and ms hayes is here patrick jock was convicted of possessing with intent to distribute small quantities of marijuana and crack cocaine that were contained in a sandwich bag that was concealed in a closed compartment in the trunk of his girlfriend's car he was a passenger he was also convicted of possessing a firearm in furtherance of the charged gun offense the evidence was insufficient to suppress acid both crimes because the government did not prove that mr shock knew that the drugs too in the car  minute now there was a recorded interview that was played for the jury and that interview reflect that that he admitted that he placed the gun in the back of the car he had met it that he previously sold drugs he challenge his conviction for possessing the gun as a consistent felon he because the evidence to show that he acknowledged placing the gun in the car and there was some suggestion that he had dealt drugs in the past  t that he was not selling marijuana at that point in time he said that repeatedly during his art during his statement at least twice and the drugs were found separately from the gun this was in the trunk of  or drugs and the gun in the trunk of the car he put the gun in the trunk of the car yes or why couldn't the jury and for that if he put the gun in the trunk of the car and there were drugs in the trunk of the car that he knew there were drugs in the trunk of the car because they were located separately or are i would have knowledge as to a circumstance where the girlfriend perhaps would give him a drawer in her house to store his socks and incident maybe he sed he hides something in that drawer he wouldn't be assumed to have knowledge that she had hidden something herself in her own drawer it's the same circumstance here right on or in this case didn't he also admit that there was quote a bomb in the in the trunk and then he estimated that it was worth about one hundred seventy five and based on the evidence that was offered by that government the detective who testified said that  packaged in five dollar bags there being thirty seven of them it would be worth about one hundred eighty five so he knew that there was the marijuana in the back and he knew the approximate worth of it and he admitted to selling it and having done so a long time why wouldn't that be sufficient for a reasonable jury to be able to find him guilty thanks a big question and i'm going to have to separate that out into some pieces roger i think regarding the bomb mr schock did not admit that there was a bomb in the car he said if there were a bomb he was unable to finish that sentence but it's pretty clear that he was heading toward if there were a bomb i didn't know about it and it wasn't mine that's the most realistic reading that statement so the government said well but he mentioned a bomb so clearly he knew there was a bomb in the car he made that statement after the government had already told him at least twice during this interview that they had taken marijuana from the car they mentioned that they had taken bags of marijuana from the car imagine that they had taken a quantity of marijuana from the car he knew what he was accused of at this point he knew that they thought that he had taken a bag of marijuana out of the car so it's  didn't take any prior knowledge on his part to know that was the accusation and he was denying that he had put that bomb in the car regarding the one seventy five i think is really important to note that in the transcript that the agents provided the police officers device provided of the interrogation the reference one hundred seventy five it looks very different than it did in the trial transcript and this transcript was provided by the officers who were there and who were present so while the trial transcript says in numerical says one hundred seventy five in the transcript it reads like this it says i don't i don't i think i have at least like one hundred come a seventy five weed and that that is very different that sounds like it's an or and what's very important is in the same sense if you'll indulge me i'm just going to read a short portion of this transcript and understand the jury had to listen to hours and hours of this recording and it was very difficult but here's what he says hit me and asks him and how much weed was it was it in like a bag because he said that he had some in a pipe in his ashtray and he said i don't i don't know i think i think i have at least one hundred seventy five we'd ask him did you keep it in little bags is that how did you do it isn't one big bag these are t agents talking over each other and trying to elicit this information he says i don't know i don't know i don't know they say you don't know he says since i left it went when the guy fighting the fight when the men fight that's when i lost my weed oh you see i have like weed and then them boys and then they wait for momma come they take the car see i could tell you probably i used mine i know five of them so in the very same statement that the government's relying he did your honor he did but based on officer felipe had to be based on his status in the trial his job the explanation the government gave for allowing him to this case where in the very same just a minute of saying one hundred seventy five weed and he says he lost it it's hard i know that i know that a jury is entitled to credit some testimony and discredit other testimony by a witness what was happening during the interrogation the prosecutor said because ultimately the police arrest criminals and so they're trying to find criminals and one of them that day was mr shock it's an improper remark by the prosecutor grant your book there was no objection so we review that issue for plane air you do and you also review it as part of a cumulative error so although on its own you may find that it doesn't rise to the level of prejudice when you put it together with the other problems with the failure the adverse inference instruction and with the allowing the agent to give interpretive testimony about the post arrest statement it rises to the level where new where the trial was unfair and a new trial is required regarding the adverse inference instruction it's undisputed in this case undisputed that the government destroyed evidence that was taken at the time of mr sachs arrest and most important it included gunshot residue evidence and it included d n a evidence but some partly the gunshot residue there were two