frustrating seriously however we appreciate if you will pay attention to the traffic lights some yellow light comes on when you have two minutes left in your argument and as many of you are well aware and when the red light comes on we ask you to conclude unless you're answering questions from the court we have read you briefs and record excerpts we have not necessarily read the entire record of the case so we very based on a gun that was found in his house during a warrantless search that conviction is to be vacated no matter what in light of ray hay for that the reasons provided in the briefing but with the court's permission i'd like to focus today on the reasons why the suppression ruling needs to be reversed and why this this court should order the district court to enter a judgment of acquittal for mr morrison now there were several issues in errors in the district court suppression ruling in this case which i discussed in detail in the briefing but with this case really boils down to is the government completely failed to establish that the officers had consent to enter mr morrison's house from his jupiter much less that they had voluntary consent from her at best even considering the officers testimony in the light most favorable of the government and setting aside the fact that the district court failed to make critical factual factual findings and resolve disputes had best the evidence shows a submission to lawful authority by the officers who walked into the house without a warrant without requesting permission and without without receiving an affirmative invitation to come inside now the facts of this case are largely undisputed leading up to the entry into the house a team of eight officers went to mr morse and house at six in the expectation was everybody was sleeping inside and so they knock on the door looking for mr morrison and instead miss jupiter answers the door woman that they're they don't know they haven't identified through their investigations she answers the door she opens it slightly for found the district court found that she failed to verbal the object in that there was no physical force executed by the officers and pushing their way into the house but the officer but the district court did not make a resolution of the fact voluntarily and her and i apologize i can't recall her specific findings at the end of the trial but but as far as suppression goes the only new inch information that was produced at the trial was more testimony from one of the officers at the scene who indicated that when she opened the door a little bit wider he took that as implied consent to come and that was there was no additional testimony or information provided at the trial that supported a finding a voluntary consent for her to for them to enter so considering the factual dispute between miss jupiter and the officers the court never made any kind of resolution of that fact and even setting aside you know additional findings her decision was based solely on the fact that mr potter failed to verbal the object to the officers entering the house and that there was no physical confrontation or forced entry from that perspective for a physical assault basically from the officers if we agree with your view that the district court didn't resolve some of these factual disputes should we issue here is that the court should actually reverse the suppression ruling because even looking at the disputed fact from the officers perspective that can't possibly support a preponderance of the evidence finding of implied consent much less voluntary consent by m either explicit request from the officers for consent and based on the totality the circumstances the opening of the door and the other surrounding circumstances indicate that they are consenting to that request here there was no  to be magic words we're not saying that there have to be magic words and that's a misconception that's brought up in the government's brief the government suggests that we're arguing that there is never consent unless the officers have said some specific words to request affirmative consent that's not what we're arguing at all we're arguing that based on a tally the circumstances in this case and when you have a situation like here where there is no actual request for consent there's no affirmative invitation from the person inside we want to talk to more and then they all meet in the living room and the court found that that was enough room and i think kind of parsing that apart there's the one issue about whether mr morrison actually appeared at the door that didn't door is that officer bordelon testimony where he claimed that he actually asked mr morrison for consent to enter through the threshold now that is not only inconsistent with their prior reports but it's not operated by any other evidence it's essential another factual dispute in that case mr berger testified that's not what happened and also later at trial the other officer testified that once they came in the house mr morrison and came out of the bedroom and so it's it's basically undermined by all of the other evidence in the case but even setting that issue aside the issue here is that the th amendment is meant to protect us in our privacy and to protect from intrusion by officers and to prove consent the government has to meet their their burden of showing that there actually was consent and that there was voluntary consent by a preponderance of the evidence and this is not a subjective analysis about well maybe the officer thought that he could come in at that point this is an objective lee reasonable analysis and i think you you look at the evidence that is you know favorable toward the district court's ruling for sure i think the issue here is that they're the only factual findings that the court room supposed to court it just i mean i'm just asking you this supposed to clear didn't cite any facts and at the end of the suppression hearing said i find that was implied consent how would we review that on appeal totality of the