in but i don't know how the court can get to reasonably foreseeable on that and therein lies the problem will be asked what is it that on what is it that runners did four for mr coleman and mr brown what was the scope of their activity as a run they were delivering they were making actual deliveries and mr capers was arrested with some bundles in his pocket one bundle  there was some testimony that the bundles forth worth about five hundred dollars he had a bundle and then and then some cash which calculated out to about i think we figured it out to about eight grand quantity if you convert cash to  you do that once a week and weekend if you do that once a week for sixteen ways that's a lot less than eight hundred but that's the highest they ever had with everything else was just witnesses saying well there was a lot of drugs be unsolved and so forth the court itself for the sixteen weeks that the court attributed to mr capers was responsible for approximately that two point four kilos that's the extrapolated part she 's working from a one year benchmark right and so it's two point four so to two really sirrah when she your view at least doesn't explain well enough although there's some conversation around it in this sentencing hearing why the full amount the conspiracies involved with this reasonably foreseeable to him doesn't she at one point though say that he was really right in the thick of things this is more when she when she's discussing why it's acceptable to have a longer sentence for him than for clark yes rationally enough that was in the park sentencing that that took place like ali all right maybe because she didn't know the court didn't know what the sentence for clark was going to be at the time the caper sentence was hailed clark was looking at a mandatory life it wasn't tell the present it's a best guess report came out that they figured out that the three eight fifty one notices offenses were all during the conspiracy and became relevant conduct but not in hansard for mandatory alive how many other runners were working in the organization at the same time as mr cooper's see that i'm not able to tell the court that the court the court the district court relied on the testimony of a person by the name of james taylor and found that witness to be very credible the problem was that witness was never in the conspiracy at the same time and capers but but so why isn't the analogy that if mr tatum was role as a runner was what mr tatum described it to be then that was likely then what mr capers role was is the role because it's what's reasonably foreseeable it's not the amount whether the full amount is reasonably foreseeable to mr capers and so if it was recently foreseeable tatum why not keepers morning your honour's may please the court john terry for the united states focusing first on the issue of mr cooper sentencing which the court is just getting into right now the district court did make an individual lies finding with regard to mr capers and without it can i find the reasonably foreseeable  that i've looked for i've looked through the sentencing transmitted a number of times and i see people particularly mr bell raising this as an issue but i don't see the just report ever tying it off and saying the conspiracy as a whole stand of the two point four kilos during his six weeks and all of it was foreseeable to him yes run it well on sentencing transcripts to sixty four of the district court indicates that the proper standard is to hold mr capers responsible for quote the collective weight of the conspiracy that's reasonably forseeable to the defendant and the court also indicates she says that's part of a question just as just you have any seven circuit authority right and so she yes though the language you quoted scare but it's a question and then mr vaile answers it then they have a discussion for a little while about elaine and other things and i just can't find it tied off but the reason why it's tied off their iran is because it was in response to an argument by mr bell that the only amount it was appropriate to attribute mr capers was was the amount that he was physically caught with and then extrapolate it out for the amount of  or nothing approach has maybe some attraction but the district court has the obligation does it not to make a fact finding on what's reasonably foreseeable to this defendant and it did make that necessarily have to be the full amount of the conspiracy it could could have been you know half but it might have been an amount that took him into a different range for the guidelines yes one of the district court does have that obligation and it's the government's position that it did make that specific in that when it was conducting its calculations it noted basically that if i could just work backwards sort of what the district court did the district court of the beginning of the hearing made a determination about the amount of crack cocaine that could be attributed to the entire thirty six month conspiracy and it did that by first estimating in an in a very reasonable fashion that about thirty thousand dollars worth of crack cocaine was distributed per week and then it broke that down into the amount of bundles in the value of bundle so based on its calculations it found that for the full thirty six month period about one hundred fifty grams were being distributed a week then what he did with respect to mr capers is it indicated that he was involved in the conspiracy during a particularly successful time and that he was involved for sixteen weeks it took that one hundred fifty jointly under tell me your honor the way that it the way that it resolves the scope of his jointly undertaken involvement is the district court also noted the degree the number of witnesses that testified as to mr capers involvement and that begins on page two sixty seven in the transcript what she said that there were quote a few different theories why the full weight of the conspiracy should be attributable to your honor i think that was a reference to the fact that as mr bell just indicated he was involved four months and two weeks which is about sixteen weeks or so in a larger amount of time than a lot of actually getting credit for which was which was a sixteen week period that's what she meant with that statement but see i did have that statement flagged as well on pages seventy and again she she leaves it up in the air she says i think that there's a few different theories to argue why the full weight of the conspiracy would be appropriate to attribute to mr cain hers but i don't think it's necessary i don't know which means it  full context of what was going on here you have two defendants that were being sentenced prior to this and they were defendants who were subject to mandatory minimum so the court took a little bit of a shortcut with respect to their sentencing and said we're only going to give you credit for twelve months if you're involved in this conspiracy that gets you to the eight hundred forty to two point four kilograms threshold but in any event there sentenced under a mandatory minimum that's their sentence the real individual ice assessment was with respect to mr capers because he is the one that's being sentenced under a guidelines range here and the court and indicating that it believes a greater