brief and our reply brief is well when you look at both of those briefs you can see that one of the major issues in this case is this incident that takes place on january st two thousand and seventeen enough time to work they went back they get the two cars come back but then they all the people get in one car and that's when they pull up in the street front of the house and they get out and then the gunfire begins you can defend yourself from that if it broke or some way after after throwing the bricks after them and they throw it back actually you get a self defense instruction it has to be a light kind of like if you're going to if you're going to defend yourself it has to be you can defend yourself against some it's not a brick at you but you can't necessarily kill them i agree you can roll it back when nobody throws a brick back in instruction for initially throwing a brick wall i would argue in this case with the time with a fifteen minute time period in between if somebody if i was sitting there and i threw bricks at somebody that person someone's inside so what you do is you go get all your guns and you come ready to shoot if you need to to get in you're going to get him by any means necessary nay fire it you st you get a self argue of the people is not relevant for you it doesn't just to maybe i slate the point here is the point that if the shooting had started right away be a different story to you it's all about the fifteen minute somebody soon see you i would argue that you may if you couldn't have the ability to retrieve even even assuming even see some ink the breasts rolling is part of up a robbery so in other words take the fifteen minutes out of it  one robbery you so correct stan you wait to see if it's quiet and then you go and this time it's not quiet that shoot back that they know they're being robbed you get a south end defense instruction well i've i believe that you have to look at the nature of the i guess the response to the initial a but in this particular case we don't know what happened we don't know what was going on and even took the shots or what was happening but i would i would argue that there are times when you can have some of this instruction in michigan even if you are the initial aggressor it just depends on what the light trying to turn it is coming back to you you mentioned  time the shooting started right correct the reason why and and here is a factual scenario that the facts from that the transcript and we were at the trial but what was business testified to with both the operating witnesses who were there  basically the test was a little different but essentially wouldn't assume that the vehicle stopped when the doors open the shooting begins so it's not like the gentlemen are up at the house trying to break in a car stops the doors open  all well you know i'll tell you her honor i believe that with self defense there we should have been able to argue that i know just murky did allow us to argue without getting the instruction but a major made a major difference i do  in a sense he was found not guilty of those two predicate acts he was found guilty of a conspiracy and i believe that under the driver case which was an outlaw motorcycle gang case you concede we view the evidence in the light most favorable to the government now right yes and the government is i understand it presented in evidence that he attended meetings on behalf of the gang used gang sides wore gang colors posted related p g c related material on social media sold drugs and committed other crimes for p g c and held rank within p g c why isn't that enough well judge murphy a drugs and holding a rank wasn't he especially the way the gang was resentful that the jury wasn't that not the show you adopted the bowl furthering your facilitating p g c well the government argued that  he was and photos with other gang members and that's not correct he was never in any of those photos and he had a group photo she had no tattoo and a blanket statement by  act your court looked at that and said that's not enough and it's very tenuous as to his relationship with the gang so that's my argument that it was very tenuous  we had no police reports of mister davis selling drugs from nessun alco nothing so i i rarely cross examined any of the police officers on that matter and  n there he did give a blanket statement well i read some pre sentence reports and saw a lot of evidence during the trial but that's not enough just to  say that your honor so i believe under mick reynolds which was decided after after this case it was decided in july of this year it looks to be the issues of scope in agreement and foresee foreseeability and here are there with your argument that your client could not have known how successful this gang was in this in selling marijuana well and so it's just basically dwan taylor saying that and i don't believe that's enough based upon his his testimony in front of the jury about the  at all versus the overall efforts of the of the gang and whether he can be held accountable for those efforts yes and i believe  nickname was tiny tiny gangster shock so that's a level going down but but in a nutshell being a member of that group is not enough to bring it to the level of the rico statute that was written in the early seventy's by a notre dame law professor and but it tried to close some loopholes  designed to protect the defendant right i mean yes that's the real point amid such callous the prejudice if we wait for the twenty to fifty five read and hear the the overall prejudice is that a series of unnecessary proceedings and i have to flesh that out a little bit so st of all every twenty to fifty five results in a series of proceedings been this one the district judge in overruling his court affirmed similar objection has already indicated he's applying th arguments and ineffectiveness are going to get to zero over here and well they get below twenty four months no they won't ok so the thing like i think twenty five is so strange this custom we have it going back to the very district court judge i've never understood that so you've got me there but this is the way we've been doing it for a long