circumstances is she found there was  circumstances it was implied consent than what we do on appeal i think then on appeal you still look at the totality the circumstances and you weigh out you know you analyze whether she erroneous lee applied the law in which case review of certain factual findings or you look at the totality of circumstances to find clear air saying her factual findings yes i'm i'm saying that her factual findings and some of them are incorrect based on her conclusion that all to all of the parties testified there was no forced entry that was a clearly erroneous factual finding but her legal conclusions i thought you were saying she didn't resolve sort of factual disputes right and the briefing he outlined because she notes them and then basically says however there's and these are the undisputed facts and that establishes right and those undisputed facts that she found specifically the fact she said that everyone agreed there was no forced entry that was erroneous but even assuming that was an erroneous because of the stipulation that you saw that all the jury knew was that he had this prior felony why isn't how else are you going to prove someone knew they were a felon other than showing that they are i think circumstantial evidence certainly can be introduced and this is something that's being litigated actively now obviously i think the court government waste of time when there's typically my view but make your argument well i think the issue is we can solve that i think the issue is that a stipulation at the time of a trial when you've already been applies to two of the two of the let it go i know but i mean your other counsel have a lot of time just wondering if one of them had been planning to address i believe maybe briefly but i can also address some more further on a sorry thank you camouflaged expert testimony clearly giving testimony that was a bit within specialized knowledge of a narcotics agent i can give examples i give examples in my brief i have record citations but did with the ones  brief specifically went right to the amount of heroin which is extremely prejudicial my client because if you look at the context of the case with the jury it's very nuance here the jury acquitted mr morrison of the conspiracy with respect to the cocaine conspiracy he for the jury found that there was not five hundred i'm sorry not five kilograms involved is five hundred grams so didn't find the highest offense so the jury was thinking about these issues but what the difference between the cocaine conspiracy evidence and the herald conspiracy evidence was this case agent expert testimony that x you know term meant amount now it's going to give some examples the prosecutor the government asked the case agent what does it mean when you say you see a stamp on some you know a heroin package and he says not only does he say that's common for drug dealers and her want to do it that's clearly expert testimony based on his training who knows we didn't get any of our dear we don't know what that's based on but that's it can't be based on experience in this case is based on general knowledge and he goes further and says that is the kind of the you only use that stamp if you're dealing with key low amounts of cocaine when it was stamped that said ok no it's a stamp is a scorpion and so that's just one example another example is this fifty five to sixty that came up this is a code word this is discussed united states versus hands what kind of knowledge is required to to interpret what is when  know in a conspiracy what is what is happening when you set up for the number i could divide to sixty and change that was so that was expert testimony you need to be qualified to give that information here again we have no qualification the government based entire testimony  testimony that was their motion before the trial this is all going away opinion no expert testimony and indeed this case agent only had six years of experience who knows how many investigations he had so we don't know that but that he took that fifty five to sixteen what does he recall the government says what does fifty to sixty mean he says that means a queue of cocaine and then he says and the government says well what you mean by five hundred and fifty it's fifty five million two hundred and sixty thousand that corresponds to the price on the new orleans market that is expert testimony about what the market prices for heroin that's not based on this investigation he certainly didn't say it was based on this investigation so they're putting in all this extremely prejudiced prejudicial evidence through this case case agent that's x her testimony and there's been no safeguards put in place whatsoever he wasn't qualifies an expert i'm not sure he could be qualify as an expert based on his own experience he was in war dear don how many best gay since he wasn't on anything we would just get what bill information and the direct about his training and you make an objection so there were there were objections on the st objection came when the st code word came up with zip counsel co counsel jumps up you know object saying you know this is expert testimony this should be allowed they moved they haven't qualified this expert in the government they kind of have a back and forth to the court courses no it's it's based on his experience as a narcotic so officer which is lay opinion which is contrary to haynes so the question the district court wasn't thinking about it in the r because of get around to like well it's based on this investigation so it's admissible think counsel says well he hasn't provided any contacts he's not provided a foundation he's not comparing it to other parts of this investigation like in haynes where it's like ok half as mentioned  here that corresponded to a drug buy we had so we know what that means there's no there's no specifics in here whatsoever in this testimony how that information came out there's no foundation other than his the fact that he was a case agent in this case