[00:00:00] Speaker 02:
United States versus Hardy, 24-8006.

[00:00:03] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:09] Speaker 04:
Robert Fishman on behalf of Mr. Hardy, I want to begin by addressing the government's supplemental authority that was filed a couple weeks ago.

[00:00:18] Speaker 04:
United States versus SAP, that's a case that goes to the third issue in our brief, the quantity of drugs attributable to Mr. Hardy for purposes of sentencing.

[00:00:30] Speaker 04:
SEP is an unpublished decision.

[00:00:33] Speaker 04:
It doesn't create any new law.

[00:00:37] Speaker 04:
It doesn't plow any new ground.

[00:00:40] Speaker 04:
But it is relevant and enlightening, nonetheless, for this case for two reasons.

[00:00:47] Speaker 04:
Number one, it acknowledges the holding of US versus Ruby and the fact that under this court's precedent,

[00:00:57] Speaker 04:
The key to assessing the reliability of hearsay statements for purposes of sentencing is whether they are independently corroborated.

[00:01:09] Speaker 04:
Ruby says that.

[00:01:09] Speaker 04:
We discussed that requirement in our brief based on Ruby.

[00:01:13] Speaker 04:
SAP reaffirms that.

[00:01:15] Speaker 04:
And SAP applies it to the facts in that case and concludes that there was no plain error in relying on the hearsay statements

[00:01:25] Speaker 04:
in that case for two reasons.

[00:01:29] Speaker 04:
The first is there was evidence that the declarant had made a prior consistent statement.

[00:01:36] Speaker 04:
And secondly, the hearsay statement at issue was recorded by a police recording device.

[00:01:46] Speaker 04:
And so what this court said

[00:01:49] Speaker 04:
As a consequence of that, the sentencing judge could assess the demeanor of the hearsay declarant and kind of judge her credibility.

[00:01:57] Speaker 04:
So those two things were independent corroboration for the reliability of her challenged hearsay statement.

[00:02:06] Speaker 04:
In Ruby, kind of similar, there was three corroborating witnesses who gave the same account as the hearsay witness.

[00:02:17] Speaker 04:
The defendant had pled guilty to charges that were very similar to the allegations made by the hearsay declarant.

[00:02:27] Speaker 04:
US versus Lieb, which is a case that's cited in SAP, there the hearsay statement was corroborated by a criminal complaint and arrest warrant affidavit.

[00:02:40] Speaker 04:
Again, a body cam recording.

[00:02:42] Speaker 04:
And there was no evidence that the hearsay declarant had any bias towards the defendant.

[00:02:49] Speaker 04:
All of those cases contrast with the facts of this case in that I think that even arguably there is only one independent fact that corroborates the confidential informants hearsay statement.

[00:03:08] Speaker 04:
And that is the representation of the interviewing police officer that she had given them reliable information in the past.

[00:03:20] Speaker 03:
This is Officer Sane.

[00:03:24] Speaker 04:
I don't know how you say it.

[00:03:25] Speaker 04:
But yes, we'll call him Sane.

[00:03:29] Speaker 04:
But even that bit of corroborating evidence is problematic.

[00:03:34] Speaker 04:
Because as we know, we don't know anything about her past cooperation.

[00:03:40] Speaker 04:
We don't know anything about the nature of it, what kind of crimes it involved.

[00:03:47] Speaker 04:
We don't know why she was able to show the officers, quote, several Facebook communications with Mr. Hardy when she claims to have dealt with him on almost a daily basis for a year.

[00:04:03] Speaker 04:
And that's why we rely on the Seventh Circuit case in Heldman, which obviously is not controlling here.

[00:04:10] Speaker 04:
But it was a similar problem.

[00:04:12] Speaker 04:
You had an officer say, we've dealt with this informant before, and the person is reliable.

[00:04:19] Speaker 04:
But Heldman said, well, there's no affidavit.

[00:04:22] Speaker 04:
There's no testimony.

[00:04:23] Speaker 04:
There's nothing that fleshes that out and gives us any meaningful understanding of whether this person is indeed reliable.

