that procedure on so our case they pleased the court my name is jim west and i'm going to speak on behalf of baron walker i would like to reserve three minutes is rebuttal time and that this case has been on that particular count this was the only count that there are any real drugs for everything else was speculation as to whether or not there are any drugs at all not count they had seized drugs it also involved in sorry absolutely your honor that the prosecution here was a two peas in a pod type of prosecution you had over brother barry you had a younger brother burning and burning was dragged through this based a lot barry had done and these charges that were outside the original indictment outside the term of the conspiracy consisting of a drug violations and cherry juice had a poor over effect and this particular case  ok i find me elaborate barry stepped out of the car we don't know where parent was in a car front seat back seat or whatever they're not and someone saw a gun when his coat fell open he had a gun on his hip right with well i've got transferred sites just in case you don't agree but as i understand it that's the totality of the evidence is that yes i think mr consider there were argue that there was a  so whether it's barrier baron that is that that's that's the way to bring it home as it were no there was no temperature in charge and there case where this circuit did approve that that wasn't done in this case you won't find it anywhere in the court's instructions you won't find it in the argument and what you have here at the best you have mr rose who testified in the but when jason mcneil if you read his testimony he says you know i think it was barry i'm sure it was very i think it was baron and i said tom can you be sure which one had  gun when you were driving around with him he said no i'm not sure now you can't take you know pondering evidence that doesn't meet apartment evidence standard both of those witnesses said different things at different times and said it's very once it is parent how could the jury ever make a decision it's a fifty fifty toss up so when i say the evidence was thin it was a new question is it might not even have been sufficient it might be the rare case where they're saying two different things either one of which could be true and the jury just can't decide that they do have to flip a coin it's certainly not through demeanor insufficient yes those the brady claim become moot given that there was overwhelming evidence to support the conviction on the remaining no i don't think anything critical and i believe was critical had cocaine crack cocaine during the course of his cooperation with the government walk cooperate ing is an informant he testified that he was a reformed rez and he took it to sell it and was immediately brought that cocaine disappeared it was never sold and he was robbed and of course he himself had a gun he shot and killed the best friend  hypothetical for a second but let's say you know where all the old trucking cases in the sixties and seventies hijacking i think certainly but so let's assume for a moment that the high the hijack is not of you know sweaters or whatever it's of drugs you know you remember the mike you know the miami cases coming up here in the eighty's and so forth so let's assume it's one of us right would you make the same argument with regard to not feeling well i mean that's silly i just and that the truck would be coming in interstate commerce but i mean would you make the same argument with regard to the business and the depletion of assets that it's you know a drug young person that was jumped was a a big deal or and had a truck full of stuff and that's what the object of the house i won't be making the same argument at all you have yeah aspect of a business there the evidence here is on disputed first deal only deal didn't intend to go back and deal anymore this was a dalliances was aberrant conduct were going to the government's evidence for he was starting out like is it arrives in pennsylvania the cocaine is manufactured into crack which is what happens after it arrives it's not usually kind into crack and then the cocaine is sold on the streets i asked the expert can you tell us the expert to testify at all clear comes from south america and that's another issue too because there is pharmaceutical cocaine and i filed a forty page brief find that but in any event i said  you think you know how is interstate commerce affected by cocaine that comes from south america and hits the streets of harrisburg and a teenager buys it and is then somebody attempts to rob and this is an attempted robbery this isn't a you'll courthouse up the street when i came here to argue them i was well armed because the legislative history said congress intended to use all the authority under the commerce clause in passing the hobbs act and you could stand here and you could say all the authority under the commerce cross no one has defined that and then the lopez case came along and then the morrison case came along and the trend yes i think there was a act is a general federal law enforcement stature to brings everything within federal courts jurisdiction and that's an army dried up in a dried up with lopez and morrison and everybody's looking at it and saying what is the factual predicate gives us the jurisdiction under the hobbs act and this case is beyond de minimus this is the case that requires someone to say well all narcotics have to come into the hobbs act as a we're with all due respect to my colleague mr west i would actually disagree with him on your question ma'am regarding the brady act or the brady claim going out the window and the reason why i disagree is specifically dealing with the evidence that you are oh i'm sorry ma'am