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Case number 08-3037 at L, United States of America versus Gregory Bell, also known as Boy Boy, also known as Bunga, appellant.

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Trial issue one, Ms.

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Englert for the appellant, Mr. Perez for the appellees.

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Trial issue two, Ms.

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Englert for, and as well as trial issue three,

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Ms.

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Englert for the Appellants, Mr. Perez for both Appell Issue 2 and 3, and for Sentencing Issues, Mr. Becker for the Appellant, Mr. Strand for the Appellees.

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All right.

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Thank you.

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Let me thank counsel for being here and being willing to go forward out of turn.

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Thanks a lot.

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Go ahead.

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Good morning.

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May it please the Court.

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I'm Cecilia Englert, and I'm here on behalf of David Wilson, the Appellant.

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Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.

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Those are the words of the Supreme Court in the United States versus Cronick.

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What does it mean to be represented by counsel?

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It's more than having a warm body sitting next to the accused, a warm body with a law degree sitting next to the accused.

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The Sixth Amendment guarantees the effective assistance of counsel.

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When David Wilson's lawyer, Jennifer Wicks, became ill, the trial court forcing Gary Proctor to take over denied Wilson the effective assistance of counsel.

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There are multiple reasons why Kronik's presumed prejudice standards should apply.

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This was a long, complex trial expected to last nine months.

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Mr. Proctor was inexperienced in federal cases at that time.

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He represented that he could not effectively represent Mr. Wilson, could not effectively take over the defense case.

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And importantly, there were the circumstances of Mr. Proctor's appointment.

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he was appointed for this long complex trial 11 days before the trial.

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And actually what had happened before that, Ms.

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Wicks had to take over as lead counsel a few weeks before the trial.

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So she was scrambling to find somebody who could help her.

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Mr. Proctor agreed on the condition that he could still maintain his own trial cases and that he

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because of the circumstances, had more of a mentality of a law clerk helping Ms.

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Wicks rather than full trial counsel.

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And one of the most significant factors that I would like to focus on, especially emphasize for the purpose of this argument, is the fact that Mr. Proctor was absent for a significant portion of the trial.

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The government says that the trial court never made any findings about that.

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Mr. Proctor represented that he had missed about a third of the trial.

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Is it true that the trial court never made any findings about that?

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And did the government ever contest that representation?

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It was not contested.

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There was a...

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I would say that at the June 27th hearing, this was the second hearing about after Ms.

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Wicks became ill, Mr. Proctor made some representations to the court.

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In June, he said that he was there on June 5th, 6th, 7th, 11th, 12th, and 18th.

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Nobody, and he estimated, he did a rough estimate that he was there for about two-thirds of the trial.

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It was not contested, and I will say as an aside, I don't think it's necessary to apply presumed prejudice, but extrapolating from those days that he said he was there, he missed June 13th.

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which was an entire day on the Middleton and Bradley murders.

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He missed part of Torrin Scott's testimony and he missed all of Renee Cottingham's testimony for that day.

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All right, now when the district judge first changed his mind and said we're gonna have a break in the trial and then he's going to have time to prepare the defense, were the transcripts available to him?

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proctor.

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I believe they were from the way they were speaking on the record that Mr. Proctor could could read

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the trial date, read the transcripts for the trial days that he missed.

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Is that what the court's question is?

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That's right.

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I believe he had access to the courts, the transcripts for the trial days that he had missed.

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And did he, when the defense finally started, did he put anything on the record about his preparation or lack thereof?

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Did he say whether he was confident to go forward?

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Did the judge ask him about that?

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I don't remember specifically when the trial started up again.

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I think there is a lot on the record that he had put on the record before the trial court made the ruling and the court, Mr. Court specifically found that Mr. Proctor had preserved his objection.

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How do you think we should handle this circumstance where you have counsel but a counsel becomes ill or unable to continue?

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Would your position be that you would always have to start over?

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You would have a mistrial in that case?

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That there would be no way for a new counsel to become prepared?

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I don't think that in this, I don't think that it is necessary to have a bright line rule or per se rule in this case.

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This is not the case where you have two counsel who have worked the case up from the beginning, like suppose Ms.

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Kalkish and Ms.

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Wicks had been counsel from the beginning and Ms.

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Wicks is out for a five minute bathroom break and misses some of the trial.

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I'm not saying that in that circumstance that there should be presumed prejudice.

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But that is not this case.

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There are so many factors in this case.

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And something I would like to get to before time runs out is the fact that Mr. Proctor, whether you say it's a third of the trial, it may have been a little more, it may have been a little less, but it was certainly a significant part of the trial.

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And I would refer the court to the sleeping counsel cases.

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In Burdine versus Johnson, that was a Fifth Circuit case.

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That court said that unconscious counsel does not analyze, object, listen, or in any way exercise judgment on behalf of a client.

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But are you arguing that someone who has to read the transcripts because they missed some portion of the trial would never give adequate representation?

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Again, I would not say that never.

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I would say that certainly in this case where Mr. Proctor missed

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many trial days, and certainly an entire day where there were witnesses on the murder that Mr. Wilson was convicted of, that certainly in that case, that Pranik's presumed prejudice standard should apply.

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And let me say that by missing, Mr. Proctor missing these trial days, he wasn't able to judge the credibility of the witnesses or see how the jury received the evidence.

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So much of

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counsel's judgment rests on how they evaluate what has been presented.

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Did the witness look honest?

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Did they smirk?

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Were the jurors paying close attention?

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Did they start taking notes?

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How important was this evidence?

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And when counsel has, for the defense case, perhaps some piece of evidence

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that they want to get out, that's good for the defense, but there might be something bad about that witness, there's a judgment that has to be made.

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And that judgment has to be based on what was observed and what counsel could see about the government's evidence.

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What, if anything, is in the record about Mr. Proctor's ability to consult with Ms.

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Wicks during the time period that he's, well, after he's appointed and throughout the trial?

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There's nothing in the record about consultation throughout the trial.

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In the beginning, when the trial court was trying to assess

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what the defense, how long the defense case might be.

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He was asking Mr. Proctor and Mr.

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Davies at that point, they really couldn't give the court a good idea of how long the defense case was because they were so unprepared to do this that the court suggested that they consult Ms.

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Wicks at least to get an estimate of how long the defense case might be.

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I think that there was some, that indicates that there was perhaps some limited

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They could make some limited phone calls to Ms.

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Wicks, but there certainly was not any indication in the record that during the trial that she attended the trial or was able to consult with Mr. Proctor.

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And the district court did not base its finding on assuming that Ms.

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Wicks would be available to assist.

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And getting back to the, there were also examples within this case.

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One example Mr. Proctor brought up that the government had said, well, Mr. Proctor can do this.

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He served some subpoenas the other day.

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And Mr. Proctor said, that's true.

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I served some subpoenas.

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That's because Ms.

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Wicks asked me to serve these subpoenas.

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I don't know who these witnesses are or what she wants them for.

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This shows two things.

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Number one, Ms.

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Wicks is making judgments

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by watching the government's witnesses and forming the defense case as the government's case is proceeding, number one.

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And number two, that Mr. Proctor was not privy to her decisions and her judgments.

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And so for all of the factors that I indicated, Kronach's presumed prejudice should apply in this case.

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Mr. Proctor just did not have all of the information that he would need to exercise his judgment in the defense case.

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All right, we'll give you a minute to reply.

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Mr. Perez?

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Good morning, Your Honor.

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James Perez on behalf of the United States.

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Without pointing to a single instance, not one mistake on Mr. Proctor's part in this case,

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The defendant, excuse me, the appellant, Appellant Wilson, asked this court to nonetheless presume that Mr. Proctor made a mistake, at least one mistake, or numerous mistakes, and to presume that there was prejudice in this case.

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This court should reject that argument for five distinct reasons.

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Five reasons why this case takes it out from any other case that the defendant cites in his brief.

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Number one, Mr. Proctor, there's no dispute that Mr. Proctor was on this case at the beginning of the case.

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And what I mean by the beginning of the case, beginning of the trial.

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February 2nd, trial, he's appointed to this case.

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February 21st, we have opening statements.

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So he's on the case for five months before he's asked to step up from second chair counsel to first chair counsel.

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But he's missed a third of the trial days.

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You're not contesting that, are you?

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We didn't contest it below only because the trial court never really delved into the issue.

