we filed an appeal in this case the following issues whether mr taylor should have been given a new trial because of evidence of impeachment and bias withheld by the government and whether the district court properly applied a firearm enhanced meant when sentencing mr taylor and those issues we asked the court to reverse and remand for further proceedings first i'll address the issue i've whether the motion for a new trial should have been granted in this case  in this matter after the trial we found out that the key witness in the case against mr taylor whose name was ronald hemphill had an extensive prior history with the lansing police department you didn't know that till after christmas we knew that there was some rumors on the street so to speak that he had been a suspect in the murder of a friend of my client we asked the government for information about that the government declined to provide any information but did mr taylor actually offer mr pool's name to the law enforcement people as a possible suspect my runabout that he did we did he was aware he was aware of and that's how i knew to ask about the matter in the first place but we didn't have confirmation if lancing police department felt that he was a suspect our or any other matters we also didn't know that lansing police department documented in its files that it felt that he was not a credible witness in that case that he had lied to them  there's there's extensive documentation in the file that says we think he's lying to us not just based on the polygraph but based on inconsistences and what he had told them and inconsistency in the alibi that was given by his wife and that we were not able to find out prior to suspected of a murder involving a friend of my client i had nothing more besides that to take to the court i asked i had tried to ask him questions about it at trial and the government objected in the court sustained at the objection and i had nothing further to offer the court in terms of anything else from that case because i didn't have any information about it after the government and i didn't have enough i felt at the time  go to the court also we had this discussion about mr hampel very close in time to the start of the trout within two weeks because that's when i learned mr  there was simply not adequate time before the trial to ferret out this issue any further than we did and when i tried to ask about it i didn't get very far when we had a discussion with the judge at sidebar about the issue they attorney for the government mr courted told the court and told me that mr hemphill had reported to him that he had helped the police in that matter so i again didn't have anything further to be able to argue to judge enough that this was something that ought to come in that there was evidence of bias or of his unsuitability as a witness that i would have asked not only him about but that i would have asked the in their position i believe that they are at least at the very least responsible for knowing it because they were working with both lansing police department and the a t f did they have the file in their possession i don't know that you used information from the files to impeach him to impeach him but also i would what ways ok what ways would you use it but i would have asked him about the  the fact that he needed to be concerned that he could be charged with this crime at some point in the future and lansing police department approached him about acting as a confidential informant contrary to the order of the district court that he probably felt like he needed to cooperate with whatever he was being asked to do and that he knew exactly what it was he was being asked to do but i also would have asked the lansing police witnesses about why they further questions about why they chose this particular individual given that their own files had called him a liar in the past why they would trust somebody like this we got into that a little bit with the fact that this was an individual who did was ordered under a district court standing order that to participate as a confidential informant without permission of the court and they still use this person anyways but i would have asked lansing police witnesses about that issue i probably also would have called the handler the confidential informant for al p d who i did not call at the time because that was the person who there was significant testimony he had vetted the file of this individual and felt that he was an appropriate confidential informant one of our themes of the case was that the government's investigation wasn't adequate that they had spent eighteen months and they hadn't done any surveillance of any kind they had done a couple of drive bys basically somebody had drove by in a cruiser look to see if anything looked suspicious over the course of eighteen months they had done some trash pulls but that when those didn't show anything they failed to document them and all they had done was collect statements from people and then they had done controlled buys with individuals who then later said they were connected to my client so one of the overarching themes was not enough was done to obtain more verifiable evidence than statements from people who obviously need the police the government at that point when they've been they themselves have been caught with drugs so that would have significantly aided in that theme that  we had in the defen the other issue here is that mr hemphill was the only witness who could connect by his testimony my client to any quantity of heroin in this case so he brought back heroin from a controlled by and said my my client had delivered this quarter gram of heroin to him and here's the here when that was shown to the jury he's also the only one not under indictment in