good morning a police court resumes on behalf of appellant for bell this case comes out of just south carolina and i'd like to start off by addressing a timeline that i feel is very important this case and i would also like to limit my arguments to the two main issues  august of two thousand and nine and mr bell was sentenced in february of two thousand and ten there after this court remanded the case with an agreement from the government that that plea agreement would be vacated and this case would start anew the case was remanded in january twentieth two thousand eleven and it was back in the district mr bell requesting yes or no and february the case was back in the district south carolina before just seem or there was actually an e c f notice sent out notice in the case not an immediate concern there were brief filed this was not a situation where the notice of appeal was filed and the government said don't worry about filing briefs we agree to it write it back there's a pretty extensive brief filed by an attorney out of d c in the in the second that was the maximum he could receive same same maximum it was mandatory minimum on the right under the first one it was ten years and the second one was increased to twenty years we have an intervening event but actually goes that provides a lead the threshold to satisfy what had been the circumstance before the courts and in doing that they also wanted to punish christopher bell and prohibit him from getting the benefit of the fair sentencing act so act came out and reduced what they had intended charge they brought their charge back up to what it would be was before because they thought that was a probe run it there's no evidence that they were trying to punish very threshold that the act will your honor if we were to encapsulate that one count the first count the conspiracy count that might have some justification but i would disagree on that count in the fact that they added i believe it understand that there were that there were additional allegations what i'm having trouble understanding or what i would ask you to do is you think that the fair sentencing act was one reason for remanded january two thousand and eleven in the district court the case is actually separate trial new councils appointed a motion is filed on july twelfth two thousand and eleven by trial counsel asking the trial court judge seymour act to this case at that time christopher bell and the government are proceeding on the original indictment alleging just crack cocaine and eight fifty one is filed three days later basically exposing christabel to a minimum of life in prison judge c more questions the government about this at a motion hearing and the government basically says we forgot it was a mistake we didn't know we had to prod felony convictions she actually steps in and dismisses that if you want quest a defense attorney but it goes to show the motivation that's occurring here on top of that a completely after a motion to quash is filed the government filed a superseding indictment four days later that's superseding indictment and as this court's where from the wilson decision and we go back to blackledge this is not an identical indictment we wouldn't be here if the government went agree with you if it were not for the fact this case was coming back on a rematch if this was a profile decision and the original indictment encompassed the aiding and abetting which they added to all the subset of counts which were simple controlled by us but they lowered their burden of proof by putting in aiding and abetting count on all of the sub's of counts except count one the conspiracy count so it goes to show their motivation in this case comes back from a man after this court granted they're now upping the ante dramatically christabel his exposure has changed tenfold from the original indictment that he thought he would be facing when the case was remanded to the new superseding indictment and the motivation of the u s attorney's office is shown by following the other eight fifty one and to go further than that after christabel found guilty and judge seymour has already stricken the second eight fifty one giving him life in prison as a minimum the government makes an objection to the pre sentence report asking that he still face the life in prison after judge seymour has already denied that the motivation of the u s attorney's office is that with that we century were suggested as mandatory life originally yes until judge seymour struck the second a fifty want but the government comes back in what in the first eight if you will twenty to life he still exposed to life he still exposed the life of the top but the bottom changes so the minimum senate changes and the government wanted it to be life to life so right we're showing it to the court said that might be an appropriate state rolled back well what you'd see more did was a question the government on why they didn't follow that a fifty one in the original indictment why are they now waiting until the eve of trial on the second superseding indictment or if your argument is that that's evidence of the government's motive absolutely but sentence three absolutely right but he would not be exposed to he got a generous sentence in the under the current thing i mean he got the bottom of the line judge quite frankly i don't ever consider thirty years a generous sentence thirty plus twenty times with conduct it does and we're talking about a gentleman that had two prior felony convictions and those are the predicate offenses for the if you want it we're not talking about a gentleman that had an extensive drug past there have been defendants have been before this court and for district courts that have fifty his harm is the fact that he may not have been found guilty but for the change in the second super in the superseding indictment by adding the aiding and abetting the government lowered its burden and put him in a worse position than he was in the original  that shows the actual been victims of the prosecution in this case well tell us that the casie already had her i would agree if he was a defense attorney but they usas and the justice department are held to a different standard and even the case law says this court in every court gives some deference in their charging decisions well and they're charging decisions are not to be of value are over if we start over again the government start over with a new indictment i would argue no because we have we would be possibly back here arguing the same thing if a new indictment comes down the government made a filing decision they decided we're going to