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And that's a record.

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I mean, I think that's a record issue that the defendant or Mr. Wilson has to, has to... Well, there's several things in your brief where you make assertions and then you say the defense didn't contest that below, so we should accept it.

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So you can't say that in your brief and then say, you know, argue the opposite when it's a defense point, can you?

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I actually, I mean, look, the trial court never made a finding about the one-third, missing one-third, and we're not, to be sure, I'm not heavily contesting it now, but my only point- You're not contesting when he left the country during the trial, right, for a funeral?

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He made that representation.

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There's no reason to dispute that.

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I have no reason to dispute that on appeal.

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But to get back to Your Honor's point about the representation that we made in our brief that I'm not actually sure what Your Honor's referring to specifically.

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But again, whether or not we made that representation in our brief or not, here the trial court never made a specific finding that he was gone for one third.

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But our argument does not fall on or rise on that.

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In fact, I think it was a footnote point that I made in our brief.

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Who were the most credible defense witnesses who were put on?

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Credible defense witnesses?

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Yeah, or least credible.

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Credible or at least credible?

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Yeah, who would you say were the most credible and the least credible defense witnesses?

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There was eight defense, I mean, I don't, there was eight defense witnesses.

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Four of them were about the Traygon Shaw murder.

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Those four talked about the Trayvon Shaw murder and in fact said that David Wilson was not.

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One of them said that David Wilson was not the shooter.

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I think significantly David Wilson was acquitted of that charge.

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So clearly the jury believed those witnesses over the government witnesses about the Trayvon Shaw murder and identified Mr. Wilson as the shooter of Trayvon Shaw.

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So you're basing your judgment on the outcome?

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Yes.

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Based on the transcripts.

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Based on the outcome?

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How can you, based on reading the transcripts, make an assessment of what witnesses were credible or not?

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I mean, I think you can look at the transcripts and determine whether or not, look at their impeachment, I mean, look at the cross-examination, determine whether or not they admitted they lied, whether or not they fell apart on cross-examination.

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There's ways that you could look at the transcript and determine whether or not a particular witness was credible or not.

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Isn't there a lot of case law from this court and the Supreme Court about how

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You know, on the cold dead record, so to speak, courts of appeals shouldn't second-guess trial judges about their assessments of credibility because we weren't there.

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That's correct, but... But doesn't that apply to Mr. Proctor here?

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Your Honor, I don't think so, because the question is whether or not this court should be presuming prejudice based on Mr. Proctor's having read some portions of the transcript.

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I do want to...

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Just to footnote another point, which is this.

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We don't know, and Mr. Proctor never made any representations, what particular days he missed.

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So even if he missed one third of the trial as he represented him, there was a conviction, an important conviction of the homicide.

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It's been represented that he wasn't there on that day.

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I think we can actually make an assessment of that from looking at the transcript from that day.

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And that's the first time I've heard of this.

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I don't recall any representation when Mr. Proctor said, you know, I was not here.

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Well, I mean, we went back and looked at the transcripts, my clerk and I, and we could see that there were some days where he clearly wasn't there, according to the transcripts, including very important, you know, testimony against it.

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I mean, unless Mr. Witt said, you know, Mr. Proctor is not here today.

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Well, the court reporter notes who's present and who's not in the courtroom.

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There's each defendant had two attorneys.

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I'm not sure whether or not every attorney made an announcement of his or her presence every time the case was called.

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I'm just not clear of that.

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If I disagree with you and I can look at the transcript and see some days where he's not there.

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Sure.

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Then what's your response?

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My response is this.

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And we cite the Morse v. Snappy case in which the Supreme Court said, look, the question is not whether a counsel in a particular circumstance

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would perform less well than he otherwise would.

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But whether the circumstances are so, when we're talking about the presumption, whether the circumstances are so likely to result in such poor performance that an inquiry into its effects would not be worth the time.

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We're not saying that the defendant cannot make a stricter claim here, not at all.

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We're saying that he should at least make a stricter claim.

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We're just saying that this court should not presume prejudice on this record.

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Again,

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We don't know another record issue.

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We don't know whether or not, in response to Your Honor's question to the Appellant's Counsel, we don't know whether or not Ms.

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Witts in the background was assaulted.

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We know that she never was kicked off the case.

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In fact, she comes back during closing statements.

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She comes back during jury notes.

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We don't know what consultation she was given to Ms.

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Proctor and Mr. Davis.

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We do know on July 17,

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before the second break, so Mr. Proctor can get ready for the defense case.

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When Judge Roberts asked for the, how long, the timeframe that Mr. Proctor expected Mr. Wilson's defense case to take, they were kind of waffling.

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And then he said, you know, well, I spoke in this quote, and this is on page 18654 of the transcript.

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He says, well, I spoke to Ms.

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Wicks after she was released from the hospital.

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She did say she's available by phone.

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So and then he says, I'm not certainly going to call her, but she can take calls, I'm sure you know, from you and from Ms.

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Wilson, as far as what she told me.

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And then Mr. Davies, who's the second counsel that was appointed for Mr. Wilson, said, that is correct.

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So there is some suggestion in the record that she was given consultation behind the scenes.

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Her doctor's note, which was read in the record by the trial court, says that she has to be out for work, no work for two weeks, and that was back in June, and no trial work for six months.

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So there's no reason to presume here that she was not given a behind-the-scene consultation.

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Now, to the extent... But the trial court didn't seem to think that it was relevant, and the government didn't seem to think that it was relevant below as to how much the defense counsel could or couldn't consult with Ms.

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Wicks.

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The only thing that the government said in its argument about why the court should reconsider was, well, he can read the transcripts and come up to speed.

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And that seemed to be the way that the trial court judged the issue.

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Shouldn't we at least

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Remand for some fact-finding on that before we just say that we shouldn't presume prejudice?

[00:20:55] Speaker 00:
No, Your Honor.

[00:20:56] Speaker 00:
Number one, they haven't asked to remand.

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Number two, the, again, even if we assume, even if we assume worst-case scenario, Mr. Proctor cannot talk to Ms.

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Witts as much as he wanted to.

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Here, we think that the transcript was, he said that

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He was there for a lot of the trial, right, for most of the trial.

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If it's accurate that he was not there for one-third of the trial, we think that under the case law, there's no case law that says we didn't transcript effectively amounts to having no counsel at all.

[00:21:26] Speaker 08:
Not at all.

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I think it is reported.

[00:21:33] Speaker 08:
Is it the most important issue?

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Credibility of witnesses?

[00:21:36] Speaker 00:
Yes, Your Honor.

[00:21:37] Speaker 08:
So it's the most important issue, but you can't judge it from a transcript.

[00:21:43] Speaker 00:
I never said that you can't judge it from a transcript.

[00:21:45] Speaker 00:
Yes, perhaps you can judge it better if you've seen a witness in court.

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But reading from the transcript, you can tell whether or not a person made inconsistent statements, whether or not they've been impeached by their convictions, whether or not they fell apart on cross-examination,

[00:22:00] Speaker 00:
In court, seeing the witness, of course, you may see additional aspects of that person's testimony that you would not see on the transcript.

[00:22:09] Speaker 08:
But the question is... So the Supreme Court said in Wright v. Van Patten that the reason that you presume prejudice sometimes is because there's something that happens in the trial or with the defense counsel that's so likely to prejudice the defendant

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that the cost of litigating the effect of that action in a particular case is unjustified.

[00:22:33] Speaker 08:
That's the standard for when we presume prejudice.

[00:22:39] Speaker 08:
So credibility of witness is the most important thing for the jury, the counsel to be able to assess, to try to figure out their strategy, et cetera, going forward.

[00:22:50] Speaker 08:
And the defense counsel has one hand tied behind their back because they missed important parts of reviewing witnesses.

[00:23:01] Speaker 08:
Why shouldn't we say that was so likely to prejudice Mr. Wilson in this case?

[00:23:06] Speaker 08:
That we don't want to really try to litigate and figure that out.

[00:23:10] Speaker 08:
It's just so likely to prejudice him.

[00:23:12] Speaker 08:
That's why we have a presumed prejudice standard.

[00:23:14] Speaker 00:
Your Honor, credibility is an extremely important issue.

[00:23:18] Speaker 00:
Our only point is that credibility is not only determined, in fact, not primarily determined by looking at that witness in court.

