and eighteen i was trial counsel my client sr is here today and the jury found my client guilty of conspiracy to distribute a controlled substance and and i realize this court gets a great number of conspiracy to distribute cases i understand that i think that there are some critical things that happened in this case that means that mr shell of the did not get a fair trial and specifically  there were a number of people who entered into cooperation agreements with the government including teresa wolf and any fair reading i think of the facts of this case the testimony that was given would lead one to conclude that relationship but the cases that we cite i think show that the evidence in this case was that mr shell of the would from time to time used drugs and he knew some of the people who were involved in distributing the drugs but i respectfully submit mr shelby appears one time in the surveillance that the task force set up they had teresa wolf's residence under surveillance and over many many months showed he appears one time even though he knew teresa wolf one of the things that got this investigation started was a teresa  outlined in boy can in order to have a conspiracy there must be a conspiracy to distribute a controlled substance that the defendant knew of the conspiracy the defendant intentionally became a part of the conspiracy and we also cite cox in leicester some showing that the individuals joined together to further in and agreed upon criminal purpose rather than just a buyer seller this court's well aware that in boykin and other cases being a buyer is not sufficient to compound mr shelby's dilemma trial the the government offered we would maintain without any provocation evidence of the mr shelby's association with a group known as the galloping duties and this court has passed on that issue st and in other us vs st and in other cases that are cited i'm not here to suggest that there might not be a time and a place in a trial in particular for controlled substances distribution where a person's affiliation with a motorcycle gang or a gang or other outlaw we're going to zation that might well be relevant this is not that case if you look at the three by the way we filed a motion in limine and we objected vigorously at every stage of this is well preserved we did not invite this error we did not open the door and the government i'm i'm really somewhat baffled why why they would muddy this record week long trial with this evidence of what what evidence did they present when teresa wolff was enter interviewed by the task force and confronted about the thirteen controlled now these are significant they started out buying grams from her in and up buying many many answers at a time perhaps a pound at a time she was a significant drug distributor and she was getting her quantity from clarence bradley so there is a bradley wolf conspiracy showed he's not part of it she mentions to detective ready to use that mr shelby is a member of the galloping groups now this is in her controlled substance interview after they've after they've arrested him randall holmes mentioned in his testimony he someone who made a deal and went and testified at trial that he was in a different motorcycle gang and that he had met the defendant at what they call a run a weekend run where they go to certain destinations and have picnics and drinks and the like completely irrelevant to any of the my client's identity was not an issue motive was not an issue we denied the movie but it was not an issue that needed to be proven there was a telephone call that was recorded between my client and his wife lisa where there was some discussion of his affiliation in that phone call these are three instances in which the government without provocation and without to my mom in any clear purpose other than to throw mud on mr shelby i'm for the life of me if someone can read this transcript or begin the trial as i was and find a connection to a issue that needed to be proven in this case how this galloping goose information would have aided that d or tended to make that issue more likely than not the hallmark of relevancy i don't know what issue it could have it was highly damaging for this to come into play the phone call that govern the government argues that it provided context to a threat to another witness who was quote still a member  given it was alleged by the government that recorded phone calls that the defendant made to his wife among others from his incarceration and loving in that phone call he threatened he has apparently asked lisa to get word to a person that he was still a member of the galloping blues and that she need to be reminded this person was a person name angel who was not  she was not a government witness and the explanation given and we i think gave this in our motion in limine was that st of all this person that is allegedly being threatened is not a witness which i think is required to give instruction thirty four which is point three i think of your argument the allegation was or the issue was that the defendant believed that this person angela was indicating to other people that showed he had joined the government team and was going to testify against others that not only was against part of the appendix i believe it's exhibit thirty one dollars that's part of the appendix or thirty two dollars there's no indication that lisa's to do anything other than remind angel that the defendant is still an active member in this gang now one i'm sure would try to extrapolate from that that that's a veiled threat and that that maybe it will be an interpretation my client says the reason he did that was it endangered his safety or he was being held in confinement but any way you look at it angel's not a witness if that can be the basis of a of a different charge such as obstructing or something like that  perhaps if the government believes they could prove it which i sick seriously doubt but it's not a threat to a witness in the case that's been tried we tried in vain to get the trial judge to understand that to give instruction thirty four was there because it says that he threatened a witness he did not threaten a witness angel was never listed so imagine now what's what's occur we have evidence that my client is connected in some way to all of these people teresa wook clarence bradley and these some of these connections are pretty tenuous in order to make their case the government then introduces the galloping goose on these three occasions which we objected to and then they compound the problem by giving instruction thirty four which instructions and struck to the jury that they may consider this threat as consciousness of guilt against a person who is not a witness and then that brit leads me in our final points the government was permitted over our objection to introduce evidence for which my client served his supervised release my client served fourteen years before or spent fourteen years before this trial as a law abiding citizen of sedalia missouri and of springfield missouri he was the maintenance director at tyson food in springfield missouri i think some context of his life is in order because the government would have you believe well this evidence of this conviction somehow shows knowledge or he is claim that of lack of identity or motive it proves nothing he's a different person by the time this this bootstrapped us into almost lead forced to put mr shelby on the stand i propose to cross examine government witnesses by adding some of the details of their it minted crimes under rule six hundred and nine i was this was rejected i was not allowed to cross examine on any conviction more than ten years old even though they introduced my client's conviction that was seventeen or eighteen years old randall holmes had participated in a kidnapping the victim