him out may be appropriate and it could have been a variety of factors for that one is that we could in the longer period of time that he was likely involved in the conspiracy instead focusing just on the sixteen week period  ask you another question is there language in the pre sentence investigation report that would explain why the full amount of the conspiracy for that sixteen weeks is reasonably foreseeable yes your honor there as it goes through sort of an individual lies discussion of the testimony that was given against mr capers and if i may end with reference to the trial transcript as well just a few examples loretta absent indicated that she bought twenty five to thirty times for mr capers that's on transcript page four o two she also indicated that she witnessed mr capers bag drugs with james with frederic allman and jerry brown mr capers was arrested in her home with five point seven grams of crack fourteen hundred dollars and one of the cell phones one of the key items that the conspirators used to call in amounts other witnesses testified similarly as to mr capers involvement in every scope of this he wasn't just a runner so i'm sure the reason i'm asking this is the paragraph that follows the one that we were just talking about nine to seventy begins with so based on that the court takes the probations position so i understand that you mean she agrees with what was whatever was said in the present yes robert so that's why i'm just wondering whether that bails you out oh well i think you're on of the most important thing to consider here is that mr capers was not just some corner boy or some runner or that was isolated from the upper echelons of this organization he was intrinsically involved in every aspect he bag drugs with these people he drove up to chicago people means frederick coleman and jerry brown  brown exactly james tatum testified that mr capers was his replacement that's on page twenty forty nine and fifty and if your honour's recall mr tatum one sold nine thousand dollars of crack cocaine in a single day heather murphy testified that she saw him bagging drugs with frederick allman and jerry brown also indicated that she went with mr capers and jerry brown to acquire crack cocaine from chicago so he was he was aware and intrinsically involved in every aspect of the conspiracy for the sixteen week period which he was involved and that's what the court means when it says it's appropriate during that sixteen week period to attribute the full amount but let me get back to it when i point that your yes rahni what would you agree that he is the only defendant who didn't get the benefit of way you know you would call it very conservative calculation by the district court well i think mr clark also got a benefit to some degree as well in that he was sentenced to or mr brown and mr coleman the court knew that it was sensing these individuals as mandatory minimum sentences so it did take a shortcut with respect to them but that argument that perhaps they received a benefit that mr capers did receive that's more akin to a thirty five fifty three a six argument that there is a that there's a disparity between the amount of drugs that was attributed to each defendant that is an argument that's not really raised with respect to mr capers that the important focus here is that he was sentenced as an individual it doesn't matter that the court took a short cut with respect to those other two individuals what's important is that the court looked at the testimony at trial that said mr capers was a big player in this drug conspiracy for the sixteen weeks involved and the point that i was about to mention prior to this was that i believe one of your honor said why didn't they have it you know why did they take a smaller amount even if the court halves the amount of drugs here you still wind up with above eight hundred forty grams attributed to mr capers you want to with one point two kilograms so even if even if that factual finding was clearly erroneous you still wind up with an amount that's well beyond the minimum for an offense level thirty four in the circumstance the problem is where  support a conclusion is different from whether she had to come to that conclusion district courts have a lot of discretion to weigh these things especially when they're in the estimating again and yes running patch all this information together we don't know that she would have come out the way years well i think we do based on the fact that one in response to mr bell's argument that he should only be attributed the amount of drugs that were actually in his pocket and then responding no is the is the proper standard the collective of the conspiracy that's reasonably foreseeable to defend and that's that rhetorical question on two sixty four the court by asking that question indicated that it was it was implying that that was the right answer and that's what it did by making reference to the  panoply of witnesses who testified about mr capers tremendous involvement in this conspiracy and in addition to that that the court also noted that its estimates were were very conservative mr capers was responsible for  beyond two point four kilograms but instead settled on that by fixating only on the sixteen week period and by applying a very reasonable estimate for the amount of drugs and that's a standard that this court has applied again and again this is an art not a individual as assessment of the of the drug amount attributed to the defendant for clear error and the government's position is when you consider the fact that the court was applying reasonable foreseeability standard it was taking an amount of which was a conservative estimate of that in applying it to the period of time that the defendant was involved that that can't possibly be clearly erroneous application of the guidelines there and as a result the sentence was proper unless your honour's have any other for the questions and sensing issue a move under way briefly to the brain issue and with respect to the british and i think the panel is getting to this from a number of angles if you look at the four particular witnesses that the government is alleged  turn again the government takes its prey obligations very seriously and i don't need to tell the panel that but with respect to all of these individuals either the information was disclosed or there's no is there is no evidence that's provided by the defense indicate the information was disclosed or it came out for the first time a trial expected mr hart again the information that he was arrested for possession of crack pipe are private copper ation and was not charged was divulged in a good legal letter seven months prior to trial the defendants had that in their hand and  was certainly what they were looking to when they were open weakly trying to impeach mr hart by asking him amorphous questions about benefits now mr hart yes here in the way they could have gotten the original arrest record in that i mean they they did get the letter yesterday and here's what happened and they're saying no actually the letter isn't the kind of thing that would really be useful to us to visit their burden then to go find the resurrect or well your honor there's no requirement for the information in a letter in which it turned over at that brady information