[00:04:33] Speaker 04:
I frankly think that the government understood that it should have done what was found to be lacking in holding.

[00:04:43] Speaker 04:
And the reason I say that is because the prosecutor at sentencing turns to the confidential informant statements and tells the court, you know, Officer Sagne

[00:04:55] Speaker 04:
He was going to come up here with me to Casper and testify about the confidential informer.

[00:05:01] Speaker 04:
But he's busy.

[00:05:02] Speaker 04:
He's got a family matter, and he's not here.

[00:05:06] Speaker 04:
So the prosecutor says, so all I can do is point to the Facebook messages.

[00:05:12] Speaker 04:
Which gets me to sort of the second part of this argument.

[00:05:16] Speaker 04:
Not only do you have, I think, almost a complete lack of corroborating evidence,

[00:05:24] Speaker 04:
on which to formulate a reliability determination.

[00:05:28] Speaker 04:
You have, by the government's own account, I think, lots of evidence to indicate that this witness is not reliable at all.

[00:05:40] Speaker 04:
The first and most obvious is the fact that she claims to have purchased fentanyl from Mr. Hardy every two or three days for a year, despite the fact that he was incarcerated for three of those months.

[00:05:54] Speaker 04:
For 25% of the time, yeah, which is significant when you're talking about 100 fentanyl pills being purchased every two or three days.

[00:06:02] Speaker 01:
Yeah, let me ask you about that.

[00:06:04] Speaker 01:
And you're basing that on the pre-sentence report that says that he was arrested, let's say, in September.

[00:06:19] Speaker 01:
And then he was released on bond.

[00:06:23] Speaker 01:
in January.

[00:06:24] Speaker 01:
Correct.

[00:06:26] Speaker 01:
Now, that's pretty sketchy information.

[00:06:29] Speaker 01:
We don't know, and we're here on clear error on this issue.

[00:06:34] Speaker 01:
And so how do we know that when he was arrested, that he was detained for the entirety of that period from September to January 9th?

[00:06:43] Speaker 04:
Because I think if you look at

[00:06:46] Speaker 04:
There's many entries for his arrest, subsequent release, re-arrest, for that Laramie County crime that you're talking about, paragraph 30 of the PSR.

[00:06:59] Speaker 04:
And if you read it, it shows when he's being released.

[00:07:03] Speaker 04:
It shows when he's being released.

[00:07:06] Speaker 04:
And there is no entry between September 8th, 21.

[00:07:10] Speaker 04:
OK.

[00:07:10] Speaker 01:
I didn't mean to talk about it.

[00:07:14] Speaker 01:
No, no.

[00:07:14] Speaker 01:
So I want to probe a little bit further on this point.

[00:07:17] Speaker 01:
So on page 29 of the pre-sentence report, it refers to the prosecutor's statement that the confidential informant had attributed 9,000 pills, 900 grams of fentanyl to the defendant.

[00:07:29] Speaker 01:
For some reason, the probation office says on the very next page that he or she is going to attribute 12,100 grams.

[00:07:37] Speaker 01:
And that was what was used by the judge, right?

[00:07:40] Speaker 01:
If the prosecutor's statement, 900 grams, is credited, so that would reduce the quantity of the fentanyl to the defendant by 300 grams, correct?

[00:07:56] Speaker 01:
If we credit your argument, he still

[00:08:01] Speaker 01:
500 grams over the threshold for a basic offense level of 32.

[00:08:06] Speaker 01:
So why would it make any difference if we take off the 300 grams and say, well, the confidential informant had to be wrong about those 3,000 pills because he was incarcerated from November to January?

[00:08:21] Speaker 04:
Sure.

[00:08:22] Speaker 04:
That's correct.

[00:08:24] Speaker 04:
Your observation is correct, but it's not our argument.

[00:08:26] Speaker 04:
My argument is not

[00:08:27] Speaker 04:
deduct 300 grams because of the period of incarceration.

[00:08:32] Speaker 04:
The argument is the confidential informant is a liar.

[00:08:36] Speaker 04:
She is not reliable.

[00:08:38] Speaker 04:
You shouldn't believe any of her testimony.