[00:23:26] Speaker 00:
We can also look at the transcript.

[00:23:28] Speaker 00:
If Mr. Proctor did not have the transcripts, we'd be in a totally different boat.

[00:23:31] Speaker 00:
Mr. Parker had the transcripts.

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He never came back, made a representation to the court.

[00:23:36] Speaker 00:
You know, I had these transcripts, but I wish I would have seen this witness testimony because, hmm, there was something about that way that witness said this in the transcript that it seems like there may have been something that I could have got out of looking at this live witness.

[00:23:51] Speaker 00:
And even if he did,

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Why can't he talk to Ms.

[00:23:54] Speaker 00:
Wipps about that witness or any particular witness?

[00:23:57] Speaker 00:
Ms.

[00:23:57] Speaker 00:
Wipps, do you have any concerns about any particular witness?

[00:24:00] Speaker 00:
Did you notice anything?

[00:24:01] Speaker 00:
If the court were to presume prejudice here, why not presume prejudice when a defense counsel is taking too many notes and therefore is not looking at the witness doing trial?

[00:24:10] Speaker 00:
Why not presume prejudice when a defense counsel

[00:24:15] Speaker 00:
just blanks for a second and just worried about family problems as he's looking at the witness but not paying attention for two or three minutes or five minutes.

[00:24:24] Speaker 00:
There's no case law, not one case law that says reading the transcript is not a adequate substitute when we have the situation that we have here.

[00:24:33] Speaker 08:
So if there was four months of trial and he missed a third of trial and he effectively missed a month of trial,

[00:24:40] Speaker 08:
being in court, then we shouldn't presume that that would have any impact on his ability to have judged the credibility of witnesses during that month of testimony he missed.

[00:24:54] Speaker 00:
We shouldn't presume it.

[00:24:55] Speaker 00:
That doesn't mean that it wasn't the case.

[00:24:57] Speaker 00:
And you can make a Strickland standard, but we shouldn't presume it.

[00:24:59] Speaker 00:
And I made the point that they have not pointed to any case that

[00:25:04] Speaker 00:
applies that sort of presumption.

[00:25:06] Speaker 00:
Recently, there's a case out of the Second Circuit that says, there's a case called Griffin from last year, it had the exact example that Yarner gave, which is, it wasn't even a second chair counsel, it was a brand new counsel that came in right before closing statements, and he made the closing statements.

[00:25:24] Speaker 00:
Now certainly closing statements is all about the 12 evidences, about the witnesses, and

[00:25:29] Speaker 00:
the witness's credibility.

[00:25:32] Speaker 00:
Even there, the court did not apply presumption.

[00:25:36] Speaker 08:
That second lawyer wasn't present for any of the trial?

[00:25:39] Speaker 00:
Was not present.

[00:25:40] Speaker 00:
Was not present for any of the trial.

[00:25:42] Speaker 00:
And that's a case called Griffin out of the Second Circuit of last year.

[00:25:47] Speaker 00:
If I could just have just 30 more seconds on the presumption

[00:25:54] Speaker 00:
So there's five reasons we think that the court should not apply the presumption here.

[00:25:58] Speaker 00:
Here, number one, because he was a second chair of council when he was asked to step up five months into the trial as first chair of council.

[00:26:05] Speaker 00:
Number two, the court granted two continuances amounting to 44 days.

[00:26:10] Speaker 00:
So he could get prepared, read the transcript, talk to other witnesses, talk to Ms.

[00:26:15] Speaker 00:
Witts if he wanted to.

[00:26:15] Speaker 00:
Number three, there was another attorney

[00:26:19] Speaker 00:
that came in, Mr. Matthew Davids, who knew the defendant from Mr. Wilson.

[00:26:24] Speaker 00:
He had a prior relationship with Mr. Wilson.

[00:26:26] Speaker 00:
And number four, Mr. Proctor prepared well in this case.

[00:26:29] Speaker 00:
He presented eight different witnesses, four on the Trayvon Shaw murder.

[00:26:35] Speaker 00:
And Mr. Wilson was eventually acquitted of that murder.

[00:26:41] Speaker 00:
And then number five,

[00:26:43] Speaker 00:
kind of flows from the number four, which is Mr. Wilson was acquitted of a lot of charges, very serious charges in this case, including the Quentin Milstead charge in which he solely was charged with, and the Trayvon Sharp murder in which he and Antoine Ball was charged with.

[00:27:00] Speaker 00:
So given all this, we don't think this falls into the neuro-circumstances that this chronic says this court, or any court, should present in prejudice.

[00:27:09] Speaker 00:
And we ask this court to...

[00:27:13] Speaker 00:
to affirm the convictions.

[00:27:15] Speaker 06:
All right.

[00:27:16] Speaker 06:
Judge Wilkins, in his questions, made me think of something.

[00:27:20] Speaker 06:
That is, was this actually a four-month trial?

[00:27:23] Speaker 06:
I mean, lots of times, juries get even up to a week off if the judge has got a conflict or a lawyer's got a fight.

[00:27:31] Speaker 06:
Do we know that the trial was actually going on fully those four months, so that one-third is a month?

[00:27:40] Speaker 00:
Your Honor, according to my records, when Ms.

[00:27:45] Speaker 00:
Wipps fell ill on June 21st, it appears that the trial was going on continuously itself.

[00:27:53] Speaker 00:
And I have access here, and I think that represents itself as five days.

[00:27:56] Speaker 00:
Five days, I think the trial was not.

[00:27:58] Speaker 00:
going on, according to my notes.

[00:28:01] Speaker 00:
However, I actually think that brings up another good point, which is there's four or five other defendants in this case.

[00:28:09] Speaker 00:
There was wholesale days in which no evidence was presented against Mr. Wilson.

[00:28:14] Speaker 00:
So again, this is why I think it's important that even if this court were to say, you know, one-third is a long time,

[00:28:20] Speaker 00:
The record is not clear on what particular days he missed.

[00:28:24] Speaker 00:
I mean, he probably missed days in which, which is probably why he felt comfortable missing those days in which no evidence was presented against Mr. Wilson.

[00:28:31] Speaker 00:
We just don't know on this record.

[00:28:33] Speaker 06:
It would have helped if you had taken the time to tell us those specific numbers.

[00:28:39] Speaker 06:
In other words, how many days the trial was, how many days Mr. Wilson was not involved in the trial testimony and so forth.

[00:28:49] Speaker 06:
We have your argument, so thank you.

[00:28:53] Speaker 06:
Let's see.

[00:28:55] Speaker 06:
Ms.

[00:28:55] Speaker 06:
Engler, why don't you take a minute to respond on this issue, and Madam Clerk, if you could give her a minute and then start her six minutes on the next issue.

[00:29:07] Speaker 02:
Yes, I would quickly respond to the government's argument that this was not the case where two counsel

[00:29:15] Speaker 02:
Although two counsels started, Mr. Proctor was there at the beginning.

[00:29:20] Speaker 02:
Again, the circumstances of his appointment, he started right before trial and he wasn't, he was helping, he was assisting Ms.

[00:29:29] Speaker 02:
Wix.

[00:29:32] Speaker 02:
There was no amount of additional time that can cure the defect, the defect of missing significant parts of trial.

[00:29:39] Speaker 02:
And again, I would refer the court to the sleeping counsel cases where

[00:29:44] Speaker 02:
But those courts have always said and applied chronic when counsel misses significant parts of the trial.

[00:29:52] Speaker 02:
And I think there can't be a dispute here that there were significant parts of the trial that Mr. Proctor missed.

[00:29:58] Speaker 02:
Whether it's give or take, whether it really was a third or not, maybe it wasn't as much as a third.

[00:30:02] Speaker 02:
Certainly he missed June 13th where there was an entire day of testimony about the Bradley Middleton murders.

[00:30:11] Speaker 02:
This harm cannot be quantified

[00:30:13] Speaker 02:
and it is like the other cases where chronic has been applied, where harm cannot be quantified, and therefore the presumed prejudice standard should apply.

[00:30:24] Speaker 02:
I will go on to the next issue, which is the other crimes issue.

[00:30:29] Speaker 02:
Essential, in essence, what this boils down to is that a defendant must be tried for what he did and not for who he is.

[00:30:40] Speaker 02:
In this case, there were two murders for which Mr. Wilson was not on trial that were admitted into his case as other crimes evidence.