and it was a copy of the information that was contained in that police report there's there's no allegation otherwise and they had full possession of that information it was within their power to impeach mr hart directly with that information but instead they chose to sort of attack it from the side in asking more fist questions about benefits and mr hart very possibly didn't didn't consider benefits in his head when he was on stand to be thought benefits but money may be thought they meant something else but even beyond that your honour's what's important here is when and it's failed to elicit that information from mr hart the government itself elicited that information during the examination of inspector well got they asked him you know was was this person pulled over for a crack pipe he said yes was he charged no and then he was also inspector well got was also cross examined on that information so not only was the information not suppress that it was turned over prior to trial it was subject to full and complete cross examination and in addition the defendants focused on it during their closing arguments can i ask you about yes you're on the so her testimony at trial is that she buys one hundred times yes when her prior testimony was five times and i gather that the government did not disclose to the defense that ins was now going to be testifying that it was a hundred times and that that inconsistency in her testimony was not previewed to the defense well my question is why not well the inconsistency actually was previewed and was turned over if you look at transcripts twenty five eighty which is the cross examination of inspector wilder or expediency through the examination or cross examination i can't remember exactly which one it is inspector was i don't believe so your honor there's no indication that that that was the case in the record one and if you look at the report and it was turned over both the grand jury testimony and the report indicate inch testified that she had bought from frederick home and five times in that trial she said one hundred times there's no indication in the record that either inspector well god or the a u s a were aware that that five number would turn into one hundred when it came time for trial testimony and in fact inspector inspector while i believe testified at trial that he was surprised as well and that that report had been turned over but the most important thing above all is that this information did come out at trial and it was a feature not only of the cross examination but was also a future of closing arguments by the defense again talking about how miss inch was not credible because she had been instances that heather murphy has a similar circumstance as well and that during the grand jury testimony she stated that she first bought from tatum and then a trial she said she first brought from brown there was no suppression in that circus sense as well because inspector well got testified that he had written a report that reflected that inconsistency so that was the situation where it appeared that inspector while that had been aware and had written a report there reflected it which was turned over to the defendants and they had the full and fair ability to investigate that report and cross examine on its basis which they did as well it was also a feature of closing argument so in all of these circumstances your honor this information not only came out at trial it was subject to full and fair cross examination or prior to trial excuse me it was subject to full and fair cross examination and in many circumstances was a feature of the closing arguments of the defense so there was no suppression and they certainly were not prejudiced by it as a result of their ability to ask questions if the government object to having the defendant's call officer read back to the stand objection on us but in any event the objection was overruled and the defendants were given the opportunity to recall mr reed and the government also indicated that it would make officer read available for cross examination and the reason why the government objected is the government didn't didn't believe it was necessary to call inspector read the information that mr coleman had been arrested with a crack pipe and not charged with that had already been turned over and already been testified about four with inspector while got so basically this was just the defense trying to get a second shot at officer reed in any event they were given the opportunity to do that and they waive that opportunity they did not call inspector reed despite the opportunity to call  i will have to focus on the brady issues since has been the focus of argument we're certainly not giving up on our western union issues but for the interest of time we'll talk about brady i do have your mediately disagree with the government it was actually seven witnesses not disclosed but so how is that brady it certainly was part and parcel of the government's not turning over statements and it was defendant's statements that they had not turned over that sounds issue but but i think the bigger picture here is that this happened with nearly every lay witness or non law enforcement witness that there was something that came up during cross examination that the defense attorneys didn't know and our concern about the court potential ruling on these issues is that there's some sort of you have a good attorney exception to brady so if you have an attorney who's able to think on their feet and and remember all the thousands of pages of discovery and  audio recordings and video and pictures and think oh yes that thing that thing is wrong and raise that on cross examination you don't get to prevail on the government gets a pass on brady violations because we were able to use  if you don't and you can't rebut that then it becomes a brady air it should not be on defense counsel to solve those issues i'll correct the government one about well get as well the officer read in the office well get situation the government and the defense attorneys agreed that they the defense would not recall reid because well get could bring the information forward that reid was going to bring forward and then it became very obvious at the beginning of well i guess i believe cross examination that he was not able to do that so it wasn't necessary that we just flat out said oh no we won't we want to call it read it was a government agreement with us to do what we needed to do with your well get in the government said we could do that so unless the court has for the questions i will let mister o take over thank you very fine thank you to hold papers responsible for the entire amount of the conspiracy had and this goes to the disparate sentencing question she had the court applied one hundred fifty grams a week to mr capers for fo client if that were the correct calculation he would have had a fence level of thirty eight even with the two level law for the safety valve he would have been a thirty six his bottom of the guidelines would be at the top of mr camper think i think we have here your point from thank you very much thanks to all counsel and we appreciate in particular those of you who are court appointed for accepting the appointments it's a great help to the court and thanks as well to the united states