united states versus her heart sharp and david the defendants now my argument is also made pursuant to agreement with counsel for mr sharp it is made also on behalf of mr sharp i'd like to discuss three reasons resort restrictive methods to accomplish control of what was the behavior that was at issue in this case such as warning and threat of removal and rd that there was evidence sufficient evidence to have warranted a hearing on whether the jury saw or heard these shackles and in the alternative regardless of whether they were seen or heard there were other important concerns reflected in supreme court precedent that would require reversal in this case to which of other concerns in spring court is  let's say the the the we're dealing with a situation where it has not been a last resort that there is a violation of that rule nonetheless it's a judgment by the coors as to this defendant that they are effectively necessary to be chained and if you look at it from the viewpoint of a defendant in that situation that defendant is drawing the conclusion that the judge thinks they're a bad person and likely on lawyer is going to think that judge already thinks i am guilty there's another already evident what we're concerned about here and in all of this and that's obviously of concern to all of us regardless of which side of the courtroom we're sitting on yes we're which side of the bench we're sitting on it is is conveying an impression to the jury that it's actually predisposes them or has the effect potentially of predisposing them to find the five defendant guilty right well actually it is a broader issue and that's what i am i am saying and i am are referring to supreme court opinions and for example when alan the reasons for why shackling must be a last resort so say for example this is something that also affects the dignity of the court itself unless a court is in the courts are strongly adhering to this rule about last resort i mean there's obviously there are situations where it must be done but it has to be a last resort situation it can't be a situation where something can be remedied short of that because it becomes it actually i would say that it denigrates the the view of the citizenry of a court if shackling is done too easily and not as a last resort here in this case me that there's a spectrum in a spectrum on the on the less severe side of the spectrum you're talking about defendants who exhibit some kind of misbehavior verbal some sort of disruptive but it's not on the other end of the spectrum which is really where the greatest concern you see in the opinions of the shaklee and that is the risk of a defendant attacking someone in the courtroom or that the defendant would escape in this case we are on the lease of your end of the spectrum we have behavior that happened with the marshals in transport did not happen in the courtroom and in fact we have proof here evidence anyway of this case that it likely would not have occurred in the courtroom because the st day they were shackled the judge didn't feel shackling was appropriate and only ordered shackling on the mis understanding of law that because the marshals had recommended that the court would do it and that was a misunderstanding i would say that it created a problem frankly for the court here then he's shackled and he's shackled to defendants and by the by the rd day or the end of the nd day he's realizing he has a problem and then having to go back and he also describes his own observations from conferences where he found that the defendants appear to have issues maintaining self control we we've discussed what this behavior was with the marshals during transport it did not happen in the courtroom and then it's some type of vague i can't it's  description of some type of behavior dealing with it seems from what i can see is that the defendant somehow in appropriately talk to their family or the public in the gallery while the trial was proceeding it seems that was what the judge was alluding to but it is very vague the most important thing about it is your honor is that i mean this if we compare this case the supreme court decision in allen this doesn't even make it as close to that decision and and in that decision the supreme court said there was a situation in which the judge warned and then warned repeatedly and then said if you do not behave you will be removed and the defendant wouldn't behave and then the defense at the court then says ok removed but if you behave i'll let you back in defendant comes back in later will behave ok you have to remove the says you if you behave you'll come back and comes out back and finally says i'll behave and then and by the way what was done what was said by the defendant in that in that case was vastly worse than what we have here we have that defendant threatening that judge you will be a corpse with this trial proceeding that's a threat of physical warning and threat of removal from the court one room would work because pacifically defendant sharp appellant sharp on the rd day of trial it was brought out that he had made this gesture toward the prosecutor during during the opening statement of the prosecutor in response to the prosecutor pointing at him the judge said i know mr sharp will behave i know that if i just warn that will be sufficient counsel for sharp talk to your client tell him that he we will know more misbehavior or i will remove him from the court room he will will view the trial from this is no misbehavior after that so it's this was clearly a situation if there was any concern about you know that something had to be corrected that actually the least restrictive mean which means which was warning and threat of removal would have worked one less thing to say i see i'm on the time here but we have this court's decision in haines an extremely important decision and that decision sent us that there must be this specific finding on the record by the judge that the judge has determined that shackling was necessary as a last resort in other words it was the only thing that could be used to control these defendants there is no finding here and this and in haynes this court said we you know we had the discussion