this case so they put forward the story about he's just decided to do the right thing he's not getting any sentencing benefit from it and we know that the jury found his testimony at least somewhat questionable in that they refused to vote to convict and one of the two  ways in which they could've convicted on count for the possession with intent to distribute when it relied only on his testimony so there were two instances where they sent they attempted controlled by as with m hempel brings back a quarter gram of heroin and says i was an apartment full of people with mr taylor and i got this from mr taylor the second instance he says he tried to buy thirty grams of heroin for my client the deal didn't happen he comes back with nothing and that the jury refused to vote to convict on the verdict form on that second that second event when there was nothing to back up mr hempel's statement they also sent a question out to the lawyers and to the judge saying is this the only is mr hempel testimony the only evidence to back that up and we sent back a response saying yes that's it and they refused when it was just his testimony so they clearly had some question about him to begin with so to the extent i could have pointed out this issue both in terms of he's always got to be concerned he could be charged this murder even though it's a cold case he could always be charged with it and to why with the lansing police use this guy when they have documented in their files they think he's a liar he's clearly got past history with this particular defendant he appealed he must have appeared in some way less than credible to the statement he made to the a t f agent i see a bad time is up so i will sit down ok thank you good morning may it please the court jocelyn on behalf of the united states we submit your honors that the united states was irq scuse me the district court was correct in denying taylor's motion for a new trial the file that we are talking about here today your honour's is a two thousand and two cold case murder file where there was no i'm going active investigation by the lansing police department i feel it's necessary to clear up some of the statements that my adversary made about the record because i do believe that they're not completely accurate this issue was raised by the appellant here in her client on the morning of the final pretrial conference this cold case file that said she was not in the u s attorney's offices possession when i was contacted by counsel here about the fact that he may have been a suspect mr hemphill in this two thousand and two murder i asked her how is that relevant to impeachment on a heroin conspiracy that began in two thousand and twelve i further stated if this is something you wish to pursue we should bring this up at the final pretrial conference later this afternoon judge nath down in the u s district court for the western district of michigan had in chambers conference where this issue was raised judge nath indicated to counsel here during that in chambers conference that she did not believe that this material was relevant and the matter was not raised further until counsel attempted to cross examine mr hemphill about the fact that he was a suspect in th two thousand and two cold case murder the trial went through mr taylor was convicted not only on the distribution charge which did relate to a face to face that mr hemphill had to get a tester quantity of heroin from him but also on the conspiracy charge where there were ten witnesses that testified against mr taylor and said that mr taylor was the leader of this conspiracy and contrary to my adversaries assertions it is not true that all of these witnesses that law but the issue your honor because this is a gig leo issue so i do believe that it falls under the brady and breland is whether or not this information was either exculpatory or impeaching so you give us a lot of background that doesn't really go to that question i  write i wanted to clear it up and i would say that a lot of that doesn't control or answer so so the answer your honor exactly the issue that you were correct and i'll go to that right now your honor i do believe that this active ongoing investigation and when we went back to the lansing police department they had this file in off site storage we produced prior to trial mr hemphill's rely on this that it was all such a cold case that he couldn't have had that is correct your honor in the findings that the district court made a motion for a new trial when mr taylor had a cold case file the district court determined that this was so far afield that th witness may have had no matter how remote attenuated or irrelevant to the existing conspiracy what underlies mr taylor's argument difference do we give to the district judge for this kind of a term it's an abuse of discretion standard and the but the court has the authority to read determine didn't over the issue whether there was a brady violation that's the issue here correct and in our argument is that it was absolutely not a brady violation because it was sold in cold because it was so old your honor it was so cold and i'm confounded how mr taylor could take material from a cold case file and use that to try to impeach m the fact that the elements of that old file which suggested that they didn't believe bill and that he wasn't true and i would like to make a clarification on that that file isn't even in the record here before  i would submit that it's mr taylor's burden to have made that part of the record and i think that's very telling because the one piece of material that mr taylor did incorporate into this record i think it's docket two hundred sixty four dash one and the whole thing you just didn't present it to judge now that is correct it was never presented