[00:30:53] Speaker 02:
And since both of those cases, the Reginald Reed murder and the Sam Phillips murder, regardless of how they came in, whether intrinsic evidence or not, in either case would have to

[00:31:11] Speaker 02:
be subject to the balancing requirement of Rule 403.

[00:31:14] Speaker 02:
And that's where I would like to spend most of my time in argument, but I'd be happy to take questions.

[00:31:23] Speaker 02:
And that Rule 403 requires a balancing of the probative value versus the prejudicial effect of the evidence.

[00:31:32] Speaker 02:
And probative value is informed by how much

[00:31:39] Speaker 02:
Whether that evidence is cumulative and whether there is other less prejudicial evidence that could be a proof of the same fact that the government wants to get in.

[00:31:50] Speaker 02:
The Reed murder involved Mr. Wilson, Desmond Thurston, and Bobby Capies.

[00:31:56] Speaker 02:
The court allowed admission of this murder because the court found that it showed the development of relationships

[00:32:07] Speaker 02:
between the parties, Mr. Wilson, Thurston, and Capys, and it corroborates the defendant becoming a co-conspirator.

[00:32:19] Speaker 02:
There was ample other evidence of that fact, if that is what the government wanted to get in.

[00:32:26] Speaker 02:
Capys testified extensively, and his testimony included

[00:32:34] Speaker 02:
Mr. Wilson and Mr. Thurston's drug activity.

[00:32:38] Speaker 02:
He also said in his testimony that he did lots, Mr. Capies did lots of murders with Mr. Wilson and Mr. Thurston so that if the government wanted to get in, the relationship between these three people and how they, because of this, would enter into the bigger conspiracy for which Mr. Wilson was charged certainly

[00:33:02] Speaker 02:
admitting an entire murder, that of Reginald Reed in this case, was unnecessary and certainly was very prejudicial.

[00:33:12] Speaker 02:
In the Phillips murder, there's a similar analysis.

[00:33:17] Speaker 02:
The court held that it showed Mr. Wilson's access to and familiarity with weapons.

[00:33:24] Speaker 02:
And there was so much other evidence about Mr. Wilson and his involvement using guns and the sharing of guns.

[00:33:34] Speaker 02:
I would just refer to our opening brief, pages 49 to 50, and the reply brief at page 19 where it lists or it brings out some of the places in the transcripts where Mr. Wilson is

[00:33:50] Speaker 02:
known to be using or sharing guns, so that the admission of an entire murder, another entire murder, was not necessary to show his access to and familiarity with guns.

[00:34:06] Speaker 08:
Now, the government has said, well, a lot of... The government, I think, argues in their brief that

[00:34:17] Speaker 08:
There was a determination made prior to trial about letter of crimes evidence, but that during the trial, counsel did not raise these cumulativeness arguments with the court once the evidence started coming in.

[00:34:38] Speaker 08:
Is that accurate?

[00:34:40] Speaker 08:
And if it is, how should that play into our consideration of the issue?

[00:34:45] Speaker 02:
I don't want to misunderstand your question.

[00:34:49] Speaker 08:
The cumulative... In other words, the point that you're making now is that there were lots of other evidence that came in about gun possession, so you didn't need to have a homicide.

[00:35:01] Speaker 08:
Was that argument ever made at all?

[00:35:06] Speaker 08:
And if it was made and rejected prior to trial, was it made during the trial, and should that matter?

[00:35:15] Speaker 02:
I am unsure about that specific argument, so I don't want to make that representation to the court.

[00:35:24] Speaker 02:
However, on appeal, this court can affirm on any grounds supported by the record.

[00:35:32] Speaker 02:
And I think the record is very clear that there was ample other evidence about the use of guns and familiarity with guns to Mr. Wilson.

[00:35:44] Speaker 02:
And nothing is more prejudicial than a murder.

[00:35:47] Speaker 02:
And in this case, two murders were admitted against, in Mr. Wilson's case, to show matters that were easily shown by other evidence and was already in the record from the other evidence.

[00:36:04] Speaker 02:
It was supposedly to show relationships between the alleged co-conspirators, supposedly to show Mr. Wilson's familiarity and access to guns,

[00:36:15] Speaker 02:
All of that evidence was already available to the government.

[00:36:19] Speaker 02:
And so the district court abused its discretion in admitting the uncharged murders.

[00:36:35] Speaker 00:
Good morning, Your Honors, again.

[00:36:37] Speaker 00:
With respect to the Phillips murder, I think it's very clear on this record that the Court should not even be resolving this issue or even addressing this issue at all because Ms.

[00:36:48] Speaker 00:
Witt clearly waived, she wanted this murder into the evidence.

[00:36:55] Speaker 00:
Pre-traw, she contested that there was no need for this evidence.

[00:36:58] Speaker 00:
She made a 443 argument, Judge Wilkins, but she did not make, as I read her opposition, she does not make a 443 argument.

[00:37:08] Speaker 00:
She doesn't say,

[00:37:10] Speaker 00:
there's no non-purposing reason for this evidence.

[00:37:13] Speaker 00:
She just says in her opposition, and this is document 573 that she follows on November 27, 2006, that it's too prejudice.

[00:37:27] Speaker 00:
But she does not point, she does not say there's other evidence pointing to any other evidence in the record in which there was evidence that Mr. Wilson used or knew how to use a gun.

[00:37:38] Speaker 00:
She just said nevertheless it was just too prejudice.

[00:37:40] Speaker 08:
She joined the co-defendant's motion though, right?

[00:37:44] Speaker 00:
Right, but the co-defendant, yes she does, but the co-defendant motion does not, Antoine Ball's motion does not specifically speak to Philip's arteries murder.

[00:37:55] Speaker 00:
I mean, why would he?

[00:37:55] Speaker 00:
He had nothing to do with him.

[00:37:57] Speaker 00:
He just, he mentions as background, but he doesn't specifically object to that, to those murders.

[00:38:06] Speaker 00:
However, so she does make a 403 objection pre-trial.

[00:38:10] Speaker 00:
On February the 28th, before the Phillips murder, before Larry Brown's testimony, she says, the government, luckily, puts on the record that it was willing to pare down the Phillips murder and not refer to the murder at all.

[00:38:28] Speaker 00:
But, and again, I'm referring to page 986, or 87, excuse me, of the transcript,

[00:38:36] Speaker 00:
The government, the prosecutor says, we have discussed it, and the government is willing to do that.

[00:38:41] Speaker 00:
But my understanding is that for tactical reason, Mr. Wilson wants to go into the details of the homicide.

[00:38:49] Speaker 00:
In other words, they want to go into the fact that it was a homicide.

[00:38:54] Speaker 00:
And going to page... Pardon me, Your Honor.

[00:39:08] Speaker 00:
page 1,000, Ms.

[00:39:11] Speaker 00:
Witt says on the record, yes, I've talked to Mr. Wilson about it.

[00:39:17] Speaker 00:
I will check with him again.

[00:39:19] Speaker 00:
But the ridiculousness of certain points of Mr. Brown's story, the story about the Phillips murder, and his bias against Mr. Wilson is the reason he has such a huge motive to carry further with the government.

[00:39:32] Speaker 00:
And that with the government is precisely because of the homicide.

[00:39:36] Speaker 00:
In other words,

[00:39:37] Speaker 00:
Larry Brown pled guilty to a RICO conspiracy, and one of the racketeering acts was the Phillips murder, so it's going to come out anyway as geekly old information.

[00:39:47] Speaker 00:
What she said was, you know, he, in fact, on her cross-examination of Mr. Brown, she tried to cheat.

[00:39:53] Speaker 00:
tries to get him to admit that he's the one that, in fact, committed the Phyllis murder, and he's blaming it on Mr. Wilson.

[00:39:59] Speaker 00:
And so she saw this as heavy impeachment evidence of him.

[00:40:02] Speaker 00:
So I guess somewhere between January and February, she changed her mind, and she wanted it to come in.

[00:40:07] Speaker 00:
And then on page 1001, she says, and for those reasons, on Mr. Wilson's behalf, and I quote, even if the government did not want to go into it to the Phyllis murder,

[00:40:18] Speaker 00:
It's the fact of what he pled to in his plea agreement, and that's a huge motive.

[00:40:23] Speaker 00:
And again, I quote, so I would undoubtedly go into it, and I think it does matter that someone died.

