the morning may please the court my name is steve jagger and i represent john davis for mr davis the conduct by the government and the decisions by the district court essentially foreclose the possibility of any type of entrapment defense from being successful in this case as the court is aware the supreme court has long recognized entrapment as a valid defense the court has explained that entrapment occurs when the criminal conduct is the product of the creative activity of law enforcement officials the further explained that it is the function of law enforcement to prevent crime and apprehend criminals not to make crime and make criminals when the defenses raise the accused may examine per the supreme court the conduct of the government agents i e then do so meant that they suffered and their own conduct predisposition is also subject to examination to establish entrapment as a matter of law the controlling facts must be undisputed here most of the facts present are undisputed before the court the court has explained that defense preserved with this offered proof of disposition using using the word entrapment i thought i thought wilson preserved it quite clearly i was unsure your client might mike the a trial attorney below made a rule twenty nine motion on all charges for sufficiency of the evidence including inducement and predisposition elements and i think the record before the district court was pretty clear that inducement as a matter of law was present and that the government failed to satisfy their burden on the predisposition element i mean the record from the beginning shows that my client mr davis was doing everything he could prior to being approached by the government to be on the straight and narrow he was working odd jobs such as cutting grass shoveling snow doing painting jobs working on cars anything he could do to try to stay out of trouble and he referred to these jobs as plugs and the record shows that when he was after the initial meeting with the cia and the agent they lured him there under the pretext that he was going to be getting a job with the cia doing cleaning business cleaning buildings houses i guess things of that nature so when he went there under that false representation that he was going to be getting a job it quickly turned to the script of the a t f about this stash house robbery and everything that could go with that and at one point mr davis in fact actually said you know i would rather keep the plug meaning the job than do this robbery but it was because of the constant inducement that was i guess what role does that play when it comes to this argument that the government's  proposed crime did not become the ultimate propose crime the proposed crime was there was quite a bit of innovation by davis and wilson when it comes to what they were planning to do that seems to under to me i think though if you look it's there's a lot of people induced to do something usually do the thing that they were being induced to do that's not what happened here well i think there's an argument to be made that it was because there's certain references by the a t f agent and the c i both about taking alternative measures to both increase the profit that was received as well as to kind of handle the risk associated with what they were planning you're right i mean initially it was the stash house robbery but at one point in time it was actually the cia who brought up doing various different things such as and i'm trying to turn to the references for the court bring up killing the undercover officer well that the cia actually approached the topic and said he would be the one to do it at various times and  f agent himself i thought i thought it was davis and wilson came up with the idea well i don't think that's clear from the record i think there's more references by the c i efficiency question right well except for here we couldn't have a sufficient record on that particular issue because the c i was never produced so well at the kind of intermingle because if you can't have the c i before the court to be cross examined on these nobody knows what was said it's on this i mean what they present i mean they you know because they were there right before the district court which goes to the sufficiency argument they were able to marry ferret out what the i actually said what was done one hundred percent of the time because they met outside of the presence of the recording devices that's clear from the record they and they didn't have the opportunity to challenge anything that happened outside of what age another controlled for the judge and jury to hear everything that happened in this case from the sea ice perspective was filtered through agent no nethers and not permitted to be cross examined and i do think they go together because had they had the chance to do that they could've explored some of these different inducements who said what first who said what when i mean none of this would have happened without the agent nowther initially approaching the cia i guess to recruit davis and  wilson and what happened was they were pros so it's not like they need something to discover it from what the jury could know and the jury couldn't hear everything about the cia because he wasn't there everything that was said about what the cia did or said or what mr davis did or mr wilson dead as far as the c i came through the agent what would you have looked to and on to do if you were able to call him as a witness i think they would have been able to fully explore the type of inducements that occurred the fact that mr davis was not predisposed to commit this crime all the evidence about predisposition came from mr nun's statement to the agent that he has done this in the past so let's go get him to do this now but there's nothing in the record to support that you think  so you think would have testified contrary to the evidence that came out the case unfortunately we won't know that but i think that if nothing else he should have had the opportunity to confront and on