anthony griffin unfortunately missed the gold had a loss in his family last night and he was attending the funeral was mourning with the court's permission i'm prepared to go forward to make argument on and about the apartment building where they live over a long period of time and while the government chose to charge them of narcotics activity offered with respect to most of the years in between those those two the stronger you there you know there's a fine line between inference and speculation and i think the kind of argument that the government uses to support their position i think goes into the realm of speculation because if in tru the incident involving the police it was it was bad it was but it was a violent incident but what it demonstrates is i think nothing more than that christine romans just don't like the police i don't think it what the government intends with respect to the conspiracy to murder william jones also known as water i suggest that that was completely unrelated to the to any alleged enterprise and the u s plot was purely personal in nature because in fact the dispute was originally between rich and poor and then it transformed into a  cases in the federal courts in the city how many times have you not heard the government make the argument that the defense arguments were a smokescreen or a distraction from the evidence that the government well yeah and what's and what's wrong and what's wrong with the argument is that you are you get up and say here's what's important about this evidence and then the government gets up and says that's nonsense that's a distraction that's not what the defense wants to concentrate on this but that's not what's important here is what's important this and i think case i think cases where the government does things that are fairly outrageous like say this is the way defense lawyers are because they're paid to represent their clients and they don't have the interests of justice apart and so they're just trying to confuse and mystify you but the argument but basically i mean the role of the defense lawyer is to raise issues that could raise a reasonable doubt and the government is within the bounds it seems to me in saying the issues that are raised here don't do that what they do is distract you were obscure what's really important and then the jury figures out whether they think it's important or not important only giving the government all the information they need to know that let's let's let's look at what actually happened there the defense argument was that the st words out of his mouth as to what he wanted to do was to please the government or give the government what he wanted and the government then got up and read from the transcript and in fact the st words out of his mouth were that his job to tell the truth and it was only later on cross examination that he said that some words to the effect of giving the government what it needed now i don't think that argument on either side is terribly potent and indeed the defense might have done better and i'm sure it was just an inaccurate memory on counsel's part the defense might have done better to say yeah when he was rehearsed and telling you what the what he had prepared with the government he said tell the truth but then on cross you notice that he slipped up and said what his motive really was but you know these are the things that happen in a trial and the government's pointing out that what the defense counsel had said was literally inaccurate is act focus on the purse to the shoes raised in queens that the trial court erred misconstruing the law operators and that the government committed reversible brady violations turning to the proper we are united states versus rosemont as right lines of what situations are not factual assertion deficient to trigger properly such situations including arguing that the government has not met its burden of proof cross examining a witness in a manner to suggest that he was lying or mis opening statement and i realize that's significant where where else in the trial if ever did the judge punish defense counsel and or allow the government to introduce any statements from the proffer  session the court did not get to the point of allowing the government to quit in statements from the proper the court though did find that proper waivers had occurred specifically in the cross examination of a cooperating witness or when defense counsel used the basic type of confrontation as permissible under allah want to solo and under rosemont pointing out but it seems to me the two steps if we're looking at any prejudice to the defendant blend into one if the court had then gone on and looked at the proffer statements and  found that in fact mr quinn had said in the proffer sessions exactly what something that contradicted his testimony specifically then why wouldn't it have been the case that the government would be allowed to put in that evidence but instead when the judge looked at the preface statements he concluded that there was nothing in the proffer statements that contradicted the testimony and therefore no contradictory evidence should be allowed in and he rejected the government's arguments that somehow this statement about you know who court rejected the government's argument that that statement allowed them to put in some admission that he was really guilty so i don't i don't see what the problem is in that episode the problem is  lead defense counsel then waive entirely cross examination but you know if you think that the if you have a defense lawyer and you think that that's a wrong ruling don't you have to have the gumption to go on with what you're doing and if if you if you believe that the judge is wrong and the judge then into the allows the government to introduce stuff then you've got an appellate argument but if you view treat in the face of the judge that because there is no requirement to make exceptions to rulings i'm not talking of making exceptions to the ruling i'm talking about if the lawyer dick sides i'm afraid to do cross examination because the judge might eroni asleep punish me for doing that that's on the lawyer and maybe there's a two thousand two hundred and fifty five dollars that what the lawyer should have done was to stand on his correct interpretation of what would constitute a waiver and what wouldn't make his do is cross examination in the right way and if the judge then allowed evidence in that shouldn't have been allowed in then that's your appellate issue but if the defense counsel acquiesce in anticipation that the judge is going to rule incorrectly on something and therefore i'm not going to raise evidence that i have or cross examinations that