to judge nath and i have reviewed that file and this these claims that the lansing police department didn't view mr hemphill as credible are not akin to  the case that they're not akin they're not in the record stores know what what i'm saying your honor is that the issue about his credibility finding that was a failed polygraph which the district court addressed below in the failed polygraph was regard to did wasn't the murder and he wasn't credible in the field that is correct your honor that is what i wanted to clarify clearly wasn't going to allow polygraph she was not going to allow the polygraph and that's in fact based on this usurps the jury's ability to make determinations on credibility issues so judge nath did deal with that but i do believe it's very telling here that none of this cold case file that mr taylor is now making statements about is currently in the record when he could have made that part of the record and that's because there's nothing there mr taylor knew on the morning of the final pretrial conference he would first raise this issue that mr hemphill was a suspect the only other evidence that is information that's come out of this motion for new trial in this whole go round with the cold case file is that mr hempel was a suspect and that's not proper impeachment under the rule six zero eight or six o nine the government does concede that that  the district court does have to allow some showing a bias but that's tempered by rules for zero two and four hundred three on the probative burse is prejudicial way and the issues of relevance in here it just was simply not relevant to whether hemphill was lying on the stand in trial or whether mr hemphill was lying when he said i received a tester quantity of heroin from mr taylor beyond that it doesn't  eliminate the cases that is eliminated the cases that my adversary here cites for example all of the cases that are cited dealt with a misstatement that a key government witness made while on the stand so goes to issues of credibility in impeachment this is an issue that is completely unrelated to the underlying case in polygraphs are simply inadmissible in the evidence so for all of those reasons your honour's owed respectfully submit that this was not a brady violation because the information contained in that cold case file was neither exculpatory nor could it be used as impeachment evidence is the district court correctly rule the united states contends that the district court was clearly erroneous in finding that mr taylor should only be responsible for six hundred thirty grams of heroin as its drug quantity finding and the reason for that is there the district court clearly invited appeal on this issue that doesn't make it necessarily correct that it should be overturned but the district court and i'm quoting from the record i believe found it unconscionable  that the court should attribute the cut the gets added to the hair way and that's kind of that a policy difference with the guidelines it's not a policy difference with the guidelines your honor that's from chapman view united states which is a one nine hundred ninety one mandatory it did come out when the guidelines were mandatory but they were all in subsequent law and this is purely guidelines issue right no it's not your honor the supreme court was interpret ing the drugs in our case in this case it's just guidelines right we're just talking about the guidelines no your honor i'm i'm i'm stating that minimum sentence i'm sure a sentence that we have here a minimum there was a ten year mandatory minimum your honor yes we did charge mr taylor with a ten year mandatory minimum and what was the sentence that was imposed it was one hundred fifty one months so there's no problem with the statutory minimum there is no problem with the statutory men was so what you're complaining about is the who is the wrongful calculation of the guidelines correct as the statutory minimum is chris statutory minimum is mad lying on a case when that was held when the statute when the guidelines were mandatory and and and  varying from the guidelines was not permitted to say that the district court here improperly vary from the guidelines in what looks to me like a policy difference she just doesn't think that this is a good rule even though that's the rule in the i believe it was it was it was interpreting the law based on the actual drug statutes interpret the statutory law which isn't it issue in this case and it was interpreting the guidelines which was mandatory back them and the guidelines still does provide and this line still provides a but it's not mandatory any longer so i'm all i'm asking is assuming you're right that she misread the guy not misread the guidelines but declined to follow what the guidelines told her to do because she didn't she thought it was unconscionable which sounds like a policy difference what's wrong with the polling then on the theory that she disagreed with the policy underlying if she if she's disagreeing with what the guidelines provide she still obligated i believe under this circuit regardless of the ruling on the objection i would have very considerably and probably down to the level where we are now i think that if sentence of life in this case was clearly unnecessary to meet the statutory directive of the thousands which is sufficient but not greater than necessary to achieve those goals which i've laid out the goal the punishment respect for the law honor it is except she didn't vary she miscalculated the guidelines she said she uses the word very right there she she was great regardless of of of objections or rulings on the objections to the scoring  burden here i do except in the the reason we are on appeal here in appealing this issue is because district judges are obligated