[00:08:40] Speaker 04:
So the 1,700 grams goes by the wayside.

[00:08:43] Speaker 04:
I'm not quarreling about the 300.

[00:08:46] Speaker 02:
All you have to argue is that she's a liar, but that the government hasn't shown reliability.

[00:08:55] Speaker 04:
Fair enough.

[00:08:55] Speaker 04:
She's not reliable.

[00:08:57] Speaker 04:
And there's every reason to question the reliability of her account.

[00:09:03] Speaker 04:
And it's not just the fact of his incarceration.

[00:09:07] Speaker 04:
I agree with Your Honor that it's not absolutely clear what's going on here.

[00:09:14] Speaker 04:
There was no testimony or evidence presented about his incarceration.

[00:09:17] Speaker 04:
But it goes beyond just that.

[00:09:24] Speaker 04:
The government produced four Facebook messages between the confidential informant and my client dealing with fentanyl buys.

[00:09:34] Speaker 04:
Now, we talk about, I mean, there are thousands of pages of Facebook messages in this case, dozens and dozens of exchanges for purchases of 10 fentanyl pills with some of these people.

[00:09:49] Speaker 04:
You would think that there would just be an enormous amount of messaging between these two people to arrange sizable buys every two or three days for a year, as she claimed.

[00:10:04] Speaker 04:
I think it's pretty clear there is no, not just that there is no independent corroborating evidence, there's a lot of evidence, the government's own evidence that provides every reason to question the reliability of her statement.

[00:10:23] Speaker 04:
The way I read the government's response

[00:10:27] Speaker 04:
is not claiming that I'm wrong, that there actually is independent corroborating evidence.

[00:10:33] Speaker 04:
Their argument essentially is, well, her statements are kind of consistent with the allegations of other people.

[00:10:41] Speaker 04:
It's consistent with the witnesses who testified at trial.

[00:10:45] Speaker 04:
So it's reliable enough.

[00:10:49] Speaker 04:
And the problem with that is twofold.

[00:10:54] Speaker 04:
Number one, just as an analytic matter,

[00:10:57] Speaker 04:
The question is not whether the allegations contained in a hearsay declaration are similar to allegations that other people make.

[00:11:07] Speaker 04:
That's not how you judge that.

[00:11:09] Speaker 04:
And it's especially not how you judge it when you're talking about something like drug quantity.

[00:11:19] Speaker 04:
You could maybe make the case if it were something, say, propensity towards violence.

[00:11:25] Speaker 04:
And a lot of people say the person is violent and the hearsay declarant says the same thing.

[00:11:30] Speaker 04:
Maybe.

[00:11:31] Speaker 04:
When you're talking about allegations of individual particularized purchases, the same cannot be said.

[00:11:40] Speaker 04:
It also fails as a factual matter because there is no other witness in this case, whether a witness who testified at trial or just witnesses that kind of appear through their Facebook messages who claim to have purchased and dealt with Mr. Hardy at a rate anything like what the confidential informant

[00:12:02] Speaker 04:
is a legend.

[00:12:03] Speaker 04:
So she's just in a league entirely of her own.

[00:12:07] Speaker 04:
And it seems to me pretty clear that the allegations of other witnesses cannot render her claims, her kind of extravagant claims, reliable.

[00:12:22] Speaker 04:
And I think if there are no further questions, I will reserve the remainder of my time.

[00:12:30] Speaker 04:
Thank you.

[00:12:40] Speaker 05:
Good morning, and may it please the court.

[00:12:42] Speaker 05:
My name is Paige Hammer, and I represent the government today.

[00:12:45] Speaker 05:
We are here on three issues that the government is asking this court to affirm.

[00:12:49] Speaker 05:
First, that the defendant's presence was not required at the hearing where the court read its order from the James hearing.

[00:12:56] Speaker 02:
Why don't you just concentrate on the third issue?

[00:12:59] Speaker 05:
Of course, Your Honor.

[00:13:01] Speaker 02:
That's your problem issue.

[00:13:04] Speaker 05:
I would argue we do not have a problem.

