this is a virus good morning as at the trials at the trial mr cosily your honour's there's a lot of evidence of mr cosmo's a customer or a user of crack cocaine there was very little evidence that mr cogswell was actually in agreement with presented no evidence that he ever directed mr khan's well to him deposit any money in his account mr barrett was quite detailed in his testimony about who did what in the conspiracy how he controlled the accounts and how he directed others deposit money in a slip from the court basically saying that his license was being restored had his name license number on it so was it was our suggestion at trial that one of the other members of the conspiracy easily could have taken mr collins wells name and license number and used for these deposit slips and that was really government's evidence on its face still doesn't get to the point that mr cox was was in some sort of agreement to work in this conspiracy he would take the posit slips the deposit slips and simply bend that mr cogswell deposited money into the bank three i mean this this court so we said your honor that just knowing of of illegal activity or just being or even living where the illegal activities been done isn't enough for the conspiracy and i'm not sure if it's really all that much your honor i think with the evidence was selling to this person or that he was making this delivery for us it wasn't any of that sort of evidence so really i think the evidence came down to just the fact of the number of coconspirators repeated the term that mr cox was working for or  testimony someone some sort of personal knowledge that they witnessed this thing or how they knew about it in this case there really isn't any of that from the coconspirators it's just mr cogswell he was part of it and you know take it take our word for it essentially what now when it comes down to the evidence again they haven't said trial was that where mr consul and his girlfriend lived in his girlfriend's not allegedly a member of the conspiracy where they lived was on a separate floor from where the drugs in them and the money work out and all the testimony at trial was that the drugs and money were on honor's is that this whole idea that there's very little evidence of mr cogswell he's involved in this conspiracy really runs through six of our of the seven arguments i present here because it's not only to the sufficiency evidence it goes to  trial he's awaiting sentencing he sent a letter to another co defendant named jennifer holmes she sent a letter to her basically bad mouth and making a threat against another codefendant who had already quantity and that would have included the testimony of this witness who already testified who was mentioned in the in the letter but it's i think the the heart of that argument of arguing on the obstruction is out now the witness who anyone incarcerated would have monitored mail and that the institution would have an obligation to warn the person subject of the threat well your honor i sometimes around second i can just answer that question honor for the record my name is attorney david rule off of the law from howard in rule off just or new hampshire this obviously is my first time appearing before this panel so it's nice to meet you all i wish it was on a case that i did not attempt to waive oral argument i will address one issue that i briefed which is the sentence imposed in this case the crux of my argument with respect to the sentencing of my client mr turn it on the cost it was that the i believe to one sixty two that i believe were considered three different things but in my view would really only be considered one thing the trial court characterized my client's role in the conspiracy as a babysitter of drugs and money as someone who was also a dealer who actually engaged in the sale and distribution of crack cocaine and also so that he had some role in the depositing of funds ok the evidence at the trial was that the the first and last of those two rules were very insignificant i think the senate judge treated them as kind of all the senior level the great way to the evidence in this case is that my client was and was responsible for you know just kind of being the person that would bring the drugs to a transaction where he had no authority to deposit money on his own he really just did what he was told that was his role in this conspiracy i described him in my memorandum as someone who the higher ups and used as essentially disposable someone who is important to them enough to make sure that he could go out in public and transact and deal with people that were buying the cocaine but that if he ever got caught it wasn't any blow to the conspiracy if he did so that's why they would send him to the bank and then they can't read or write english who would just give the deposit slips to the teller and probably didn't understand you know whose name he was using or whether or not and there was no evidence that he knew who the fictitious account holder was so and i think that's you know what the judge considered most serious he described it as a significant rule when he went to the bank there was not a lot of evidence at trial about how many times he did the whether it was only him there was evidence that sometimes he would go with someone that would help translate for him  if you needed some translation services so i actually and i think the government characterizes my argument right see that as kind of like a mitigating role he was being used by these people that were higher up people that he depended on completely to be able to function in this area because he wasn't from there he's from new york he knew no one and they just gave him his marching orders and that's what he did so that's why i would consider you know his role really is just a foot soldier nothing sentence the my argument is essentially that the judge should have you know considered the other factors in his life his education is illiteracy you know his a category one offender and every time a category offender the first colony conviction gets sentenced to in excess of fifteen years the court should look seriously at whether or not that sentence was was reasonable i will say no it in passing that the i did mention in one portion of my brief for reference to the you know the other participants in the conspiracy and their relative sentences however mister mr cardwell the only two in this conspiracy that actually went to trial so i do not think that there is an apples to apples comparison and that's why i didn't develop that argument in my brief the inlets or any other questions but i rest of my brief bangor it moved from