and over and heard  dollars calls so it's our position that a foundation for these specific code word testimony as lay pinioned has to be more than i was the case agent and i heard hundreds of calls i was a case which i heard hundreds of calls and this is how i know this correspondent this because i heard it in this call and i heard in that call and then we arrested this person he had them out that's what happens in other cases that's not what happened in this case and counsel did object to that then later they played a tape where my client and mr staggers discussed scale nine they discussed various code terms two and two they discussed crash test dummies in council jackson says there has been no foundation for this whatsoever the court simply overrules him and and then the case agents allowed to testify ok will scale of nine drug dealers when they talk about scales or talk about the quality the product they want to keep their you know they want to keep the customers coming to want to make money so it's important for to make a profit you have to have a quality product obviously general expertise not like knowledge is becoming in as a lay opinion testimony and i think this court clarified that and haynes that is expert testimony for which you have to be qualified i've asked this court to decline to court  the government's invitation to say no that's lay opinion testimony i think the few cases that have come after hands are very limited circumstances i sleep in instances nothing like a case agent example who's kind of giving you know he is the witness in this case he's got he's testifying at the end right before the jury deliberates he's putting in all the pieces together and he's bringing to bear all of his experience his expertise he's bringing back forth the knowledge of his case parts of the record that aren't coming into trial to like bolster it but he's all he did in this case was provide this general expert testimony for which he was not admitted for as well as provide specific code terms without giving any foundation in addition he also asked one question when he talks about this is the meaning of these various terms is he saying that that's true in drug deals generally or is he saying that that's the code that they used in this drug well if you look at the questioning of it if the framing of the questions was confusing sometimes was based on your training and experience was based on your training experience so does that mean experience in this case does that mean your general experience so it was muddled it was imprecise it was coming in but i think when you look at the the answers especially with the fifty five to sixty i'm going to give you one more example here there was a case where one of the clients said hole used t word hole and he testified that meant kilo i mean he didn't say where or how he knew that what that was based on maybe that was based on his general experiences training maybe that was based on that investigation we don't know he didn't explain the basis he just said that again that's just one more example and there's many more examples but i'm just honing in on the part where he said my client was involved with a q a which resulted in the end of lifetime sentence for my client and my car we will discover sponsor the government's argument that any air of this type was harmless by my math nine hundred and eighty one grams of heroin were found when you add up what was found in staggers house in the stash house here at ninety one almost a one thousand then you a phone call and just it's it's just not very likely that there were only two deals or you know only that the what was recovered were the only drugs involved in the conspiracy this is true but those conspiracy so the government's own theory that staggers was the supplier him my client was the dealer he would just come out and say that and that just brings up another example when he said people were paper work means money that means session is the is the supply and staggers this is part he just volunteers that so on that defendants they were involved in cocaine is conspiracy they only testified they had no trafficking with heroin so whatsoever so i don't think it's automatic well then how do they find him guilty of the heroin i mean i get your quibbles with the amount which gives the lifespan of yes yes well he did say in a call that he was doing with heroin he did mention heroin once i don't think it's fair that the jury concluded that he was an involved in the herald conspiracy whether he was dealing in these key low amounts that was all the case agent he was putting that out there well the have do not quibble with the fact that he could lay a foundation for his specific codeword testimony by pointing to like cross pointing at this called man this is called this is how i know that it was the government's burden to establish a foundation  defend a trial multiple councils this defendant standing up making these objection having this back and forth with the court and the government the court over rules his objection at that point my client's attorney gets up and makes an objection about the about the wording of further objections i think it's fair to read that he certainly would have accepted that or want to be part of that objection keeping this out entirely but once that objection is overruled he's like well i have something you know further objection that's related to not the same in or to clarify that i think was damage control at that point to prove that knowledge other than that maybe other than a confession but the fact that they have to have a felony and you can infer of people felonies or serious things people know if they have a felony it's a fair inference it for the jury to write in the case that i argued in front of judge jones last sentence a mandatory life sentence and five weeks after he was sentenced the law changed the st act came out and persons in his shoes are subject now to a twenty five year minimum and what he is arguing on appeal is that that should apply to him