may please the court good morning my name is patrick michael magaro i represented dave on bet at trial and i do so again here on appeal and as trial counsel i became intimately aware with the facts and circumstances of what i can only characterize as an atypical and somewhat unusual federal drug conspiracy in most federal drug conspiracy cases we see wiretaps we see recorded phone calls we see extensive surveillance and records of sales to either undercover agents or confidential informants in this particular case there was none of that according to the government this was going to drug money a lot of drugs guns and money warrants that's correct that's correct and i guess the manner in which they were obtained provided me with a defense and argument to make a trial but we have several issues here in this case that arose during the course of trial and pretrial  and i'd like to focus my argument on the first three issues presented in my brief not that i'm abandoning the fourth issue but time is limited and the first issues the denial of confrontation now in this particular case there were six  government informants that had agreed to testify as part of plea bargains and several of those people had already been convicted upon their pleas of guilty and cooperation agreements and several which had already completed their sentences because of happened here because i was able to quote the exact language from the cooperation agreements and there was one clause in it in particular that that became the bone of contention and that clause was the obligation to but i didn't mean to at least several of the witnesses and from making an argument to the jury on summation and the the line of cross examination argument was that these witnesses were testifying pursuant to their cooperation agreements not out of some know but the interpretation is because of that clause that says these are continuing obligations and because the before i was cut off from that line of inquiry at least one of the witnesses that testified that in his mind he could face additional punishment what was actually before judge boyle raise a question i had been permitted to question the first three witnesses and then one when i started to question it was either a third of the fourth judge boyle at that point said we have to we have to excuse the jury because we have to not permitted to argue to the jury that these people gave false testimony because they believe that they had to give favorable testimony to the government because if they did not it would face additional punishment not necessarily reprosecute but yes who had been sentenced and had been recalcitrant about coming back to testifying and u s attorneys have told me right to my face if your client doesn't do this he remains on the agreement guess what all bets are off i've never had that it's my it's it's my position and there really isn't much kit there isn't much case law on this topic that i don't know if it comes up all that often but again this isn't a typical unusual case it's my position that double jeopardy would not apply  of them certain benefits in return for that testimony and the jury was aware of that yes but that's that's gotta be the bottom line and move to reach the rican sort of time period around the edges but the core of it has to be that they were testifying pursuant to cooperating agreements which gave them a benefit for their customers but that's not what the government argued nest makes but you have argued it in your closing argument argue you argue that they were a bunch of guys with sold their testimony for a deal and that got in what troubles me is that the city which you were trying to get these these defendants who don't know this answer could they be in testify you've got that in but you didn't get the part that's misleading to the jury i am i but it's my position that they could be reset is because violation of the contract between them and the government and other wise what would happen is read it did not say that now they do not see it you got a pretty heavy blow my words are you said now for those cooperation witnesses who signed plea agreements that are still in a back motive to in but suggesting that jury i don't know what more you would want to get out of this the argument that the other people who had been sentenced and had been company completed their sentences were likewise lying because they believe that they're under the threat of getting a just additional ongoing plea or which you are referring to the ones that are ongoing even after they settle or for their sentence i was i believe i was referring to the there were two individuals that had not been sentenced at that point it's very clear that there are quite there was no question in going on of my client throughout the process from the point that law enforcement entered the home pointed to the warrant and said we want you to cooperate what specifically these were these statements that were made it spontaneously or were they made as a result of some sort of courtship and that the district court made made a finding on that it's undisputed that my client invoked his right to counsel after he was mirandized second if you look on page i believe it's ninety two of the joint appendix there's one question on my cross examination of the one of law enforcement agents which concern the period of time between the time he invoked his right to counsel and the time that he made the last incriminating statement and that's where the  officer did a double clutch and he essentially said well it's not like we weren't asking him anything we weren't talking to him about the case i'd given him the opportunity to explain himself which was his terms so there was quite there was questioning going on it just that the follow point to where the drugs are and you know you can see an incentive for that because they don't otherwise the agents are going to irresponsible and then he's at the booking station and he spanks the comment out of the blue courting to them too bad you didn't come to marianna gotten a lot more drugs i mean you know those kind of statements i can see an argument you'd say well maybe that was part of the derogation that's why we have s agree it's hard to overcome a finding of fact but the conclusion of law is that he was continued whether he was continued to be question after the invocation to produce the quote unquote spontaneous statement whether that was the behalf united states this is it typical gun and drug case with respect to the first issue raised by the defense with her to cross examination in this particular case of as noted defendant had an opportunity to bring in information elicit testimony from all of the witnesses that age so that the jury could gauge the credibility and assess those witnesses for bias and mo if you look at the whole record the court will see that i want to draw the court's attention to where the single line of questioning that the court had concerns came up and how it impacted the overall case as the court person pleads guilty received a sentence serves that sentence punishment is finished in double jeopardy attached and it bars that person from being reset its defense counsel admitted that he didn't know that if there was any specific law that allowed his questioning on that line and he also admitted that he didn't ask the three part witnesses about will cooperation but he did raise the claim that he mentioned today that he has count he has clients at that but he didn't ask those questions with respect to the three  he was only challenging the sufficiency with respect to the one twenty four c and the money laundering with respect to what the jury saw remember they had the photographs in front of them so they saw where he was that they saw the heroin in the house you have marijuana in the kitchen in the washing machine you had eighty one thousand dollars vacuum sealed in packets in a bag in the bedroom he had his pants there were men's pants with forty five hundred dollars in the pocket under the i mean there was overwhelming evidence of the guns and drugs to me so yes the government agree with that it was a pretty large deal i mean where was record where he was being supplied from came in but yes he was a large dealer he was known i can believe one witness testify that he was willing to pay up to forty five thousand dollars a kilo which is almost twice the going rate because it was of such pure quality and the indictment and evidence spanned from two thousand to two thousand and fifteen and there were folks that were dealing with him all along the way we have lost the case of th because he because that was what he could provide and that was that all the material so with respect to the cross it only it would the government does not believe that there was any error in the court exercising its discretion to allow that limited the that money and buy a whole bunch of marijuana i was going to go into that shed in war and then the other statement was he had not sold the defendant had said i had not sold any work since maurice vaughn had been arrested he used dog but the three other statements were not admitted just those two and they if you were to look if the court were to conclude and go on to the next analysis is whether or not they were initially harmless was completely harmless but that didn't go to the what happens if the defendant who pleads guilty in the sentenced in a five k agreement and completes a sentence or as let's say is under a sentence of supervised release and the government picks up another person in the conspiracy a year or so down the line and then says to that defendant we want you to testify and that person either refuses or develops a selective case of amnesia it is that the government's position that they're then enforce that agreement i don't think so i believe that the government has the power to enforce that agreement with the board my assumption would be a motion to the district court to these people believe that they can get additional time in their testifying to make sure they don't get any additional jail sentence these are people that have been to jail and they're going to do anything not to go back and that's why they came here not out of some civic duty even  event as far as my sufficiency arguments i believe that they're well presented in my brief as well as my point for unless the court has any specific questions are happily rely upon those arguments i want to thank you and i see that your court appointed most morgaro really appreciate that thank you i actually agreed to do the appeal pro bono for my clients and sees so is this conviction a source of income has dried up as we can all imagine so i