is a case that has an extensive history at this point involving both criminal proceedings at the state level and civil proceedings below be asleep and i think though that for purposes of today and for purposes of this court's review the simple issue to focus in on is the application or rather the mis application in this case of the standard of review or the various standard or standards of review that are  respected criminal defense attorney that practices in the zero one zero kentucky area and in his capacity as a criminal defense attorney as had the occasion to cross swords on numerous occasions with the detective matt connelly who has worked with the kentucky state police at the time leading up to mr womack sarette asked he was attempting to work out a deal where in his client's mother who is the apple economy night would act as an informant for law enforcement in order to get a better deal for her son was mr womack's client who was facing a lot of prison time and this is the sort of deal that he had worked out that mr womack it worked out with law enforcement in the past three to four and showed up actually with a package of pills and mr womack took those pills threw them away and kicked miss night out of his office and that is something that is uncontested by all parties now after that somehow when we're at the defense's mercy as to how this exactly occurred but somehow mr knight connects with mr connelly in is then asked to act as an informant against m womack she's wired up and then begins to call mr womack constantly about the drug buys that they had discussed before there's there's undisputed testimony to the effect there are evidence to the effect that miss knight had called mr womack eighteen times before he ever answered the phone to speak with her she's calling him repeatedly on the day that he was arrested in the days leading up to that she's also asking him during this time for money to cover her bills and see through her drugs away on a prior occasion finally on april ninth she comes to his office and during a discussion about her son's case not during a discussion or not discussing pills or not scuffing a drug by either not discussing anything to discussing her son's case specifically she takes a call that we now know was a on her cell phone she takes a call that we now know was a call from detective connally and that audio is mysteriously missing so now again this is evidence that's in control of the defense obviously so they have her wired up and the representation is made by connally during the grand jury proceedings in the preliminary hearings that are during the ranger proceedings rather that the audio and video was working perfectly well that audio is gone we don't know the specific contents of that call and that's important because it figures into the district court's evaluation of the facts below what we do have  mr womack is charged with two counts of drug crimes and tell two months later right before the preliminary hearing he subpoenas mr detective connally's wife to testify at the preliminary hearing and then all of a sudden six more charges three felonies and three misdemeanors show up all of those charges and this is important as well all of those charges except for one were dismissed before mr womack's criminal trial and that one charge he was acquitted on that is our case it is a straightforward framing of a defense lawyer in this case the trial court is misapplied the standard of review especially with regard to probable cause determination and to the civil conspiracy theory and i'd like to talk about probable cause first and i think on that topic specifically there are three basic reasons why this court should reverse the district court and the first and perhaps the most obvious that continues to be overlooked by the apple even was overlooked we believe by the district court is that seven out of eight of those criminal charges against mr womack were dismissed in six of them because they l and these are the charges that were heaped on mr womack after he tried to subpoena stephanie connally to testify the second reason is that the opinion below is focused on recordings between miss knight took between mr womack and herself talking about pills and talking about drug buys and a whole host of various other things those recordings are taken out of context but for these purposes the important thing is that those recordings that the trial court uses to base its determination of probable cause on occurred prior to the alleged commission by mr womack of any felony and prior to any fourth amendment activity that is involved in our one thousand nine hundred three claim in this case so the question here is that we've got a warrantless entry we've got a warrantless arrest and is that reasonable under the facts and circumstances is that reasonable of the fourth amendment and the question the court below is obligated to answer is was there probable cause knowing what these officers knew at the time to believe that a crime was committed such that they can come into mr womack's office and arrest him and subsequently prosecute for it now of course we think the answer to that question is no because we think that the officers conspired to frame him but i think where the lower court misses the misses the boat on this is that we don't have to prove at this stage that there was no probable cause we simply have to prove a genuine issue of material fact on probable cause such that it could be submitted to a jury and we think we've done that and we think we've done it handily in fact and here's why we've got a contemporaneous phone call between mr knight and the k s p detective that has already there's documented animosity between him and mr womack we have missing audio from which i think under the circumstances it's fair to infer that  there was a call from detective conley to miss knight that says we're coming in dish the drugs they're not