good morning may it please the court jamie lee moore pairing for kevin davis there's no doubt in this case that we have a confrontation clause violation with the wrongful admission of the medina statement a fifteen page transcript of her interview with police the question on appeal is whether the statement in the contents of the statement had a substantial and injurious effect upon the determination of the jury's verdict i submit that we don't need to look much further than the government's reliance upon the standing medina statement in its opening and closing the rebuttal arguments in this case to determine that at least at the time that this case was tried the government felt that it needed to rely upon the statement in the contents of that statement they may say something different today and retro sealy correct that's is a really quick that we know everything that went on during the whole trial because the government referred to this in the hope and closing absolutely not i think that the u s supreme court is pretty clear that we have to consider everything that happened in the trial not just the government's reliance upon this he said that day we don't have to look any further than i don't think we do in this particular case because if you look at all the evidence that was presented there was lots of holes of reasonable doubt everywhere you turned there were there were issues about doubt and so the government used this statement to plug those holes and so my position is that it was we don't really need to look codes and how he thought they were used but that was his interpretation and his interpretation was based upon sandy medina's confirmation which came from her statement now there were a couple corroborated well that's the question i cocaine that's part of the issue so that's the first thing and with respect to delaney i mean he did a good job he was doing the best he could but he was also a novice pager code interpretation and the defen connection with them but the difference with medina's testimony because this was the issue that the defense was raising they said look there's no evidence that mr davis had any contact with cocaine there were no surveillance videos of him with cocaine none of the audio taped conversations during the six month wiretap had any overt conversations about cocaine so there was a lot of sort of missing evidence the thing about one taylor is he didn't took the cocaine for he was there i gave it to him she was the one that was able to bring it all together and lend credibility to their testimony that was a little bit had some holes sent it i'm not saying it wasn't completely credible i'm just saying that it had some holes in it for which the jury could have found reasonable doubt now one of the things that i also want to address today is the motion to strike which is regarding the transcripts from the telephone calls i don't know if the court has any questions about that no questions about that i mean i don't think that i just want to make sure that it's clear that i object to any reference to the contents of those phone calls during this proceeding because it is part of my motion to strike so so you know back to the standard of review i think it's important to one of the analogies i use to describe it to clients is you know if the body has cancer and you cut out the cancer in the body can still live in his cancer free that's sort of analogous to the standard under chapman which is you take out the air and you see if there is substantial evidence to convict and if there is you have harmless error with the black standard you have a slightly different approach you look to see if the cancer has so permeated the body that you can't cut it out you can't surgically remove it and i think that's what we have in this case as we have been dean a statement repeatedly referring to various aspects that were injurious effect or influence in determining the jury's verdict the evidence in this case was overwhelming and with regard to the arguments in closing the government's closing was three and a half hours long and it was that was  that occurs probably took fifteen minutes but you know and that that that the proportion of fifteen minutes to a five month or to a two month trial is way out of proportion to what happens in the in the closing argument and you are right  closing argument well i your honor would disagree with that characterization that was heavily if you take a look at it i think we did rely on it but not heavily and the district court looked at that in its order an excerpt of record volume one page sixteen noted that the government's reference to medina statement closing does not change the existence and the weight of physical and other testimonial evidence presented to the court over the course of the weeks dedicated to trial the same judge has lived with this i'm sorry your honor this is the same district court judge who has lived with this for yes all of us judge johnson with the district court judge and he was the one who evaluated when it came back and he applied the five factors he looked at the employment of the testimony which becomes less and less important as you look at all the other testimony in the case the seventy witnesses the thousands and thousands of intercepted pagers and with regard to the attacks on special agent the laney that was the subject of the direct appeal in this case where your honor the court upheld as you know judge shorter the court upheld on direct appeal that that was properly admitted that his his testimony was grounded in his review of this numerical sequence of codes and that it was tied to known events and circumstances so you  witness testimony of lawan taylor the louisville drug dealer who talked about davis sending regular shipments three to five kilograms of cocaine every one to two weeks and travel records corroborated thirty three trips of those so that would be the math would be ninety nine to one hundred sixty five kilograms of cocaine robert johnson testified he was the indianapolis drug dealer who davis provided a kilogram of cocaine every two to three weeks and johnson testified that before he was indicted he alone had dealt one hundred fifty kilograms of cocaine that of course as we've talked about you have special agent delaney cracking