to correctly calculate the guidelines and i understand that if this case gets remanded judge enough may impose the same sentence but she could do that from a variance not from making and erroneous finding on the guidelines in the point i want to make here is the fact that the evidence in the record was that there were three to four grams of added to each gram of heroin console sold that was on refuted if we allow the district court to make their own findings contrary to the rebutted facts in the case that's clear error and while they may be allowed to vary in say i don't believe that's necessary for thirty five fifty three a it sets a bad precedent to allow district judges one state a bad president if we interpret that to be the correct calculation under the guidelines but that she varied from it for policy reasons the correct law would be clear i would have no dispute that if that's was was how it was handled and so the forfeiture calculation it was unrefuted that eighty dollars a gram eighty dollars was given for every gram sold to mr taylor and so we would if if the court decides to remain on that we would ask for recalculation thank you testimony regarding the filler quantity and judge have also stated in several places in the record that she felt that the testimony was unreliable with respect to quantity of filler and that was another reason why she was not adding filler quantity to the drug quantity because she felt the testimony was too unreliable and the cases that the government cites involved situations where there was much more concrete or objective not relying solely on testimonial evidence to come up with a number for a feller's that was more reliable so that's an additional issue i would mind if we said that she had she got through to them correctly but she disagreed based on i absolutely not mind that your honor so to go back to the new trial issue  be my opposing counsel is correct we did talk about this the final pretrial conference i communicated with mr fox and prior to that i asked for the information and he declined we talked about it with judge enough judge n indicated i don't think that's enough for you to win a motion so i chose to spend my time preparing for trial otherwise and we asked for an evidentiary hearing from judge enough on these issues and we were not given one so we made a i filed some portions of what was in the police record my position is that the police said not only did he fail the polygraph but he also we don't believe the story about his alibi and we think what his wife said about his alibi is  wife said about his alibi isn't very reliable either so there were other bases besides the taking of the polygraph and failing of the polygraph which led them to believe that he was not credible also i think it's important to note that when we're talking about ten witnesses  testified at trial we're talking about law enforcement just a gated so they have no firsthand knowledge other than what they've collected statements from other people and other evidence we're talking about the three co defendants all of whom were caught with quantities of heroin and had to make deals and they were talking about jake up who said he was involved was not charged judged have specifically found he was incredibly unreliable not believable said she was discounting everything he had to say so that's the body of witnesses we're talking about in this particular case and why mr hemphill is somewhat critical gavan given the people that they did it did have at their disposal and the whack of types of evidence that they repeatedly emphasized that mr hemphill was doing this had to be doing it because he was simply trying to be helpful he was he was being paid only about eight hundred dollars nobody would do this just for eight hundred dollars he's got no other reason besides  coming in and wanting money to do the right thing he emphasized that any of the probation violations he had been punished for up to that point didn't involve telling mistruths so further attempting to bolster the fact that this is a credible individual people people from the government believe him you shouldn't care about the fact that the district court said he wasn't permitted to participate as a confidential informant so there's a lot of bolstering by the government of this particular witness all of which would have been a problem if the lansing police department witnesses had to admit that they had found this person not credible in the past and finally i would say that  just after that prevent an evidentiary hearing on these issues but this was a notorious cold case murder in lansing two people were very violently murdered it's never been solved and  police wouldn't ever prosecute this if they had the ability to do so in the future and i find it difficult to believe but i can't prove it because i've never had an evidentiary hearing that this issue wasn't discussed among lancing investigators before they decided to use this individual given the fact that it was a friend of the defendant that they're using to go out and make controlled by that they found him to be lacking in credibility and it's such a notorious case in the area that's never been solved and the murder case is the evidence they found him incredible by the polygraph that they didn't believe his alibi testimony and they didn't believe the then wife's story about where he was at the time of the murder and that's something we were never allowed to present to judge naf because she denied an evidentiary hearing thank you your honor great thank you counsel for your arguments this morning we would like to thank you  understand you took this case of the criminal justice that ok well that's the real service to mr taylor to our system at large and we appreciate your willingness to take on the