about those things per the confrontation clause and i see that amount of time but i'm happy to answer any other questions just on confrontation very quickly what you also argue this statement from the c i that came in that were substantive in nature the government argues that those statements were of a different purpose so if you could just set out very quickly who or what are to specific two or three of the specific statements that came in that were here say that you thought were substantive they were for the truth matter well in light of the entrapment defense being asserted one of those statements was like i just said that the agent testified about statements that the cia made that mr davis was previously involved in stash drug robberies obviously that goes directly to the predisposition element of the defense another one was that the agent testified that he himself never saw of mr davis with a gun nor had any kind of evidence about heroin but he learned that all of that had come in through the statements of mr nunn so again that goes directly to the truth of the matter asserted as far as the crime charged in this case and then finally earle age another is testifying to voice identification and explaining sounds and recordings and things that people might be plotting and doing on these tapes but he wasn't there when they were made the c i was  so again all of the plot that goes to the other offense meaning i guess the plot to murder i think i mean maybe for rebuttal think about this i mean i just understand prejudice than any of this  long as you've got these recordings that show the initial idea was a stash house and then it shifted through wilson and davis to a different crime altogether that seems very tough to get around when it comes to showing prejudice so think about that for a bottle because morning your honor since i'm catching darker i represent mr wilson on appeal i am going to argue that because we have very little time and i'm going to focus on certain things  and then we have a reply brief that we filed that i think is highly relevant to some of the issues that the court's been been asking questions about but our position is that mr wilson's conviction should be reserved reversed for the reasons obviously we submitted in the brief but i'm going to focus for these purposes right now on the confrontation clause violation and hopefully address some of the can you respond slush and i just ask i can't i'm just struggling with how you get around that i understand you are supposedly induced to do crime and after that inducement the defendants are saying no no no let's do it this way i just find myself going well that just seems to destroy entrapment in show the confrontation clause stuff i don't see the prejudice from that either well i'm i understand the court's position on that and that's actually a question i asked myself initially so i looked into it and i think that the change of plan here from the stash house robbery to something else which were i was either thing else was pretty brutal well it was either it was either robbing agent another and taking his stuff or it was robbing agent nether and killing but that was the government's theory it does not undercut entrapment and the reason is is that when the government approached her when the cia approached these individuals they were as my as as a co defendant's counsel said they were looking for jobs they wanted to try at least to a certain extent to rehabilitate they were the caliber of criminals that commit stash house robberies and it became very clear very quickly or it should have become very clear very quickly they were concerned they did not want to do this i think this much is clear is as far as wilson is concerned he did not want to go into that stash house so why does the c i do the c i has a very strong incentive he's trying to get a lesser sentence for his brother who is an arme career criminal and in order to do that he's cooperating with the a t f to get this break for his brother and so what he does when he realizes i'm going to lose this because they can't do a stash house robbery they don't have the where with all these are not the kind of people that can do this they have no idea what they're doing and they've told me they're scared they don't want to do it so yes let's fabricate let's come to a plan b and let's find something else that we can have them do that will get me the break that i need for my brother who again is an armed career criminal has has gotten a reduction in sentence from fifteen years to ten years for nothing that has to do with any justice related issues like re morse his degree of involvement in whatever offense he committed his degree of cooperation he's not the one who cooperated his brother is so i think that that's what happened in this case and that is actually at this point from looking at the record for hours on end my theory of the case isn't that a good argument for the jury that would have been a great argument for the jury absolutely work well it wasn't presented to the jury but the issue is on appeal though whether this change of plan undercuts the entrapment defense and my position is mr wilson's position is that it absolutely does not they were still in traps the government pushed the case word has a situation where you inducement is to do the greater crime and the defendants ultimately do a lesser crime because they don't think they're up to the greater cause and the court still says  court still says well yeah that's a drum and we do your honor because and that's the problem even with the confrontation clause analysis is that there is no case law and the government has presented no case law because and i think the court at one point said there is no case law this is an entrapment case and i cannot find a case and the government has not cited a case where there's a confrontation clause and the case a confrontation clause issue and the case involves entrapment the cases cited by the government involve tips that were provided by informants and granted in this