the code and going through all those numerical sequences and the government presented in closing argument a summary charge char that based on that crack code it was three hundred and ninety sheila grams of cocaine that's supported by the seizures in this case by the over eight hundred thousand dollars in cash that was seized by defendants lifestyle that showed the purchase and cash of boats houses jewelry all of that shows the more than one hundred fifty kilograms of cocaine the same is true with regard to the evidence as to defendants connection to the christie apartment surveillance officer saw him come and go from the access only garage where you had to have the car they saw him come and go five times during a one month period that the government was up on a wire only defendant and his loyal a ten one loyal lieutenant were heard intercepted on those phone calls and when the search warrant was executed at the christie street apartment there was evidence of drug dealing and money counting machine packaging and indeed for defendants girlfriend so all of those things the mountain of evidence your honor is in this case and the court considered the lack of cross examination when it looked at this when it was remanded it said there's five factors i have to consider and he said i will consider the lack of cross examination and then went through each of those where they couldn't predict well there the other occasions of seizures there was twenty taken from lethal his car for from jason easten three from darren owens and all of those seizures were preceded by code or pager messages so that shows they were following this real time cracked the code and then were able to make arrests of my question was were there were there predictions that didn't work out well i think with the failing i think i might have been your honor i think it was de minimus in the whole scale and then judge by me to defendants coconspirator taylor he's going to call him but his code we then see him call him and put eighty four that's the kind of strong evidence in this case that shows that the admission of this statement which the government concedes was a violation of the confrontation three i think this is a key factor thirty three trips were corroborated with travel tickets and information and i think there were more than thirty three but thirty three trips or corroborated so if you take thirty three times three he said it was three to five  this case so there is this mountain of evidence and as i said the court considered the lack of cross examination and defendant did attack medina's credibility in his closing argument with regard to the delivery of three said i delivered three hundred kilograms of cocaine to the christie apartment and what defense counsel says in his closing argument and that's on february twenty seventh two thousand and one at page seventy eight he says you hear my client and this is on a wiretap you hear defendant talking to rosa who was the supplier you know was the girlfriend of rosa and he says to rose what's your first name what's your first name and defendant goes on to argue and say let's talk about what comes down at a stash of us and he says if someone brings cocaine to a stash house that is dumping turn around and walk off he says you have to count it you have to test it make sure it's not a lot of flour you got to pay for it you got to use accounting machine and medina statement says she's been doing it every week two weeks three weeks months if she had to interact with my client if true defendant would not be saying what's her name that's reasonable doubt and that's what do you argued and the district court instructed the jury and this is an excerpt of record volume two page one  the motion to strike the motion strike because of the lack of of the tapes yes your honor the defense has raised the due process violation and in this case the record shows that there wasn't a due process violation because the transcripts were verified as accurate with every witness every witness that testified before putting in would say yes i have listened to the tape i have reviewed that tape next to the transcript and this is a true and accurate transcript defendant did not object to that defendant did not submit alternative transcripts it just simply was a non issue and the case with regard to that the record shows that the court was well aware that the tapes were the actual evidence and that the transcripts were to aid the jury was instructed on that and judge  i believe that these transcripts were part of the record on the direct appeal and were not objected to in that context and if that is the case is that a sort of waiver or a law of the case or somehow sort of precludes us from coming to a different result well i would like that to be the case for sure and i think that is a very good point that it was presented it was a large part of the excerpt to allow your honest to have a of conspiracy with regard to oakland activities so sandy medina was relevant to count two to the extent that her testimony went to the open activities court sentenced defendant  conspiracy with the midwest drug dealers with johnson and with taylor defend it was sentenced to life in prison on that when it came up on direct appeal the court vacated the sentences on count two and three because they were lesser included of count one so if the court were to find that this was not harmless and again we strongly urge the court to support the district court's order but i would suggest that it would need to be remanded for the court to determine whether those sentences should be reimposed and also it's important to remember that defendant was convicted of seventy nine counts only two counts are medina's testimony goes to none of the other counts for example if that's how it's twenty for one in our seventy seven other and have you lived with this case since for the duration i have not i was not the prosecutor below i have i have lived with that shortly ok and i'm hoping to be done with that and so for that reason i would ask the court unless there are more questions to affirm the district court's order finding this harmless usually there was a direct appeal and yes case which was which and which we decided without a published opinion it went back up actually it went