the court i'm paul son kelly dagger and i represent antonio tillman mr tillman and fourteen others were charged after a lengthy f b i investigation an operation called operation rockfish operation rockfish was a reverse sting operation intended to identify and then prosecute crooked cops in some counties in north carolina and tonio tillman was a police officer for the town of windsor he was not a crooked cop there was no evidence no evidence that mr tillman had ever been involved in any illegal activity the fourteen other defendants charged all pleaded guilty only mr tillman went to trial he went to trial because he said then i'm not guilty and he says now and maintains he is not guilty operation rockfish set up a fake drug trafficking organization this reverse sting operation with the idea to uncover identify and prosecute public corruption it was a public corruption that the police chief of windsor said of mr tillman is he was shocked it was an allegation that mr tillman was supposedly involved in drug trafficking the charges against mr tillman all the charges including the public federal programs bribery charges all arise out of three trips that mr tillman and others took from rocky mount two points in maryland transporting fake drugs  aug twenty twenty fourteen october twenty two twenty fourteen in march twenty sixth two thousand and fifteen the government charged that on each of those dates mr tilman violated section six six six eighteen u s c six six six a one b federal programs bribery and we've contended and continued to contend that the government's proof failed to show the elements of in the record that on each of these three trips on the first trip he received two thousand dollars in the second trip he received two thousand and the third trip he received twenty five hundred dollars but the first failure of proof we contend is on the element that the defendant mr tilman corruptly excepted the thing of value the pain that intending to be influenced or rewarded in connection with the business transaction or a series of transaction of the town of windsor the government's proof failed there the government's proof also failed in requests in showing that there was a value of five thousand dollars or more associated called robinson and what happened in robinson is there was a bribe to a police officer to not investigate chicago police officer to not investigate some drug trafficking operations that were going on in chicago where that officer had authority mr tillman's authority to exercise his his police authority was limited to the jurisdiction of the town  uniform credentials there is a benefit the drug dealers would get from having the police officer escort the drugs on an interstate highway up to or corruption of his authority but you're out of the that the different scene in your hypothetical is the the local government wherever the prisoner was located has an interest in securing that prisoner maintaining that prisoners security my only point was that it's not jurisdictional based on the fact that in my two hypotheticals on the on the witness he lets the witness go up at dulles airport instead of taking him to testify and because the witness paid him off and in the first instance if he takes them to washington then brings them back that witness that person in the holding cell the the person being at dulles airport to flee he's now been corrupted in that and in both cases he's operating out of the jurisdiction where he could conduct arrests and so forth but he still has an interest because  n that defendant the witness happens to be in his custody in the holding cell and so he has an interest wherever he takes that person or if he's told by the police chief i need some supplies i need some ammunition that's up in northern virginia they make it up there in the school town of we need twenty pounds of two boxes of this and they send him up and bring him back he's on official business now if he goes up there and instead of bringing the two boxes back only brings one box back and sells the other to somebody he's corrupted in this obvious i'm not sure that gets you very far i think your value your value in the bribery issue is a serious point you contend that it's the two thousand dollars that could be underestimated what their government didn't come in with any evidence to show the value of the services with more than five or five thousand mor business of the tail is basically a state law arrest authority argument if it were a north carolina highway patrolman who did have statewide authority you could make that argument but you're you it basically is i understand it that the defendant didn't have arrest authority in a location where he picked up the drugs therefore it could not be the business of meaning the town did not have an interest meaning that it was not the business  itself can substitute i think that first point doesn't help you i think what would help you is fact that he didn't buy or sell drugs he was basically being hired to provide protection and  some some preexisting drug or your argument would have to be that the nature of the bribe is the value of the protection well it is your honor and what the government says is a couple things one it says you can count everybody you can count not just mr tillman's two thousand or twenty five hundred i guess in the town of windsor it has to be value associated with the business transaction or series of transactions involving and it ties back to the business transaction or series of transactions your honor we're only using the bribe payment as a substitute and with what the case law has said is you can do that in instances  where i mean you don't have a contract it's an intangible thing what's it worth we don't have a contract unless and judge me margaret i think this is your point and i accept a great grat point was that the drugs themselves you didn't make this distinction but he was not buying drugs or selling drugs he was providing protection for drugs that were