are delighted to welcome judge hanko to the th circuit were happy to have him here this week to help us decide these cases it's a special joy for me to sit  and twenty four c three issue of the landscape post davis versus united states has changed dramatically the government relied on the residual clause in large part government maced in the alternative rely on c three a which is the elements clause of nine hundred and twenty four dollars c and the issue there is whether the predicate crime of rico conspiracy is a crime of violence under the not a crime of violence on the elements act and the rationale of the brown case was house similar applicability here because the brown core determine that a conspiracy crime because there is no element of violence that a is necessary to be found for proof of that conspiracy crime focus on the agreement the that's correct those are the elements and the rationale is identical to our position on rico conspiracy there really is no distinguishing factor between object conspiracy because conspiracy and in fact rico conspiracy goes further the salinas court from the united states supreme court found that there is no overt act requirement under rico conspiracy now i should say i'm not sure if conspiracy has an overt act requirement but in any event rico conspiracy does not it's a totally and cohen crime and therefore the government's alternative after davis of reliance  kidnappings that would be an appropriate elements cause count would it not it would if it was linked if the if the died as a grand jury indicted a violent crime and that was the link i would agree so here the indictment charges the murder it has this reference to count one the conspiracy charge but it also rather plainly charges the murder why isn't this just a question of variance and whether this indictment can be read to charge a nine hundred and twenty four dollars c file ation for possessing the gun in connection with the murder well that won't be what would have been different well amendment issue and we look to what the jury speech was asked to find and what the jury did find and we look at because under under davis it's categorical we look only at the elements of the offense and what the jury was charged was the elements of rico conspiracy now there were special sentencing allegations that were incorporated as under count on conspiracy count but those were i think pled by the government in an indictment found by the grand jury to support findings for the death penalty which was  to refers to count one of the nd super exciting diamond that's the conspiracy charge but then it goes on to say in the course of said violation cause the death of christopher jenkins as defined in section one hundred and eleven may have told me if it is all it said was he carried the gun and caused the death of christopher jenkins that would be of appropriate conviction so why isn't that what the government proved in the jury found well that was gerry crean count three just  that that was played specifically for the government is to plead a twenty four dollars ga account which would allow for a life sentence or the death penalty if the jury were asked to decide that issue so change your question to although there are specific violent offenses that are played a special sentencing elements and count one the jury was  instructed on the elements of rico conspiracy and under taylor and under davis that's all the jury was asked to do and the government has to because he correctly held that the law enforcement seizure of the real time location information of those phones by secretly monitoring cell phone signals without st obtaining a warrant violated the th amendment however the judge and the district court that reasonable expectation well i think that does you have a legitimate expectation of privacy if you don't want the phone associated with you i think that shows the expectation and i think more so the government was saying it was his phone i believe mr green gave information that one of the phones was his in the application that the law enforcement filled out in this in the state court they said it was linked to jerry green so as to and then detective peda said that he believed the phone belonged to jerry greene and he went on to say that he did do real time location information for test right but objective just whether whether they actually had a negative and a privacy yes so i believe that the government failed to carry the burden of proving that the information that submitted against mr green was not derivative from the real time tracking information and they're relying on the leon good faith exception but i don't believe that that if applies here because the yes your honor good morning frank lauder back of st petersburg on behalf of mr napoleon errors we have raised various various issues in our brief i certainly don't have enough time to address them all but i would like to address a couple that i deem to be most important to us st of all i would adopt the the argument that has been made on we have of charlie green as to the lack of a crime of violence in the manner in which the rico conspiracy and in my case count five which was the murder of demetrius cunningham  that would be the only count that that argument would apply to but i do adopt that argument secondly as to count one the rico conspiracy the there were about ten or eleven special sentencing factors related napoleon harris the jury only found him responsible for one of those fold though the jury the jury had been instructed that in order to find any of the defendants guilty that they had to find that that particular defendant had either committed or agreed to commit two or more of the specific acts that were listed mr napoleon harris was only convicted of the one he was not convicted of the several others and