was tortured burnt beaten deprived of water and food the police arrived at the nick of time to save the the victim randall holmes was permitted to testify and all i could do is asking whether he'd ever been charged with the crime of kidnapping now this case involved the credibility of the government informants versus the credibility of my client and these witnesses that he called do to take a little bit of leave on things you can continue yes i'll save the rest of my time thank you very much our st witness we were required to prove that he conspired to distribute more than fifty grams we the investigation of course focused on teresa wolfe her original supplier was testimony that there was a falling out at some point and then shelley became her supplier her testimony was that among other things she received a quote a pound amount and twelve point four grams a point is just on her testimony alone never mind bradley never mind all of the other witnesses when we had plenty of evidence to support our case the argument is that these are just you know by a cell of the most any jurisdiction and in any event there is such a thing as you can technically violate the statute if i have a friend and i give drugs to you maybe technically i'm agreeing to sell you drugs but under the raw that's not what congress had in mind here and so those even technically they might meet the definition they don't count but that's not we ha we have here we have three years and one month of numerous transactions we have situations where he's fronting the drugs waiting for the money we have situations where he is obtaining drugs selling them splitting the proceeds so this isn't a conspiracy i don't know what is so i just don't think that's a realistic argument to make here in this case with respect to the  six pages of nothing but outlaw motorcycle gang evidence street was not a member of a motorcycle gang he was associated with someone who then again but he'd gotten kicked out for being too violent like being kicked out of the klan for being too racist and yet we put all the evidence in even though it really had no relationship and the only thing i could argue in front of this court was well it was irrelevant so like watching a history channel movie but had nothing to do the case this is not this case in this case even though mr henslee talked about i think he used the word outlaw i know he used the word gang we didn't use the word outlaw we didn't use the word gang as anybody knew other than the one instance where the one instance where the witness acquainted the hell's angels it was simply a motorcycle club and explained the relationships between these and it also gave context and this is the key part here which mr henslee tries to downplay but in a recorded telephone call shelly tries to silence a potential witness by saying she didn't testify well nobody had testified at that point and if you are allowed to intimidate witnesses in avoiding instruction by being successful and saying hey that witness never testified therefore you don't get the instruction the but but that's the next point that in any event this is a situation where you've got to give some context to why is this a threat basically you have shelly telling his wife to tell this person to quit saying he's a snitch because he's still a member of this club now we didn't go into any details about you know bad acts the club might have committed we didn't call him or an outlaw motorcycle gang we didn't call it a gang at all there was also a testimony regarding how he became associated with randall holmes but again no evidence that there were any unsavory characters that he's associating with i mean quite honestly most of our witnesses were unsavory characters they admitted to a lot of bad acts that motorcycle gangs were tied to any of this activity it was just a a aspect of the case as i said that that outloud just to show how these associations occurred and extent that there was a pejorative aspect of it it was supplied by all evidence showing a he's attempting to use this as sort of a threat and then when  i have friends in the goose's and then that's when she said hell's angels which is the only real association in terms of outlaw motorcycle gangs but that consist of the rd point and the rd point is instruction furrow nine model instruction for not it was instruction thirty four we did a moot court on this and someone said you say it mirrors or nine i guess there was one word that was off but but he was he told his wife that she should be paired to kick his behind for supposedly late labeling as a snitch basically telling him that he still affiliated with the goose's or so you know that they should be wary there was also another instance involving robert preston summers who said that shelby had him had approached him summers and wanted him to say that clarence bradley had been lying so that was ninety eight conviction is bad but his basically his argument what the defendant argued in the case and it's one of the reasons i cited it great like alice responds to virtually every argument he makes in this case in terms of what alice says is when you have a general denial and your conviction is for the same effect identical offense then it's you know the court is authorized to admit that y but as i said he introduced on his own some rather convictions that we were prepared to go into so i don't know how he can distinguish between them with respect to the final issue  but you know her involvement in this conspiracy it's not like she wasn't or couldn't have been thoroughly impeached here and then the other argument is is that he is  was prejudiced by the fact that he couldn't get into the details of some of eyewitnesses prior convictions or charges so he said he wants to get into the factual details of manny smith  from custody details of clarence bradley's failure to comply with a plea agreement and factual details of holmes this kidnapping charge and so the st question is even if you're dealing with prior convictions what can you get into and on prior convictions the case law basically says you can get into the name of the conviction the the date and in some instances  traits of dishonesty or honesty you get into that but he's not alleging that any of these details that he's talking about the kidnapping of homes or anything that has anything to do with honesty or dishonesty and as i pointed out in my brief in great detail they knew they weren't dealing with altar boys here every one of our witnesses in so far as their part if they were part of this conspiracy testified as to their involvement and to their prior convictions and if so it's not like the jury didn't have a really complete picture of what sort of witnesses we're dealing with you know getting into the natures and sordid details of this kidnapping that holmes did for example that doesn't show doesn't show honesty basically what it would do is put the focus on him and away from shelby and if he could get away with it great but the trial judge in her discretion and said no you can't be doing that somehow they didn't countersink it with a hammer hit with a sledgehammer so therefore just with a regular hammer that's that's not too much once the jury hears the galloping  motorcycle club once they hear teresa wolf say to the a t f agent you're lucky you're still here because i have friends of the galloping goose it has a disastrous effect it's inflammatory it's prejudicial and here or there there wasn't anything possible the his it could have been designed to prove or disprove what did it prove randall holmes knew the defendant you could say you knew him from a few years ago you don't have to add you knew him for motorcycle gang so your honor i understand your orders that you have a lot of cases like this this very serious matter three hundred  and decided in due course