[00:40:30] Speaker 00:
So I actually would argue that had Judge Roberts said, no, I understand your argument.

[00:40:34] Speaker 00:
I understand that you think this is huge impeachment evidence, but I'm not going to allow you to go into it.

[00:40:39] Speaker 00:
I would actually argue that that might be error.

[00:40:42] Speaker 00:
So I think it's very clear here that she's waived this argument.

[00:40:45] Speaker 00:
They wanted this evidence, and Judge Roberts simply gave them what they wanted.

[00:40:50] Speaker 08:
She didn't want the witness to testify about the incident, but once the testimony came in about the incident which she objected to, then she said that she didn't want to sanitize and it was a shooting, right?

[00:41:09] Speaker 00:
This discussion that I just read from the transcript actually came in

[00:41:17] Speaker 00:
what took place before Larry Brown even testified.

[00:41:20] Speaker 00:
So Larry Brown had not even testified about the Phyllis murder yet.

[00:41:24] Speaker 00:
And the government was saying, you know, I think we can carry it down.

[00:41:27] Speaker 00:
We're willing to do that.

[00:41:28] Speaker 00:
But for tactical reasons, the defense wants to go into it.

[00:41:31] Speaker 00:
And then she represents, yes, we're going to go into it with Mr. Brown, because we think it provides them a huge motive for henna curing for favor with the government.

[00:41:41] Speaker 00:
And you know, we argue harmlessness, they don't really take an issue with harmlessness, not in their opening brief, they make a half-hearted attempt in their prior brief to say why it was not permanent, but Mr. Wilson was charged with so many murders in this case that it's very, I mean, it's almost laughable to say that these two murders made the difference.

[00:42:01] Speaker 00:
This court, in another case, Gary Gregory Wilson, which we saw you in our brief, said that

[00:42:09] Speaker 00:
We also know that it's harmless because he was actually acquitted of a lot of charges here, including violent charges.

[00:42:15] Speaker 00:
He was acquitted of the Trayvon Shaw first degree murder.

[00:42:18] Speaker 00:
He was acquitted of the Quentin Milstead assault where he attempted to murder.

[00:42:23] Speaker 00:
And he was convicted, the only violent crime that he was convicted of was the Sabrina Bradley and Ronnie Millington murder.

[00:42:31] Speaker 00:
But even there, the jury said, can we have a revised verdict for him saying that he's only charged with 80 and a vetting?

[00:42:38] Speaker 00:
So I think that type of careful consideration shows that the jury was not impulsively just convicted him of all the violent crime because he was a bad guy because of these two murders.

[00:42:49] Speaker 00:
Unless the court has any questions with respect to the Phillips murder, I'll just take 30 seconds, if I may, and just talk about the Reed murder.

[00:42:57] Speaker 00:
The Reed murder, I think, is very important because, once again, we have an argument as to why we think there was no specific objection to this murder.

[00:43:05] Speaker 00:
And unless the court has any questions with respect to that, I'll skip that and say why the court was correct that this was an astringent evidence, which

[00:43:17] Speaker 00:
I think telling me below, defense counsel never said that was not astringent evidence.

[00:43:23] Speaker 00:
Their claim was a 403.

[00:43:24] Speaker 00:
They made a 403 objection.

[00:43:26] Speaker 00:
But below, they never said that was not astringent evidence.

[00:43:31] Speaker 00:
This court has said many times in Burrill and Mattis that

[00:43:35] Speaker 00:
When you have a conspiracy, the government has considerable leeway to bring in other crimes evidence to show the relationship of trust that the co-conspirators have and the building of this conspiracy.

[00:43:48] Speaker 00:
And that's all this evidence shows.

[00:43:50] Speaker 00:
And I also think it shows that Mr. Caffey was involved with the reading murder.

[00:43:57] Speaker 00:
And Mr. Cappie was an important government witness.

[00:44:02] Speaker 00:
And he was impeached up and down, his testimony.

[00:44:05] Speaker 00:
And I think he was on the stand for four days.

[00:44:07] Speaker 00:
He testified a lot of crimes that Mr. Wilson committed.

[00:44:12] Speaker 00:
And he also testified about the confession that Mr. Wilson gave him about the Ronnie Militane and Sabrina Varadar murders.

[00:44:20] Speaker 00:
So the jury is certainly going to wonder,

[00:44:23] Speaker 00:
Why should we believe him?

[00:44:24] Speaker 00:
This re-murder shows why the jury partly should believe him, because there was a relationship, a trust, a great relationship, a trust that they committed murders together.

[00:44:35] Speaker 00:
Unless there are any other questions, I'll move on.

[00:44:42] Speaker 06:
Thank you.

[00:44:46] Speaker 06:
Ms.

[00:44:46] Speaker 06:
Englund, why don't you do the same thing with this issue, one minute on the

[00:44:51] Speaker 06:
rebuttal and six on you.

[00:44:54] Speaker 06:
Great.

[00:44:54] Speaker 02:
I'll be happy to do that.

[00:44:56] Speaker 06:
All right.

[00:44:58] Speaker 02:
Just very quickly on the other crimes evidence, just so that the court is clear about where we are that certainly there was no waiver of the Sam Phillips murder.

[00:45:13] Speaker 02:
defense counsel objected to any of the incident coming in.

[00:45:17] Speaker 02:
But once the trial court ruled that it was coming in, the issue then became, do we need to say that this was a murder?

[00:45:25] Speaker 02:
Certainly there was going to be, the shooting was going to come in, the fact that Larry Brown gave Mr. Wilson a gun.

[00:45:32] Speaker 02:
Mr. Wilson went up and shot Sam Phillips.

[00:45:35] Speaker 02:
The only question then was going to be, is the fact that the person died, is that going to come in?

[00:45:43] Speaker 02:
At that point, Larry Brown was going to testify about the shooting, that Mr. Wilson took the gun, walked up to Sam Phillips, and shot him.

[00:45:54] Speaker 02:
At that point, counsel made the decision to

[00:45:59] Speaker 02:
to use as much evidence as she could to impeach Larry Brown.

[00:46:03] Speaker 02:
And at that point, the fact that Mr. Brown is involved and could be charged with aiding and embedding a murder becomes very, very relevant to the impeachment of him.

[00:46:18] Speaker 02:
And Mrs. Wicks need to impeach him.

[00:46:21] Speaker 02:
Now that Larry Brown is going to bring in this shooting, she now needs to impeach him.

[00:46:27] Speaker 02:
And the fact that she wants to use

[00:46:29] Speaker 02:
the murder or the fact that the person died as additional ammunition to impeach him does not mean that Mr. Wilson has waived this argument.

[00:46:43] Speaker 02:
And again, I would just refer the court to all the evidence that was already in.

[00:46:52] Speaker 02:
about the conspiracy, about the relationship between the parties, and about Mr. Wilson's use of guns.

[00:47:00] Speaker 02:
I'll turn next then to the last issue for argument, and that is the Brady evidence.

[00:47:07] Speaker 02:
There are two sets of Brady material that was not disclosed in a timely manner.

[00:47:14] Speaker 02:
The first was a police report that was disclosed in the

[00:47:19] Speaker 02:
in the middle of trial that contained a statement from Michael Smith to Bradley Carter.

[00:47:25] Speaker 02:
This was significant because Smith was the only surviving witness to the Middleton-Bradley shooting, and he identified Amon Ball and Joseph Jones as the two shooters, which contradicted the government's witnesses who testified that the shooters were Robertson and Drain.

[00:47:47] Speaker 02:
And the second item of Brady material were the police reports that named suspects other than Middleton in the prior shooting of Maurice Dolman and his murder.

[00:48:00] Speaker 02:
This was significant because the government's theory was that Middleton had killed Dolman and that Wilson killed Middleton to avenge Dolman's death.

[00:48:12] Speaker 02:
These items

[00:48:14] Speaker 02:
of evidence were not cumulative and they were not discrete pieces of evidence just limited to impeaching the credibility of one witness or one of the government's witnesses.

[00:48:26] Speaker 02:
They changed fundamental facts of the government's case and they had very widespread ramifications for the defense strategy.

[00:48:38] Speaker 02:
This was information that the defense could not use without an extensive investigation.