question that i have why is why is that reversible error somehow  it not just on the lawyer because it at point judge had made clear the judges interposition the law but i bet but the judge if you go back to what the judge actually said going back now to the opening statement the judge gave a rather cogent summer it seemed to me of the rosemond decision now maybe he misapplied it in that particular case maybe misapplied it or missed mistook in some in the other case although i find it a little again hard to say that he got it wrong when he went back and didn't allow the government as a result of whatever question had been asked to introduce anything i'm not sure what ever happens there but going back to the the opening statement  if he if you misapplied it in one instance i don't see anything that says the judge didn't read or understand rosemond judges make mistakes sometimes but that's different than saying that defense counsel are supposed to cower in the face of their midst interpretations i think there's a difference between towering verses not saying the same thing over to a court that may has made its position on the law i'm not saying anything about about making you know this is not a question of a waiver by failing to object this is a question of your saying your appellate argument is that the lawyer declined to do any cross examination because he was afraid of what the judge might rule with respect to any cross examination of either of those witnesses correct that's kiss me you have one minute l was a significant member of the organization or something like that right player a principle active player now a principle active player is different than an organizer or a leader isn't he's an important player and that and that may or may not be accurate that's that's one issue i suppose you could contest that characterization but i don't know that you can list the pre sentence report  where the pre sentence reports finding that he's not an organizer manager leader of the organization within the meaning of the guidelines which the court apparently agreed with because it didn't apply that adjustment i don't know if you can enlist the pre sentence report in on your side of the judge's characterization the judge is making a characterization that's much it seems to me is much less specific much more flexible in its application and so so what you're really taking on is saying the judge was somehow factually mistaken and saying that mr brit was a significant player here isn't that right well we don't t the pre sentence report the pre sentence report doesn't say he's a minor player and entitled to a negative role adjustment right so he he is in the few of the probation  a minus and the judge then did exactly that he didn't give an a plus or minus for his role so why would you be entitled to notice that the judge is reading the guidelines differently than the  report and did the probation the probation officer say that he was not an important player or was not one of the main guys or anything like that you know now however so then what factor in the when we do if if we agree with you and give a limited free man and it looks like it's going back anyway because the government has agreed there is a guideline calculation problem what do we tell the court with respect opportunity if it goes back for me sentencing i mean isn't isn't your main point that the government is asking us to just ask the judge whether any of this would have made a difference when in fact the judge never legitimate inference from what happened that the judge gave a cooperator fifty percent of the bottom of what the judge thought the guidelines were so it seems to me it's not at all unreasonable for you to contend that we don't know what the judge would have done with the correct guidelines calculation so give a full remand for re sentencing with the right guideline calculation and if there is a full resentencing you're now on notice that the judge thinks that the word principle is an appropriate characterization of mr britt's involvement in this conspiracy and you or success or counsel if you don't do district court work has every ability to  argue that that's inaccurate with notice from the very moment d of that person's appointment that this is an issue that was was raised in this case so i mean the real the real here is on should there be a full reset and saying even based only on the two things the government agrees to and the government is rather stingy really insisting on a very limited reman you've for the government mr drawl good morning your honour's kevin trial for the united states i was one of the lawyers who represented the government of trial below with the court's permission i'd like to start with the issue raised by counsel for mr quinn about the proffer statements and i can address the other questions with not i want to start by noting the arguments that mr quinn's lawyer is making about all the want to solo and the court's erroneous understanding the case are just isn't borne out by the record here and in fact i think beginning of trial as judge lynch you noted there the defense counsel put in a letter explaining his understanding of the law the government's this is that appendix i think mr quinn's appendix  agreed that that letter accurately stated the law and then the court explained its understanding of the law which was also roughly the same as as your honor pointed out in all i want to solo by contrast the problem that the court identified and the reason why it took this different approach about sort of overarching chilling effect was because the court expressly told d the defendant that he was not entitled under barrow in its progeny to challenge the government's the sufficiency of the government's evidence on a particular  on a particular element that simply didn't happen here and in fact all of the all of the parties were in agreement about the contours of the law and as you point out to challenge the parties had significant disputes about the application of those principles but  hort of saying that the government isn't entitled to make arguments about about the scope of the proffer a waiver that itself is not impermissible i you did you didn't discuss the opening statement issue your honor but but  i suggested some thoughts about it judge lynch when you're talking to mr quinn's counsel and i want to address that for a moment because you know if you didn't have a chance to get into the record on it the government raised this this objection to the opening statement the could of reasons why it might be impossible for the government to prove guilt beyond a reasonable doubt in the case of someone who is factually guilty for example the witnesses