time in the downside i think you're right about this exact point it doesn't sound very promising he might reconsider but the below but it's now playing their argument and or well it's really an ineffective assistance argument because of the plane air so that's that's why i think we have this strong inertia and favor of waiting for the twenty five counsel discussed with his client or advice you gave and that as i said we're the district court has already indicated that it's applying the wrong standard here by wrong standard i'm specifically focused on the maintaining of perhaps you what how did how are you so sure there are other arguments among your forgive me i know i know how good you are so that's i'm saying this tongue in cheek you're potentially setting up an ineffective assistance kind about a direct appeal counsel for not scouring everything before you do twenty or fifty five i'm a bit confused i'm sorry i don't know it appears my point it's arguably forgive me it's arguably not your case but it's arguably in the abstract ineffective assistance to bring in ineffective assistance claim a direct review i mean the i think there are times it can be yes well how would i know the only instance i can think of when it can be would be if counsel urge is something that can't be proven with the existing record because then they may have created a lot of the case that they lose on a particular point that they could have won with the developed record a related question which is just back to judge sutton is kind of initial where he was going what sentence do you think would have been appropriate because your client got a seventy eight month variance right yes it is that's pretty lenient and generous to begin with but go ahead i'm sorry no it is more generous but his his his appropriate guidelines range with just the maintaining the premises in an office would have been i believe three years lower right there ok so you're talking about twenty years versus seventeen years let's say generously you get it all the way down to ten years right what back to judge sutton's initial question which is i'm like him i'm very has a ten an initially with an attorney as good as yourself sometimes you miss things and then we deal with the nd ineffective assistance of appellate counsel when you miss things what's the harm in being careful in this instance going back a step wishing a record which i judge certain and i can talk offline but i think district judges can do fine because you're not attacking the district say although you are in this instance but and a scab lish the record and even if the district judge gets it wrong we have  entirety of the record and we can look at all the various claims it wants why isn't that efficient when he's not going anywhere either way and it could be i think perhaps some i'm sensing from both your questions something that i don't think  part from bringing in effect of the sisters claims as to trial counsel not appellate counsel not on different grounds no a real it right yeah right right and i think the easiest way to explain that is simply that as the court as the supreme court has looked at claims and claims as a very huge you have a case incest do you have a case that confirms this point because i don't off the top of my fingerprint tips but i'd have be happy to supplement the scale of night that out actually and i think i think the issue for the court which i think is well framed is is it enough for the court to say i'm willing to instruct the jury to not consider this and then inquire if they say if any jury says no i can't do that or must the court give the opportunity to actually inquire of the jurors ahead of time and we argue that the court has to give the counsel the opportunity to inquire for example in the chipman case that's what the court allowed and found then there is a juror terms of how to resolve this if it previewed i agree with the i think when the district court tilts the hand and says i'm going to instruct this is your option take it or leave it then at that point counsel has to make a judgment  over a period of years the playboy gangster crips terrorized the street the trade they committed carjackings home invasions in robberies sold drugs and they got into shootouts with rivals in danger in the offering appellants in this case were central members of the ga during a two week trial a jury convicted each of them of rico conspiracy among other charges that same jury heard three cooperating gang members testified repeatedly about how each of the apollo consistently sold drugs and actively worked within the gang structure and specifically how mister tindale shot repeatedly into a house during a home invasion because he had a specific role as a shooter in the game so mister wright did mister mike and i think we i think the general stuff you know i think we got we got that maybe we could just kind of walk through the different arguments with his tail we've got the argument about the self defense instruction how do you want to respond to that certainly there are i think there are three separate ways that mister today was barred from bringing that self defense instruction i'll touch st on the initial aggressor idea which the court went through in some detail i think throwing the brick through the window and when all of the gang members return to the house has to be looked at in context collectively so  it is it is a little strange i didn't think the the normal klan was brick through a window go hang out for fifteen minutes come back in fact it's it's actually kind of a strange plan if the idea was to see if anyone was there so why saddam changed things a little bit well but i don't think it changes things because the homeowner still has that europe what's going to happen from when the brick came through the window which is why the bri being thrown sort of initiate that aggressive act and if you look at the nine hundred and eleven calls they show it's about a twenty minute span of time between when they came in and the individual in the house st called ninety one said the brick was thrown through the window was clearly scared and then the nd call after the shootings happened the caller