because he's still on direct appeal and given the nature of this issue in the time i have rather be i'm going to be more informational than argumentative we recognize that all the circuit courts in progress issue have held against  language that congress's intent may actually have been to foreclose collateral challenge collateral challenges based on the amendments but not to foreclose people who on direct appeal that imply that a sentence is is imposed when the sentence and conviction are final which occurs after when the appeal process is finished or when the time to take an appeal has has expired we've the cour going to want to look at three different things st of all one of those g b ours has already come back with an opinion from the seven circuit the th circuit held against the argument  certiorari it is to best of my knowledge the st case to come before that court where this issue has actually been addressed by a court of appeals it is distributed for conference is friday so the core want to look at that that case is mentioned in my twenty eight j letter and finally there is another case before this court where this issue has been raised the gomez case was argued december  the morning may please the court run clear in the united states i'm joined this morning by matthew payne who is trial counsel in this case to respond to some of the court's questions i want to respond to some opposing counsel's questions i don't plan to take the full thirty minutes but if the court has additional questions i'm happy to answer those as well i want to start up costs are you were talking about the rai claim here and you mention it isn't the old chief stipulation might that be enough i will say that since we filed our brief in this case other circuits have said that have looked at  that i'm happy to file a supplemental letter with those cases if the court would like to see them yeah i would ok and i'm happy to do that i'll do that soon as i go back to new orleans just cross you also ask well how in some of these cases would you be able to prove this knowledge requirement i would say that in specifically one hundred and twenty two june one cases felon in possession cases if the defendant has spent more than a year in jail which both of the defendants did in this case that is certainly evidence that we had that if ra ra if it happened before this case we would have put that evidence for the jury i agree that other sub parts of one hundred and twenty two g it's a bit more of a challenge for us g five g nine cases like that but certainly that is evidence that we had in this case that we would have them why isn't the defense agreeing to a stipulation and invited error when they prove that prevents the government providing more details like how long the person was in prison what the nature of the crime was that would make it even easier for a jury to conclude the defendant knew and i agree that it very well could be that's more of a debate as to whether the person would have no matter what you ask and let me ask a dumb question here because i assume that whenever an individual is convicted of the felony that in the process of include you know deprivation of the right to vote in many cases deprivation of the federal right to own a firearm you know whatever whatever else there is and i mean why isn't th i mean anybody who gets convicted of a felony has to know they've been convicted of a felony with the possible exception of this real unusual eighteen year old sexual assault something and i would say that i agree with that there are some defendants so why should we blink our eyes to the reality of the criminal justice procedures i think that there are some criminal defendants in the state system who get suspended sentences who maybe don't do point up doing any jail time on them and there's at least an argument there but i agree with you that in the majority of these g one cases that the evidence i think would be pretty clear i mean in federal court it's a rule eleven plea requirement advise the defendant before pleading guilty of what rights that though give up with a guilty plea yes that's right and there's also in the state system the boy conforms and thin agree judge jones that there is that a guilty plea proceeding where the defendant's going to be advised of these things so it at the very least in the felon possession cases like we have here and i think it's pretty clear what the evidence shows i want to respond to some of the arguments about the suppression issue st and then move on to the drug evidence issue and so with that the suppression looking at the evidence that was before the district court that the officers knocked on the door they confirmed that they were at the right house once mr butler opened the door they told her what they were there what they wanted to do we want to speak with leonard we want to talk to mr morris and she then opens the door a little further a reasonable person looking at that exchange would conclude that that was implied consent and that's really what this boils down to we were you see that the district court made a finding about this dispute about whether early two factor the door was opened wider and whether she stepped aside and made any motion for them to come in i agree morrison and others on an express finding about that but i think if you read the district court's order particularly in the context of the cases the whole judge show as you pointed out the district court's statement in its new trial order and i'll get to that in just a nd but if you look at what the district court found she has to have credited the testimony of the officers there can't be a finding of implied consent if she'd credited miss jupiters testimony either the door was open or either she open the so you agree the finding of implied consent would have to require the door testimony they may testify differently then she says however testimony of all parties indicates there was no forced entry nor antagonistic response jupiter did not testify they physically moved her out of