also we ended up then with inconsistent verdicts because he was acquitted in count one of that count five murder how that happened i don't know we raised the issue of inconsistent verdicts in a motion for judgment quote all that was denied i believe that on that issue here at the very least the government as has taken a position that those special sensing factors were elements of the crime and if he were only convicted of the one then i believe that the maximum sentence that he could have could have or should have received under the rico conspiracy would be twenty years as opposed to life although actually my argument would be that the count one verdict should be vacated as the other one of the other issues we the mid trial mr corey harris entered a guilty plea to those counts and the court published a stipulation to the jury as to the fact that he had pled cat guilty to those counts i objected move for mistrial there was a limiting instruction given but the case law and the government uses johnston as their bases johnston actually quotes case law from dale of vega that says that the admission of guilty pleas of a codefendant not subject to cross examination is generally considered plainer and in this case it was objected to it was preserved the government argued in their closing about mr green's culpability or mr harris as culpability and how it related to the other coconspirators as to count two also as to the drug quantities there was extensive argument at sentencing i won't go back and try to argue all that again but there was a special sentencing factor of the weight of the heroin the jury found that mister harris was responsible for more than five hundred grams but less than one dollar kilos at sentencing he was held responsible for the different court ruled in your favor well as to just the drugs possibly depending on how far we ended up coming down because there's a very complicated grouping exercise as well as the conversion to get to the marijuana weight that eventually got us to the level thirty eight i believe we could have been as low as a thirty four and i think when you did the grouping it would have he ended up with a total offense included drug conspiracy that did not include any minimum mandatory it's leading up to in the days leading up to the sentencing hearing and this is part of the sentencing record the defense to government as well as probation met to try to see if we can arrive on what would be an appropriate guideline range and proposed sentence an agreement was made and the judge months was in fact adopted by the court it's our position that what the government of us you know asked for two hundred and sixty two months which is the top end of the guideline range they did not ask that the sentence there be a variance upward and i asked for one hundred and twenty months keep in mind that three of the charges to lead to the one hundred and twenty year sentence with had a total combined amount of  factors as it should have and that the court on its own varied upward the court brought us into day two or three days later and quite frankly showed when i showed up my thought was that maybe maybe the  was going to impose a more reasonable sentence instead the court has to record reflect basically indicated that the concern the court had was what the th circuit was going to think and then wanted me to add arguments more anything as it relates to that number two the evidence is clear that the government going to argue should get a life sentence no the government argued that he should end it at at sentencing argue that he should get two hundred and sixty two months brought this enterprise into pinellas county there was absolutely no evidence of that in fact as it relates to the murder there was very compelling evidence that my client was in another county at his home using his phone at the exact court my name is kevin back and i have the opportunity to represent d o j martin this morning there are a number of issues that are specifically related to mr martin in this matter and i'd like to raise those and discuss this morning st the strongest as well the court permitting shaun white to testify about a coconspirator statement that she overheard i agree your honor and i'd like to discuss that st in that matter the government had initially intended to or street rumors they were unsubstantiated they were not there was no indication of where or whom had made those statements and that they were clearly hearsay the government acknowledged that upon a questioning by the court it's our opinion that those hearsay statements indicating that the on time martin was one of the shooters having been introduced to the jury was prejudicial significant and buy in and of the by itself would result in a reversible error however we're also discussing walden issues here too because really there are other errors that occurred when i was aware higher issue of order issue where in because of the nature of this trial because of the number of parties although not unprecedented because of the number of potential jurors that were in the courtroom there was an inch of free space within the courtroom so the defense designated mr rouhani mr lacker back to make challenges on behalf of all the defendants at the very end of the war dire mr martin identified a potential juror and asked that he be challenged that was conveyed to the representatives for the defense and it was believed that the rights that that challenge had been made in fact it had not but there was no opportunity to actually recognize the failure to make that challenge and tell if that jury was in fact seated not sworn but seated at that time we recognized you were close enough to hear the exercise of the challenge we stood back and allowed the representatives to do that this was  packed courtroom with numerous