[00:48:45] Speaker 02:
And I would take the report of the Middleton murder, where Michael Smith identifies Amon Ball and Joseph Jones as the shooters.

[00:48:57] Speaker 02:
This was disclosed after three months of trial.

[00:49:02] Speaker 02:
As defense counsel getting this evidence, you can't just start throwing these two names out there all of a sudden.

[00:49:08] Speaker 02:
in cross-examination, you know, you try to use this evidence in that way.

[00:49:14] Speaker 02:
That's not how a defense strategy should work, certainly not in a case of this magnitude.

[00:49:22] Speaker 02:
This is something that has to be investigated beforehand to see how much substance there is in these other two suspects.

[00:49:31] Speaker 02:
And only then you might have something in your case and some reason for bringing it up, then you start

[00:49:38] Speaker 02:
you would have it in your opening to plant that seed in the jury's mind.

[00:49:43] Speaker 02:
Then you start cross-examining witnesses and the names, those two names are out there and by the time you get to the defense case, there's something there for the defense to present.

[00:49:54] Speaker 02:
If this is not the case where you have an isolated police report, you have the police officer up there, you have his type notes, and then you find out that there were some handwritten notes and one or two sentences were missing, that there was a discrepancy.

[00:50:11] Speaker 08:
This is... What significance is it that the defense strategy seemed to be to accept that, I guess,

[00:50:22] Speaker 08:
Well, imagine how this might affect the jury's assessment of the government's evidence.

[00:50:48] Speaker 02:
that I understand that the government is saying, well, that statement only goes to who the two shooters were.

[00:50:55] Speaker 02:
It doesn't go to who the driver was, and Wilson was supposedly the driver.

[00:51:01] Speaker 02:
But think about how this affects the jury's perception of the government's case.

[00:51:05] Speaker 02:
If you can't get the identity of the shooters right, why would they convict Wilson as the driver in aiding and abetting

[00:51:14] Speaker 02:
Of course it matters who the shooters are.

[00:51:16] Speaker 02:
Of course it matters who Wilson was with at the time of the shooting.

[00:51:24] Speaker 02:
And I'd like to briefly get to the other items of Brady, which were the other suspects in the Maurice Dolman murder.

[00:51:36] Speaker 02:
It was essential to the government's case to show a motive, Wilson's motive for killing Middleton, and that motive was

[00:51:44] Speaker 02:
that according to the government's theory that Middleton had, in five years previously, had killed Maurice Dolman.

[00:51:56] Speaker 02:
These police reports showed that it was far from certain that Middleton was the suspect or the person who shot Dolman.

[00:52:06] Speaker 02:
That at the time of the police investigation, there were, in addition to Middleton, three other suspects

[00:52:14] Speaker 02:
that were named as shooters.

[00:52:19] Speaker 02:
And so, this goes to the very heart of the government's case against Willislin, which is a motive for him to have shot Middleton.

[00:52:31] Speaker 02:
And this is something, again, that cannot be, again, this was disclosed after trial, but it's something that has to be disclosed well before trial to allow the defense to investigate.

[00:52:43] Speaker 02:
This Brady evidence put the whole case in a different light that undermined the fairness of the trial.

[00:52:50] Speaker 08:
The government says that this is basically irrelevant because it doesn't show what Wilson thought.

[00:53:02] Speaker 08:
What's your response to that?

[00:53:04] Speaker 02:
I think what the jury heard was Middleton killed Dolman.

[00:53:09] Speaker 02:
No response to that.

[00:53:11] Speaker 02:
the jury can take as a given that Middleton killed Dolman.

[00:53:17] Speaker 02:
And from that infer then that whoever cared about Dolman isn't going to like Middleton very much and would have a motive to kill him.

[00:53:27] Speaker 02:
Now if there is other evidence that it's not at all clear who actually killed Dolman,

[00:53:36] Speaker 02:
there are other suspects out there there was a word on the well you know people thought that there were other people nobody really knew who killed middleton what if nobody knew who killed middleton isn't one of the brady wasn't part of the brady that one of the alleged co-conspirators of your client thought that somebody else killed him yes that there that mr ball who was one of the lead defendants thought that

[00:54:04] Speaker 02:
that someone else had killed Marie Stolman.

[00:54:07] Speaker 02:
And I do think that's significant, and that is brought out in the briefs, that if a close associate of Mr. Wilson thought that somebody, there was somebody else who was responsible for this murder, that if the government wants to infer motive, well, it can also be inferred that Mr. Wilson didn't believe that Middleton was the shooter.

[00:54:33] Speaker 02:
I would like to conclude by saying Mr. Wilson was convicted of these two murders based on circumstantial evidence.

[00:54:42] Speaker 02:
He is now serving a sentence of 30 years to life imprisonment.

[00:54:47] Speaker 02:
And this was after he was deprived of the effective assistance of counsel, after the government admitted two uncharged murders, and after the government withheld important Brady information.

[00:55:02] Speaker 02:
He knows that his trial was unfair.

[00:55:05] Speaker 02:
He prays that this court will reverse his convictions and remand for a new trial.

[00:55:11] Speaker 06:
All right.

[00:55:11] Speaker 02:
Thank you, Mr. Perez.

[00:55:25] Speaker 00:
I'll start off with the police reports that Judge Wilkins asked about.

[00:55:35] Speaker 00:
We argued that the police reports, the four police reports that were discovered after trial, three of which identified someone else other than Mr. Squid in Doleman's 1993 murder, we argued that those are not exculpatory at all because as the

[00:55:54] Speaker 00:
Apollon recognizes in its opening brief the issue at trial was what was Mr. Wilson's belief.

[00:56:00] Speaker 00:
That's what motive is all about.

[00:56:02] Speaker 00:
What does Wilson believe, whether or not Middleton in fact killed Donovan was really collateral, was really beside the point that Judge Roberts recognized and beside to a hunt, hunt to be the case in the Fourth Circuit that takes that position as well.

[00:56:16] Speaker 00:
None of the

[00:56:17] Speaker 00:
four police reports, really three only really matter because one of them actually supports the government's theory that Square was the killer of Maurice Delamain.

[00:56:30] Speaker 00:
But none of the three police reports shed any light on Mr. Wilson's belief.

[00:56:35] Speaker 00:
The first police report that Judge Wilkins referred to about whether or not Antoine Ball, who was the leader of the Congress Park crew, whether or not he thought

[00:56:46] Speaker 00:
and he being the leader of Mr. Wilson's crew, whether or not that could be inferred or imputed, his knowledge could be imputed onto Mr. Wilson.

[00:56:55] Speaker 00:
We don't even think that could be support as she says that.

[00:56:58] Speaker 00:
And I'm looking at the JA site is one.

[00:57:03] Speaker 00:
since 5-7 of that police report.

[00:57:06] Speaker 00:
And all, Maurice Willis, Maurice Willis' actual witness that the detective talked to, Maurice Willis, mind you, is a part of the 1-5 mob, a different crew, a rival crew than CP, than Congress Park.

[00:57:20] Speaker 00:
All it says is that the complainant, and it's referring to Mr. Willis when he said the complainant, further stated that Maurice, aka Reese, was killed and that Antoine may think

[00:57:32] Speaker 00:
that him, him being Willis, and Alfred Holmes were involved in Marie's death.

[00:57:40] Speaker 00:
All it says is that he made things.

[00:57:41] Speaker 00:
It never says that Antoine Ball ever said, you know, I think that you killed him.

[00:57:45] Speaker 00:
So even if we can't infer that Antoine Ball's knowledge of who killed Marie Stillerman onto Willis, which I think is a stretch, but even if we can infer that,

[00:57:56] Speaker 00:
This police report, again, on page 1757, 1657 of the JA, doesn't even support that at all.

[00:58:05] Speaker 00:
It's speculation.

[00:58:06] Speaker 00:
If we were to have a new trial, Maurice Willis cannot get on the stand and say, I think that Antoine Ball thought that speculation would have been inadmissible evidence.

[00:58:18] Speaker 08:
But the point of Brady isn't that the Brady itself has to be admissible once that you get to investigate because it might lead to admissible evidence, right?

[00:58:28] Speaker 00:
I agree with that, Your Honor, but they have not shown on appeal what admissible evidence they would introduce if they were to get a new trial, which they haven't shown.