owned by somebody else there were no transaction that was there were being loaded into a truck and he was providing the protection the corrupt the bribery was to pay him for that protection created by his credentials and his badge and that type of thing and  i don't know if you've focused in on that or i mean that the government can clearly argue that two thousand was an underpayment for that protection and the actual value was much more but question i guess you must raises whether the record shows with that is more or less the jury simply speculate the only evidence and again your honor the only evidence was what was paid to mr tillman and a key here is that that each trip was charged separately so you can't aggregate two thousand plus two thousand plus twenty five hundred to get over the five not been what was paid to the whole collection because that was the that was the protection for each individual trip if you're going to look at it that way as opposed to the value of the your honor it again it has to go back to the town of windsor only m employee an agent of the town of windsor so it has to be except something of value intending to be rewarded or influenced in connection with the business transaction or series of transactions involving that business transaction or series of transactions for the town of windsor of a value of greater than five thousand dollars five thousand or greater and it's just it's not  there the the only evidence in judging meyer thank you for this point the only evidence in the record is the evidence of what antonio tillman was paid and you can't we respectfully contend judge you can't aggregate because those aren't interests associated with the town of windsor no one else is an employee or an agent in this case a police officer of the town of windsor your honour's again this was a public corruption case there wasn't a public corruption but your read on the language of the case you have a haste that says that well the got to legislate anything besides just your take on  well i mean the that tyler statute is federal programs bribery that's that's the statute he's charged under that's eighteen u s c six six six and so yes i think the statute itself says that that's what the charges were about and again it's undisputed agent spears the f b i agent who was in charge that's how they got started the reason they got started was to investigate and then prosecute if it was proved to be the case that there were crooked cops that there was public corruption going on making and i asked you before that them from if i may so what's the end result if we agree with you with respect to the three forty eight the that one drug possession count that the district court didn't decide on its own as a matter of law but there was insufficient evidence that there was insufficient evidence there and that would have a sensing impact thank you ron just to amplify their tail didn't answer judge yes as a question the question is if the government failed on counts thirty two thirty six and fifty four and we reversed those counts it would not affect any sentence and it would just we would just take a those convictions right i thought i did answer that yes your honor that was my point that i see only consequences the arguments with respect to the other counts one two forty eight forty nine in connection with the effect on on on thank you about what how to value the bride in this particular case the in connection with the business or transaction of the agency the town of windsor if the value exceeded five thousand how do you put a value on  misuse of law enforcement authority so what is the subject matter of the privacy protection provided or the art of the drugs it is the protection provided he was paid for his badge his credentials and his gun to guard the what's the jury going to do other than speculate in other words i couldn't find anything where you gave the jury any guidance as to what value it could derive to assure itself that the value of that protection was five thousand or well the value of willing to accept it it's a bilateral deal the bribe was two thousand dollars and the question is if it's quid pro quos you would assume it got two thousand dollars of value unless you showed otherwise the evidence was that it was more than fourteen thousand because the defendant was paid in connection with all of the other officers up to charged in count by cow and you look at the count and say where the elements of that count so i don't count thirty two it's a single transaction for which two thousand dollars paid for this event now that is the all that's chart did you meet your burden on that count not the other counts the counts them selves are on or do not specify the exceeded fourteen because that's what the officers were willing the undercover operation was going to pay the collective team not just the defendant his entire team of law enforcers not only are somehow this defendant it's imputed with know the value of the but what as the court noted but tell me how that works he either he's in a car or he actually drove during the second one to me he drove the acadian the second one and he was and he was alone when he drove it he was with one other person you're on the other person get paid yes every one of the team members got paid and so there was fourteen thousand paid approximately in the ferris wheel that on videotape there was another fourteen thousand total paid on the second trip and approximately fourteen five thousand paid to all of the individuals as they individually got to the corvette in the last one in the second episode the second transaction october twenty second all of the pay all of them were paid together in the van so you in separate accounts or not all of the off that not all of the individuals that participated were charged the six six six only the police officers were right the correctional action yes and how many police officers were there on the transaction with respect to the saying that because he got