i'm jason duncan i represent barry walker and and specifically i point to the issue under brady claim is also you one thing not to be able look is the evidence at trial that even suggest that the  walker was involved in this robbery so an identity question again revolve primarily around mr rhodes is testimony regarding this tape recorder that he had to where he allegedly tape recorded my client's confession to this crime however the tape recorder didn't perform properly even though mr rhodes had used it on several cases prior to that and it performed just fine so now you have the tape recorder that that could have substantiated my client's claim that he had he had told mr rhodes that he wasn't involved in this at this robbery and that mr rhodes himself was involved in the robbery mysteriously doesn't work and i gone and the only testimony you have to support that now is mr rove's testimony and again his credibility was it was a key issue well didn't you savages credibility is best as you could this this doesn't seem like a case where there was a lack of fodder for cross examination and that's that's number one and number two i want to make sure that i understand we are talking about what was found in his coke that that's correct that's the totality of your claim that i not able to cross him on a couple of flakes of marijuana and a what is it  point one eight grams of crack yes your honor that's that's right any question that that's below what is normally considered to be an amount that would be distributed in the drug commerce i have certainly had clients charged with two grams or less of crack cocaine distribution yes sir and i've defended them in federal court as as to the other evidence against to attack mr rhodes is credibility i was not trial counsel in this case however there was substantial cross examination mysteries but it was on different issues such as his motive to fabricate based on his deal that he got and and at one time he was  bad character that did these things but the way he presented himself at trial was that he should be believed because he had gone straight and had been working for the government for some time and in fact he directly testified at trial that since he started working for the government he was not  involved in any in either use himself or in dealing of any drugs or any of those substances during that time frame this evidence goes directly to show that that testimony if if this evidence were allowed to come out the jury could have concluded that the the mr rhodes had perjured himself when he testified in that way which obviously is another substantial grounds to disbelieve is testimony especially in key regard on the brady part of in regard to this this alleged tape recording of my client's alleged confession that he was the only one that testified to that so you know that's that's part of the problem so you're saying that these two flakes of marijuana in one point one eight meets the test of the result is the result there's a reasonable probability that the result of the trial would have been different had you had you had trial counts an opportunity to cross on this i believe it could have been yes sir and the primary reason why i believe that is true is is you have an individual there were several theories presented about mr rhodes by the defense at trial and again i was not that trial counsel but one of those theories was that mr rhodes had told other witnesses and this came out in the record cold other witnesses that he was conducting these robberies with the deceased macneil brother he had  had committed these robberies previously with them so one of the theories presented by the defense at trial is that that mr rhodes has another reason to fabricate and that is he was involved in this robbery himself and instead pinned it on the walker brothers because he saw that as his way out and the fact that he went to a drug dealer and while it's noted that the government refers to it as a couple weeks of marijuana the fact is is that the report actually produced by the police that were involved in this transaction what is that in the record yes it is attached as an exhibit in in the in our breach your honor and the police involved actually describe it as much more of a big deal than the prosecution seem to describe it that it was much more  significant than that and it wasn't simply an insignificant amount of drugs that were on him and certainly at this point it suggests several things he could have been and this is one of the defenses presented the problem mr by mr west and the other defense counsel is that he could have been setting up this other drug dealer so he has on him these drugs he goes off of a drug deal doesn't get any drugs because this person is not a drug dealer how many comes back what are we talking about we still talking point one eight grams of crack how much how much i don't want we don't we're not a substantial my we're not talking pounds or anything like that but at least in to say that it it was enough that he would have been charged criminally with it like i said i've seen quite a bit charge but in pennsylvania just generally they regard the anything of personal your size if that was the only amount of drugs that you had possessed it was marijuana no crack or anything that a small amount of marijuana for personal use is considered a misdemeanor offense for which i'm sure he would have been prosecuted but it's punishable by less than twelve months of prison and so generally it's dealt with in that in that kind of there's a legal line that you're making not right my legal point ma'am was to deal simply with the line my point was to deal simply with the brady issue and even if you were to rule in our favor on the on the other issue and get rid of the other