charge him with crack cocaine and three subs of callous controlled buys a case gets remanded from this court and the government changes their as now we're going to supersede now that your attorney wants the fair sensing act and this is crucial in the timeline they did not supersede this indictment when it got remanded back to the district they waited until the defense attorney that was appointed the case shows he's going to fight the case to what they charge which they charged ridgeley they made a decision and they know what the penalties are they know what the crime is now congress comes back and says one of those counts we're going to apply a different standard and how it impacts their original decision they should be able i would agree if it was in a free file pre induction stage but in this case they made that decision they went forward their indictment they presented the testimony to the grand jury now they want to go back after the case is tremendous and that's what triggers the prosecutorial vindictiveness in this case is the fact that the case is remanded and they now take a second bite of the apple and decide what they're going to change and they're going to change it in a way it's going to prejudice christabel and gives a perfectly what was he suggested was an interior judge it was a situation where he was prepared to go to trial and then took a plea on the day of jury selection so the allegation was that it wasn't freely an voluntarily it was kind of a pressured situation with respect to the sentence i thought that during the initial case the first time around he got one single sentence of three hundred and sixty or eighty months but the second time around got t concurrent sentences are you making any argument that that sentence because if if that because in fact there were two or two sentences even if run concurrently that that's more severe punishment now i'm not arguing with that i'm not arguing that the currency competitors at least i think we do and i think that's an obligation of the district court judge i think the district court judges like the record i agree but there needs to be some form of a record presented on that well in the burden is on bill to a certain requires a showing that it is based on rights right so we have the race of the persons with respect to the printer and challenges were exercise we don't have any information regarding the jury pool we do have the government with some pretty decent explanations one indicating a conviction for simple possession of marijuana one who had family members who had a similar drug convictions so i'm still concerned about that promise a she showing and although you objected to the reasons despite having the burden of proof i don't see anything that you never produced a comparable bit gives us a point of reference did i agree with you that on the record with drop case something that shows some basis to show that this determinations were made because of rates don't even want even to get to the point even to get to the point that the government has to address it normally i would agree with you absolutely and wholeheartedly but i believe without question when a district judge a sitting and and a usa strikes every african american juror because present plea is not the law i mean that all the burden state the burden space with the diff the judge is picking the jury on there's different methods of picking juries and one method is to put people in seats and if the  the government exercise a strike with respect to seat number three and they put another african american in c three and that person is allowed to step that doesn't get you very far but well even though all the strikes ended up being the government strikes and have been against african americans have each one of them was replaced by an african american and the government allowed those persons to sit i mean judge seymour's presiding over the f if she senses there is something or fall here i'm confident she would have raised it and that the truth of the matter is we just don't have a record that permits us to reach the conclusion you want the simple fact that all juries were happen to be against african americans judge and again i do believe there is enough record for you to make a different decision the judge seymour did and that record is full of information that this court can read the the burden to make it even we don't know who replaced the the challenge even that really isn't the role of the court to go back and assess in the first instance it is i has to be it has to be brought to the attention of the district court in the first instance to have an opportunity to address it and in this case defense counsel bloom when he made his objections he actually told judge seymour judge there were other jurors were seated that had the exact same answer and with that in mind this court may say well he should have laid out the name of the juror what the exact question was but at that point judge seymour to triggered something that says ok which are are you referring to but they're on notice and at some point there has to be a a demarcation where this court is able to look at what a district court did on a batson challenge and say wait a minute that is a pretextual reason on its face we couldn't determine i read these recent and they looked race neutral and the and what's in this record they look race neutral and that's what judge seymour concluded and there's nothing else in the record to say judge seymour was overlooking some or didn't pay attention to something i mean we just don't know if that this this record is clean they they gave about five or five a home four or five of make a situations that were unique to that particular and would be reasons that i think a lawyer whether they're good or bad but they've looked to me like they were even pretty valid but they certainly were race neutral i've never seen a transcript or trial where a prosecutor in a usa says i'm striking this person because they're black or they're asian or they're like santa i don't like that they give a talk about reasons and then of course what happens at the fence we get a lot of bats and challenges and th dialogue would be the government in a difficult situation the government gives a reason but they had an intuition they didn't like it but they get a give a reason or the amplified and the judge the defense attorney says well if that's their reason there were three others who were in that same boat and they didn't strike those three others and and that is often the case and now you start wonder ok what is happening but in this record you never get to that conclusion when you