prosecutors and so on we had from three challenges available to us at this time precept head injury was seated not sworn and at that time we recognized the challenge had not been made upon having identified the twelve pettitte jurors seated those jurors filing in the jury box it was at that time that we recognize that the juror that we had attempted to challenge had been seated that she had not been challenged gone through dozens hundreds of jurors and that was a concern of the court i thought it was before you picked the alternates did i that it was it was well the jurors had to be there to take the alternates those that were not already gone through i mean we had gone through and stricken survive convictions to survive davis they have to be predicated either on a drug trafficking crime or a crime of violence for which force is an element of a federal crime now we have three that are predicated on drug trafficking crimes those are not at issue here the remaining are predicated on our racketeering conspiracy so the question here today is whether those survive davis and we have no dispute we do not dispute that ordinarily a racketeering conspiracy just like hobbs that conspiracy or any other conspiracy would not qualify as a crime of violence because all it requires is showing of proof of an agreement but aggravated racketeering conspiracy under section  the maximum penalty includes life imprisonment the statutory maximum penalty increases from twenty years to life imprisonment and we know from a crime the and a lien that if a fact increases a maximum statutory penalty that fact becomes an element of the offense that has to be charged in the indictment proven to the jury and found by the jury it defines a distinct crime now here it's  and sixty two crime substantive a conspiracy is based on a racketeering activity for which the sense includes life imprisonment what does that mean to be based on such an activity we don't have a statutory definition but we do have this completed acts of murder there it is yes and that's when n g u y e n the defendants there were charged with racketeering conspiracy and completed acts of murder just as our defendants were here that they were asked on special verdict forms which of the defendants had committed those completed acts of murder and none of the defendants were convicted of any of those completed acts of murder or any other life sentence potentially life sentence crimes this court said that because of that because the jury failed to find that any of the defendants had committed a predicate act they had a potential county of life imprisonment the maximum penalty that any of the defendants could received on each week account was twenty years so from that we can infer that any of the defendants had been convicted of a life sentence racketeering act that they could have been sentenced to an increased statutory maximum this tells us that the aggravated form of racketeering conspiracy that increases the sense from twenty years to life imprisonment incorporates the charged life sentence predicate acts and of course the elements of those acts now  indictment said that the conspiracy was based on six florida st degree murders one in florida attempted st degree murder and two florida kidnappings the indictment charge these racketeering acts in the method and means part and as special sentencing allegations the jury was instructed on the elements of each of those special racketeering acts that increase the statutory maximum and the special verdict forms ask the jury to find which of the defendants had committed each of those crimes so the rico conspiracy charged proved and found here included the elements of those underlying predicate acts consequently if those underlying predicate acts constitute a quite crimes of violence so too did the racketeering conspiracy here now we know that murder qualifies as a crime of violence they haven't argued that it doesn't but we know that it does because this court in the united states versus heiler held that attempted florida st degree murder qualifies as a crime of violence no matter how it is committed so consequently all of our nine that because florida kidnapping doesn't include force as an element a racketeering conspiracy can't be be a crime of violence you say nothing in their briefs about whether florida kidnapping has as an  element the use of force they argue only in general that racketeering conspiracy can never qualify and that's what's been argued here today so if they if they're wrong about that they can't prevail because they've developed no for their argument as to why they are racketeering conspiracy don't withstand davis it's their burden to establish that they're entitled to relief they stand convicted of racketeering conspiracy and if they're wrong that racketeering conspiracy can never qualify they've developed no further argument on that point so we think that this court determines that racketeering conspiracy can qualify as a crime of violence that's the end of the inquiry here and it's not it's not just a technicality because the fact that they didn't raise this argument means this is not developed anywhere in their briefs and obviously they haven't argued it today the only place this comes up whether these florida state crimes have  element as an element the use of force is in the united states brief where i argued in the alternative to the a residual closet that did record here and conspiracy qualifies as a crime of violence because these underlying predicate acts have a force as an element but even in their reply briefs they do not address whether florida kidnapping or florida murder qualifies crimes of violence so we think that issue is waived and you know at most to be reviewed for plane air but we think it's waived but even if this court reviews for a plane or