nine twenty four c i believe that the brady in that robbery even though my client had denied drug trial that he was a participant and even presented his his girlfriend who did testify and give him some she couldn't say for sure but and an alibi defense in that it would have confession the only confession given in this case is not to police officers the only confession alleged in this case was to mr rove himself who allegedly had tape recorded it but then mysteriously this tape recording had gone a raw i even though that very tape recorder had been used by mr rhodes in the past so as that is on that point yes ma'am well i think that's your time you gave him ten and that's on the red lights one we gave mr west plenty of extra time so its attention and appropriately upon the age and relative lack of experience as testified by mr right to his crack cocaine activities looking at the record on its total this fits and second and important to note is that it was charged and argued as a criminal attempt as an attempt to enter to complete this robbery and because actuality the robbery wasn't completed  there are two avenues for which to to view the potential impact on interstate commerce and it is potential it is like the convenience stores that get products across state lines that sound sufficient because they have to close for a few hours while the investigation happens well this was a homicide scene this was an open air market where crack cocaine is traffic that was closed down by police and and investigation which essentially shut that market down for a period of time it is the potential impact upon a commodity which is with all the evidence and record we have an interstate international commodity i must confess i didn't look at you and i to see that you're telling us that the indictment charges the potential i think what the indictment church criminal attempt to rob aaron mr right and there was a specific instruction to the jury on criminal attempt sufficient evidence of potential impact on interstate commerce as well as the a tent in this particular case then the one twenty four c would logically connect with that because there was overwhelming evidence of drug trafficking and conspiracy and possession of a firearm and further answer those episodes of those crimes which were charged in counts one two and three there was some discussion about possession of the firearm who possessed the firearm and when the jury was specifically instructed about joint possession of these matters and the way this endeavor played out and was explained to the jury is that  walker worked together that they work together in these activities so must the jury given and aiding and abetting yes i don't believe they were regard to the fairest firearm yes i don't believe the actual instruction was may be momentary or fleeting proof of ownership of the controlled substances not required the low recognize that possession can be sold or joint if barry walker or a baron walker or barry walker buried in waterbury walker alone possessed a controlled substance that so possession if the defendants jointly with others possessed a controlled substance that would be joint possession  and there is another phrase on page six twenty eight again referencing to possess a firearm that is sole possession however more than one person may have the power and the intention to exercise control over a firearm this is called joint possession helpmate are you arguing aiding and abetting it's if but no but if you take that backdrop and over the overwhelming evidence that they gauged in that particular episode on may thirty first and then say we have other witnesses saying that they did it in the weeks before all of that evidence from may thirty first stablish in a drug trafficking and the use of firearms corroborates the stories about what happened in the weeks before as well as the escape from barrett by perry walker and his drug trafficking thereafter well  got to you got to help us for second but that's a little more slowly the reason the judge slowed it or i think she hasn't talked to me about this but listening to or is asking about aiding and abetting in the reason i asked your adversary brief i did a debt a fight a sitting in a bet i should go in a fight so that's so silly me i'm picking theirs and eating in a betting charge it makes perfect sense to me in that context so there's no aiding and abetting charge your argument is really joint possession and that's what was charged to the jury and that's what you want to argue now but it's not in you that's correct or ok i right despite the authority you're here we'll talk so you know you threw a lot of evidence at us a few moments ago may thirty first everything that happened in the conspiracy i mean what we're talking about because of the misapprehension that we were under based on your nomenclature was that a little chart that i had talked about with your adversary was the totality of the evidence with regard to this particular charge and that is that rhodes seemed clear and but arguably equivocal  different moments about who it was but it ultimately appears that he said barry had the gun and that mcneil was unsure you sure somebody had it but wasn't sure who it was now in the invalid context given the theory that you're positing out of joint possession what are we to conclude with regard to whether there is sufficien evidence on the scale with respect to the information and evidence that we presented to the court respectfully submit that there is sufficient evidence that they both possessed firearms and that they both engaged in drug trafficking and that under the totality of the evidence that it's sufficient and so we should take into account also rhodes's statement ascribe to barry that they had guns on the may