who might have testified to that he was guilty from their personal knowledge died in the interim or became unavailable and then it would be impossible for the government perhaps on that particular situation to prove guilt that's not the same thing as saying the man is factually innocent is that i think your honor it's it's fair to say that the government's position on this particular argument was aggressive and i think i very much here the point you're making and wanted to draw your attention to the way that the point was addressed in court the government raised this issue and mr quinn's counsel said what i meant to say was well not so there was no point at which m no that's not a waiver no no no could not can mean any other things what he said to the court was i misspoke the court i think very reasonably said ok well you've just explained to me that that's not what you intended to say i think we should it for the jury and mr quinn's counsel agreed i obviously that argument could have gone a very different way we could have fleshed out what it meant maybe we would have come to a different result had we argued the point but what ended up happening was just that mr quinn's counsel said i i didn't mean that and so it short circuited the argument that might have led to the conclusion that your honor just heard and so i think in context with the other issues you know i'm happy to discuss the cross examination of the board and the and the camera on the house but it's another example where yes the parties had a difference in application of the core principles but there was nothing that the district court did that misunderstanding of what all d want to so the barrow or any other cases roseman had to say and also just as a matter of principles of law we take issue with mr quinn's counsel suggesting that rosemond step right lines about what and wasn't a trigger i think what all of the cases say is that the court in understanding the scope of the cross or of the jury addressed has to assess whether what was said whether it be by the defendant himself or by his counsel gives rise to a these two increase collapse into one and the court was very careful even though it sort of separated them into two things and called it a waiver it really what it was telling mr quinn and what it told mr quinn repeatedly entirely consistent with the law was be aware that questions on cross examination can give rise to factual inference is that's absolutely true and where they do we will consider whether there something in the proffer statements to rebut that and the court did that and at no time admitted any pro could under any circumstances so long as that's all that it is it's you've said this today is a fact that you never told the prosecutors this in any of your proffer statements now that may be true or that may be untrue and  redirect can bring out if it was an accurate statement but if he says yeah you're right i did i didn't say that at least in that proffer statement that you're showing me the fact could constitute a waiver that would permit the government to put in what i think was basically being asked the quins already confessed to all these things well i mean of course of the evidence that is the government's position then maybe we should be laying down some brighter lines  if your position is rosemond did not make clear enough that that kind of cross examination is always permissible and is not something that triggers a waiver no if the government's position of course is not that the mere merely cross examining a defendant about a prior inconsistent statement full stop meaning you can elicit from the defendant that at some prior time he said a different thing absolutely that's true i think part of what happened here is that that particular kind of cross examination is of limited effect because the reason that that is that can be an effective cross examination is because it gives rise to the inference that the thing that the defendant that the witness is now saying isn't true or as recently fabricated and so well i don't that's the point that's what it means to say the man has no credibility that if he said one thing before and now he's saying something different you the jury should not believe  reasonable doubt what he's saying here that's a very different thing than saying what he is saying here is factually inaccurate it's an attack on whether the jury should rely on this witness's testimony i completely agree with you jackson's i don't mean to dispute anything you're saying i agree with that i think as the cases all of the cases in this line make clear sometimes the line between an appropriate cross on a prior inconsistent statement and an assertion through cross examination is very fine all the cases acknowledge that and i think the judge here and the government certainly now and i think at the time recognize that these cases are a bit difficult to to construe we had a difference of opinion on these things that ultimately there was no there was no effect certainly not anything that gave rise to a deprivation of the defendant th amendment rights i absolutely hear your point the only point that i'm making is this is in response to something mr prince counsels currently saying that defense counsel simply didn't do this and he could have but i don't know why he didn't do it and it wasn't because the judge told him he couldn't do it i think i suspect that in many cases defense counsel would find this to be a less than effective cross examination technique because you can't take the next step i don't know that for a fact and mr lindh obviously isn't here and so we can understand why he made the decisions he made and that's also part of the government's point as your honor was pointing out to mr quinn's current counsel yeah i would imagine that you know i don't want to put any words in mr lynn's mouth but the this is something that might come up if there is some ineffective assistance argument but not cross examining witnesses when your position you know when those witnesses or as mr unger point to the subject devastating cross examination by somebody else and that somebody else is representing the lead defendants as it were in the case in a lot of these rico cases i've seen defense counsel  basically not do much of anything during the trial when they're representing a subsidiary player and then get up in summation and say hey remember me you haven't heard much from me and that's because you haven't heard much that was of any value th implicates my client and then rely on the other folks cross examination that that's a tactic that may or may not have been mr lynch tactic it may or may not have been a wise tactic but there are technical reasons