case initially we have a tip certainly knowledge that but it's much more than that because the tips in those cases lead to an investigation those investigations produce a substantial amount of evidence here the out of court statements are the evidence and that is what's problematic and there are no entrapment cases where this cia or this person who coordinated this whole thing was not before the jury and that transition from crime a to crime b or crime c is a transition granted if we if we acknowledge or if we consider that it involved killing somebody to a greater crime which incidentally granted mr wilson a lesser sentence than the drug crime but what would we do with the taped conversations wilson davis were sure seem pretty comfortable talking about doing some pretty brutal things they do that don't sound like the kind of people that were just in a sense that suddenly were induced some your seems like a pretty amazing job of government official to get them to start talking and thinking that way i mean it seems quite implausible to me well first it's not a government official that gets them to start talking that way it's actually somebody who is closely related to them this is the only entrapment case i could find where the c i and the targets tell each other i love you that's very different from other entrapment cases this is the only  not saying they transform them these are people who have had trouble with the law for a long time and have had issues and the have issues with drugs drinking and so on there's no doubt about it these are not the kind the caliber of people that he a t f should be targeting for these types of operations and the problem we have here with respect to the confrontation clause is that the main cases quoted by the government which are deeds and jones they both cite and rely on at length a case called united states v cromer where the go where the court this court overturned the conviction for similar statements that were out of court statements and it stands for the proposition that quote that went out of court statements by a c i implicates the defendants in a way that goes to the heart of the prosecution's case but meeting those statements violates the confrontation clause absent cross purpose of prosecution and i don't believe unless i'm misreading the government's position what they're saying i don't believe that they're arguing that the statements were not testimonial my understanding of six circuit law at this point is that statements to law enforcement by c i s are almost necessarily testimonial the question is whether they were offered for the truth of the matter asserted i believe that's the main legal issue here and what the government says  sorry i'm almost out of time but what the government says is that they were offered for the purpose of context but that's not true here they're elemental they go not to an element of the defense i'm sorry of the offense but to an element  defense will surely some of them do comes back around to give us the two or three that you think are the ones that you say boy how can you say that's not testimonial absolutely your honor and i'm out of time i continue to answer that question you know i will yes ok so there are two categories of i just want your two or three best sentences just tell me the two or three cons i want what will go we have the record i want to know what you think the two i tell me if something changes and he responds ain't nothing going to change that's what it is he again says exhibit thirteen point three speaking of will send ain't no way deion not going to kill somebody ya'll trigger happy i'm leaving the cussing out he says to another is there more than down and about being down there more than down really says again to the other in response so i'll look but i would say for rebuttal think about this i think everything you've just said you get you can find straight from the mouse of davis or wilson so think about that for a bottle and i'll let you address that point to a bottle but that's my sense of the case so i may be wrong but that's what i'm looking with respect to that issue and there is actually a district court in michigan who has just found that the third offense i think or subsequent offense domestic violence does not qualify as a predicate under the arm career criminal act the problem we have here is that mr wilson was convicted of a violation of nine twenty two g before had been released recently and in that p s r he was never found to be an armed career criminal in fact the p r only shows one domestic violence conviction so whatever decision i'm not familiar with how the state of michigan works but they have this register of deans which as i understand it is not an official judgment of conviction although it may have been considered that way by michigan courts i don't know they're saying even on playing their review that they should be reversed that absolutely i think that issue is playing i agree your honor that it's plainer absolutely and  i won't comment further on that issue it will submit it on what we have submitted in the brief and the twenty eight j letter but i think that there's definitely plain error there yes especially in light of the recent retroactivity ruling on johnson you'll get your full bottles of thank you the government mr martin morning may please the court michel martin on behalf of the united states i'd like to start off with judge sutton started off and was a weather davis preserve the entrapment defense issue and he not really worth fighting about given that wilson did preserve it and there's so much overlap between the two you know prop you have to address it one way or the other i agree and of what i'm wondering yes i would agree with that  but i did want to just clarify that in my view he had waived it in let me also address another question that you asked earlier which was you know if the defendants had essentially come up with their own plan doesn't that become problematic for the entrapment defense and the answer is absolutely yes and what