[00:58:39] Speaker 08:
So to make a Brady claim, you have to basically

[00:58:45] Speaker 08:
after you get the belated Brady, investigate it, and then show what the fruits of your investigation have revealed in order to have a viable Brady claim?

[00:58:54] Speaker 00:
Yes, Your Honor.

[00:58:55] Speaker 00:
On appeal.

[00:58:56] Speaker 00:
On appeal.

[00:58:57] Speaker 08:
What case says that?

[00:58:59] Speaker 00:
Deere from this court in 1993 says, to be material,

[00:59:03] Speaker 00:
under Brady, the undisclosed information or evidence acquired through that information must be immiscible.

[00:59:09] Speaker 00:
They have not shown any immiscible evidence here.

[00:59:12] Speaker 00:
Because really, the ultimate question is, if this court were to reverse, what immiscible evidence are they going to set forth in front of the jury to change the jury's mind?

[00:59:21] Speaker 00:
And they just haven't done any.

[00:59:23] Speaker 00:
Each of the three reports

[00:59:25] Speaker 00:
does not, number one, it's not favoritism, it doesn't impeach, it's not a sculpatory of what the government's theory was of Mr. Wilson's motive, which is his belief, not who in fact killed Doleman.

[00:59:36] Speaker 00:
And then the second and third report, I was just quickly note, again, the second report says that Coulter blames Doleman's murder, Coulter is a one-five mile member again,

[00:59:51] Speaker 00:
blames Doleman's murder on Sean, another 1-5 mob member.

[00:59:56] Speaker 00:
Again, another 1-5 mob member, what another 1-5, a rifle crew member, thought cannot be, it's not even reasonable to argue that that can be imputable to Mr. Wilson.

[01:00:06] Speaker 00:
And then finally, the third report says Corey Walkins said that Squid, who's the actual guy that

[01:00:17] Speaker 00:
that the government said below that all the one CP members, Congress part member thought was the killer of Mr. Doleman, that Squid said, so we got double hearsay, that Cooder killed Doleman.

[01:00:30] Speaker 00:
Again, so what Squid thinks cannot be imputed, it's not even reasonable to impute that on Mr. Wilson's fully pointed right recruit members.

[01:00:39] Speaker 00:
I hope that argument came out clearly.

[01:00:45] Speaker 00:
With respect to the Tinman statement, our argument there is it's not favorable because it's not a sculpatory.

[01:00:51] Speaker 00:
It's not a sculpatory because it's not admissible evidence.

[01:00:53] Speaker 00:
Tinman was dead at the time of trial.

[01:00:56] Speaker 00:
They have not set forth any theory in which they could have got this information before the jury.

[01:01:01] Speaker 00:
Could there have been some investigation?

[01:01:03] Speaker 00:
Perhaps.

[01:01:03] Speaker 00:
But it's speculative to say now that the investigation would have led to any admissible evidence.

[01:01:11] Speaker 00:
Um, it's not impeaching evidence because, uh, team in it did not testify at trial, obviously, because he was dead.

[01:01:19] Speaker 00:
Um, and to the extent that, uh, it was impeaching, impeaching evidence, uh, they could have they being Mr Wilson's defense counsel could have recalled any witness they wanted to, um, and they did not.

[01:01:31] Speaker 08:
Why is it necessarily the case that, um,

[01:01:36] Speaker 08:
It couldn't have been admissible, you know, in the trial court's discretion under the residual hearsay exception.

[01:01:43] Speaker 08:
Certainly the statement made for the purposes of identification

[01:01:49] Speaker 08:
the teeny man statement to Carter, and Carter is there, and it's, yes, it's double hearsay, but at least you can cross-examine Carter about whether teeny man made his statement.

[01:02:00] Speaker 08:
And under Rule 807, the residual hearsay exception, the trial court might have said, well, it can come in.

[01:02:07] Speaker 08:
There's not a confrontation clause problem with respect to the defendant's right.

[01:02:15] Speaker 00:
Two responses, Your Honor.

[01:02:18] Speaker 00:
Number one is, in fact, Ms.

[01:02:21] Speaker 00:
Wicks actually did try to cross-examine Carter on his statement that he gave to detectives about 10 minutes.

[01:02:29] Speaker 00:
And Carter just said, I don't remember that.

[01:02:31] Speaker 08:
And the court also said that he said he didn't remember, but the court didn't let her go into it completely because he said it was going to be too prejudicial.

[01:02:42] Speaker 08:
to Jones, who was a co-defendant and who was going to be inculpated by the statement.

[01:02:53] Speaker 00:
I thought I had the transcripts, and I'm sure I do somewhere.

[01:02:58] Speaker 00:
But the way the discussion came about, Your Honor, is that she tried to get into the statement that Carter gave to Detective Gus about teeny man.

[01:03:09] Speaker 00:
At that time, the government made a beyond the scope objection because the government had not made any inquiry about that direct.

[01:03:16] Speaker 00:
And she said, well, I'm just getting into it to show that he was cooperating.

[01:03:21] Speaker 00:
It goes to advice to show that he was cooperating with the police all this time.

[01:03:25] Speaker 00:
And the court said, OK, you can get into it, but you can't get into the details as to exactly what was said.

[01:03:31] Speaker 00:
But you can say whether or not he told Detective Gus that Tin Man made the statement.

[01:03:38] Speaker 00:
And then at that point, then she starts to ask him about this.

[01:03:44] Speaker 00:
And he says, no, I don't recall that.

[01:03:46] Speaker 00:
And then she says, well, do you recall you and I meeting last week about this statement?

[01:03:51] Speaker 00:
And she shows him the statement.

[01:03:53] Speaker 00:
Does that refresh your recollection?

[01:03:54] Speaker 00:
He's like, no.

[01:03:55] Speaker 00:
She said, do you recall talking to Detective Gus?

[01:03:57] Speaker 00:
He says, no.

[01:04:00] Speaker 00:
The fact of the matter is, is that they used the statement, they tried to use the statement to impeach Carter.

[01:04:05] Speaker 00:
They tried to get the statement out and Carter just did not recall.

[01:04:08] Speaker 00:
I don't see any other way they could have got the statement in.

[01:04:10] Speaker 00:
If there were to be a retrial,

[01:04:13] Speaker 00:
There's no reason to believe on this record that Carter would admit something that he didn't admit at the first trial.

[01:04:17] Speaker 00:
Kingman is not coming back alive.

[01:04:19] Speaker 00:
I don't think it falls under the residual assumption, because we have 803 subsection three that specifically talks about statement identification with the court.

[01:04:29] Speaker 00:
What Congress says is that to be admissible under the statement identification assumption to the hearsay rule,

[01:04:37] Speaker 00:
that quote, the deculant has to testify and be subject to cross-examination about the party statement.

[01:04:43] Speaker 00:
That didn't happen here.

[01:04:44] Speaker 00:
That can't happen here because Kenny Mann is on the law.

[01:04:47] Speaker 00:
So we think that this case is very much like the Deer case that we cite too in our brief in which you have

[01:04:54] Speaker 00:
other statements, out-of-court statements that folks may implicate in someone other than the defendant, but those statements cannot come into trial.

[01:05:03] Speaker 00:
Here is because Teeny Man is dead.

[01:05:04] Speaker 00:
There is because the out-of-court decrement vote, I think it was his or her fifth amendment.

[01:05:15] Speaker 00:
Even if there was any ready violations, we think it's very clear that the record is very, very strong here about that Mr. Wilson was involved in the 88 event.

[01:05:24] Speaker 00:
He made four separate confections, including one to Renee Cunningham, which the court said was very convincing because

[01:05:30] Speaker 00:
She looked at him as a son.

[01:05:32] Speaker 00:
She knew specific details about that, about the murder team and jumping out the back of the truck.

[01:05:39] Speaker 00:
So we think given all this, even if there was a Brady violation, or even if there was favorable information, there's no prejudice.

[01:05:48] Speaker 00:
It wasn't material.

[01:05:50] Speaker 00:
Let's square in.

[01:05:51] Speaker 00:
Has any questions we ask that the court affirms?

[01:05:52] Speaker 06:
All right.

[01:05:53] Speaker 06:
Thank you.

[01:05:57] Speaker 06:
Let's see.

[01:05:57] Speaker 06:
You want to take a minute?

[01:06:05] Speaker 02:
I think the government's argument that there was so much evidence against Wilson is, to say the least, a stretch.

