my ok you're dividing your time equally ten minutes i believe we are judge ok you're right when i first got involved in this case i became get involved in sentencing it was not a trial and in my involvement in this matter after looking at the totality of the evidence and i think the court may agree with me a bench one is eight a commercial comes to mind an old one from windies where we've got a big bomb we've got three people looking at the big bun they pull the big bond off from one of the people says where's the big and that's what we have here is where's the beef in this case a smidge of the court that the evidence in this matter and one of my main arguments like the hit on is that the the verdict was contrary to the weight of the evidence we have lots of bun and in this case almost no beef this matter started going back to two thousand and three involving a demolition project the demolition and in that contract that he was to taint or secure somebody to do the abatement there was much back and forth through the evidence here is to mr mathis's involvement in this case and most of it dealt with mr matheson actually performing demolition now we heard lots of other evidence of the other co defendants here mr von fillers mr gary fillers in mr woods in having hands on in being on the property doing a walkthrough when there was the surveys to be done prior to the floor to the requirements to determine what amount of as best as may be in this facility mr mathis was never part of that and there was at least two separate corporations and memory doesn't fail me three separate corporations are companies that came in and did surveys of this property mr mathis was never part of the surveys then we hear evidence about individuals such as mr woods one of the code for it's here i'm going through it my removing properties or  materials that were suspected a c m as best as containing materials and disposing of them improperly in a dumpster we hear testimony throughout this case about fillers and gary feelers having objections to proposals of you know how much it would cost for a debate minute and a discussion between don fillers about hey look your guy mr woods is not removing this lagging and these other suspect they see hands from the property and put it in my dumpsters in mr phillips reply well that's none of your business if we look at the throughout the record in this case and these discussions back and forth we hear nothing about mr mathis other than doing the work th and then up to a point where mr mathis had an argument with don fillers about hey there may be some hazardous materials in some of these tanks or some of these big can containers for some types of liquid and after that for us mr mathis stop the work the only evidence that seems to appear that would directly tie mr mathis to any kind of conspiracy to violate the clean  warden who was the individual was actually in the hired and began performing some of the abatement mr warden has said in in the record here that with in a  during the demolition process that was being conducted by mr matheson his company judge i would say that that was it best you know tenuous  because the evidence when you look at it it looks like it go either way when it talks about context because first we don't have time frames as to when that discussion actually occurred was it be you know how soon before the f would counter that that he actually saw mr woods in a female doing work improperly believe that was a black burn lady doing work in properly removing lagging removing stuff from piping and putting it into a dumpster that mr warden was using he missed one refers to these materials bagged up as goes bag and that when mr ward in front of the fillers about it that the bags had disappeared case is that the trial for stated in the dialog of trial fuels will is that the knowledge of the individual before your time expires would you address the conviction for a violation of the ten day notice the clean air act notice you know what i'm referring to if i concern is that the government i think has taken the position that kathy jones who was employed by the environmental bureau whatever last according to the government she said something to the fact that she was convinced all along that these estimates of the amount of us best those were given to her by mister mathis but on cross examination and the government has that in its brief pages twenty one to twenty two and i'll ask the government attorney about this  seems to me that she says on cross that she said what i try to say all morning is that you know i'm not sure who gave me these numbers so if i have concern about whether the government has yes it's our position that she confused mr warden with mr mathis she seem to be the linchpin in this particular case she comes out you know after mr scholtes says half my found some by legions here and she comes trial court but she wants around goes up to this orange trailer for example to mr madison was using a park for another job and looked at it and he looked around and picked up some samples and then it seems in the record that she is confusing statements and comments from mr warden in a point that sometime later to mr mathis almost like oh i made a mistake i need to start back pedal a little bit because it does appear there is some you know violations out there she should never approve the b work on a case with the the notice from and she should not have just approved for example anything else with mr math this trailer so we would submit that we think that her characterization is to mr mathis is misplaced that she was confused that she'd been more quiet to mr ward who was actually the one that was in issue which is the only one that strictly involves mr fellers in the two sensing issues your honor it's our contention that the district court misapplied the open fields doctrine in determining that standard  not the owner