i wanted to point out was the defendants came up with their own plan or at least defended davis did almost immediately after his first meeting with the undercover agent as he left the hotel room after meeting with the undercover agent as he left with the c i as you know the cia had a recording device on him and as they're walking out of the car and get into the car this defendant davis who says let's not go into the stash else let's knock him off or words to that effect so very early on almost immediately it's defendant davis who has in his mind i'm changing the plan and the plan is going to be to murder the undercover agent in while it is true that later on once the plan crystallize the informant did volunteer to actually do the killing he did so according to the agent because he was trying to protect the agent the plan was still from the defense that the agent would be killed so the plan to kill the agent never originated with the informant and certainly not from the undercover agent himself case but it stood for largely agree with there they're not a lot of cases there aren't and they're not in the drug house stash robbery type scenario usually they they don't change the plan on their own initiative to come up with that even more brutal plan more dangerous pram potentially than what was initially proposed that's true i thought this plan fell in the category of they're both pretty bad but i thought this was less outrageous click it or not there's going to be less shooting right and you're going to stash the original way they were talking about it did sound worse i suppose the first plan would involve more shooting that's true but the plan they came up with involve the killing that was particularly personal and close you know potentially slipping somebody's throat with a knife you're a lot closer to an individual so it could be you know in that respect potentially more dangerous  brutal and heinous type plan which i think not only undercuts the entrapment defense because they came up with the plan but the nature of the plan they came up undercuts the entrapment defense  because most if an individual had an say if he was an unwary innocent if you believe the stash house was dangerous an unwary innocent person would say i'm not meeting with the undercover anymore i'm not doing this i'm not going to participate i'm brutal and that undercuts the notion that they were somehow entrapped as well but what about confrontation cause i mean it does seem like they have a fair point that some of the statements will be on background  pretty closed for the truth of the matters we deal with that well my first response is i think you need to look very closely at the statements themselves mr davis in his brief never really cited what specific statements from the c i were problematic mr wilson cited a few in his brief and i responded to those in in in my brief i laid out exactly what the conversation was  while i would agree that at least on their face those conversations did go to sort of the nature of the crime the c i saying you know you are trigger trigger happy for example in a normal case i would agree that that you know those would be prejudicial and perhaps should be excluded but in this instance they weren't really offered for background because when you look at the progression of that conversation when he says you guys are trigger happy the next statement is from mr davis saying yeah we need to dust them off well for the jury to understand what dust off in that context means they need to understand the flow of the conversation they need to understand that the cia is talking to him  that that's the whole reason they showed up at the stash house you write about that no but you didn't use that you still we have the burden of proving disproving the entrapment defense beyond a reasonable doubt and so in order to tell the jury what that dust off means i think it's entirely appropriate for the for the government to give the full context of the conversation and let me also say that the defense the first day of trial the guy was the government playing the audio recordings related to the drug stash house we started with the recordings from the first undercover meeting at the hotel and that first day the defense objected on hearsay grounds to four of those recordings and on the fourth objection the district court sustaining objection in the government asked for permission to redact out the informants statements and admit just the defendant's statements for that particular exhibit that evening the government filed a motion for reconsideration and the next morning before the trial began defense counsel withdrew their objection to the exhibits and said on the record that the defense would rather have all of the c statements come in than rather have them redacted and just have his own client's statements and he said he did he wanted that because of his own trial strategy and after that morning after the morning of the second day the defense lodge no objections to he wanted those that the defense ultimately decided they wanted the cia's statements in they wanted to be able to use them so that was their trial strategy and i have to say it's it wasn't a bad strategy because they wanted certain things that the c i said in order to pursue their entrapment defen if i could turn to judge all of his questions about the arm her criminal act the the issue related to the arm career criminal act has to do with one of the elements in michigan for an armed robbery and domestic violence and the armed robbery statute can be essentially committed in three ways one is force and violence the other is by assault and the other is by putting the person in fear and domestic violence similarly has an element either an assault takes place or an assault and battery so the two statutes are similar in that they both have this issue of assault and the question then becomes a what are the elements of the statutes and what is the definition of assault in michigan and to solve that problem what did the judge what the judge to