even preserved air the question of whether florida kidnapping qualifies as a crime of violence the defendants are entitled to relief because it does but we know from stoking the supreme court has told us in stoke lane that the type of force that makes a crime a crime of violence is force capable of causing pain or injury but still can also tells us that this type of force occurs when it is for sufficient to overcome a person's resistance there the court was addressing florida robbery and the court held that that crime qualifies as a crime of violence because it requires resistance by the victim that's overcome by the physical force of the offender now it seems to me that if taking something from a person against their resistance qualifies as a crime of violence taking that person against his will which is florida kidnapping is a much more violent and physical action likewise qualify as a crime of violence and in fact the florida kidnapping statute builds in a requirement of physical force because it requires the abduction imprisonment or confinement to be against the person's well now how do we know that it wouldn't be sufficient for that can be for that if the person's will was overcome by say psychological pressure we know that because confining imprisoning and induct abducting are terms that connote a physical act as opposed to some type of mind control that florida kidnapping statute doesn't criminalize for example tricking someone into being confined or  or or convincing someone to be confined it criminalizes physical threat acts that are met with at least some form of resistance because it has to be against the victim's will it be enough just to lock somebody  in i think it would be enough but i think that even qualifies because that is a physical affront to do the person's body that is capable of causing harm or or injury and it doesn't have to be significant injury it doesn't have to actually cause injury that we know from stokely so isolating someone locking someone in a room where they're where their liberty is restrained and they have no means of caring for themselves feeding themselves access to medication that type of thing certainly is the type of physical force to affront to the person that is capable of causing physical harm at least as significant as you know stokely gives us a slap or hair pull or a shove as the type of physical force that qualifies so so restraining a person in any means locking in a room for example you think qualifies as force and that's what distinguishes the florida  from the federal kidnapping statute which this court recently held in united states versus gillis does not categorically qualify as a crime of violence i should note that the mandate has not issued an give us and the united states has moved for an extension of time to file a petition for rehearing but setting that inside aside the federal statute is very different from the florida statute it includes as kidnapping holding a person by decoys or invigorate meant and federal cases hold that holding can be by psychological pressure so you could have psychologically psychological pressure tricking someone in to being helped and that's where florida kidnapping statute but it's no longer there it's leaving only the more active forms of kidnapping abducting imprisoning are confining and the defense have certainly pointed to no florida cases a suggesting the florida kidnapping can a to occur without any type of physical force either in the initial taking or in their confinement now florida kidnapping can be committed if the defendant secretly a duck's confines or imprison someone but secretly it's not the same as in big moment the florida law defines and as stated in the ford standard jury instruction nine point one says by secret means that the defendant intended to isolate or insulate the victim from meaningful contact or communication with the public so that goes to the defendant for to the to the offender's intent not to and whether or not force is involved and in any event we think that separating a person from the public  against his well combined with about abduction imprisonment or confinement is surely the type of physical act that qualifies as a crime of violence that can cause a person is capable of causing a person injury or pain therefore the defendants here have not established that racketeering conspiracy aggravated racketeering conspiracy under section one thousand and sixty three day does not qualify as a court crime of violence and all of the one hundred and twenty four c and j convictions withstand davis now i wanted to address next the cell site location information issue unless the court would like me to go somewhere else i want to make sure you save some time to talk about  court plainly found that he committed the murder absolutely dead yes you dead and beyond that his drug conviction convictions alone would have supported the imposition of the sentence that he received him but he but she pretty clearly sentenced him because she believed he committed the murder i want you to address two things about that st she found that he left his phone home but it was pinging in palmetto or in the afternoon so i need you to explain to me what your theory is about how that phone was pinging in palmetto and then back home and why that doesn't indicate that he wasn't involved and then the other thing i want to address is what watts does say acquitted conduct can be taken into account but it has a discussion of the tail wagging the dog and when somebody is convicted of three drug offenses fairly small drug offenses and then get convicted murders of still life it sounds to me like that's the tail wagging the dog well remind me to get back down i'll start with your st questions about the phone course we don't know what happened with the phone but this is this