is why i believe is most important which is the jail calls that were recorded in conversations between mr harris and mr mayfield  and mr mayfield were brothers and the reason why these are so important is because this is a case where the evidence is mostly from three cooperating witnesses none of whom bought or sold methamphetamine from mr mayfield this is what we would refer to as a dry conspiracy the hearsay statements by harris don't meet the requirements of bell specifically the phone calls were not during the course of the conspiracy and were not in furtherance of the conspiracy we have recorded jail calls after mr harris has been arrested now all of the coconspirators who testified the three of them also said that the conspiracy took place between august and december of two thousand and fourteen mr harris was arrested in february of two thousand and fifteen so by the time alone and i understand that in a rest is not going to necessarily stop a conspiracy but in this case all of the activities testified to see at the time of you can stop presumably mr mayfield inferentially sent something about i've been there in reno and don't talk will get you a lawyer correct now were you including those statements is not it further  l my client statements mr mayfield statements that you just discussed that the objections i had to those that there are unfairly prejudicial and that they're irrelevant so we have a hearsay issue with the statements that one caller made which is fairest the guy in jail and the other evidentiary issues are for all three unfairly prejudicial and irrelevant for the statements that mr mayfield made in response to mr harris and so my concern about one of the statements i did a stretch in reno that statement mr mayfield saying that he did time in reno is unfairly prejudicial the court found that the conviction was too old and found that it was not relevant there was a motion done just in a restaurant and from what he said correct but it has unfairly prejudicial effect because it makes him some poor criminal but what's unfair about i agree i agree that prejudicial well your honor i would disagree i think that any time that someone mentions being in prison that it has an effect on the jury that this person is a criminal people who are not criminals do not go to jail do not get arrested so i respectfully disagree and i i think the you know when we look at the united states the fact that their brothers you know is not or that they have a relationship is not enough to establish that that they were involved in a conspiracy and neither is idle chatter or informative statements and would you concede the statements designed to protect the conspiracy are in furtherance of yes i will concede that and i believe the case law is pretty clear that if it if it's to when i hear that conversation between mr mayfield and his brother who's in jail it sounds like the advice i would give to a client or any other defense attorney a don't talk to anybody you need to get a lawyer the one it's coming from a designed to protect the conspiracy right if it's established a person was a coconspirator and that's that's my problem with this case there were three people i think that could have nailed this down and met the second prong of bell but i don't think that ha ed and you know there was exactly loved he was the one that all three informants said was the person that mayfield was giving the methamphetamine to zach love never testified mr harris never testified and the third person that the concern that these cooperating witnesses identified was a guy named tim who they said yet tim got dope from a field he never testified either so at that point we have hearsay statement that are there aren't even corroborated between the three proper cooperating witnesses own the fact that they all say that they know mayfield or they witnessed mayfield deal with somebody else but they never dealt with him directly and we never heard from that someone else that got arrest you know while not being a withdraw from conspiracy if we go back to crewe which first united states post arrest statements are in best ball when the aim of the conspiracy was foiled by the arrest and in this case still be trying to protect the conspiracy after the arrest can't you it's certainly that's possible if there is evidence that the conspiracy is ongoing  i believe and i believe you're correct your honor that that read to me like evidence of a continuing conspiracy well i suppose my argument is the opposite of that the fact that they are now proffering and the conspiracy they they're all off the street they've been arrested they're proffering they're no longer participating when did they say they heard the love told them about who is source why i didn't get the timing ok very sure my my understanding was that was in two thousand and fifteen after they had been all of them had been arrested i believe sometime in two thousand and fifteen and once again the statements were given around the time that mr harris was in jail now so  your arrest well i don't know because there's no evidence of that the others the brothers the cooperators that's sure but when they testified they didn't testify events going past december of two thousand misunderstood your question i think we got into the timing of the proffers so i'm talking about the timing of events that the demonstrate in order failed to demonstrate in furtherance of correct ok so maybe i should slow down  and ended in december of two thousand and fourteen during that time mr love made statements to some of his coconspirators that he was getting drugs from the cali all the statements regarding the drug dealings in mr love getting is methamphetamine from the cali boys and it around december of two thousand and fourteen i mean how do we and what evidence is there that it end well i think mike and i don't know you're out of the my issue is there is no evidence that it continues when we parents was arrested in february two thousand and fifteen your honor and well for one  well it was actually an accidental i guess a fortuitous event where law enforcement were going to the house house to search for somebody else they found drugs there i believe mr harris was there they got a warrant and that's how they learned about mr harris's involvement  and so mr harris was arrested pursuant to a separate investigation and and so my position is that then we have no evidence of any activity going past december so by the time harris  arrested harris doesn't lay out a plan to continue the conspiracy and neither does mr mayfield they're talking as if they're their brothers and some point yet mr mayfield probably gives some legal advice but he's not furthering the conspiracy and and once again