do how the judge come to a conclusion well the judge didn't come to a conclusion because it wasn't raised the defense didn't object in any way to the fact that the finding that they were an arm for a criminal so i think judge sutton asked you do you agree that is plainer i think everybody does so we don't have any record of what the district court found because it wasn't raised there's no question about player review apparently but it doesn't relieve the judge of the obligation to point out the basis for his ruling or her ruling as it well there was a pretty good p s are you the present reporter laid out what the convictions were the government argue that he was an armed criminal the the convictions were not objected to in a finding that he was an armed career criminal was not objected to so i don't think the district judge had any well you think the what so who judges didn't spell out what he was looking at the residual clause no he did not and or not that's correct and if he had b was their route through the residual cause i don't recall your honor i don't recall really important well even if even wouldn't you agree that if the p s r had said this is a kind of balance the residual clause and no one objected and everyone took that as a given set on career criminal then you have johnson which of course is retroactive but that be a problem not necessarily  because the p s r can say one thing but that doesn't necessarily mean that that's what gives a district problem if you have a compelling case that you can satisfy it through another route and i guess that's that's really the issue yes that is the issue that is the issue and so  your best alternative route again that it satisfied it's a it's a violent felony because it has an element the use or attempted use of of force violence is that necessary for this michigan offen not the only way to commit the offense is what i'm getting at yes yes and we know that because you need to go back in time to the time of the conviction in ask yourself what were the elements of the crime in  six when he committed the an armed robbery and in one thousand nine hundred eight when he committed the domestic violence conviction i have to admit that were say that when i first began to research this problem i thought going in that the definition of assault in michigan the common law definition would be fairly static unchanging and well developed and what i found was that in about the mid two thousand is it started to change to include not just a violent act but an off ends of touching or an offensive perception of enough offensive touching for us all but that change took place in about the mid to thousands and we cite those cases in our brief prior to that the michigan supreme court was uniform in describing an assault as one involving injury and that didn't change at all and in fact it didn't change on til the mid seven they canvassed the law in that decision it's the united states versus tyrrel and they concluded that an armed robbery in michigan had as an element no matter how it was committed the use of force and violence in addition the michigan supreme court in one thousand nine hundred five in people versus datum and that's also cited on our brief said that the law in michigan for assault requires the jury to find a specific intent to injure that on armed robbery had anything other than an element of violence and force and so therefore i don't think there was any error on the part of the district court and even if there was i don't think it was plain or obvious given that the precedent changed almost a decade later in the mid two thousand so for that reason i don't think the defendants have met the plain or standard and i think the court can affirm the arm for criminal act sentence on the record that exists now not too significant in your view i think they do way in favor of entrapment i think that their convictions were one piece of the character evidence i think you could easily take away the convictions and find that they certainly had character to commit this type of crime in part because of their own statements about killing people and dealing drugs that had nothing to do with this case  but certainly their convictions were remarkably similar to what happened here you know mr davis was convicted of home invasion and larceny and he actually introduced in his case a pre sentence a state pre sentence report that describes that conviction and it involved him and two other men going into a house one of them was armed with a shotgun beating and robbing a man and then fleeing and it was mr davis who when he was apprehended when he fled on foot who had a shotgun nearby mr davis had also been convicted of assault with intent to do great bodily harm he admitted on cross examination when he testified that that involved him shooting a man in the back in the rear end as the man fled after they were involved in an argument so you know these these convictions were very so similar they weren't exact i acknowledge that but  similar in that they had home they both had home invasion type robbery type convictions they both had convictions for violent conduct and they both had convictions for fire to first address judson's question then me the question should not be whether or not the statements that were made also came out of the mouths of davis and wilson but where those ideas originated the record clear that age another change the plan from a stash house robbery to also having to potentially kill the people inside the stash l shrubbery he said that it had to look like he would rob in the process of the robbery and then he said that if the guys in the stash house were killed the next then he could act like he wasn't part of it and the proceeds could be split he told mr davis that they could perform the robbery as planned if davis would kill the people inside so well honestly i'm a little confused as to which plan the government's even pointing to because they're saying that the prior offenses support the robbery but it seems like we're more focused on the