consents this property this block was clearly property that donald fillers was authorized to keep people off of the district court itself when it was making it determined to to germination about his privacy interests said that it said donald fillers had the authority to keep people off that property or the exercise of authority at all were there any security guards monitors anything that would indicate that people should not go on the property because either as i understand a part of the property didn't have any barrier at all right i mean your honor i had different times it was in different conditions when the investigators came onto the property first of all there are two sides of the property that are elevated and one side had a building on the end of it so those were the public was going to get on the sides anyway then there were two other sides where the the grade decreased gradually entail it was at ground level street level and the public could get on there and on the day that the investigators came they were able to go down the street and just walk on to that property however even at that time the property was a demolition site the person who actually cleared it away said the entire site was littered with at least six inches deep demolition debris it was a site that by its very nature would have kept people off of it the only people who came on it were people who wanted to steal salvage material i think if you look at the meaning of privacy expectation in mr fillers case it is rooted in his property rights he bought the property to make a profit he contracted to have it demolished he was going to split the proceeds of the savaging with mr mathis as long as mr mathis was on the site there wasn't an issue with people coming on the site and stealing salvage material when that summer they had this dispute and mr mathis walked out there was a period of time where mr fillers was in trouble he did not have a mechanism for keeping people off of the site that doesn't mean he wanted them there just meant for a term he was not able to keep them off he did have david wood who lived across the street there was an affidavit submitted  connection with our motion to suppress saying that mr wood part of his job was to monitor the site however at that point the investigators didn't see anything i think they commented  someone person just sifting through trying to salvage but your honour's they never gave it time to find out whether mr fillers was exhibiting an expectation of privacy they came on the site then they came back and entered the site and took the three samples if there had been people working there and just weren't there that particular day they wouldn't have known and they didn't give it a chance that's i regret that this site was easily  public at least on one side we're on i would not agree that it was easily accessible because it was littered with debris it was in the state that a demolition would be on its final stages the building was almost completely down there was demolition debris everywhere it was in the city it was in the city it was actually construed it was a city block it was contiguous to mr fillers own property that's how he became aware of it to start with it backed up to his business and he's in the wood business he wanted to salvage the wood out of the business that's why he'd bought it if i could go on briefly to the sentencing issues your honor the first issue the six level increase  for continuous or repetitive discharge of toxic material the court itself when it was making its final determination after it had heard all of the evidence and was deciding about the substantial likelihood of death or serious bo injury made the finding that the government had not produced evidence to show that any specificity five years entered the environment if that is so and i believe it was there could not have been a discharge of toxic material which is the requirement for get the repetitive or continuous there wasn't proof of a discharge of toxic material we have the zimmerman report showing that all or most all of these best this was removed during the actual abatement we have the deposition testimony of herbert warden who was the abatement contractor who says that gary fillers ticking through the entire site and he disposed of all of these specificity except what might have been locked in between walls and that would not have become visible until the demolition pollution started and finally we have all of the air monitoring samples the final air monitoring sample was conducted in two thousand and five when they were cleaning away the demolition debris and the contractor there put up their monitors around the perimeter of the site to make sure that while they were doing cleanup no was best as it was getting into the air those monitors showed clean air the government produced no evidence that there was a discharge of toxic materials and then the final issue the nine level increase for us substantial likelihood of death or serious bodily injury the judge simply misinterpreted the law in that case also he took the meaning said a substantial likelihood and he said that means considerably more likely but then rather than saying what he should have considerably more likely that someone would die or suffer serious bodily injury then not die or suffer serious bodily injury that would have been the correct standard instead of that what he said was it's considerably more likely that someone who was exposed to a specialist on this job will die or suffer serious bodily injury then if they had never been exposed to x especially at all that is simply the wrong standard for him to have he used it as a considerably more likely than not standard the way he worked it it basically maybe principle substantial likelihood of death or since serious bodily injury we please the court matthew morris on behalf of the united states of america your honour's