why a defense lawyer might do w the judge's rulings than i am with what seems to me a pattern i've seen it in other cases of the government being very aggressive than taking positions about what constitutes a waiver and really trying to limit what are fair tactics by the defense and in the process causing themselves and us a lot of trouble on appeal when we get arguments that sometimes are more persuasive than these because the judge was led to find a waiver and allow evidence in and that can lead to a reversal of conviction and so that's you know i think that the government should rethink a little bit whether it's worth the candle to try to short guidance and i i agree with you as for what for whatever that's worth and i think here though where we are not in that zone and based on the record i think the judge was correctly understood the cases didn't apply them in a way in spite of the take your point and only would just offer that i don't think it strictly applies here because the judge correctly understood the law if i could just briefly turn i'm obviously happy to address any of the other arguments that mr quinn focused on that  there are others i'm happy to address those well or to turn briefly to the argument made by mr britt's counsel i think the only reason the government sought a limited remand here and i take your point on this is well  is obviously nothing improper with sending it back for a bald innova review the government's view simply is out of respect for the district judge who obviously heard mr britt's testimony consider his criminal history consider the government's letter in mr trial i just put to you that the there's a difference in anybody's mind it seems to me between saying at the time when you're doing it that well there are a lot of arguments here but the sentencing guidelines don't really matter much to me this is a cooperator and we're trying to deal with it in a certain way and here's what i think is the right sentence and then being asked after the fact would this have made a difference to you if it had gone differently and the latter is a much more difficult question for anyone to have cut pathetically and without any evidence in the contemporaneous record that the sentencing guidelines just didn't matter when you're faced with a situation where you know trying to do these sentencings it's not a science contrary to the people who invented the idea of guidelines it's not a science and when you're trying to assess here's somebody who did some very serious bad things so he deserves a serious sentence but he also deserves a reward how do you figure out what's the right number and here it seems to me maybe coincidentally but maybe not the number the judge came up with a fifty percent discount from the bottom of the guidelines so maybe it did matter and maybe we should just let the judge particularly given that there are some other things that need to be fixed up or whatever just to have a reset and saying it's not a it's not an insult to the district judge i don't disagree with that and i i'm not sure there are other things to be fixed up i think the government's view is that got the factual assertion that that mr brisket current counsel relies on was simply that the district court's explanation for a sentence  wasn't a factual error that would or should be corrected but i i hear your point i think i would just offer that mr ford also i believe received a sentence of fifteen years i think the government it's just as likely that the court took account of the cooperators and their criminal history and their value of their testimony and so on and believe that that was a correct number but i don't i don't dispute what you're saying judge lunch that there's no room if your honor feels that  sentencing short circuit the issue that you've identified there's no reason not to do it we just wanted to offer the idea that it was more respectful to the court in our view to ask him st i haven't time you may be over your time  defending one's reputation or something like that but in many cases and most of the ones i've seen in the government it was it's evidence from somebody including cooperators who are usually perfectly happy to provide such evidence on your girlfriend and because that's that's an insult to you as gang leader and that's why it was necessary to retaliate here it wasn't just a personal beef it isn't a stronger correct that there is no such attests to this purported fact that what starts as a personal deed reaches a certain level where it becomes a gang thing well i don't think i think in this case the question because mr brit explained and the government doesn't dispute that it originated as this personal issue but the people who would know why they had to do it would be harvey and anthony christian who were not available to testify on that question so what we had was the inference that can be drawn from the way this transition from a personal beef involving primarily mr brett into one in which the person on the other side of that beef william jones was shooting at both mr britt and harvey christian harvey christian then said i'm going to kill him and then and listed anthony christian to assist and a th person and so the inference that the government urged the jury to draw was that because of the connection between the christians and mr britt which was both through the its joining the set of valentine blood that mr britt led at the time that those two relationships quickly transformed this from something that was a very basic personal beef into one that suddenly there were four people driving one around the neighborhood looking to kill mr johns so that's the inference that you're relying on for how the jury could find beyond a reasonable doubt that this was connected to the overall gang or narcotics yes i think the inference that we asked the jury to draw is that the way that a transition from a personal beef into mr christian wanted to kill him in lifting anthony christian and then in the thing a th person driving around parkhill and in fact i think among the more important facts is that mr jones then came to fifty five bone mr brick didn't live it fifty five ball on the shot you know if if mr jones was looking for mr brett to kill him shooting at fifty five dollars bowen sort of is a little bit of a myth because that's where the christian brothers that's where their enterprise operated that's where they sold drugs so the beef turned very quickly from one in which mr jones wanted to kill mr brett or shoot mr britt into one where mr jones now firing at effectively the  stronghold of the headquarters of the enterprise and in the government's view that's a very strong inference that it's now an attack