conspiracy to commit murder so which there is nothing in their prior offenses to support that so i'm a little bit confused but the plane that ultimately it was agreed upon i guess that were referencing is the plot to kill agent no other him while that did come from agent nether region other was the one that said it needs to look like i've been robbed you need to rob me i need to be like i guess appearing like an innocent in this case and then the c i is the one who came up with the plot to kill tom age another because he said i'm going to get him because i'll feel better if if i pop him in his shit i'll feel way better he also stated that he would be that age another was going to be getting knocked off and he clarify quote knock him off that be my job i thought that all came after wilson davis come up with a scheme that was kind of after that i think the timing is a little unclear because we don't know exactly what was said outside of the presence of the tape recording devices between the two individuals your clients do but again i go to what the jury knew and i don't think that that could have been explored sufficiently at trial and the other questions thank you thank you thank you again have very little time one minutes i'm going to hurry up with respect specifically to answer the court's question regarding the statements and the similar statements that were made by davis and by mr wilson there eerily similar to some of the statements that are made by the c i when we listened to them were we're submitting on the briefs what we said about the transcripts and i think that poses a huge problem in this case but at one point davis appears to just repeat what was up to review the transcript that's not clear from the record your honor as i understand it from what was filed on the on the district court record in december this year of last year there were a number of things that were sent actually fairly late but we cited case law in our responsive brief in our reply brief that to the effect that there is a transcript before trial i guess that's the question i'm sorry the transcripts before trial i think they had them shortly before trial your honor so i guess i'm just saying that to give the defense does not have an obligation to raise an objection at the time or to provide counters transcripts as the government argues they should have done especially if they have some trouble with what is in there and so i think that that was certainly discussed at trial or would you have no obligation to make an objection iow i think they had an obligation while of course as well as advocates they had an obligation but i don't think they had an obligation transcripts the way they were being introduced and we discussed this in our brief because they were being introduced as such almost as substantive evidence and even the court was confused as to what was what and the the clear evidence of that actually is one of the jurors going back to the jury room with the transcript the objection was that they shouldn't see my understanding is that they saw the video tape and they had the transcripts to file so a lot of this language is kind of hard to follow because it's slang and everything you know holes i thought the objection was that they had the transcript not that it was accurate as to what was said in my correct on that respectfully your honor i think so because i do remember very clearly at one point one of the trial counsels for the defense saying let's just get rid of the transcripts because this is not making any sense everybody is struggling trying to figure out what's going on and just let them listen to the audio the problem with that i'm saying that it's not an argument that they're in accurately transcribe that's all well i think sibs it was in that argument was that it didn't match it didn't make sense and i'm from what i can recall and i think we did make the argument in our reply brief as well as in our in our substantive brief or corrected brief that there were substantial portions that didn't make sense where there was not a correct match the fence was allowed to submit their own transcripts chose to i don't think time allowed your honor for them to do that judge allowed them to do whether you had time or not i i believe i mean i don't think that was raises an issue but i think they would have been the government says that they're only using this evidence for the purposes of background and context and i understand that but in its brief at page thirty six thirty seven the government says and it concedes basically that the cia's statements go directly to what the government has to prove meaning they're elemental the government says they're used to show the cia statements so to the truth of what he was say it goes to the fact that they and that's part of this overall criminal plan and scheme the cia we would like to think didn't really and to commit crime or to kill the undercover agent so it doesn't go to the truthfulness of the statements but rather that they were said and because they were said in this context they're relevant and admissible and not hearsay errors sure i mean we believe they do they do  what he said in the statement at all no he didn't say that was the plan essentially but more importantly when we look at another's use of those here's tasty hearsay statements in his testimony he says this is the the information that was given to me was that davis did this or armed robberies did that in the other a few months before davis was duped into find fake cocaine i guess we're going to agree to disagree but i'm just saying that the form of statements don't go to the truthfulness of what he's said but rather that he said and how the defendants were acted to those statements whether or not they were i threw or not  kersey your court appointed counsel we really appreciate the service we know you're not compensated as well as you should be for so we're quite grateful for your service to your clients in the courts so thanks to all three of you appreciate it the case will be submitted