[00:13:05] Speaker 02:
Oh, let's hear it.

[00:13:07] Speaker 05:
The district court did not err in finding the confidential source's statement reliable in calculating the relevant conduct drug weight.

[00:13:16] Speaker 05:
As the court has noted, the standard of review is clear error, meaning that to reverse, this court must be convinced that the district court's findings were simply not plausible or permissible in light of the entire record on appeal.

[00:13:29] Speaker 05:
And here, the district court appropriately found that those hearsay statements of the confidential source were reliable.

[00:13:35] Speaker 05:
In order for hearsay to be admissible at sentencing, there has to be a minimal addition of reliability, which, as this court said in Cook, is a low hurdle to meet.

[00:13:46] Speaker 05:
And one way in which we find hearsay evidence reliable is through corroborating evidence, which was shown here.

[00:13:55] Speaker 05:
Specifically, we have

[00:13:58] Speaker 05:
the confidential sources statement stating that she purchased 100 fentanyl pills from the defendant every three days for a year.

[00:14:04] Speaker 05:
First, I would point the court to exhibit 24B, which were the text messages, specifically only Mr. Hardy's messages that were submitted during trial.

[00:14:13] Speaker 05:
Those messages are important because it shows that both Mr. Hardy knew the confidential source, so that's the basic foundation,

[00:14:22] Speaker 05:
But as well, one of those messages shows that the confidential source wanted to buy 100 pills.

[00:14:26] Speaker 05:
There's a message from the defendant where he says, quote, couldn't give you 100 illies for $140, insinuating that the confidential source wanted to purchase 100 fentanyl pills from him for $140, but he was not going to do that for that price.

[00:14:41] Speaker 05:
as well as noted by my colleague, the PSR does note that law enforcement found her statements accurate and reliable.

[00:14:48] Speaker 05:
And certainly that is just one factor for this court to consider.

[00:14:50] Speaker 05:
It's not what the government hangs its hat on.

[00:14:52] Speaker 01:
But is it a problem that you didn't even, or at least your

[00:14:59] Speaker 01:
your companion in district court didn't even attribute as much fentanyl to the defendant based on the confidential informant that the district court did.

[00:15:13] Speaker 01:
The prosecutor's statement attributed 9,000 feels 900 grams to the confidential informant.

[00:15:21] Speaker 01:
And for some unknown reason, the probation office adopted by the district court rejected

[00:15:29] Speaker 01:
your quantification and said, okay, well, it's actually more than 3,100 additional pills.

[00:15:38] Speaker 01:
It's an additional 3,100 grams.

[00:15:41] Speaker 01:
So how, you know, we're talking about quantity and not just the fact that the defendant was selling 100 pills every two or three days, but for how long?

[00:15:59] Speaker 01:
And it seems that it was clear error was it not if the judge was attributing greater weight than you would have based on the confidential informants statement.

[00:16:11] Speaker 05:
I do not think it's clear, Your Honor.

[00:16:13] Speaker 05:
I think the prosecutor's statement filed perhaps reflects the months that perhaps Mr. Hardy was in custody, noting the 900 pills versus the 1,200.

[00:16:22] Speaker 05:
But ultimately, I think the court also noted when discussing this issue with my colleague that it doesn't change the ultimate guideline calculation here.

[00:16:30] Speaker 05:
Even if you subtract the 300 grams, we're still within the realm of 1.2 kilograms.

[00:16:34] Speaker 01:
Well, what about his argument that, well, she or he

[00:16:39] Speaker 01:
said that it was for a year, the defendant clearly couldn't have been selling fentanyl to the confidential informant for a year, because for three of those months, the defendant was in custody.

[00:16:53] Speaker 01:
Isn't that a big problem?

[00:16:56] Speaker 05:
I don't think it's a big problem.

[00:16:57] Speaker 05:
It's certainly a concern, and certainly the district court did not make a record on that issue.

[00:17:03] Speaker 05:
But I think that when we are looking at what is the bar here, is it not plausible?

[00:17:10] Speaker 05:
is it not permissible, and that ultimately it is plausible that she could have still been purchasing the 900 pills or 900 grams, and that that could still be a credible, reliable statement upon which the district court relied in finding that he was a base offense 32 or 30.