the way to the contrary they waited in the is that she it would have made this a little easier if she had a sentence in there that if the district court of the sentence in there that said i expressly credit the testimony of the officers over mr butler but i think you're right reading between the lines of what the district court said it's pretty clear what she believes happened here well she wider and stepped aside after bordelon began speaking with morrison whom the officers say they saw in the hallway i mean there's not to me that's a finding that's not just well you know this is disputed fact finding innocence the suppression contacts and i would say no on this court often looks not only of the totality but of the record as a whole when there's a trial or that there's anything else in the record that would support it and just shows you brought up to take the beyon officers into the residence so i think she again is making it pretty clear what she believes happened with this not going to talk unless there's any other questions about the suppression i'd like to move on to the drug out of that's there's a couple of things worth pointing out with the drug evidence judge cos you brought up the that there is a lot of evidence in this case it's not just the agent's testimony there is the that a lot of physical evidence that was required that was obtained during the search of the staggers saggers house and the house that had sessions identity identification cards and a nine hundred grams of heroin seized from those houses there's also the phone calls and there's the one phone call in particular that i want to point out it's the phone call between session and the coconspirator namely scotto we have the transcript of that phone call in our brief in that phone call mr sessions says harrell when he says it out loud he kind of messes up and use the code word and in the context of the rest of the case it's clear that they're talking about buying a kilograms of heroin during  phone call so in addition to that physical evidence that the physical evidence in the phone call i think a jury could reasonably infer even without the agent's testimony that this was a conspiracy for a kilogram or more heroin the other thing that's worth haynes before the trial or before the agent takes took the stand at trial there was a bench conference where the district there's this bench conference that was cited here where the government said again we're intend to put the case agent on we intend for him to get this testimony and the district court said ok i understand that's what you want to do i believe this is going to be a lay opinion testimony beyond all that looking at the agent's testimony it's pretty clear that he was basing it they were reasonable inferences based on  as an agent but also based on the work he did was the case agent in this case he says over and over again during his testimony that this is based on the work i did in this case i've seen the physical evidence i did the surveillance so it's based on a little bit  experience that he has as a dea agent who's investigating the apostle area who's investigated these two individuals who has listened to thousands of phone calls judge king us a question about whether the agent's testimony was  specifically to this case and whether it was some things that applied broadly in the drug context i would say that his testimony does a little bit of both but when it comes to the terms that he's interpretating when he's listening to the phone calls and saying that word means there's that word that that is specific to this case it's like gator meat in this case and it's heroin it's that when they're saying i need some of this that their phone call between london and morse and they're talking about heroin and so when it comes of the terms that's specific to this case there are some other things that are more the trade testimony about the drug presses and things like that that are a little broader but even that stuff is all very reasonable inferences that are again based on his experience as an agent and his work on this case opposing counsel brought up the testimony about the drug price fifty five is the price of a kilogram of heroin in the new orleans area and i would say that that's a reasonable inference for an agent who works in the new orleans area but that's not doesn't require any kind of special expertise  feed on the ground on the job experience as an agent i don't think that the seven hundred dollars rules require that an agent check his experience at the door when he comes up and testifies on the stand he shouldn't put on blinders and pretend like he doesn't know the price of heroin in the new orleans he also happens to be the case agent on this case so when presented with that evidence i think it's a perfectly reasonable inference for him to say this is what i believe it is  if there's always there's any further questions about the drug evidence or what about the st step back with the st step back to i agree with mr admirably that all the courts that have looked at it have adopted the government's position on it it's certainly nice that they have i don't know if it's necessary for this court to look at what the other courts have done it's a pretty plain statutory interpretation issue for me impose has a certain meaning it's different from finality a general understanding of imposes that it's when the gavel comes down  a different legal understanding than what finality is it's a pretty straightforward statutory interpretation give me an example of a statute that would that would not apply that way that would apply to pending convictions visions i don't know if i can think of one unless congress has specifically and i mean i think that's that the import of dorsey and of savings clauses that congress that have been specifically say and i don't know that i can think of one where they have done  says something different than the general rules for statutes to be forward looking and i should correct something with pending convictions obviously