up and we opposed it and while that was pending crawford came down we then said yes this is the crawford day or it needs to go back to the district court so we are here for the third third time and if there are no other questions i would ask this court to affirm so just quickly with with respect your questions about the motion to strike yes the transcripts were included in the direct appeal excerpts of record but one of the key important facts is that the audio tapes were also on file with the court and so they were available to defense counsel defense and the court for review also the review in the direct appeal was very limited to the proton analysis of one specific aspect but if we were to gradual motion here we would be without the tapes and transcripts would have nothing to just give us the tapes i would like to have the tapes the government doesn't have them anymore that's a problem i actually asked for them so that i could review the case to write my opening brief about it so that was the problem and you know with respect to the accuracy of the transcripts that was never disputed because they were not the evidence the audio tapes were the evidence so counsel didn't dispute them because he knew that the jury wasn't going to rely upon whatever strategic assume that the government have never put in volume six here i don't know if we still have our own files and direct appeal but could we not go look at the excerpts of record file and previous iteration regarding this very case even if they weren't in the excerpts now as part of the records of our court and part of the records of this case you c certainly look at the transcripts johnno but you can't conduct a proper good noble review without the audio tapes because they were the evidence and i'm prejudiced as counsel because i can't address whether or not those audiotapes were just completely ignored by the jury and there could be an argument that relatively inaudible in the joy of them and relied upon the statement of sandy medina which is precisely what the government told them the government said rely upon the statement of sandy medina and that's a direct quote so now with respect to some of the other  of the issues with the pager codes is that you know there's this mountain of evidence but the reason there was a lot of evidence is because there wasn't any real evidence there wasn't any direct evidence tying davis to these transactions the number of  one of the problems with the war on taylor to address your question your honor is his pager codes did not match up with his testimony they had a list of his pager codes in evidence johnson was heavily impeached he testified that he was he didn't even know where the coke can come from and he didn't know that it came from davis help me again with the motion to strike if we were to greener on the the transcripts were not where our good question i think you have to look at the donaldson case it's not a criminal case exactly like this got the argument you know i know it sounds extreme but but it's an extreme situation i mean how often does this really happen almost never i've never even heard of something like this happening it's unusual to have the u s supreme court hand down a decision during not short window period of time that would somehow affect added incentive case like it does here so i know it sounds extreme but that's what the case law so that's what i'm having to argue  so with respect to the government's reliance again they said in their opening statements i'm going to tell you what the witnesses are going to tell you about what all this means in san bernardino was of course part of this all you're going to hear from her directly to not just from law enforcement so even in the opening statement the government is setting the table for sandy medina statement for her testimony for the importance of it and how they're already conceding that she has first hand experience in the police don't so in their opening statement they're setting the table for how important her testimony is going to be today then of course she doesn't testify which surprises everyone including the defense who also played the table in opening and said we're going to cross examine her about all kinds of things including the fact that she partially recanted so when she didn't testify everyone was at it disadvantage the government proceeded with its case and at the eleventh hour was able to get that statement in which put them in an unfair advantage because she was never cross examined so we don't know if anything that she said was in her statement was credible we do know that her statement was needed because of what the government said in  closing you've seen the actual pager code that showed you what she says here is the way it really went down that's what the government argued to the jury so in other words if you have any worries about the pager codes and whether what she's saying or what anyone saying about the pager codes medina is telling you that that's the way it went down so there were lying upon her for that the government emphasize her credibility about the pager codes and how it worked i paged i put a code in those they actually specifically argued that her statement supported count seven through twenty five twenty seven through twenty nine and all of the other counts including page your code counts as well as count twenty three so they specifically referred to certain count knew they used her statement to cooperate taylor statement as well the government used her statement to confirm his unreliable testimony you have to taste testimony of the one tailor he told you we use these pager coast to communicate and a statement from sandy to me to the same a fact they talked about how she benchmark the number of kilograms per statement was the benchmark for the number of kilograms so in other words no matter what vagaries an in the in the rebuttal the prosecutor emphasized her credibility as someone who made statements when there were no deals on the table but her statements also not under oath so the reliance upon her statement right at the beginning or a bottle indicates how important that statement was to the government and i can go into each of these details but i've already done it in the brief so i am not going to continue with that