[00:17:33] Speaker 05:
32.

[00:17:33] Speaker 05:
32.

[00:17:33] Speaker 03:
By the way, do you agree

[00:17:39] Speaker 03:
that the record supports that Mr. Hardy was in custody from September 2021 to January 2022?

[00:17:48] Speaker 05:
I do not have any information that would dispute what is alleged in the PSR related to when he went into custody and when he was released.

[00:17:58] Speaker 03:
Part of the argument I heard from Mr. Fishman this morning is that apart from

[00:18:08] Speaker 03:
1200, 900, whatever the numbers may show, simply the fact that there's a statement about purchasing 100 pills every three days for a year doesn't really square with the fact that Mr. Hardy was in custody, that that goes to the reliability determination.

[00:18:34] Speaker 03:
How would you respond to that?

[00:18:36] Speaker 03:
There are the numbers.

[00:18:38] Speaker 03:
It's not a numbers argument.

[00:18:40] Speaker 03:
It's more of a reliability argument that I take would permeate reliance on the confidential source in general.

[00:18:54] Speaker 05:
It's unclear from the record at what point

[00:18:58] Speaker 05:
the confidential source began purchasing fentanyl from Mr. Hardy.

[00:19:01] Speaker 05:
And certainly her statement that she believed it was a year, I agree that that can be used by this court in determining whether or not her statement is reliable and credible.

[00:19:15] Speaker 05:
However, I think there's other evidence that within the record that shows Mr. Hardy had the ability and capability of

[00:19:26] Speaker 05:
I apologize, Your Honor.

[00:19:27] Speaker 05:
I went into the room, you asked me not to, in terms of amount.

[00:19:29] Speaker 05:
Ultimately, I think it is something for this Court to consider, but that there is other evidence supporting her reliability, given the messages sent between Mr. Hardy and her, and that law enforcement found her accurate and reliable.

[00:19:44] Speaker 02:
During that year, was it the first three months that he was incarcerated, or was it a period in the middle?

[00:19:51] Speaker 05:
It would have been...

[00:19:55] Speaker 05:
I apologize, Your Honor.

[00:19:56] Speaker 05:
I believe it would have been at the... It was September through January.

[00:20:00] Speaker 00:
Of the preceding year.

[00:20:03] Speaker 00:
I apologize, Your Honor.

[00:20:04] Speaker 00:
It was of the preceding year.

[00:20:05] Speaker 05:
Of the preceding year, yes.

[00:20:06] Speaker 05:
So it would have been right before... It would have been six months before the charge conspiracy.

[00:20:14] Speaker 05:
September to January of 2000... September 21 through January 22, and then the charge conspiracy began June.

[00:20:24] Speaker 05:
of 2022 and ended at the end of that year.

[00:20:31] Speaker 05:
My colleagues notes that Helding is actually as support for his argument, but I think when we actually look at Helding, the legal framework used by the Seventh Circuit is no different than this court here.

[00:20:43] Speaker 05:
Here, there has to be the Seventh Circuit also knows there has to be some indifference of reliability and corroboration for the hearsay evidence to be reliable.

[00:20:51] Speaker 05:
And again, there has to be a low standard.

[00:20:53] Speaker 05:
There just has to be something for the court to hang its hat on.

[00:20:56] Speaker 05:
And in Helding, probation used the statements from five confidential informants stating that Helding had sold them methamphetamine.

[00:21:05] Speaker 05:
And Helding, though, had been charged with a marijuana felony offense.

[00:21:10] Speaker 05:
And the district court increased the relevant conduct drug weight based off of those confidential informant statements.

[00:21:16] Speaker 05:
And on appeal, the Seventh Circuit reversed, saying there was no evidence within this case that Mr. Helding had ever distributed methamphetamine.

[00:21:26] Speaker 05:
The only evidence in the record was that he had possessed a very small user amount.