the st act applies to things that haven't been that have not yet been imposed so they could be pending on pending up on appeal well i'd like to revisit a couple of things about the suppression issue and then i'll move on to re hafe very briefly you know i disagree that there is an implicit credibility finding st of all over between mr peters testimony officers as judge cost is said you know that's something that everyone can read the order and make their decision but even you know if setting that aside viewing the facts in the light most favorable to the district court's ruling the testimony from the officers cannot possibly support a finding of consent the occupant of a hotel room stepped back acquiesce totally and emitted the officers and and the supreme court said that was a th amendment violation and then similarly like i said there's you know there are several cases die in the briefing but i can to a th circuit case unpublished  actually found a similar factual scenario sorry found to be an obvious violation when officers asked someone if the luggage belonged to her she affirmed and then they proceeded to search it and she didn't give any objection and so even though that's in a luggage search in context rather than admission i think that's an analogous to an area that shows the th circuit recognizing that this is a clear longstanding principle and th circuit precedent that not requesting consent and then simply proceeding with an entry is not permissible but even if the court could somehow find her actions based on the officer's testimony to provide implied consent some fashion the government didn't even provide any evidence about voluntariness and in fact in their post hearing briefing at suppression hearing they didn't even ask her if she understood that she could refuse consent or ask her about her background and instead the district court looked to the lack of evidence as support for its voluntariness finding the government completely to fail to even try to meet  respect and so even if there could be some construction of implied consent based on the facts from the officers there was a complete failure to meet the burden of showing voluntary consent now briefly with three hafe just to answer one of the court's questions before  i don't know if this is a formal practice but it's my understanding that in the district court now they are doing they have been doing some stipulations or at least in the wake of rehab they were doing stipulations about knowledge in order to secure those convictions but the issue here is not whether what evidence could be presented at a trial to prove that knowledge element it's what was presented at mr morse and trial and here we have the old chief stipulation and the fact that the gun was in his closet which isn't enough and in fact there's evidence supporting that he actually  for that instruction on that element which the supreme court i don't establishes and elements it seems to me that's the framework it is not framework but it has been applied before and actually has the government mention inspiration thing in other cases or at least in other circuits when there's this kind of change in the law believe i've seen some cases there were up on the supreme court that were just remanded you know fix this consistently hey i mean and what about the practical argument that i mentioned to you that every court in the united states when except in the guilty plea to inform the defendant of the consequences of the guilty plea or every judgment in the united states as for the consequences so as a practical matter i don't see how you could ever have a versatile error except in these real unusual kinds of felony convictions when i think the issue is that certainly circumstantial evidence can show us fellows i mean these fellows had spent as much time in prison as they had the free world before they got  and sessions anyway not mr morrison is case and i know that he had some overlapping convictions and there was probation terms and such and i don't disagree that circumstantial evidence could potentially you know support i actual jury finding you know when they're instructed properly that he knew of his status but i think the issue here is also that there's a you know there's a due process issue when you are prevented from actually providing any kind of defense or making any kind of argument and in this case we do not have a government  prevented you could have i mean what were put on the defense from arguing that every wanted well by the government that was prevented from arguing the the evidence that would have shown their knowledge by the view of the stipulation correct but then to rely on you know either the stipulation or some kind of harmless  analysis by looking at the record as it is it precludes the defense from making any kind of argument to the contrary that he lacked the requisite knowledge and as i discussed in the briefing there was evidence in the record that he actually showed the officers where the gun was and explained to him how he found and where it was and and that to me you know that alone shows that you can't find beyond a reasonable doubt or there should be a reversible error in this case on the jury instruction but the deprivation of their ability to provide a defense is also due process issue that would need to be remanded assuming you did a good job rather than my own but i will say just one thing to mr mclaren is saying that we don't check the case agents experience at the door we're not asking  asking that when they do bring their experience to the trial that they if it is going to be expert testimony they subject themselves to the rigors of seven hundred and one thousand seven hundred and two because that's what they're there for and the fairness of the trial depends on it so we shouldn't i submit we should play w rules and say well you know it's ok in this case because it's natural for him to do it the rules are there for a reason and in this case i think it has significant prejudicial impact thank you i think you