there's there's no evidence that the conspiracy is continuing at this point and i think the issue is that the judge has to find by a preponderance of the evidence that the statement was made in furtherance of the this i was the trial prosecutor on this case if i can try and help clear up the timeline here a little bit the evidence showed that mr  testified that this kind of started when they were watching the n b a finals together so probably late june early july of two thousand and fourteen and then the inclination that they had about mr love the things that he a couple of them dropped off mr johnson i think dropped off earlier than that because there was a falling out that he had with mr lott but at any rate we know that at least some of the witnesses were still talking to mr love about this in december of two thousand and fourteen and at that point then that's the last they have with mr love but it's clear that this conspiracy continued beyond that point because about two months later in february mr harris gets arrested with a large quantity amount them shot in maine and some guns and the first thing you does when he gets taken to jail is start making phone calls to his brother rob and rob was how all these witnesses had described mr a lot of source johnson in a bar i had both seen rob they had both seen love involved in drug transactions with rob and so they knew who rob was they knew that rob was dear dug his brother john harris d or went by de went by doug at when they took his phone there was a phone number in there for rob a california phone number or that's the number that he was calling in from the jail that recorded on the jail calls and from the context and everything that came in before this which included the amtrak records and the search and all that information by the time the jury heard this they knew who rob was and so rob was the defendant he's involved in these conversations with mr harris who is clearly from the witnesses testimony a member of this conspiracy there were all that many of them actually most of the conversation is mr mayfield telling mr harris what to do and what not to do mr harris mentions that they found the drugs mr harris mentions that they found the gun all things the jury already knows because of the search the one thing that he does say however in one of the calls that clearly polls mr mayfield end of the conspiracy and shows that they're both still part of a conspiracy is that he asked mr mayfield to go to a guy owes him money and collect it so the money can be used to hire his attorney so that particular statement shows that the two of them are still involved in trying to protect this conspiracy mr mayfield doing it by telling mr harris what to do and haris by asking hey i've got a guy who owes me money to go collect for him and we can use it to pay for my lawyer so they're there working together to protect this conspiracy so mr harris the statements are still coconspirator statements and they were properly admit  you dispute that the judge to ards findings underbelly indicated that he perceived the evidence as being in a quick oids i don't know that i would use that term i  think judge gerard spent a great deal of time as i'm sure you're aware from looking at the record in making the determination what phone calls and what parts of the phone calls were properly admit it he had asked given judge gerard's experience as a trial judge given the record that he that he made there may be some imprecision he says well i can see how it could go either way it didn't strike me as i read it that was judge saying you know i find the evidence to be unethical poison and one wonder reasonably prudent trial judge understand that evidence an ethical poise is insufficient to satisfy the bell requirement i will leave so your honor and i also believe that as we discussed based on the the amount of consideration that judge gerard had given this before allowing those tapes to finally come in and be played for the jury i think he was quite satisfied that there was sufficient evidence so i what i think he's saying is yes defense counsel you could argue that but that's not what i think so that's my interpretation of that state if there are no other questions i will sit down thank you very much to the testifying conspirators he wasn't just bragging or giving information he was talking to customers or potential customers oh sure i think that was that was quite evident and i think the fact that two of those witnesses actually saw him and heard that he had with that was the robb there had been talking about and saw this person provide methamphetamine to love  think it's clearly more than just bragging yeah there was testimony there and that's important to her at raglan case right i mean there was there's testimony that love was a braggart to be part of this this group beating her buying and selling drugs or sharing drugs and not just oh hey look what i've been doing no i think what he was doing and i think the evidence from the witnesses the testimony was pretty clear was that he was assuring them that he had a reliable source of dope they wanted  for keep the dealing with me correct keep coming to me i've got a good source we can get a good price basically you know you know and it will be ongoing and you will be able to continue getting methamphetamine because this guy is bringing in large amounts from california so that's how i see that you're on or any other questions thank you honor just to clarify as far as the money goes the five hundred dollars that mr harris asked his brother to collect for and we don't know that that's a drug transaction we just know that we have a man who's in jail who's desperate to get out one wants to hire a about things and what's still problematic is that love never testifies the loves out there bragging about how he's doing this to cali boys and supposedly this guy named rob and yet we never hear love testify so we don't really they may have claimed to have seen some transactions i think if you look through the records you'll see that they really don't have a good grasp of the what happened i don't believe any have ever said i schall money and drugs exchanged hands and i said no he went inside and came out with drugs or there was a handshake and he had drugs and none of these individuals claim to have dealt directly with mayfield and so we're one step removed and that's where the phone call becomes so important because those statements that were hearsay on behalf of harris and unfairly prejudicial and irrelevant on behalf of mayfield i think had a great impact on the trial and i'm asking the court to find that those statements should not have been allowed by the court to reverse the remand for a new trial thank you