read the dialogue the dialogue is the government gives a reason and the defense doesn't say oh there's two other spitting that the two asian or that's not a valid reason and we start with it by the judge made factual findings that have to be demonstrated to be clear i don't think judge i agree with you to a certain extent but i also think that  read the record if you have an intuition or sense that something funky dunky or dory it's going on in that courtroom and it did it's not being shown that didn't come through what judge i would disagree on juror number two of six h and i want to i want to piggyback on some of the questions that the court asked asked mr mace first of all i would say that if this court we saw a more serious charge i don't think we did that as as the court noted in the first indictment we alleged a conspiracy more serious charge or earth action i think yeah well i think there are a couple of things  you have to show animists you have to show ill will and you have to show that the prosecution i was not or that the decisions could not be justified as a proper exercise of prosecutorial rush the reason why i raise that is because the defendant argues that with no star i don't think it would i think that the case law addresses the seriousness of the of the offense i think adding aiding and abetting as a as a practical matter doesn't enhance the penalty at all while it may provide an alternative theory by which the government can get a conviction i would say that is that is evidence of a proper exercise of prosecutorial discretion much more so than than evidence of  trying to punish a defendant for winning on appeal it doesn't raise the sentence it doesn't subject him to any enhanced penalties it just provides for an all alternative theory of prosecution and i wouldn't  if the government can show a valid reason for taking the steps that did i would submit that makes the vindictive argument even even harder to prove for the let me ask you this does the fact that yet seymour did take some remedial action in this case just that she thought there was something in this no so i would suggest i would suggest that just see more took that action because she was not satisfied with the explanation that i provided to her as harsher than that imposed prior to the successful appeal here as of your honor's noted the new sentence was exactly the same there was no there was no prejudice by virtue of the superseding indictment  i think given the posture of the case and i think it's important this is not fleshed out so much in the in the record but during the first prosecution what i'll call the first prosecution prior to mr bell use him as a cooperator and even though he pled on the day of trial i think the record does reflect and by virtue of the fact that we were able to reach a pulley at the outset that it was a bit in a different posture once it was  were no longer in that posture he initial prosecution had breached his plea agreement he had he had been let the bond and allowed to cooperate prior to senate saying he had violated the terms and conditions of his bond found  found to been continuing to deal drugs and so he was no longer a viable cooperative to us in the second prosecution i our arguments i don't know the record reflects this but in hans i certainly given the different posture of the case in the second prosecution i think the filing of the of the a fifty one the second a fifty one would have been a a valid justifiable prosecutorial decision given that we no longer had to cooperate and we knew we were going to drop but as your honour's noted there is no prejudiced mr bell with respect to the aiding and abetting language i would just submit that is not a more serious offense it doesn't subject him to any any harsher penalty and it certainly can be justified as a proper exercise of prosecutor prosecutorial discretion if an alternative theory of prosecution when you're trying to get a serious readily provable offense that has been the department of justice as policy for as long as i've been there as the pre sentence report reflects in the joint appendix on page three ninety six mr bell was held accountable for four hundred and fourteen thousand two hundred eighty eight grams of cocaine and one thousand four hundred fifty six grams of crack cocaine far in excess of the threshold that were charged in either indictment and as as your honour's noted he did not receive a more harsh penalty for going to trial so for all those reasons i don't think mr bell can meet his burden you can't share that to see more abused i'll move to the bats in a sheet and your honour's truly hit hit the nail on the head the record is clear that the government offered race neutral explanations for each of the print three strikes was think i think she made the finding by virtue of her denial of the of the motion of the bats in may she didn't say that she didn't say that expressly that she had found that the government's reasons were property in good faith and were not protect children technically the way it works is that three step process where the defendant has to make an initial showing in typically judges do away with that and third to the government and say well why did you  usa and you offered reasons and at the end of all that with respect all of the jurors that were challenge she simply said i find that the government's reasons are race neutral but didn't say whether or not those race neutral reasons were in fact pre textual or not is that a problem i don't think so your honor i think it's implicit in her ruling i think it's implicit in her findings and i'd i don't know i'm not aware of any case law that says she has to make shilling but as as the courts have said wants the government starts offering reasons we sort of skipped that first step but in response to each of the reasons that articulated they didn't offer any evidence they juror that might also satisfy that criteria without identifying with your yes or no and i think in some circumstances i actually made the argument and pointed pointed out to the court that there were no other juror similarly situated did it was not true with all they were just that was only true with several that it was only true that i made that argument with respect to all of them judge  practices when when doing strikes is to be conscious of that and to be aware of that i would submit that while the record may not reflect this and certainly we're bound by the record i do not believe that there were any other similarly situated white neutral reasons you've already you lied to the prime of case record it it's just it's it's the kind of test that