about whether the jury saw it or not in hands that issue the garb government made the argument well the jury didn't see it didn't see the shackles this court's no then they also said in haynes that the process of the defense counsel during automatic reversal because there was no finding and if you think about it it reflects the gravity of the situation and also affects the appellate review of such a grave and important question that affects this court system so for multiple reasons also what i've stated in the brief i respectfully submit the most reverse on this issue thank you like excuse me i'm having trouble talking the district court's decision to permit evidence regarding the two thousand and nine are arrest statement that sharp would bust the officers melon meaning blow their heads off was irrational and that's the standard that this court has to find and the government and mr sharp agree that the court would have to find that the admission of the evidence was irrational the government is trying to argue to the court that the air should review be reviewed under planar review because defense counsel didn't specifically say that it was a death threat however defense counsel said that at the hearing that the evidence was gratuitously inappropriate and inflames the jury so this court should find that harmless error review and irrational uing that whether the admission of the evidence was rational or not should apply and not under playing or standard the the testimony that mr sharp threatened police officers was agree just and completely different from any of the evidence at trial it was a harrowing type of situation mr sharp was in pens at the precinct and he said that if that gun was loaded he would have bus the officers melhem there is no probative value of this testimony to any of the evidence at trial and the evidence was weak were not is he here saying that the jury could not have found sharp guilty of the crimes that he was convicted of but the evidence was very weak for of conspiracy mr sharp was a street seller the bando was in or it was an organization of street sellers  there was testimony that the the sellers were loaned sellers like the wild west for example the government said in their brief that it was mr sharp who gave his blessing so that mackenzie could sell there that was not true mckenzie said that you had to have been known around the bend over a long time in order to sell there and that he knew for a long time but there was no explicit evidence that sharp gave his blessing to sell their their government said that if and it was an enforcer there was no evidence that none of the witnesses connected any of the shootings to the drug trade in fact they explicitly said that the that the shootings had nothing to do with the drug dealing cans he was asked who made the decisions about who would sell mckenzie said nobody we kept our drug drug business to ourselves regarding these all issues  the views of the evidence of the jury that was the province of the jury to sort out yes but i'm not arguing that the evidence was insufficient we're arguing that the admission or admission of evidence regarding bus tour bus the officers on facebook but it was never listed as a nickname he was called dummy as a nickname on the indictment and versions of dummy but nothing about savage so that was also irrationally admitted into trial in fact the district court said that the government's case was weak when during the discussion of the face book evidence coming him the government's i mean sorry the court said the government needed to do more foundational work the government's case could be stronger they need to focus on the three defendants because they only had scattershot mention of the three defendants in court he even the district court said i i urge you to get more evidence of conspiracy  what would have been a rational in this case your honour's would have been to separate the evidence the point part of the evidence that dealt with mr sharp being with the gun and with the codefendant and completely extracted the evidence history or characteristics in this case the condition stated that if the probation officer determines but based on your criminal record personal characteristics or history that you pose a risk to a rd party you may be your acquired to notify that rd party of that risk however this still leaves us with the question of what was meant by the term risk this overly broad and vague term allows no limitations on the court and probation officers and part does not provide appellant with notice of what behavior he should be avoiding in order to prevent a probation officer officer from seeking any court approval this court held in united states conditions must be reasonably related to factors such as a defendant's personal history and characteristics the standing order does not reason the relate to any particular defendant and violates the requirement that a condition must not involve any greater deprivation of liberty than reasonably necessary to achieve the purposes of sentencing this unfettered discretion of courts and officers to act at their women in relation to opponents personal and somebody else on a rd party exactly would you be here if that were the case arguing well those are examples but there are things outside down and what if he does this and what if he does that that's still not clear enough while it could still be interpreted as being bro i believe just the term risk itself gives no indication or notice to give a fair chance of what behavior should be avoided overall what things they should be staying away from i mean there is nothing that was even specified of what risk could relate to his personal history and his personal characteristics why isn't the fact that this it's not the probation officer who's imposing their probation officers recommending it to the court the courts not going to impose or without a hearing where the client your client is represented by counsel and that can all be ironed out them why isn't that sufficient protection while the term again risk is just completely beg i mean based on his criminal background his criminal history based on the you know conspiracy allegations he could and he