talking about drugs are not saying anything about anything miss knight gets a phone call throws the drugs on the desk and income the police i think it's unfair it's fair since the defense had control of this audio and it's now missing i think it's certainly reasonable to infer that she threw those drugs on the desk at the direction of k s p n even if she didn't it would be an prosecution had already existed at the time that that ms knight entered his office on april ninth why was there no warrant issued for mr womack so rest before the police got there and the answer in our view is obviously that if miss knight had shown up with drugs again like she had in the past that mr womack would have kicked her out again and k s p knew that under these circumstances and that's the only thing that makes sense they're trying to catch him in the act that's the only way they can get him so if we get him during the commission of a crime we don't have to issue an arrest warrant we don't have to pre established probable cause with the evidence that we have  and of course there is also the video and the problem with the lower court's evaluation of this video is that they say judge russell says that it is inconclusive as to what happens it's not it doesn't support either side well we respectfully disagree with that but even if we didn't disagree with it under rule fifty six that fact should be construed in our favor it's always been our position that that video is strong probative evidence that ms knight through the drugs on tax will max desk then if it's a little unclear and if it's not if it's difficult for the court to see it may be interesting to know that this was least in our opinion the basis of mr mo max acquittal on that one charge in the court below and what they had to do there was to hire a video specialist to blow up the video and slow it down frame by frame and then it becomes very very manufactured you can tell that by the video alone but at least we've raised a genuine issue of material fact that would be worthy of submission to a jury there's the other issue is the one of collateral estop believe that's adequately covered in our brief and i'm running short on time it's covered by the derryn hinch men line of cases and i have been unable to find any supporting case law that says from anywhere that even if probable cause is manufactured if the officers have made it sufficiently appear as though there was probable cause then they should be absolved of liability and that worked at the trial court level but it's not the law we still get to a jury of these facts and that's clear from gregory vs little from the derrick case from henchmen from that entire line of cases i see that i'm running out of time if there's no questions over reserve the remainder of my time for a bottle ok good morning your honor sir nick and jason bellini represent that calmly we have informed the court we've decided to split our time if it pleases the court six minutes from me six minutes for mr nunnery and then three if there are any other defendants that needed us we have five definitive that's ok that's  very quickly the issues are conspiracy probable cause collateral estoppel immunity on the conspiracy issue they have to show a single point in or shared conspiratorial objective and an overt act if they their conspiracy theory were to ring true then many in the western kentucky law enforcement community would have had to been in on this this was not some personal vendetta between matt connelly and dax womack the henderson city police were involved henderson county were involved davis county were involved does the west which is a drug enforcement arm of the state police were involved later of course prosecutors screen this case they went to the local commonwealth attorney bill markwell and got his blessing to proceed with this pre arrest so this is not some personal vendetta or conspiracy as they would have you believe another key point on conspiracy is that this did not originate with the kentucky state police this originated by a lady named carmel ablog who is an informant who talked to preston herndon who is a hinder some city police officer so the conspiracy was not even hatched their theory is that the state police conspired to arrest mr womack it didn't even originate with the kentucky state police the testimony and also some audio that we have in this case is clear cali has said over and over i didn't want this case from the beginning i think that's almost an uncontroverted fact he knew mr womack he thought it would be best if he just didn't handle it he sees him in court occasionally and he didn't even want the case so not only is it not a personal vendetta he had no desire to take the case the issue of  animists or animosity between these two is ridiculous the post arrest audio is the most compelling proof that we have there's a conversation between the actual mike and we would encourage the court to please listen to that between the actual knock and matt conley and mr w that those are constitutionally insignificant we don't think it was breached there is a mention of a payment of three hundred dollars to a confidential informant that's standard procedure miss nights testimony as she didn't even know she was being reimbursed for her travel and expense before so that could not have been the motive for her coming forward they talk about this morning they talked about adding those six charges that was done by the prosecutor todd people is the hopkins county attorney he has an affidavit in the record where he says that was my decision to add those charges that connally is a state trooper does not have the authority to add charges in the middle of a criminal prosecution and they're trying to pin that on the kentucky state police then there are all these allegations that connally lott and connally lied and we would point before i leave conspiracy this cell phone call the testimony