on the enterprise and being deceived that leads than the four men to go out looking  and i have one question since i've got you on the on the look here about the summation i guess is the rebuttal summation one of the things that was said was we have the burden of proof the defendants chose these men and here's what struggling me but we chose to call them as witnesses and present their testimony to you and we did that because we believed that their testimony was important it was probative it provided you with  full sense of who these defendants are what they did and what they were about and then skipping just one sentence at every turn want to cooperate or told us something agents and prosecutors went back and said what can we do to corroborate what we've been told how can we establish that what we're hearing is actually true and there's always a thin line and in these valjean cases it's one thing to say you heard that these you're this evidence which corroborates what these witnesses said and you should believe them not because they're wonderful people but because we've got this evidence that shows that  they've been checked out and of checks out because it's corroborated but there's not much of a reference here to to to that there's a reference to we believe these people and we believe them because we did things  after every time we talk to a corporator we went out we sent the agents out to find things and i don't know that that's anything that's in the record as such that's that's telling the jury trust us because we did the right rather that the summation the defense counsel nations had turned into an attack in fact on on us on the trial team and i would direct the court some of these examples are cited and page thirteen of yeah but i've read i've read everything i've read the entire defense summations and a lot of what they're saying frankly seem to me like a rather sophisticated argument about what cooperators are like it was an argument that these are people who will manipulate these are people who will figure out what the government wants it's studded with statements that the i'm not saying the government is dishonorable in any way no i wasn't there i have a cold record i you know i read a speech in a shakespeare's julius caesar by marc anthony to keep things brutus is an honorable man in a way that makes clear that he doesn't think that  the page it reads as i'm not blaming the prosecutors but they've got the will pulled over their eyes by these clever manipulative nasty people and besides that you notice that the government  never ripped up their agreements even when they were caught in lies and you know what happens then says defense counsel then they get the idea that they can get away with stuff it's like with your kids if you don't discipline them they'll walk all over you that's not saying you're an evil parent who wants them to do bad things that's saying that what should have happened maybe was to rip up the agreement but regardless of that the fact that it didn't helps to account for why the witnesses were able to do to say the things they said i don't see that as an attack on the honor or integrity of the government i read that as an argument  that this is the danger that all prosecutors face when they deal with cooperators when the jury gets to make up its mind as to whether you know it's a much more sophisticated argument than just they're thugs and bad guys don't believe them it's an argument about the psycho dynamics of dealing with witnesses and i'd submit to you if you've never been a defense lawyer and you get to be one someday that this is informed by what defense lawyers know about what happens when they interview clients you know you ask client did you do this bank robbery oh no i was never even in that bank oh yeah well look the government has a picture of you in the bank oh you know i was there but i was the for different reasons you have it in the picture you've got a gun you have it i was there with a gun but that's because i was coerced  everybody has every lawyer has dealt with witnesses or clients who are like that and that's the argument they're making i understand what you're saying your honor and i think if the defense counsel summation had stuck to the summary that you just gave i don't think we would have had the point to make but i i'm thinking for example of this is one of the courts in the footnote at what point would give argument that you have one minute thank you one point where the government said you know what i don't care i don't believe you i'm not going to put you on the stand as a representative  e states government and ask a jury to find someone else guilty based on you because you're offensive you're a liar you're disgusting and you have no conscience now that there isn't there is probably a legitimate attack on the credibility of the witness is buried in there but what's on the face of that assertion that the government understood in some way that what they were saying was untrue and nevertheless put them on the stand so i think the government fairly in rebuttal you know was entitled to say look we  take the witnesses as we find them and they have plenty of warts and we didn't hide from those things but you can't say that we put them on the stand knowing that they were saying things that were not true and expect us to say i'm speaking out to defense counsel pathetically your defense counsel can't make these accusations about what we do and don't know about the witnesses telling the truth and then expect us not to say anything in rebuttal on that so the point i think my colleague was making there was was that we called them because they are relevant to the case not because we are out to convict these defendants at all costs but we call them because we believe them we work for operate them and that's why they're putting in front of you we're putting them in front of you thank you your honor if there are no further questions i'll rest on our brief steeped in the mysteries of rosemond and proper statements could possibly make of the difference between could not and will not in these circumstances but more to the point how do you deal with the government's argument that mr lindh for good or ill basically said not the things that you're saying now but said i misspoke i meant to say will not and when the judge that well let me just tell the jury of that's what you meant to say he said been no instruction said it was something that was perfectly fine under the law so it should have ended there it didn't matter mr lindh did object that any instruction would go to the jury and i believe the trial court said either of you say it through your mouth or i'm going to say something that