charged with providing service the defendant in this case got to providing service the value of what he got paid for can be determined by what was paid to somebody else your in order to value the intangible the governor would submit that you can look at what was the bribe or was going to pay the entire team the jury told that the jury received evidence that everybody of the payments that were given the fourteen thousand payments for the first trip the payments given in the action jury told them by argument or instruction or otherwise that when you look at this element involving anything of value five thousand dollars or more told by the question that so you didn't argue that it wasn't part of the instructions from the jury the government argued that it was not in dollars your honor that that's how you valued it was a million dollar shipment and so that was a well did you ever argue before the jury or asked or to instruct with regard to if it was in a million dollars that there was an alternative value that the jury could ascertain i do not i do not believe that our specific instruction like that was requested by the trial team your honor there was no objection from defense counsel nor the government to the instruction given by the judge and the judge did not  city involving something of value of five thousand and more namely he agreed to accept cash under cover law enforcement agents posing as members of the drug trafficking board to be influenced wharton connection protecting ship purported narcotics so you allege that antonio tillman was paid he was paid a bribe in order to provide he to provide protection of the ship right the statute that we can look at the other counts and what if they were all acquitted and he was charged on this one what would your answer be now let's just take that first transaction the first shipment he gets paid two thousand dollars for providing protection and he's been elected all the others are quoted for some other reason so there's no you don't have any other counts what do we do now again you would have to look at other ways  protection to an organization shipping trucks and the question is what is that protection and run protection that protection is if you cannot put a number on the intangible from the agency's perspective the courts have said you it exceeded five zero wouldn't back to that one million dollar statement that was only with respect to one of these trips there right that was with respect to the march twenty second would help it with respect to the other two trips were well there was testimony that there were ten key key packages in each of them they were we recognize that they were acquitted but you're correct that there isn't you would have to go again to if there's not sufficient evidence of the million dollars with the drugs you would have to go to what other way to measure it and  concludes that the value does not exceed five thousand that is correct we wouldn't put the question is what evidence is legitimate for consideration and that i think that it is still relevant what was paid to the other folks that he was aware that fourteen thousand dollars were paid or you got up here you want the judge found the judge actually made a ruling based on that he calculated that the value was of fourteen thousand and so that was the judge's conclusion conclusion and yes that is where the the judge sentenced him on the one eighty that's what supports the conviction the time that the defendant is serving in this case any rational trier of fact could have found the defendant guilty beyond a reasonable doubt  the drug trafficking offenses in this case let me just go if we were to unwilling to read the statute the way you're suggesting and had to trafficking offenses in this case if the court has not already done so the government would command viewing the video evidence that was submitted in the supplemental joint appendix the video evidence in this case is incredibly powerful evidence that the well if you the video evidence is so powerful that what the jury saw but it's powerful because it gives you a visual phonology of the defendant's actions and reactions as this drug conspiracy unfolds over a period of seven months but that's not the only evidence that this jury had the jury also had audiotapes from the meeting in august nineteenth it had testimony from the undercover officers it has that it had the defendant's own testimony and  critical video is the art march twenty sixth two thousand and thirteen video which is the third of the three operations and in that video you will see when you have a chance to open it and watch it for the record does right but use but when it's it's important to be able to see i what the jury saw because when the undercover off officer says there's one you need to be carrying there's one million dollars worth of heroin you can't offer around anymore the defendant is standing facing the tailgate of the pickup truck where the drugs had been previously laid out he's within ten feet of her he's talked they're all talking and shortly there after response that he does have a gun and he's given a gun to somebody else you also see in the back where they're loading the drugs underneath the acadia into a hidden compartment and on the audiotapes you hear the other undercover officer say cocaine coke to chicago here went to new york prior to all of that when they first were on the video when they first walk in they walk past the tailgate of the car were all these drugs are sitting out there's ten that are wrapped in green tender that are wrapped in brown later there's testimony that brown goes to new york green goes to chicago i may have that backwards apologist but there is testimony that there's the video evidence they go into the room while they're in the office the defendant is sitting next to the tools of the trade there's a vacuum sealer a money counter and a map with drug routes on it and during that time in the office he hands they're talking about whether or