is a seasoned criminal this this man had been committing crime since he was eleven years old and i think it's fair to to assume that he knew that where his phone was could implicate him in a crime so if that phone was pinging in palmetto earlier in the day and pinellas county laid him there that doesn't mean that he was with the phone we don't know who was with the phone that's always an issue with respect to phone evidence so that is not any type of evidence that proves where he was at any better theory that he loaned the car to somebody and then he went back by some other means back to his home in pinellas big what is what is there in the record other than mr neris own testimony that is inconsistent with the theory that mr narry was the one who committed the murder with mr martin well i mean we have we have to rely on their testimony but we also have video surveillance of that's consistent with his testimony about what happened that day the camaro and navigator casing the dream center that day that could be mr neary driving a camero it could be and that's perhaps why the jury acquitted him of that of that crime but that doesn't mean by preponderance of the evidence that the that the district court  possession where the district court has found by a preponderance at the sentencing hearing that that defendant had also murdered his wife but he won acquitted of that he may not have been acquitted of it but but i mean the jury's verdict hears sometimes ar are somewhat hard to understand and it doesn't matter that he was acquitted of it i mean it doesn't matter that he was acquitted of that then i mean why would a defendant even defend against defend themselves against a murder charge if three smallish drug crimes are going to get in th s it won't always it won't always but here there was so much evidence that this that this man was involved in this murder that it was it was not an abuse of her discretion to take that into consideration in determining that he was he qualified for a life sentence particularly in light of the vast quantity of drugs which he does not challenge here today and his criminal history which i see which includes many many many drug crimes grand theft auto it includes a sexual battery when he was eighteen year old on to thirteen year old girls that he had sex with he says he's a registered sex offender this life sentence and she didn't obviously discuss all these things in her sentence and she did plainly rely in large part on the fact that he was participated in this murder is it true that the government asked for two hundred and sixty months at the time said we agreed with their with that with this i don't know how to explain it the parties agreed that if the court would send sam between two hundred and ten dollars twenty six cents corey harris would drop all of his objections to the p s r that's the agreement so we did agree and we asked for a sense of two hundred and sixty two months now the fact that that's a reasonable sentence doesn't mean that a life sentence is not also reasonable is always a range of reasonable sentences here and given this man's criminal history and his participation in this murder which you know this is this is a horrible murder this is at  opening day of a youth football game where there are hundreds of people there including many many children the man that they murdered the cory harris was found by the district court had murdered was carrying his child as he was being chased by cory harris and deonte martin with their guns and bell and the two men stood over him and shot him this is a man who needs to be in prison for life and this was not an unreasonable  it's was not unreasonable for the district court to find here by a preponderance of the evidence that he had done it in fact i would not have been if if we were standing here today if he had been convicted of that crime we would have no trouble and i and i think you would have no trouble finding out that the jury's verdict was supported beyond a reasonable doubt based on areas testimony alone if this is not a situation where the tail is wagging the dog tell me what would well i mean i don't i don't know how to how to respond to that question except to say that there are this this crime was proven by trial evidence and the fact that the jury acquitted we don't know why the jury acquitted this could have been just some type of jury nullification some type of disk disagreement the fact that he was young we don't know why we don't know that the jury found that he didn't do this all we know is that the jury acquitted him and if the jury had can but if the jury had convicted him i think you would have no trouble affirming a conviction so i think there is no reason why you should have trouble supporting finding that the district court's determination by preponderance of the evidence likewise supported the sentence that she impos again the law has developed more since we brief that issue i do think however that this issue also is not sufficiently raised in their briefs to merit this court's review none of the defendants specify in their arguments what phone numbers are at issue here what evidence was admitted although they say in their statement the facts we moved to suppress this phone that phone in the other phone some of those evidence which back to many of those phones wasn't even they can't just say we moved to suppress this evidence the court deny this evidence and therefore we win rule twenty eight requires a defendant challenging the admission of evidence to cite the places in the record where that evidence was admitted and they have not done that why isn't a good faith doctrine a simpler way to resolve this it is i mean it is certainly a simple way to resolve this but but i guess i feel a frustration here with respect to this issue  do and i and i see