uncontroverted testimony from both night and from connally is that he simply called and that the audio failed he couldn't hear so he asked has mr taken possession of the drugs she says yes and they come in and the testimony from the officer from two different law enforcement agencies not just the state police but officer ingram from i believe davis county was there as well is that the drugs were inside the drawer next father later testified that the drugs were in the drawer as well now turning to the issue of probable cause this court knows it's a very low threshold it's something less than certainly less than reasonable doubt less than preponderance of the evidence it really is just a reasonable belief that criminal activity is afoot so we have to and we also have to look at it we can't you apply the hindsight principle we have to look at what detective connelly knew at the time i think we can apply t perfectly reasonable to me here in cincinnati now but if you look at what he knew at that time he had every reason to believe that mr womack was engaged in criminal activity the best testimony on that is from docs will mock him self the post arrest audio admission there his admissions pre arrest to conny night he asks her what does that old dude have now that's the drug source he tells her to take the drugs and put them in his little mail slot in his office door they quote a price fifty dollars he goes and gets fifty dollars cash he gives conny night fifty dollars cash he tells her to tell the drug source to hold the drugs to hold these pills he asked about a prior drug oxycontin and said he would prefer that those admissions are damaging on the probable cause you there is overwhelming proof of probable cause here mr connelly and the case people would have been irresponsible not to pursue this investigation could we are opinion in my time is running short but probable cause was conclusively established at the poor mary hearing at the grand jury and at the motion to suppress in the underlying case of the issues for collateral mr bell indicated about some way that she could help her son perhaps by coming becoming a confidential informant but it was he was gone think about it in a way it was kind of unusual this night had a friend named carmel block who is an active was at that time confidential informant she shared with miss wife these things that were going on between herself and mr womack and his wife said that didn't seem right and she took that to the kentucky state police to detective connally who was the narcotics officer at the post sixteen once the state police were made aware of this improper conduct with womack they did not have a chance they didn't have a choice about whether or not just a gated they were charged with the responsibility of investigating crimes that are brought to their attention and they had no choice but to investigate if they had several conversations they interviewed miss knight a couple of times they felt that what she was telling them was truthful and had merit so they arranged for her to to be wired and to go talk to mr womack with audio and video wires she was strip searched both times she went every measure was taken to ensure the accuracy of what was taking place with those tapes and those tapes is what this case is about  those tapes clearly when you look at what was said the statements particularly that mr bill referred to there's no doubt that mr womack whatever his intentions were he was pro trying himself as someone who was willing to obtain oxy code on in this case and have miss knight purchase it on his behalf he gave her fifty dollars after discussing the price she did bring back the oxycodone he wanted her to put it through a mail slo she said no i'll have to bring it to you in person and she did and that's when she was arrested so this whole situation concerning mr womack did not originate with the state police it was brought to the state police and as judge russell observed that this was a proper investigation it's what the state police do when they're brought that type of evidence lieutenant colonel joe williams a retired state police officer of obviously high rank and very involved in drug enforcement activities and writing of some of these general orders and so forth has testified in a deposition and here's what he said about this and he was talking about this general order o trafficking organizations peripherial offenders who are people that are insulated from direct involvement in the criminal acts but whose financial or other support facilitates the continuation of criminal acts these  major operations are what are targeted by the language of a whimsy six it's not meant to deal with this kind of a pretty minor deal really fifty dollars for purchase of a few oxycodone pills here's what though lieutenant colonel joe williams said and i'm quoting from his deposition the overarching concern for us in this case is this corruption issue with the attorney it's not the drug case it's the fact that this attorney has violated the trust that he is supposed to have and sent this woman out to do an illegal act this was all entirely within correct police procedures now probable cause plume an air hearing in front of a special judge the transcript is ninety nine pages long it was obviously an involved hearing the in tower tapes were made available to the judge he has said that in his opinion  he was also aware that some editing had occurred prior to the hearing that was discussed on the record and what is also important about that preliminary hearing is mr womack was well represented by counsel but no objection was made to these tapes at that hearing now so probably calls was found at that point actually prior to that mr p pulled the prosecutor had made a determination that there was probably call so it went on the plan or here and stage and then we went on to the grand jury he testified to the grand jury about about