not folks have g the hands a gun to another one of the team members puts it in her back pocket or her pants they walk out he gets after he hears one million dollars but i hear when he gets into one of the cars and guards the shipment up to maryland and what is more important is he doesn't stop there he comes back in april with four semiautomatics and a long gun to guard another shipment so all of that evidence that that video and the evidence even though the court dismissed the aug twentieth and the october twenty second substantive charges all of that evidence and all of that knowledge and reaction is relevant to the defendant's knowing intent and connection with the conspiracy to get to engage in the drug trafficking offenses and the firearms in furtherance of the drug trafficking offenses both substantively and the conspiracy count regarding the operation what it was designed for after he denied any knowledge that there was criminal activity at it was not unfair prejudice to lead it in any prejudice from it was definitely did say for the one fourteen thousand dollars the section they paid and in that the protection was provided by multiple people of which your client was only one person and his share of the fourteen thousand two thousand there are new and i think the council admitted there are no cases allowing aggregation we all aggregation maybe that's probably my word and that's probably unfair because i think what they're saying it's not aggregation they're arguing it's a single protection and other it's a single service and the value of that service is fourteen thousand that's what they had to fork out for the protection and and in this case the because again it has to be a business transaction or series of transactions of the city of windsor and value city of windsor is fortunately providing fourteen thousand dollars  your honor because it's only mr tilman who is a agent of the city of windsor the statute requires an agent receiving accepting corruptly accepting a payment intending to  influenced in connection with the business transaction or series of transaction for in this case the city of windsor involving having a value that business that point to the city of windsor interest in in not having its police officer act corruptly the only value to that let me ask you of the statute says series of transactions and this is one of a series can't we you focus on the series no your honor because each county is charged separately i understand but the statute still each count thirty two says if he participated in a series of drains actions involving five thousand or more  as your honor the statutory language says it does your honor but count thirty two for example it is on august twentieth i understand that happens we want to go serious but that's the charging count thirty  two if i might your honor i do want to highlight again the one possessing possession or attempted possession count which is forty eight as to which the district court did not already decide there was insufficient evidence of a matter of law so possession with intent to distribute heroin or aiding and abetting on march twenty sixth and it has to be a temp because again it's fake drugs and so that's that's why it has to be attempt and to prove intent there has to be specific intent and councils argument i would say all goes to specific intent but then there has to be a substantial step toward completion that strongly cooperate mr tillman didn't do anything on march twenty eighth twenty six to strongly cooperate his intent to possess with intent to distribute the drugs he didn't touch the drugs he didn't load the drugs is part of the no evidence as to what anyone involved was supposed to do or not do protect the drugs from the town up to maryland you know you're honest what he was supposed to do respectfully your honor he's not given any job and less he is driving or in the car with drugs supporting i mean what if he's a lookout what if he's on a cell phone and warning people to protect the drugs in the he can he can be in his house and protect those drugs if about using your badge and she says you use your badge if if to get out of law enforcement interaction with the vehicle containing the drugs that's when he would use is his badge that's the part that's what he's providing you know that he's assistant in the distribution your honor i mean that's a risk i don't that's the but as plain as day it's not even an attempt he's actually assisting in the distribution of drugs your honor he rode in a car he rode in his truck and if i ride in the truck to look at the scenery that's why i see what he did on on one of the occasions he got up there and looked at the scenery but he was asked to do that he wasn't given any action to take and if i can highlight one other point in what in the record he was getting paid for i mean this is almost reaches the absurd the say he was going long look at the scenery he saw drugs being loaded around a truck he was carried as a badge and a gun and he's going up there and he's told if you had encountered the police this is what you do how their badge and he is and he's there protecting drugs and that's not assisting in the distribution of drugs not on march twenty six your honor when he's not driving the car  providing assistance to the whole operation respectfully honor we disagree there isn't any i want that right i get in the truck what's your theory that he got in the truck for because he was asked to do that so if i just asked him and you want to get  truck and go with me up to frederick maryland is that what he was doing yes in fact he didn't even know where he was going no he didn't always going he knew is protecting the drugs they wouldn't tell him we're going but it's just  any kind of big conspiracy the mob it doesn't tell you oh what's the design they just tell you take that person out he takes them out he's assist in a big operation and your honor our our point and not to belabor it is there was not any evidence as to