this a lot where defendants raise this type of issue without sufficiently raising it placing the burden on the united states to do a complete brief to thoroughly examine him when you're talking about a three month trial to search through a three months trial to see what evidence was actually admitted so that we can thoroughly respond to the argument i think it's important that this court in force rule twenty eight and say that this argument is not sufficiently raised a jerry green was the only defendant convicted of that carlos gerada murder and a witness to fifteen white placed him at the scene of the murder in close proximity to immediately before the murder at but perhaps more important portly gerry greene confessed to a fellow inmate that he killed geraldo and was supposed to be paid for it so setting aside any cell site location information with respect to that he would he would still have been convicted of that those crimes now regarding the coleman murder charlie green was convicted of the racketeering act of conspiring to murder him but there was no cell site location information admitted with respect to him and of course  addition to that we have witnesses who don't name him but they describe him and that's important because he's a very distinctive looking man he had a very distinctive hairstyle if you look at his p s r you'll see th his picture with his distinctive hairstyle and numerous witnesses described that person at the dream center that day moreover deonte martin admitted to a fellow inmate that he shot someone at a youth football game so on direct examination i testified that a few days after this coleman murder at the dream center charlie green had picked up money at her house and she'd gone with him to this big red house where he gave the money to deonte martin which is further an involvement in that murder now across the court permitted corey harris's counsel asked at if at the time of this meeting a big red house she'd overheard that there were two shirts shooters the question was and the statement you overheard at that meeting was that they were too short shooters right and she says that wasn't at the meeting that i heard that so then there was a proffer  to what more she could say about that and during the proffer corey harris played part of a taped interview for her where she said they were saying it was tang and he that being  cross examination she was asked who is who is they and she said i was talking about the street rumors no one never they never told me who did the murder so i agree with you judge wilson i can't think of a way that this comes in but it's so vague that it's harmless that she's talking about she she was permitted to explain that this was street rumors that she had been hearing she didn't say who she heard them from and alternately as i discussed there was plenty of evidence that dionte martin was one of the shooters there that day that this street rumors thing is not the straw that broke the camel's back as to deonte martin's conviction on that charge  the only other thing i would just briefly respond to napoleon harris is argument about the two not being convicted of two record tearing acts indeed he was the jury found him guilty of one special sentencing allegation of course we don't have to allege any any racketeering acts in the verdict form unless they increase the statutory maximum sentence we instruct the jury that they have to agree on the racketeering acts but on last thing and so the jury knows that they have to agree that because we have one we have we have him being found guilty of one of the special sentencing allegations and also the drug disparity which was a racketeering act as well and we have plenty of evidence that he was involved in additional government arguing that there is a new offense in the federal code called aggravated rico conspirators now there's no such thing by that name but the government's point is that  statute and what it does is it increases the maximum penalty of twenty years from a possible maximum sentence the sentence of life if there is a showing that the predicate offense is one that could carry a life sentence so the government's theory here is that this is a new offense the element that increases the maximum rico conspiracy penalty from twenty years to life are these special sentencing allegations that a jury that this jury found on the jury verdict form and i know the government added those special sentencing jury finding if the maximum sentence is affected by a fact would increase from twenty to twenty years maximum to life that's why it was pled that's why the government complied with  count one is nine hundred and sixty two the rico conspiracy and i think that's fatal here it because it wasn't a grand jury did not and die mr green or any of the other defendants for nine hundred and sixty three of e and therefore this new newly coined aggravated rico conspiracy offense was if it does exist under any name it was not indicted by the grand jury in is i would just like to reply to the government saying that we didn't develop the issues the reply brief cites to the pages of the brief that cited to the portion of the record that the argument relied on some of that was contained in the statement of the case and to the extent they claiming that that was supposed to be in the argument section rather than the statement of the case section i think that's i mean i think the argument section clearly refers back to the facts in the statement of the case i would just like to add that as to the carlos drago murder my client jerry green was found by a jury to have committed that murder but  but not guilty of conspiring to murder corliss toronto and and mr latta backs client napoleon harris was found not guilty though so i think that this cell information that they presented in