multiple locations within bangor during the life of the conspiracy there was testimony to each of the locations during the fifteen fifteen month life of this conspiracy mr cogswell was one of the middlemen one of the people in bangor who was selling the drugs on the street and of course that's an important role in a conspiracy like this because the people from new york don't know the people in bangor don't know the people who want the drug since the local people with those connections are obviously important so the evidence was from testimony that mr cogswell was an everyday purchaser of crack cocaine in the amount of four hundred to eight hundred dollars more than personal use the drugs were funded to him it's not logical to front drugs to someone who isn't going out to sell them to get them if he's just using them you wouldn't front them to the person his name appears for the four hundred dollars one hundred dollars quantities in drug ledgers there are composite slips of twenty six thousand dollars with his name on them his id was found in the house next to business cards of the conspiracy called the beer factory now the defendant which is a way each of those pieces and cogswell i'm sorry mr cobra was not the person present in bangor the people president being or where the people that mr cooper had assigned could be there those people testified at the trial those people said mr cogswell was a constant seller of the drugs throughout the life of the conspiracy as my proof points out this court case was clear that this kind of persistent seller buyer from the conspiracy to sell downstream does make you part of the conspiracy so as to the sufficiency argument the jury was or was free to creditors to go where i suppose if you wanted to and say he was just a user but was obviously free to not accept that testimony i mean just because the jury's returned a verdict this is an open case in multiple ways maybe pointed out to one there's a potential sense here and is their record evidence will be wouldn't be record evidence if he's not actually called but it's think this would play out is presents report takes the trial evidence says ok the drug quantity is x the government might say no it's why we disagree with that and we're going to bring in lewis and these other coconspirators we're going to testify because that the that the government when this letter is sent this considering how is it going to handle sensing it needs a way for the pre sentence report in the can to see whether it's going to make an evidentiary presentation sometimes it does sometimes it doesn't add to the other point though is we're here today in so it seems to me that when he perceives that there's a he's involved in an ongoing criminal case this person was a important witness against him that case is not over it has multiple phases in which it could still travel he threatens to kill that person then then the question is that certainly natural outgrowth of what he's doing the one i mean one it could just be spite in anger but it it's also equally important that you would obviously affect that person in make them a less likely if called upon and i think at the point of the abduction guideline is to stop that kind of potential interference or could be i can't say that i think they can think of one that i can think of more general ones where there's not even a trial yet and they're sort of just we're going to go back i up he were mad that he cooperated we're mad that he snitched we're going to go beat him up i don't know if i'm going to plead guilty i don't know what i'm going to do we're going to go beat him up and that's been held to be obstruction it's not yet clear there's going to be a trial could be government could call mr lewis at sentencing don't know if he is or not but i'm going to threaten to kill him could have the the  benefit of making him not want to testify or the government asked him to i think my reading of the cases as a whole is it does it they don't it's not as specifically nodded to be very pending this person very ready to testify as as opposed to he's a person cooperating with the government we're going to go out and see things that might scare him or that we might actually do to him whatever it is and i think when you read the cases that i've  d as a whole i think that's the flavor i got from them and i think the guideline captures that by broadening out the kinds of proceedings and i do think that mr lewis from mean to live potential witness in this case that would be the government's call mr cogswell would have no way to know whether mr lewis was going to come to sentencing or not i mean i don't think that's made up in the sense that that really could happen and that is how a criminal case i think does unfold at the sentencing hearing where the government reflects and the p s r and decide that it's going to go for more in the way it goes from wars to bring in witnesses and mr lewis was one of the people who said yes he was i was the drugs are being dumped out of my house was one of the people who came to me on a daily basis and i was giving him this mount a much amount of drugs so in that sense he was very important player in the quantity calculus as as far someone who's part of this conspiracy she is one of the people involved i think it's you know to say that he's just blowing off steam when he says you know if i send a letter to your friend or someone involved in your business i think it's reasonable a high possibility that even if i'm just doing writing to the friend just to get off steam that you're going to hear about it i don't think that's a that's a stretch to say and the other point is you're right mr i mean it's a fact  evidence about being read no but i think those woodcock in a sentencing hearing was sort of you know reasonable position to say you were incarcerated and you knew your mail is being read and that's a reasonable inference other people's you knew this letter would be read when you sent it to the incarcerated miss holmes as far as mr rules argument you know this is this is a classic kind of sensing area where he's taken the facts that the district judge starr aggravating and  york he was here to watch the the drugs he was selling the drugs he introduced the gun to the conspiracy that's an important aggravating fact he had and he handled large quantities of money what's the conspiracy if it's about making money you can say that they did that because you wanted to him because he was dispensable as well as you can you can want to believe that or you can say they trusted him this was a guy who willing to put the money in his hands the new didn't think he'd run away or take it