[00:21:30] Speaker 05:
Therefore, there was nothing for that court to hang its hat on to say, yes, we believe these people, that all five of them had purchased

[00:21:39] Speaker 05:
methamphetamine from Mr. Helding, whereas here there is something for this court to hang its hat on.

[00:21:45] Speaker 05:
We have her statement.

[00:21:46] Speaker 05:
We have the corroborative text message showing 100 fentanyl pills.

[00:21:51] Speaker 05:
And as well, we have the defendant's own incriminating statement that he was able to sell 1,500 pills in a three-day period.

[00:21:59] Speaker 05:
That is not insignificant, that he was assisting Derek Asherin, a co-conspirator, in setting up a 500-pill deal and 1,000-pill deal.

[00:22:09] Speaker 05:
And so certainly,

[00:22:12] Speaker 05:
We take our confidential sources as we get them.

[00:22:15] Speaker 05:
They may not always be saints, as my colleague from Oklahoma said, but ultimately there is something there to show that she is credible to the amount necessary for this court to affirm.

[00:22:31] Speaker 05:
Unless there are any further questions about the third issue, I would just briefly turn to our 404B issue 2.

[00:22:37] Speaker 05:
It's the government's position that the district court did not err in admitting the 404B evidence of the defendant's possession of nine fentanyl pills four months after the end of the charge conspiracy.

[00:22:48] Speaker 05:
The standard of review is plain error, given that the defendant did not object pre-trial or during trial to the admission of this evidence.

[00:22:56] Speaker 05:
And in order for the defendant to prevail on appeal,

[00:22:58] Speaker 05:
He must show that the error was clear and obvious and that he was substantially prejudiced, neither of which he can.

[00:23:05] Speaker 05:
The district's court order was more than sufficient.

[00:23:07] Speaker 05:
Not only did the district court state the proper purposes under which it was admitting this evidence, I would disagree, I guess, perhaps, with my colleague's assertion that the district court just copy-pasted the language from the 404b language itself or just reiterated it.

[00:23:24] Speaker 05:
I think the district court took a very thoughtful approach

[00:23:26] Speaker 05:
In admitting this evidence, he in fact even excluded one of the government's proffered purposes, noting that at that point, the record did not support an absence or lack of mistake as a proper purpose for the admission of this evidence.

[00:23:41] Speaker 05:
It's a nine-page order.

[00:23:43] Speaker 05:
The district court cited relevant 10th Circuit case law, specifically Maris, Becker, and Conway.

[00:23:48] Speaker 05:
noting that drug possession close in time to the charge conduct is highly probative.

[00:23:54] Speaker 05:
It's highly probative of the defendant's knowledge and intent within the conspiracy, and especially so when it's the same drug possessed outside the charge conduct as what's charged within the charging document.

[00:24:08] Speaker 03:
And I think the Justice Court also appropriately noted that... Would those cases support

[00:24:14] Speaker 03:
the notion that possession of nine pills for personal use after the conspiracy is, why should that be 404B evidence in a distribution case?

[00:24:30] Speaker 05:
I would point the court to Kelly, a 2006 unpublished case from the circuit where that's what this court held is that

[00:24:38] Speaker 05:
personal use possession is relevant when we're talking about plan, motive, intent.

[00:24:48] Speaker 05:
Someone can be a personal user, but distribute to feed their own habit.

[00:24:52] Speaker 05:
That's relevant.

[00:24:53] Speaker 03:
If you're not familiar with these cases, United States against Wilson, United States against Edwards, are you familiar with those cases?

[00:25:03] Speaker 05:
I apologize, Your Honor, I am not.

[00:25:09] Speaker 05:
Even if the district court could have done more, this court in Galloway, which is 937 Federal Second 542, a 1991 case is held that a district court's 404B ruling can still be affirmed despite a failure to make specific findings.

[00:25:28] Speaker 05:
So long as the factors supporting the 404B analysis are readily apparent from the record and there's no unsubstantial uncertainty about the end result, this court can't affirm.

[00:25:39] Speaker 05:
And so even if this court feels like there could have been more record as alleged by my colleague, that's not the government's position.

[00:25:45] Speaker 05:
Our position is that there was plenty of record that this district court made in its order to support the admission of those nine pills.