what i would like to do is address the points that the major points that have been addressed by counsel for mr fillers and mr mathis the first of which is the so efficiency with regard to count two because judge could call you rightly asked about whether or not there is sufficient evidence to convict for the jury to have convicted mr mathis on that count and what i would point to are a number of things that were in the record and that were in the testimony which established that he knew and was involved with the submission of what eight a ten day term a ten day notice but it was actually a demolition permit application he was the demolition permit contractor on per the contract that he entered to with the with the walk in street project furthermore he had the service he had the survey that walk in street project commission to assess the amount of a specialist that was in the  facility he provided that to one of the democrat one of the abatement contractors that they asked to bid on the property on the on the abatement but who ultimately did not get the job is this the survey or i think there is an assertion by mr mathis that he did not have all of the pages of the survey the assertion was knifed by someone it was not that mr mathis me that assertion it was the regulators asserted that they they testified that they received versions of the survey that were incomplete and that was what was central to the obstruction conviction of mr matheson on count level but i know there was some question about the completeness of the survey and attached pages so the there was one of the contractors that was a cia remediation and especially as a baby contractor was contacted by mr mathis and he said here's the survey that the survey was clearly provided to them because it was referenced in the bid that sci remediation provided to mr math but the fault of the survey was amazing pages or the step that those that there was no fault in the survey there are it was complete and at least the version that was used by mr mathis and mr fillers to get from especially as a basement contractors those are as best as contractors the did not ultimately get the job doesn't this about this contend that he left some portions of maybe if the demolition permit correct you are correct the contention is that not that who put the numbers on there but the source of them the the i think the testimony was clear that kathy jones completed filled out with information that was provided by mr mathis and mr phillips in you're correct that her testimony kathy jones who was the person who was over the especially this program for the city of chattanooga said that she was jones when she said that james mathis provided me that number there still was sufficient evidence to convict him of propellant on count two of provider of providing that false demolition permit application first of all the fact that he would go in there and provide and jointly participate with after he's already had the survey that he would jointly participate with with donald fillers in completing that survey is suggestive of the conspiracy and keep in mind your honour's that this count too was also alleged is an on aiding and abetting theory secondly it's important to note that the the application resulted in a permit that was issued to james mathis that had the false numbers in there that had the numbers that grossly understated the amount of us best is that was identified in the survey that was the originally obtain ture i say this right way of farming and in terms of this mrs jones conviction her belief that she got these numbers absolutely from mr mathis when in fact she seems to suggest in testimony that she was sure she thinks maybe it was mr mathis but it could have been a warden it could have been fillers could have been somebody i guess and so i just was a it just seems to me that the brief also it's important to realize that that there was testimony in the record that james mathis had been trained in the identification and removal of a special this and that he had decades of experience in the demolition of field which helps support the fact that he knew the process that he knew what was in the buildings and that he and the jury could reasonably infer from the totality not just from kathy jones's testimony that james mathis was involved in submitting the false demolition permit application to the air pollution control dear with regard to the issues that were addressed by counsel for mr fillers the search issue first firstly your honour's of course this is this is an issue that has been well briefed by both sides but it's clear that there were no manifestations whether or not he whether or not dunn fillers had the right to keep people off his property of course you could put a fence around it you could tell people keep off he could put a guard out there but he did none of those things he have to do that i mean this is  pretty much a demolition site wouldn't members of the public know that this is an old what factory that was being it was all rushed this is not you know those sort of imitation of the public to just the property to go in and take salvage or whatever they may want to do that so one could infer an expectation of privacy on the part of the feller's assist property  should have to go to the expense of having a guard or erect a fest we're on or i was in just that because of the state of the status of the property those are things he should have done it was a hazardous location there were in addition to the demolition rubble there was a specialist was found on the site as well as other materials and he made no effort to make if he had that expectation he made no effort to manifest it by keeping people two thousand and thirteen supreme court case support that there was no that an open field such as this is there are no reasonable expectations of privacy on now  oftentimes there's reference cases