court prejudiced mr green in that the jury found that he was there based on the phones and  he had standing to one of the things i forgot to say to the court was some of those phones were found in a car that was previously linked to mr green evidencing possession so for those reasons i would ask system in place and i mean i understand the argument tracy state court but we don't suppress evidence based on state violations we suppress evidence based on the th amendment i know but the application in that water were approved by state judge judge so i think you have to honor that if they are called an application for a warrant and the judge a trench the title on the top and said it was a warrant when the judge of issue are probably but they didn't act in good faith and they even said that that they said they wanted a pen register and trap and trace but really what they did was like a g p s tracking of the phone to they were not and they admitted that in the suppression hearing but it's right in the application it's right in the order you think the judge didn't read the application and then order before signing it i don't know thank  you i two i'm confused about the juror the government's attempt to bring into this rico conspiracy charge some other charge it was quite clear from the way that the government charged it the way they proved it the way they argued it and the jury instructions that this was a single objective conspiracy the jury was instructed that in every they had to be unanimous as to which type or types of predicate record during activity that a particular defendant agreed would be committed and that you must be unanimous as to which type or types of predicate record during activity the defendant agreed would be committed as to the verdict as to mr napoleon harris they indicated that they found that he had committed the kidnapping of one of  the people but indicated that he had not murdered that gentleman they indicated in the rico count one verdict that he had not committed the murder of the meter is cunningham yet they convicted him the substantive count the charge the same thing we argued those were inconsistent verdicts but clearly charging this and proceeding in the manner which they did those special sentencing factors became a factors in the jury found only one of those not two or more as it pertained to mr napoleon harris and therefore i think that clearly at a minimum he would have to be reset and so as to count one to no more than twenty years that they don't have the enhancer to get him to life additionally as to this other the charge here was conspiracy to commit racketeering nothing else the government is broadening this was discussed at the highest levels in their office we agreed to a compromise on the guidelines and that's why we're not here talking about the drug can't quantity amounts but it since it's been brought up i think it's interesting to note that the reason that the drug quantity amounts attributed to court hearings are so high is because he spent the least amount of time being incarcerated during a long period of the conspiracy that's how they arrived at those high numbers but the important part here is that the jury got it right the jury determined that he was not guilty of that of the coleman murder the jury determined that and agreed with the government that eric nair couldn't be trusted the government in the record says eric no you can't be trust and they agreed that the only person who points the finger at corey harris as being a participant most likely was the participant was the person who actually committed the murder or participated in the murder not corey harris  the suggestion that somehow mr harris travels to manatee county clearly he travels to manatee county his phones are used in manatee county in the early afternoon but suggesting that when when when the track did phones travel back to pinellas county you know being used in pinellas county at the time of the murder that somehow this is some sophisticated plan it's pure speculation there's absolutely no evidence to support t thank you i'd like to focus on my last argument in regards to but i consider to be a significant error by the prosecution this matter in closing arguments i think it also addresses some of the concerns that you have in regards to  mr harrison his role in this brant coleman murder during the closing arguments the government made the statement based upon admissions by mr martin that he had given a firearm to joshua smith and that he had identified the location of brett and coleman that in fact the ante martin could be held responsible for the coleman murder as an aider and abettor to the conspiracy about the issues that relate to the conviction of mr martin as relates to the the totality of the evidence the government is argued that mr martin  that his appearance was peculiar however the two shooters at the coleman murder in fact were wearing black t shirts around their face and head and were not an identified none of the witnesses at the time of the initial investigation identified these twist or dreadlocks which are determined to have been the peculiar nature tradeable to mr martin at the time of the initial investigation that information did not come up until trial and the primary witness a coach from the dream center facility who was the closest to the shooters who had the best view of the shooters did not identify these dreadlocks these twist or attribute them to anybody coleman murder it can't be ignored it wasn't minor it was clearly prejudicial subsequent cross examination may have affected may not have but in and of itself is admission is so vile a tive of the rules of evidence and so vile a tive of the concerns of a fair and impartial trial that it cannot be allowed to pass neither independently nor cumulatively pursuant to u