sounds good in theory and simply doesn't work in practice because you want to make the district court aware of the fact that there are race neutral reasons for what you've done which you're almost better off under the structure of bats and saying absolutely nothing yes ma'am it's a it's i will certainly say that having i don't write this brief another attorney marcus wrote this brief and i've studied it over the last couple of days i've certainly learned more about bats and by virtue of this process than the trial process well some some u s attorneys don't will not say well not proffer a reason because of that but that that also looks bad yes ma'am it just it's it's an  just a very easy for lack of a better term when you've been accused it's hinky yes ma'am when you're a when you're accused of acting racist for lack of a better term i think the  tendency is to go ahead i mean in fact in you know in preparing the strikes you act i actually write out to the side the reasons in so i quite frankly i don't know that i was aware of this three step process at the time it's not something that i had studied up on i think this was the burst first bassam challenge i had to respond to but you do agree if you didn't you didn't say the magic word pretext or lack thereof but your argument is that that's certainly implied from  e ultimate rule yes or well could it be race neutral if it were pretext think i think there are two ways that this court can find that just seem more made made that finding one is simply circumstantial evidence that she allowed the case to go forward and then to that there is no evidence that the reasons that we stated for striking these jurors are very well within the accepted reasons as judge duncan noted two of the defendants were stricken based on the fact that they had prior convictions juror thirty four for a marijuana conviction juror one ninety nine for a shoplifting conviction juror one of seven was struck for lower education i do recall that that was the only juror who had less than a high school education he indicated he had more than a such great education and then there were two jurors jurors two zero six and two twenty six who checked boxes on the jury questionnaire indicating that they could not be fair and or could not follow the law they were we struck them for cause we indicated that those should be struck recalls and i think that is a valid reason for striking them for calls the defense did not the process that followed was for just see more to call those people and give them an opportunity to explain their answer certainly if a prosecutor cannot strike someone who indicates on the form they can't be fair and then are rehabilitated in a preempt situation that just doesn't seem to make sense to me when you have a questionnaire there's a reason for the question we strike them for cause and then if they change their answer i think that should be well within our discretion or preemptory strike  other juror number two fifty six had childcare issues which again are issues i think that this court and other course of found or legitimate issues i see i have just a few more minutes your honor  it properly which i would submit that if you rely on just seymour's findings of fact that you should find that they were not clearly erroneous all of the guidelines issues there's more than enough evidence to support judge seymour finding on the guidelines issues that mr bell was a career offender and if he was a career offender is senates of three hundred eighteen months was within the advisory guideline range in all of those other issues would would be be very brief and just discuss a few of the jurors that i think that this court would be able to evaluate but the reasoning the government gave for striking down is a pretext or a race by strike during the two of six in particular was questioned by judge se ok i understand that are trial attorney and somebody checks those boxes and they have to make a decision on checking the box and it looks pretty bad there are you can't be there it's a law made a mistake had been a white juror but in this case it was not and we had an african american defendant and there's a promise that she case when the government uses race has to do with whether somebody is coming to court with a predisposition whether the co feels that the courts treat people unfairly and whether they can handle that unfairly and they check that box as a truce expression of feeling and they come explain well that was mistaken and it wouldn't have been  on that because it seems to it does depend on it when you're dealing with this exact situation when you have an african american defendant and the government would have to be the defendant would have to be african american as well not in every situation but in this situation any hypothetical can change what the pretext would be in a strike but in this situation and i understand your position is these were all race neutral valid reasons what i'm suggesting is i did read this with have trying to read between the and you can smell a lot when you lead a record you can't know everything i mean the district court in the jury sees things that we can never see on a cold record but we can  some intuitions and hunches and you read something you sort of sense as something going on i didn't sense that when i read this i didn't look like these were concocted the to get rid of african american this this example you use by check in the wrong box whether you agree whether the juror rehabilitated himself or herself it's a chance that the attorney doesn't want to take and he's got a and he says i'll just get rid of that drug now the government in this case thought that was severe enough to scratch the person for the cost of the person tries to reach a tries to correct a rectified situation and maybe did in your judgment but maybe didn't and but it none of that has to do with race i would respectfully disagree because the case that's laid out in this situation is they use every single challenge against african american jurors i'm talking about the one thing we have to look right and as we look at them i don't disagree there were a couple those jurors of the government had a gallery some forms down to the fact that because all the strikes happened to know what the panel was we don't know what the jury was we don't know who was put in place i must say in this kind of context i think we start with the proposition the district court got it right right and when we view it and send it back and say oh the district court messed up in this area i think we ought to have more than this don't you think no i know you don't think judge