i'm sure he's going going to be involved you know during his supervised release term is going to be involved with many people many quite and says and there's no indication of what type of behavior he should be avoiding what may be appropriate for him to good morning in may it plays the court my name is damper as i represent racial and davidson i'd like to devote my comments this morning to the nd point of our brief which deals with the issue of the abuse of discretion by the district court  defense from inquiring of the officers officers williams and whalen regarding their prior disciplinary histories both excuse me both during the suppression hearing itself and also during trial williams had a prior history that was very very similar to the to this case now you have to district court judges who agreed on that issue torres and judge berman judge berman essentially said for the same reasons i'm i'm going to preclude you from from examining trial yes yes so i so i'm challenging both i understand that i am williams had a very similar incident incident in the past that was substantiated by the c c or be it was a bulge it was it was a straight stop it was a an improper frisk and then it was followed up it's not just the stop itself or the frisk it's the fact that there is this apparent pattern of failing to fill out paperwork after the stop documenting it well and it was a car stop and then it was an improper frisk and then it was a failure to fill out a stop and frisk complaint and it matters in this case this was not simply an academic exercise of saying let's go fishing and see what we can find out about the officers credibility it matters in this case because williams and whalen whelan's versions of how this stop took place were so inherently contradictory self contradictory for example they couldn't get on the same page as to whether davidson struggled while he was being searched or while he was being arrested initially in the bronx criminal complaint the allegation was he struggled while he was being arrested then in the federal complaint it was he struggled while he was being searched and then at the year in the trial they denied that there was even a search it was he was arrested they couldn't so if they can't get on the same page themselves on a much as talking between the two officers but the officers themselves gave utterly incompatible testimony for example one of them gave one version in terms of where this happened at the hearing that didn't pair up with his own memo book and travel leave that that was williams and if we have police officers who in the past aren't following the rules regarding memorializing discipline  excuse me more memorializing stops and frisks and if we have police officers who there is reason to believe have failed to heed th amendment safeguards of residence then why would we presume that we can trust that they're going to honor their oath to testify truthfully and so in a case such as this it's even more important to permit the defense to probe into those previous complaints i also want to touch on the issue of of harmless error because i think it is it is a it is an issue that the government raised and it's a fair point the case here was premised predominantly on cooperating witnesses there were two or three cooperate in witnesses but in the case of david all of this telephone evidence did not apply to davidson none of the wiretap evidence applied to davidson there was also other evidence and such as surveillance evidence there was a poll camera that went up and none of that applied to davidson as well and so the jury is sitting there saying ok will do we believe these cooperating witnesses and how do we know whether we should believe these cooperating witnesses well in walked these police officers in their in their uniforms with their badges talking about how they've been a police officer juries routinely vest enormous trust and confidence in the police for good reason we want to believe that we we can believe police officers and yet there was a fiction here in a sense because the jury was precluded from hearing that in the past these officers had not had been had been disciplined or had substantiated investigations regarding similar stops and similar so i think there were four cooperators but i want to make sure henry mckenzie family and clark is correct ok i was never good with numbers i apologize it's why i went into the law instead becoming an airline pilot i also bizarre bizarre explanation the officer had this cell phone video that someone gave him some interested party that allegedly corroborated everything that he says happened and he doesn't it and he doesn't back it up and he doesn't safeguard it he's driving around in his car on the streets of new york city with it on his lap and he gets out of the car for another stop of a totally unrelated incident and the cell phone tumbles off his lap into the street and then it gets run over by a car and he goes back and he says and i'm sure you're familiar with that with what happened from my brief but then he throws it out and so again i'm back to why should we believe these two guys and how can we know that the jury had a fair shot at probing their credibility if all of these past incidents were kept out thank you thank you mr press and each here and i also represent the government in the district court i actually want to start with the issue of the order just because i think you can be cleared up very quickly i think it's actually just misreading what judge mcmahon said at present sharp is literally subject to no order and i see where the confusion comes in you can actually see this order on the very last two pages of the read brief ok so i think i think the court already knows what i'm saying judge mcmahon sort of provided a way in which district that court so having done with that i was going to move on briefly to the shackling issue i do think that mr hart is wrong in suggesting their concerns here would be implicated even though the jury did not see the shackles and there's no indication they did dec in particular addresses three concerns one impairment the presumption of innocence but as your honor said judge all specifically in the eyes of the