sources of every two pieces of evidence why then why does it matter and let me show you why i'm thinking that he admitted and i think you conceded that he admitted that he possessed the gun so why does it matter whether he shot the gun or not i mean if he's admitting that he possessed the gun during the trial to the jury he didn't admit that in the rule twenty nine argument the government said you know we acknowledge there's enough evidence as the case exists that we're not going to fight it but he didn't admit to the jury that he had been raped but he admitted it in his statement to the police he did but there are again the transcript of that statement so confusing that the jury could disregarded it had there not been other evidence to show that he linked him to that gun and in this case that evidence was an out of court declarant who said he had shot a gun at her and if you were able to discredit that testimony it would greatly undermine any evidence of his gun possession so it was prejudicially honor you asked for this instruction but what what did the jury have before it or did the judge have before him as to the  intentional destruction of this evidence as opposed to an it got lost somewhere oh well you're out of there actually was a memorandum this this was litigated before trial in a post in a trial memorandum a response to a trial memorandum where the government acknowledged that this evidence was sent it was it was in the physical possession of the city of miami police it was sent to a warehouse it was targeted for destruction and it was destroyed by the city of miami police and but that wasn't done in an effort to disable the defense's case wasn't there's not evidence that that happened nevertheless it was definitely an intentional act and it was of evidence that certainly was where and let me get it the right way was for it was evidence that you know the government is surely appreciated the significance of the evidence in this case under and i understand that under case the court has said that there must be a showing of bad faith to warrant of spoliation argument and yet this court has acknowledged that bad faith does not require a showing of malice as in the man v taser case and that assuming that you didn't have to show malice what how is the defense substantially impaired by not being able to have this instruction since the since there was cross examination on it it was argued to the to the jury i mean how is this how is the defense substantially impaired particularly in light of the fact that he conceded that he had the gun if i might take a moment your honor to answer that he did make the argument closing argument certainly he did but argued by counsel does not have the power and the  instruction by the judge saying you can consider the evidence in this manner the judge never told the jury that and that makes a tremendous difference and again the fact that he made that admission it's not unusual in a trial for someone to have made argue for the government thank you honor may please the court with me at counsel table on the trial a usa in this case in my co counsel is with me husseini also in a usa i'm the one who's the subject of the improper closing remark though so that should be clear i'd like to actually start where we just ended if possible will or it was an improper remark were made up your honor i disagree i think reading context he must be guilty ladies and gentlemen of the jury because police don't a rust guilty people you knew that  was an improper remark how your honor just framed it is an improper remark and i would agree with that how i framed it in if you go to the context of the statement and earlier in the closing i said we don't know everything that happened on september twenty fourth two thousand fourteen and the defense through cross examination of several witnesses and also in the opening statement said you should disregard they made the same argument that ms hayes is making now to the jury about this regarding the confession and i was trying to explain one of the reasons that the confession the statement took ninety minutes was that police arrest criminals and perhaps it was in our fleischer said investigate crimes but i was referring to the individual jocks is pointing the finger too i wasn't referring to mr jocks i was referring to mr peterson but but here's the problem with that and i think what you said was and i submit to you ladies and gentlemen the defendant in most of the talking and they kept asking him until they could try to understand what it is that he was articulating and a lot of the statement was in fact given credence to his version of events because ultimately the police arrest criminals now maybe that could be construed in a way that you know that that you didn't intend to necessarily malign mr jacques and the way i read that would be that that they were looking to find out whether a crime had occurred or not but i don't think you can because the next sentence that came after that was and so they're trying to find criminals and one of them that day was mr jacques i mean you said mr jacques was a criminal and i mean your honor i really was in our full i disagree that it's improper well let me let me ask it yes why i mean i think it seems to me that it's improper you may not have intended it that way but regardless of whether you intended it or not i think it can easily be understood that way and you know i don't in reading the whole thing i don't necessarily think you intended it that way but that's not the test so let's just assume for purposes of this argument that at least one of us is going to find that it is an improper remark do you want to address how we should handle that yes your honor but before we get there i would just like to cite the court to blakey where there were three arguments that were determined to be objectionable there were  and one of them was that he was a professional professional criminal and that the record didn't bear that out and so this the suggestion is that in blakey he only had one prior credit card fraud conviction which wasn't before the jury well here mr jock status as a felon was actually a necessary element and he wasn't particularly good he was a criminal but it's that he stipulated still needed to be referred to in the closing argument because it was still an element the jury had to find but again i didn't say he was a professional criminal i didn't say i didn't refer even though he's a