says they threw the brick through the window earlier that came back they have masks on they were getting out of the car so clearly that person saw this sequence of events a brit come through his window he had tubes and an elderly mother in the house and once individuals start getting out of their cars were a math an individual sees the connection of all the series of events here and that's what makes the brick in this unit that encounter which is essentially the start of an attempted home invasion by this gang so that brick is the initiating event that rightfully put that person in fear of great bodily injury in addition to being the initial aggressive act tisdale also engaged in the course of a crime during this entire time which also precludes self defense argument he and the other day members were attempting to invade this house to do a burglar or home invasion of someone who was pr inside the statute bars the self defense application in that context and there was testimony from gang members saying yes we were planning to go into this house whenever one guy out of the car and the rd guard your honor is that mister today had a duty to retreat if you was in some kind of bodily danger and i think your honour's covered this well during mister to dale's argument he had just gotten out of the car at the time the shots happened there's no evidence that anyone else of all the two cars full of gang members fired shots back in the house mister tibbs there was the only one who did that very easily could have retreated either back into the car to drive away behind a car he could have run there are many other options available busy to him other than unloading his pistol into this occupied house so all three of those different things about the fact finding but judge mercy on the marijuana drug quantity yes you honor so i'd like to walk through just at least to make totally clear how that calculation was arrived at so there were two other gang members who had property with a t f and describe that the game was selling between half a pound and one pound of marijuana per arrive at a quantity of four hundred and sixty five kilograms of marijuana which is that the drug quantity range that the judge came up with now that's conservative for other reasons that didn't account for pills or other drugs that the evidence showed that the gay members were distributing and also lined up with the testimony at trial by the gang members who said that you know all fifteen members of this gang or so were selling drugs the gas station and a series of traffic now there's a separate question i think runners are getting to about what was foreseeable for mister tisdale and mister davis there was again significant evidence that both of these individuals had a ranking position in the game mister to dale had the nd highest rank in the gang mister davis also held rank in the gang and the testimony at trial was completely clear that this or davis was a member of this gang he attended meetings he wargame colors he posted again materials to facebook and what's also i think important to understand is this gang is not selling drugs all over the city of detroit it's not individual members selling at their own different locations there were a few separate key locations that were going out of their own houses that's not what was happening the gang members were all selling out of his gas station and out of the series of trap houses right reverend would see it so there's a good time but how much should davis councils arguments findings is they try to criticize judge murphy for you taking a few short cuts or you know not articulating fully the basis for his findings here i don't think the grounds changed any standards judge the standard always was of the judge put up to find the drug quantities were reasonably foreseeable to a coconspirator and i think that the judge properly did that here one important thing to know that what about the particularized language from th isn't that yeah i'm not sure if that if that changes the prior standard stuff but i think there were other cases that also included that same language but i think two points very quickly here st in the context at l mister davis mister davis didn't make any kind of concrete objection to the drug quantity he simply said i don't think the government has proven this amount and that sort of bear objection this court has held in the adkins case and the patel case that we cited in our brief but sort of bear objection is not enough to even trigger any requirement or anything like that so the judge will not be just dance the government says look we can prove four hundred to seven hundred kilograms and he says no you can't there's no evidence of that prove it you say that's not enough i don't think so just i think that's the sort of bare objection that is not enough to trigger now mister stale i think did preserve his argument he explained here's what mister tiddles role in the gang is here's the quantity of drugs he was found in my experience dependent subject all the time to drug quantity and then i thought the burden shifted to use to demonstrate  findings what the quantity was i think they have to make more than just a statement of it's not proper it's not the correct amount in order to ship that how did they do that ok that the government is not  even that the conspiracy distributed this amount there's no evidence in the record and this can can a district judge sentence them based on the government's assertion i think in that circumstance the judge can rightly rely on the pre sentence report and to make it more concrete here's what mister davis could have done he could have said that the government's not correct in the amount of drugs the showing a trial was only that mister davis held a particular rank there was no testimony that m davis was at a certain location at certain times he could have gone to detail about what the evidence was to help make it more concrete but even if it is preserved properly it was properly raised your honor i think the judge did make the sufficient findings he found that mister davis and mr tidd they'll both had rank in the game you found the drug quantity that was