jury not that the defendant is going to sit there and feel guilty of course he's being led back to jail every day already it's for the jury nd and my adversary mentioned this the dignity of courtroom but again that's not in a sort of esoteric sense it is and this is how describes it what people will see when they walk into the courtroom if nobody sees the restraints no one is sitting there saying this is not how justice should be conducted and the rd one is interference with communicating with counsel which brings me to the point i really want to make is these opinions dak allen on which he relied or about total restraint they were literally say bound and gagged that of course would interfere with your ability to communicate with counsel but that wasn't even close to what happened here those are the sort of things where there's this argument about should that be the very last resort although i do say it's an argument because there's a lot of opinions including from this court that suggest the last resort is removal from the courtroom i think they're both serious remedies and i think if you look at  dec and other cases it sort of it is going to be within the district courts discretion which of these two remedies is necessary you can't really say either is a last resort and on that point i just want to hit to areas park and sharp you behave badly in the past if you keep behaving badly i'm likely to order you removed from the courtroom so it is not as though no warnings have been given secondly i want to push back a bit on this notion that judge essentially says all try and he specifically asks the people in the courtroom not do things that everyone does like make eye contact with sharp and the prosecutor not point him out when addressing the jury this is not a statement of a lawyer who has control  his client these are things that can happen in a courtroom and you shouldn't say someone's under control when the lawyers and i don't know if i can control them if you do these normal things and rd i point the court to documentary four hundred and forty four which is another transcript  different pretrial conference where sharp lawyer sense to judge berman was sharp not present i'm going to need your help in controlling my client he doesn't listen to me maybe your honor can tell i'm not back down court because when i tell him it doesn't go over well so this idea that that sharp's lawyer had this key to control and this is simply not accurate and the final point i wanted to hit on that subject your honor is miss reading hans farrelly gratuitously when he says there's an issue of of automatic reversal it says nothing of the sort this court was clear beforehand in cases like hamid and davidson and clear afterwards and harper and le the jurors became aware of the shackles not as my opponent says because of automatic prejudice but because as explained below is it page one hundred dollars the cumulative effect of all the errors in this case deny the defendant a fundamentally fair trial if argues this was a death threat if they want to revise it to reprise the argument in the district court that this was about anti cop sentiment that was preserved i think that's wrong for the reasons judge berman found this idea that if the death threat is one reviewed f two it's wrong somebody sitting in a jail cell and what was in fact far from a harrowing situation sergeant lovers testimony about this was bordering on boring he's sitting there operating a finger printing machine next to a holding  and shark tries to yell at him something that is clearly as his attorney characterized it in his closing statement braggadocio just being a jerk while he's behind the cell this was nothing like a death threat it was however but i would use the if it was loaded he was very clearly acknowledging possession of the firearm because of course how would he know it was unloaded which it was unless you had some knowledge of it unless you could use it i did want to make one small correction in our in our brief we see we give the wrong transcript site to where sharks attorney made that argument closing it in fact at six hundred and twenty five dollars to twenty six dollars in the transcript he also brought this out on cross examination of glover so showing sharp saying i want to use this gun and effectively i know what's on loaded was extremely probative and not terribly prejudicial given that there was testimony of sharp actually committing at least three separate shootings in which he actually shot at people and he was heard on tape repeatedly discussing shootings by the conspiracy and in one instance saying he was going to put a bullet through the door of an occupied building in order to collect a drug that given that this sort of empty threat from a jail cell was not prejudicial was probative to show that this gun here was connected to him subject to the court's questions you know just i know you've written your views on th credibility in no instance were any of the officers shown through why and they made arguments below saying well for example williams relied on a bad search warrant but he didn't swear out the search warrant was sworn out by detective at a time when he was just a police officer no reason to think using idea that when he got pulled out of the search team it was a bad search warrant or for example whalen participate in a traffic stop one of the baited issues was was there a traffic infraction and or be won against him but judge torres accepted correctly that had the board found him not credible it would have referred to ib as it is required to do and it didn't so this was just the board's opinion of the facts not finding either party to be line in those results are entirely consistent with this court's opinion in both laws and tara in the form of which is a published opinion in in was there actually was an adverse credibility finding against the officer and the court still said as a matter of form three it's such a remote incident has nothing to do with this it doesn't show a propensity to lie and not going to let it in terror and i think was more of a six hour wait ruling which i think is appropriate here just these are relevant they're not about this case and