career from running refer to that i said that day ok it was a criminal but that and i think that goes to the your honour's point which is that even if it was improper which again i argue wasn't  assuming it was it still that was fleeting and it also wasn't something that substantially impaired the or permeated the entire atmosphere of the trial because the fact is that the issue of his of felony conviction was already before the the court remarks a closing argument if you always were going to file that standard on a want to review your honor i think if you read it i understand the premise of and i don't think it's misplaced except for if you read the context of the overall closing statement where i was not arguing based on his character to convict him that i was explaining that piercing could possibly be a bad guy but mr jock still found himself in a situation where he because of a chain of events that led to a proper police stop he was caught with use caught with the drugs and stayed there i wasn't trying to toe the line i wasn't trying to approach line i was making him in our full transition from the end also explaining why it was a ninety minute statement and that's when i said giving credence i'm suggesting that mr jocks was in fact articulating lots of concern about this dangerous fellow mr peterson and the police are listening in trying to locate this individual so i thought your honor i understand the premise but that's not the test of that would be shifting the standard from being permeate the entire trial to any time there's a slip up we're going to have to reverse the jury's verdict if we if we go down that road well let me ask you this if we thought that a prosecutor had intentionally made improper remarks calculatedly here however we decided to frame it would there be some other other remedy available to us other than necessarily setting aside the verdict if we could not convince ourselves that it affected the defendant substantial rights while i do think that just the the finding itself does have an import your honor i think th making that finding in a eleventh circuit opinion is something that is substantial and does have a consequence in and of itself and then within the concourse of the trial there could be objections and there could be in shock as to the jury in this case i think that it's probative that the defense counsel didn't make an objection when the statement was made and he and i think what that illustrates is that the context may have been more clear role in objection might have made it the more prejudicial because the fence counsel might have concluded that it would you know emphasize the matter to the jury right you know and there could be sure to get reasons for not objecting your honor but i'd submit in this case that when you look at the factors for determining whether the improper if you assume it's improper whether it influenced the end permeated the trial i'd submit that this is not a case that a lot of that level i would like to shift to the spoliation argument if i could i'd also submit that this isn't the case for the i know that  of the civil context but there's an important procedural point that wasn't mentioned by ms hayes which is the defense throughout the pendency of the entire proceedings had never requested that that evidence be tested and so designed to be a sword where if somebody wants waits and sees what happens with certain evidence and then if it's somehow not available at trial they then request a jury instruction it's designed to restore or remedy  misconduct on the part of the the party that happens as is the evidence here the government did possess that evidence the gunshot residue test and the d n a kit i was put on the case in early october and by from the time i was put on the case i requested the gunshot residue test be tested and never made a request with regard to the d n a there was a confession as your honor noted and also there wasn't going to be sufficient time for the current trial setting the defense never made a request and the defen never moved to continue for what they now call necessary evidence and instead they waited for it to go to trial with no with the evidence not existing and so there is no way to show prejudice because all it is it's an untested gunshot residue kit and  untested d n a kit it has potential and i think judge hup properly noted that the potential could incorporate and to some extent although wouldn't be fully it could also serve to exculpate mr jocks it wouldn't be exculpation because somebody else's d n a could be on a weapon but he still admitted to possessing it and he's not challenging the sufficient evidence there and so the fact is that in this case it's a little cynical to ask for an instruction when they never requested the evidence and that's a pretty big distinguishing factor from the cases they cite in their brief for instance the civility he's in the ninth circuit where there was a compartment in the vehicle and they asked to review within five the for the rest of the defendant they sen preservation request subsequently after the preservation request they put in motions for to preserve the evidence there were two of those motions then the judge ordered the government orally and then in writing to preserve the evidence and still the court found that when  that vehicle was sold at auction after forfeiture and not available for the defense that having been put on notice five times that that was believed to be evidence mccready the defendant then the court found that it shocks and was appropriate we don't have any was additional and substantial circumstantial evidence of his possession and the including his statement which of that was direct evidence and then the fact that it was found in the same compartment in the same trunk that he's not challenging the sufficien of evidence for the firearm that's found in a different compartment and then in the middle of the trunk is his sweater so mr nor his girlfriend testified at the at the trial and she said that he was in that trunk shortly before they were pulled over and that he put his sweater in the middle of the trunk then there's a gun on the right side of the trunk and then the jury could reasonably infer any references the amount of drugs the one seventy five which again judge hoppin the rule twenty nine he said that any reading that it wasn't referring to the quantity of drugs what i think it was factored in by the jury and the arguments