thirty first i  i believe there was at least four firearms there because there was five for to since in the robbery john mcneill had a firearm that was supplied by baron water  firearms to the defendants and their coconspirators and a firearm with mr right with respect to the drug trafficking that happened in the weeks before scholar rhodes describes one  belt or in somewhere yes and baron walker i'm sorry jason mcneil describes a firearm on one of the defendants did while they were engaged in drug trafficking well trodden territory may thirty first and the mcneil testimony about seeing them in the car that's the totality of the evidence on the one twenty four c you know yes ok yes the if you go back for a moment to the  i respectfully submit that it would not that it would be th and in answer to the question before it would be similar to a robbing of a convenience store on its first day of business it still is a business engaged in interstate commerce and even if it was unsuccessful robbery an attempted robbery of this this would qualify the illicit nature of this business the use of the drug trafficker and his representations being limited experience in this field  to where criminal conspiracy to affect interstate commerce even more the there was no potential impact or even possible impact on interstate commerce was sufficient and the same circumstances would this episode had occurred that ain't many many lie well the fact that the episode occurred because he potentially could have been impeached on the witness stand by saying something along the lines of you could been charged with possession of a controlled substance in the state and the government is not charged or that's a possibility and because of the pending a possible nature of that crime it should have been turned over to the circumstance testimony on the gun issue even though it was equivocal in this particular case could have resulted in the conviction of my client on the gun charge and the gun charge significant that's what i'm fighting for in this case twenty five years consecutive mandatory minimum i've been in federal court for forty years now over forty and twenty five years consecutive mandatory minimum that to me means have the first zeros mr rhodes and the second zero is jason mclean and they got on there and they said completely different things and if you read the testimony that's where it comes down well given m of joint possession there still has to be sufficient evidence that it was jointly possessed that they both had as and intend to use it to further drug trafficking but we help me because i certainly your honor i thought the testimony by one of the gentlemen was five to ten times they were around that and that the m o was the guns in the car and they didn't drops in  gun and he didn't say how many occasions he saw it and he was definitely an absolutely on sure as to who it was and in fact he said he didn't think it was my client once he said he thought it was my client and i came back on redirect examination and say are you sure who had that gun and he said no but this isn't a situation where somebody is in one apartment he says i think i saw it there then the other evidence is i'm not sure if i was in another partment as i understand  somebody was in a car and when the person got out he saw john on the person's hip under his coat it's coat fell back there's no evidence that the defendant barron walker saw that same tent he wasn't outside the car he was inside the simply it was just in to us that we take that evidence and take the other evidence with regard to me thirty first and and third beyond a reasonable doubt that these were two peas in a pod these were two drug dealers and that they were armed drug dealers and that everybody consented in agreed to everything that was done which is why i said they should be severed you can't draw those inferences it's not guilt by association it's not of the older brother did it the the testimony that came in and so the theory was the gentleman with the gun was also in control of the drugs so i mean that theory was presented to the jury but not the conspiracy not pinkerton  not this as circuits case of going to and just in closing this can't be all lumped together that count that got him twenty five years may have to remember has to be looked at separately and approved has to be adequate it but in particular focusing on on the case united states versus peterson which of course is a seventh circuit case but in there really the question before the court is there are two separate standards that the government could try and use to prove this this jurisdiction element one would be if the minimum standard which my colleague has more than gone into why that their evidence wasn't sufficient even for that standard but the other one under wang which is clearly the substantial effect element here and a seemingly what the prosecution has asked for in this case is a bright line rule that in all drug cases that there is automatically interstate commerce and that's a rule that has been rejected by several other circuit courts including the lastly just the last point is that clearly there's a distinction between joint possession and aiding and abetting even the instruction given on joint possession simply is a far cry from the instruction that we expect to hear on an aiding and abetting claim in here and you know as i as i make in my brief even if there's this joint possession there's really no proof of you know there's a gun on my hip that isn't even being flashed i'm not showing it to you intentionally but that is sufficient under the smith case and in my brief that that it would rise to the level of use to to substantiate the conviction in that case even on that and that that would be my final point thank you