[00:25:53] Speaker 05:
As part of the second part of the analysis of substantial prejudice, I would argue there is none.

[00:25:58] Speaker 05:
Evidence of the defendant possessing those nine fentanyl pills ultimately cuts both ways.

[00:26:04] Speaker 05:
As noted in the opening brief, the argument was that the defendant was just an end user.

[00:26:09] Speaker 05:
He was not a distributor.

[00:26:11] Speaker 05:
The nine pills supports that theory, but ultimately, it also supports the government's argument that he knew what fentanyl was, that he intentionally sold fentanyl, and... Well, there's no question that he knew what fentanyl was.

[00:26:24] Speaker 01:
He said in opening statement that he was addicted to fentanyl.

[00:26:28] Speaker 05:
Yes, your honor, but I would note that opening statement is not evidence.

[00:26:32] Speaker 01:
Well, I mean, he never disputed that he was a daily user of fentanyl and that he was an addict.

[00:26:42] Speaker 01:
So it wasn't anything really that... So I just don't see why non-fentanyl pills would do anything but prove what was undisputed, that he was a daily user of fentanyl.

[00:26:54] Speaker 05:
Yes, your honor.

[00:26:55] Speaker 02:
If that's all it proves, I don't see the prejudice then.

[00:26:58] Speaker 05:
No, Your Honor.

[00:26:59] Speaker 05:
No, the evidence was admitted under those proper purposes to prove knowledge, intent, and plan.

[00:27:06] Speaker 05:
Unless this Court has any further questions, I would cede my time.

[00:27:09] Speaker 02:
Thank you.

[00:27:11] Speaker 02:
Mr. Fishman, would you like to speak?

[00:27:15] Speaker 02:
You would?

[00:27:16] Speaker 02:
Well, I guess I have to let you.

[00:27:24] Speaker 04:
I was hoping to relinquish some of my time instead of going over, which is what I usually do, but it's not to be, Your Honor.

[00:27:31] Speaker 04:
I'm sorry.

[00:27:34] Speaker 04:
Just a point of clarification on the timing.

[00:27:37] Speaker 04:
The timing of this year-long sales relationship doesn't relate to the charged conspiracy, right?

[00:27:47] Speaker 04:
The triggering point is October 7.

[00:27:50] Speaker 04:
when she is interviewed by the police, and she says, for the last year, I have been buying, and he's incarcerated September 8th, 2021 through January 9th, 2022.

[00:28:03] Speaker 02:
So that would be the first three months of the year she's talking about.

[00:28:06] Speaker 02:
Correct.

[00:28:14] Speaker 04:
The argument that the four messages in Exhibit 24B established that the confidential informant knows Mr. Hardy does not render her hearsay allegations reliable.

[00:28:32] Speaker 04:
The fact that she knows him does not establish the fact that she purchased 1,700 fentanyl pills from him over the course of the year.

[00:28:42] Speaker 04:
To the contrary, the fact that those messages show her buying, attempting to buy, exactly 100 pills, and those are the only messages the government has, would seem to fundamentally undercut her hearsay allegation.

[00:29:00] Speaker 04:
In terms of the court's finding of reliability, the court did say, I find the attribution reliable in the PSR.

[00:29:12] Speaker 04:
There is no there there.

[00:29:14] Speaker 04:
He does not explain anything about the confidential informant statements that he deems renders them reliable.

[00:29:24] Speaker 04:
He says nothing about it.

[00:29:25] Speaker 04:
404b, I will just say on the prejudice argument,

[00:29:35] Speaker 04:
Lawyers, judges may look at this a little bit differently, I think, than jurors.

[00:29:39] Speaker 04:
The only physical evidence in this case, the only fentanyl that ever showed its face at trial, was the nine pills that he possessed after the conspiracy had ended.

[00:29:54] Speaker 04:
And I think you cannot minimize the significance of that in the eyes of a jury.

[00:30:00] Speaker 04:
Thank you.

[00:30:01] Speaker 04:
Thank you.

[00:30:04] Speaker 02:
Cases submitted, Council are excused.