were made there was substantial cross examination on those points but judge middlebrooks in considering the motion to suppress stated that mr jocks was understood understood what was occurring that in his order that said documentary twenty one that the officer strained to understand mr jocks at cons but that he understood what was occurring and i think that when you look at the what the fence is asking they're not raising him a miranda challenge or of and a challenge to the confession they're raising a sufficiency challenge and this and they're turning it standard on its head that ideas draw of reasonable inferences away from the government and ignore the confession and that's not what is before the court in a sufficiency review and so in light of the fact that what's before the court is the need to view all reasonable inferences in favor of the government miss for nora's testimony that mr jots was in that trunk shortly before he was pulled over the fact that there the gun was found and once he created compartment of the trunk and he referred to the type of drugs that it was a bomb that was a term that he introduced to that conversation now there had been questioning regarding drugs but he's the one who referred to a bomb the idea of several different drugs packaged within one container and the fact that he referred to the amount the one seventy five which again now they're asking you to consider maybe it's one hundred comma seventy five and i would submit to you that that's an argument they can make to the jury but it's similar to somebody saying twenty three or twenty it doesn't mean that they're saying it's twenty you know it's three they're saying the number twenty three and that's what the the transcript and they didn't even argue that point to the to the jury because it would have been a reasonable one for them to make it was one hundred seventy five we did that that mr jock said and so i think now they're trying to suggest that you should draw that inference away from the government which is not the appropriate standard of review the last thing was a participant in the conversation and this court has long held that participants of conversation can fill in gaps when and again we're not filling in the gap as much as explaining his understanding of the conversation and when there's pronouns that are referenced long ago in the statement and here what was the judge rule that we had to introduce and mr jock's request the entire ninety minute transcript rather than play select excerpts and so we briefly highlighted a few of pertinent portions so that the whole thing would not get washed out in in presentation to a jury and officer felipe was able to rationally base his perceptions on being an experienced narcotics on the one year law enforcement officer seven years in narcotics and being a participant in that conversation which was audio recorded and he was there live in person and so his testimony was proper and it added to the jury's understanding of the case unless there a honor regarding the police arrest criminals statement i would note that this is a fairly short trial three day trial half of it consumed with that statement roughly i would say a good good portion of it was consumed with that playing of that statement so it's a short trial that we're talking about the role i answer on that statement renders the evidence less than substantial so this is a real opportunity for prejudice through misstatement in closing argument also i'm sorry that was such a problematic so yes i'm not defending the statement because i do think it was improper but if it was still problematic why did you not why did why did the defendant not at least raise something to the court even after closing arguments were made to try to preserve the issue why is it that first that we hear of it is based on this appeal aspersions on courts of can be repeatedly chastised courts for suggesting that the government only prosecutes guilty people prosecutor through his statement intentionally or not i won't say it was intentional but suggested the police officers elated the jury certainly could have construed his statement as articulating his belief in the defendant's guilt based on the infallibility of police officers and the fact that they that only guilty people are prosecuted so i think this is an incredibly prejudicial statement in this case and in terms of another remedy the development of law to help other defendants isn't what we're here for we're here because mr sarkozy serving a ten year sentence and it was obtained in an unfair well let me let me ask it to you this way i agree with you that if he if mr jacques's rights were substantially impaired then this would need to be set aside there's no question about that in my mind but i'm not sure that they were but that doesn't mean that in an appropriate case where where the defendant's rights are not substantially impaired that a prosecutor can't be sanctioned in some way in order to make it less tempting for prosecutors in the future to engage in that kind of misconduct would you agree with that understood but of course i want mr shock to have justice and so that's my focus here too i understand i want everybody to have a fair trial but particularly in action it's true that the fence never requested that evidence but i would like to point out how things usually happen in criminal cases the government collects evidence they test their evidence often you go to trial and you don't know what's going to make the request well except that it's between the state and the federal government and i think you know sometimes the state handles evidence a little bit different than the federal government because of the sheer volume of cases that it has so not making excuses for it it shouldn't have happened but i'm not sure i agree with your statement that there would be no reason for them to have it if they mark on to test it since it was being held by the state and this is being prosecuted by the federal government and finally i want to go back to the language well it looks like my time is up but i do want to stress the language problems that mr shark suffered the fact that the clerk of the court decided on its own pr that he needed to have a translator in every session and that when miss agent phillipe explained that he didn't translate things during the course of the interrogation because he didn't want to substitute his own words like you and yet that's exactly what happened