the consumer at the what judge russell referred to as the delivery method of the drugs how did they get from his night to mr womack he talked about the theory that has the grand jury still found probable cause it's mere fact when you look at what the grand jury said they're incredulous they listened to the tapes and they're sitting there saying did he really say that and when i was saying and that's when i heard him say this what he said they were incredulous that this attorney would be would be involved in this kind of a thing so the grand jury your time has expired you wish to use some of the remaining time that you were going to allocate to   the circuit court judge jernigan had an extensive hearing on a submission to suppress the evidence and again the transcript of that hearing i think was seventy pages and he wrote an extensive opinion he talked about all these materiality issues concerning the exculpatory evidence and in the fraudulent conduct and so forth he listed fourteen different things and explained his opinion how he thought those were not meritorious he found probable cause he heard all the evidence in the trial and listened to motions for a directed verdict in overrule those motions finding that there was probable cause i want to mention quickly i know that counsel for a mr womack mentioned the henchmen in the dora darragh cases from this court those are in two thousand and two and two thousand and one judge russell specifically called the validity of these opinions into question in light of rubber rubber of course is the court knows two thousand and twelve i believe opinion from the united states supreme court grand jury witnesses should enjoy the same immunity as witnesses at trial this means that a grand jury witness has absolute immunity from section one thousand nine hundred three claim based on the witness testimony this rule may not be circumvented by claiming that grand jury witness conspired to present false testimony or by using evidence of the witnesses testimony i believe that the rubber case did pretty much brings  the this case it in my mind is very very similar to this case of jakim versus sam's east and i believe judge cole was on the panel of that case in judge kennedy in that case wrote  that this would that the conspiracy that was being alleged and she came was a pure fantasy and i think it's a pure fantasy in this case there was no conspiracy there was no group of people with the big problem the judge russell had with this case was that no specific facts have been alleged to support the conclusion reallocations that there was a conspiracy and i think that's a major flaw in the case of the pla your honors i'm glad to talk about anything that the court would like to take up as far as what opposing counsel has brought up in their arguments i will simply point out that as far as the arguments are concerned they are mostly fact based arguments in fact i think what i just heard was almost exclusively fact based arguments if you pull those facts out of the opinion that's fine this would be great as a as a bench memo or a memorandum opinion if we were if we were involved in a bench trial but not on summary judgment the question is have we do have reproduced enough to go forward on the probable cause issue have we produced enough to go forward on the conspiracy issue and i submit to the court that there's no question about it simply for the evidence that we talked about before and if the conspiracy claim specifically that same window of facts the narrow window of facts that happened on april the ninth support the conspiracy claim of this case the court states the proper standard from the spatafore case on page twenty five but then goes on to page twenty seven to apply a completely different standard and that standard is that we must have direct knowledge of what happened in the phone call between detective connally in this night and we have to have direct knowledge of what the conspira conspiracy that will they you're going to be proud that the plaintiffs is going to be privy to you're going to have to prove it via circumstantial evidence in the direct knowledge of a conspiracy that standard has never been required in any civil case decided by this court and to my knowledge in any court ever it's never been you use the term direct knowledge doesn't appear in any six circuit case law but in terms of what is the circus anshul evidence that we presented aside from what we've already talked about of a conspiracy they put drugs into the hands of a convicted felon who's got a suspended driver's license they ask her to drive to mr womack's office in violation of their own orders and every tenet of good sense and that's why i think it's so interesting that mr nunnery would say that they took every measure to ensure the accuracy of the wire every measure to ensure that conny night was wired up and yet somehow managed to lose the audio from the critical phone call from k s p and not only that but they completely fail to vet her background or else they ignored it and decided to use her anyway because this is not someone who would be appropriate to use it as a confidential informant so that's highly probative of a conspiracy here of the idea that they were trying to do everything that they could possibly do to get tax womack on something this confidential informant was paid was on a fixed income they paid her three hundred dollars which is three times the rate of an average  the normal confidential informant and neglect to mention that even when directly asked about it preliminary hearing of the grand jury even when directly asked that question connally evades the answer and we only find out about it when carney knight is  caton your time expired i think we have a pretty good sense of your your arguments and we you know very much appreciate them and appreciate the arguments from other counsel who argued today so thank you thank you very