deal with marijuana patches where that sort of thing with this was an open urban field it was an urban yes it was an urban environment but again it's there's no there were no fences no signs it was an inactive demolition site and the fact that it was in the city of chattanooga rather than out in the county somewhere nevertheless it's appropriate for the court to construe conclude and there was no clear  concluding that it was an open field and that he had no reasonable expectation of privacy and with regard to the sensing issues your honor the first enhanced one had having to do with rip repetitive release two g case out of the first circuit nine hundred ninety five made it clear that two releases are sufficient now mr fillers council says well there's no proof that it was released into the environment but your  they were sweeping it up bag in a throwing in the buggies dumping it into dumpsters with no respiratory protection whatsoever is sufficient for the application of this to be  to be one a repetitive release enhanced mr phillips was to rely on his argument that they got it all that a t c systems got it all so therefore there wasn't any to be released to the environment but one of the suppositions that incorrect suppositions of that premise is that she ignores the fact fillers ignores the fact that his own workers at the same time that a t c systems was engaged in their abatement his own workers are are pulling a specialist down baggie it up and throwing these ghost bags into a t c systems dumpsters so whether or not they got it all and it's clear they didn't get it all because it was on the ground and that there was a cleanup resulting in the expenditure of thousands of dollars tens of thousands of dollars of cleanup discredit that theory that a t c systems got it all involved in this this activity or when a t c systems was over here and there containment area doing air monitoring and the fillers employees are elsewhere there was no air monitoring going on where the illegal activity was occurring now e monitoring that had occurred after the site was found to be dormant by the regulators with regard to the substantial likelihood of death or serious bodily injury the court correctly concluded the trial court below correctly concluded that it's enough to show that there was it was substantially more likely not that they would suffer death or serious bodily injury not that it was if the fifty one percent chance that somebody was going to get sick or die but just that it was substantially more likely that there was they were exposed to risk of death or serious bodily injury so it's not a fifty one percent rule and that clear it's a substantially more likely as a result of the activity standard and that was judge call your relied on the thorn decision out of the second circuit and rejected the pearson standard from the ninth circuit in coming to that conclusion so therefore unless the court has dismantled questions of me your honors i will ask that the court affirm the convictions in this case in the sense ok suggest all day long that may give rise to proponents but not proof beyond a reasonable doubt here with kathy jones we do have some problems with her and her ability to recall first of all mr mann has relied upon the ai survey in drafting his permit to the a p c second of all and just as important the information in that permit application came from the wardens and not from mr mathis if we were to look at the permits self or the application for that the permit cited approval for demolition it did not include a basement and then most critically in its undisputed in the record kathy jones was unable on able to remember who provided the numbers associated with the size of the area to be abated just couldn't recall what to suggest of in the records that she mix some people up as she made some comments to m judge collier during his out to sion a very a very eloquently spoken man well educated and it's just an incredible think that ms jones make this comment that he couldn't read or write and therefore she had to help him with it suggests th evidence would show that ms joan just made a mistake mr matthews got caught up in this vacuum and zeal of the government's prosecution of this case and he was more of a dupe than anything else ali and we would request your honors to and your honors because mr taylor donald killers names keep coming up in regard to the insufficiency of the evidence on count two i would like to address that just briefly to point out donald fillers never even saw the ten day application or the ten day notice his brother gary fillers was involved in the ten day or in the application herbert warden was involved in it james mathis was involved in it when kathy jones wrote down who to contact she wrote down gary were donald fillers but she wrote down gary fillers phone number when she sent out the approval of the application she sent it to james mathis herbert warden and gary fellers the only involvement in bygone fillers is ms jones claims that one day donald fillers called her and told her that herbert warden told him that they needed to increase the amount of this best us that there was more than her warden had put in and donald fillers gave her more numbers the government repeatedly conflates gary fillers with donald fillers they repeatedly conflate what is demolition dust with six circuit alan duke case as an excellent example of how the court should reason on what constitutes a privacy right in commercial property and donald fillers that would be  eight zero eight fed second eleven eighty this is exactly the kind of property that is protected under the fourth amendment mr fillers had a expectation of privacy by for taking the case of the cases under the criminal justice act it's a real service to mister fuller's a mr madison to the court at large so thank you very much and with that the case will be submitted thank you