they're not anything about davidson so there were three cooperate hers against his client but there were three there was his own cell phone messages talking about selling crack there were facebook images of him there were his facebook post saying things like everybody has been arrested needs to stay quiet a lot of drug program will be out in three years it's a minor setback those are his own words on facebook saying people need to be quiet talking about the conspiracies locations when the police would search them what they should be worried about he was very obviously guilty and to the extent that he need he needed to cross examine those that any cross examination of those officers could have mattered in the courtroom reread the cross examination his very capable trial attorney did they had a ton of material across these guys on including for example not making the entries were actually not made in this case and there's all sorts of reasons we had why you would expect that a lot but still everything that they need to do across they had thank you is just go the government one argument with respect to shackle and and warning and saying well there's no guarantee that a warning will work and then if you think about the logical extension of that therefore warning don't give warning you have that's not good enough oh of course no one can say whether a warning will work until the warning is given that's exactly what happened in our own actually it didn't it st work and alan it took a couple of times of warning for it to work so that is that is a logically not acceptable argument for why you don't want a nd thing i would say is this argument about removal from a courtroom or simply say a reading of the supreme court precedent on this incredibly important issue about sharpening over the decades removal is a step short of shackling shackling is the last resort there's no question the government has to argue this because if it were to concede that removing all was a step short of shackling then there's been a violation but it is removal is clearly a step short a less restrictive method than shackling it strikes me however that that issue may not be as clear as you would like us to have asked to get well in that it surely impedes communication with counsel and we've all had and i'm sure everybody hears had cases where we've experienced the removal or threatened removal of defendants they've had to calm down before they can get back in and participate in their trial and in a more productive way and there are and it's covered in my brief but other methods so there's threat of contempt you see if that works they can get longer time there's the ability to put more marshals more security in a courtroom and this is something that again covered by supreme court precedent there are less restrictive methods that should be looked at and there has to be then saying no they won't work but we are as i said we're at this lowest end of the spectrum in terms of disruptive behavior and we have evidence in this record that a warning would have worked because it worked with sharp  if i may the idea of the of the you know but i think this is very important just because a jury doesn't see well when jury goes out the public sees and we're talking about something more broad than just whether a jury sees we're talking about how in general over a period of time the citizenry understands how the court works and deals with defendants is it going to just  well it's ok just as long as the jury doesn't see it because what is open the door to you can have ricky routine shackling and just as long as the jury didn't see it's ok thank you very the reason that the government does not want the court to consider the bust the officers melon comment as a death threat is that this court said in one thousand nine hundred and three that death threats should be scrutinized because the stakes are heightened with death threats again defense counsel did not just say it was anti cop sentiment he said it was gratuitously inappropriate and inflames the jury and the court should not look at the death threat as biplane or review with regard to the government's claim that the testimony was appropriate to show that sharp has asked guns they really didn't need that testimony to show that sharp possess guns there was there was plenty of testimony at trial and all this did was serve to present propensity evidence which the supreme court has said denies the defendant a fair opportunity to defend himself and and it weighs too heavily as character evidence are there any further questions no wonder that a lie on the brief the entry of the apartment for a a war without a valid warrant i agree that should have been excluded because whether it was whaling or williams he did not personally swear out the warrants so i don't have an issue with that but i do have an issue with is the prior did not substantiate the prior investigation whereas here the c c r he did substantiate and one of the difficulties that i had just as a lawyer with with briefing this issue in preparing for this argument is are all relying on laws which is a i believe a two thousand and two case which is not to say that simply because it's old it's no longer good but but we know a lot more about how the n y p d conducts stops and frisks on the streets of new york city today than we did eighteen years ago we have better information we have more information and it would perhaps be helpful to all of us for the court to revisit these questions in laws there was it was a very it was a paragraph of analysis and it just said the crowd that proposed the proposed cross examination was of little if any plausible relevance to be at bent's you have credibility the review boards prior finding provides nothing of value with respect to his motivation to lie about the circumstances of the appellant's arrest well why it's my question and why it does it have to be so limited in terms of if it's if it's a if there is a complaint that substantiated that he lied well that comes in but if it's your plate that substantiated that he made up or excuse me that he improperly stop somebody and improperly search somebody then again i ask the question why should we have faith