identified by the probation department was appropriate and to touch just very briefly on the rader asked about i think that you can look at the standard it's important to note that he's had a sort of very particular fact circumstance so that case involved a drug dealer who was only a very peripheral member of a particular conspiracy and there was a jury finding specifically in that case that the defendant had only been involved with a certain quantity of drugs i think it was less than one hundred grams of heroin but then five hundred grams of cocaine and then sentencing the judge found that that defendant was responsible for a higher quantity so he was going over what the jury verdict was now certainly a judge can use acquitted conduct or can differ from jury findings sentencing but that particular circumstance i think triggered a very different sort of requirements of what the judge would have to do to make that finding but not at all we have here the jury didn't make any particular on his findings about the drug quantities and here the judge was was a proper and relying on the present report and the defendant's role in the conspiracy if i could i'd like to address mister hill's arguments about ineffective assistance i think judge s points are well put that it certainly would make more sense as far as efficiency to what's what's the answer to the question of what i think not are they barred or not barred and bringing a separate challenge on  ineffective assistance grounds to trial counsel if they bring one such claim a direct appeal you know that works i don't know the answer to that judge i'd be happy to research and follow up with the court if you'd like i don't know the answer but i don't think that is i don't think it matters too much for the decision here because i think what's necessary just to make the determination of whether mister hill's counsel was ineffective or not in his objection is findings of the church hearing because there were certainly strategic reasons mister hill's counsel would not have wanted to raise this objection mister hill was the rd defendant sentence here so by the time he got to his sentencing he had seen the exact same objection had been raised and roundly rejected by the court or m to dale and mister davis and i think he appropriately could make a decision that he wanted to go after a variance rather than a guideline objection he didn't want to invite the government to parade in all of its evidence about the quantity of drugs  involved in the conspiracy and i think it's appropriate for a attorney to decide that's more likely to result in a better outcome for his client and evidently it works you've got a very significant variance from the bottom of the guideline range as noted so i think there are a lot of things just in that one particular claim you've been putting aside whether or not other ineffective assistance claims might be raised later on there are there's a lot we don't know about what the judge was or what  mistrial the facts of this case were very well in line with number of other cases were similar sort of very brief inadvertence occurrences where juries a defendant in handcuffs  hill's counsel raised this issue to the judge the judge offered to question jurors individually to see if they could only consider what they had seen in court as the evidence and then follow up if necessary and all three of the defense  attorneys said no we don't want to do that rather not have any kind of particularized questioning about the incident so now mister hill's asking for that exact same thing he wants a remand because he didn't get any kind of particularized questioning but he was offered that exact set of circumstances during the trial self and that's a waiver he was given a chance to take that action and decided not to the issue with me parental when i remember reynolds it's clear to me that if it were going to use the acts of everybody in conspiracy the corps has to have a finding a particularized finding of two separate things since it's kind of like two issues but isn't there evidence in front of the district court that he both helped to stop the nd rank which i think is pretty well established in the gang so and that point five  pounds of marijuana was distributed daily and wouldn't that be enough for the district court well i would disagree with respect to the government's argument that it was that much marijuana at the trial the one here or the person was ever lying then he gas station was the primary location for the drug dealing and to the surprise the government a trial i had obtained a lot of police report that showed other people that were gang members were selling marijuana their entire new conspiracy so you got to take question did you ask for one no i didn't want to shift the burden to davis as to how do you how does that shift the burden by asking that the government have to make a specific finding of quantity well i think under a prime day they do but there was no evidence that davis sold any drugs out of the gas station no police reports to that effect  assault with mike explained how it shifts the burden by requiring the government to prove a specific quantity well we didn't well i would say it shifts the burden because based upon  our verdict form it doesn't even look like he's charged with the drugs funny drugs whatsoever and then and then we don't have judge murphy saying what mister mixner sa hey look at this i think that there's a half pound sold here every day and going through if he wants to say that let him say that but to say it now after the fact is improper and can vary downward making factual findings opposite to the factual fundies so when you can agree defense attorneys all the time for strategic reasons abandon objections they will irritate the district court that they don't believe will carry water and argue for variance instead i mean as a tactical decision they do that all the time yes yes your honor but not on the basis that there is no evidence to support this objection to the proper standard but then i'll argue for a variance complicated case we're really grateful for the hard work afore he put into the briefs and the arguments say thanks