[01:06:15] Speaker 02:
This was a circumstantial case, and the jury initially indicated that it was hung on the Middleton and Bradley murder counts.

[01:06:26] Speaker 02:
Ms.

[01:06:27] Speaker 02:
Wicks attempted to use that police report about Michael Smith

[01:06:35] Speaker 02:
as impeachment evidence.

[01:06:37] Speaker 02:
And that's one way that Brady evidence is relevant, even if the statement itself may not be admissible, but certainly you can use evidence as impeachment evidence.

[01:06:54] Speaker 02:
But in this case, it goes beyond that because

[01:06:59] Speaker 02:
because it's not merely a statement.

[01:07:01] Speaker 02:
It's a statement that reveals an entirely different theory for the Middleton Bradley murder that the defense was unable to investigate because it was disclosed so late.

[01:07:17] Speaker 02:
And I've already gone into how this should have been and what could have been used by the defense.

[01:07:24] Speaker 02:
I would just say in closing that there is an amount that Mr. Wilson was convicted in this circumstantial case after being denied his right to due process and effective assistance of counsel.

[01:07:41] Speaker 02:
There was so much evidence that came in that shouldn't have and so much evidence that should have been turned over to the defense that wasn't.

[01:07:49] Speaker 02:
And then he was in the end represented

[01:07:53] Speaker 02:
by a lawyer who said he couldn't effectively represent Wilson.

[01:07:59] Speaker 02:
Mr. Wilson asked that this court overturn his convictions.

[01:08:21] Speaker 03:
Judge Henderson, members of the panel, good morning.

[01:08:23] Speaker 03:
I am Robert Becker.

[01:08:24] Speaker 03:
I represent Gregory Bell in this matter and the court.

[01:08:30] Speaker 03:
I would like to spend very brief time on the major sentencing issue in this case, the acquitted conduct, and then move on to Mr. Bell's enhancement regarding the gun.

[01:08:42] Speaker 03:
We understand that this panel cannot reverse the holding in Jones.

[01:08:46] Speaker 03:
We think it was wrongly decided, and three justices of the Supreme Court have said that it is time for the Supreme Court to address the issue of the relationship between 1B1.3 and Apprendi.

[01:09:00] Speaker 03:
Most notable about that is that Justice Thomas, who wrote the Elaine opinion,

[01:09:05] Speaker 03:
was one of those justices.

[01:09:08] Speaker 03:
And in the opinion, Justice Scalia said, the courts of appeals have uniformly taken our continued silence on this issue to suggest that the Constitution does not permit otherwise unreliable, unreasonable sentences supported by judicial fact-finding, so long as they are within the statutory range.

[01:09:29] Speaker 03:
That is at the bottom of this.

[01:09:32] Speaker 03:
the acquitted conduct issue here.

[01:09:35] Speaker 03:
And beyond that, unless you have questions, I will move on, because as I said, we would just ask that you agree that we should have a hearing so that this Court can address the issue more fully.

[01:09:50] Speaker 03:
It would seem in the overall scheme of things that Mr. Bell's request that you reverse his two-level enhancement for the gun is insignificant, but it is not.

[01:10:04] Speaker 03:
Because under the sentencing guidelines revisions that will take effect later this year, his sentence would be reduced by four levels.

[01:10:14] Speaker 03:
That would place the bottom of his guideline sentencing range at 151 months, well below the sub-guidelines sentence he received before.

[01:10:27] Speaker 03:
He would become eligible for release in November and to release to a halfway house this May.

[01:10:34] Speaker 03:
his sentence reduced two more points because the gun bump was removed, his sentencing range would become 121 months to 151 months.

[01:10:45] Speaker 03:
He will reach the 121 months in April, next month.

[01:10:50] Speaker 03:
So this is a significant issue for him.

[01:10:54] Speaker 03:
The problem with the gun bump in this case is that Mr. Bell was convicted of three small drug sales in 2000.

[01:11:04] Speaker 03:
The basis for adding the two-level enhancement is a gun that was found during a search in 1996 of a house of residence he shared with his father.

[01:11:17] Speaker 03:
That gun clearly had no direct relationship to the crimes for which he was convicted.

[01:11:24] Speaker 03:
But the trial court took the position that they were part of the conspiracy that was acquitted, and therefore they were relevant for sentencing purposes in this context as well.

[01:11:40] Speaker 03:
The application notes say, this is note 11A,

[01:11:45] Speaker 03:
Guideline 2D1.1 is the enhancement should be applied if the weapon was present during the crime of conviction.

[01:11:54] Speaker 03:
The crime of conviction was a drug sale or three drug sales in 2000.

[01:11:59] Speaker 03:
The question is what is meant by the weapon was present.

[01:12:05] Speaker 03:
And the allocation of these two levels was not based on co-conspirators' conduct.

[01:12:14] Speaker 03:
It was not based on his aiding and abetting.

[01:12:17] Speaker 03:
It was based on his possession of a weapon at a time four years previous.

[01:12:23] Speaker 03:
In a very real sense, the questions here are similar to the question that was raised in Bailey when this court read 924C as saying simple possession of a weapon during a drug transaction was sufficient to trigger the using or carrying provision of 924C.

[01:12:44] Speaker 03:
And the Supreme Court did not agree.

[01:12:45] Speaker 03:
It said under those circumstances, the gun actually has to be involved in facilitating the crime.

[01:12:53] Speaker 03:
The logic behind that provision 924C is that guns increase the dangerousness of the offense, the underlying offense.

[01:13:03] Speaker 03:
That's the same logic that the Sentencing Commission says underlies the gun bump in 2D1.1.

[01:13:15] Speaker 03:
The Supreme Court said it's got to be actually involved in some way for 924C to come into play.

[01:13:23] Speaker 03:
In this context, there has to be some clear link between the gun and the drug transactions to bring 2D1.1's enhancement for guns within the sentencing scheme for this crime.

[01:13:44] Speaker 03:
Under the circumstances of this case, that clearly is not here.

[01:13:50] Speaker 06:
All right.

[01:13:50] Speaker 03:
Thank you.

[01:13:51] Speaker 06:
Thank you.

[01:13:51] Speaker 06:
Mr. Strand.

[01:14:00] Speaker 04:
May it please the Court, Stratton Strand, on behalf of the government.

[01:14:04] Speaker 04:
As this Court stated in Jones,

[01:14:07] Speaker 04:
the as-applied theory that appellants are suggesting this court go en banc to consider, no Supreme Court majority has ever recognized the validity of.

[01:14:19] Speaker 04:
That's what Jones said.

[01:14:20] Speaker 04:
And that continues to be the case because six members of the Supreme Court denied cert in Jones.

[01:14:24] Speaker 04:
So there's no basis for en banc review of the settled precedents of this and every other court that has considered the issue.

[01:14:33] Speaker 04:
As to the gun bump,

[01:14:36] Speaker 04:
Mr. Becker simply misquoted the relevant application note.

[01:14:43] Speaker 04:
The application note states, if I may, that the enhancement reflects increased danger of violence when drug traffickers possess weapons.

[01:15:03] Speaker 04:
and the adjustment should be applied if the weapon was present unless it is clearly improbable that the weapon was connected with the offense."

[01:15:12] Speaker 04:
Mr. Becker added with the offense of conviction, and that is not language that's in the provision.

[01:15:18] Speaker 04:
The provision, it's settled law that specific offense characteristics like the gun enhancement

[01:15:25] Speaker 04:
apply to relevant conduct and relevant conduct is determined on the basis not just of the offenses of conviction but of all of the conduct that is relevant and that the court specifically found to be relevant.

[01:15:40] Speaker 04:
The suggestion that there was no basis

[01:15:43] Speaker 04:
for connecting the gun found in this 1996 search of Mr. Bell's bedroom.

[01:15:51] Speaker 04:
There's no basis for connecting that to the conspiracy itself as refuted by the trial court's own careful findings.

[01:15:58] Speaker 04:
The trial court noted

[01:15:59] Speaker 04:
that the gun was found in Mr. Bell's bedroom during the life of the crack conspiracy.

[01:16:07] Speaker 04:
It was found hidden in the closet in proximity to other tools of the narcotics trade.

[01:16:14] Speaker 04:
Again, the court specifically was finding that guns as the gun enhancement itself recognized

[01:16:21] Speaker 04:
go hand in hand with drug trafficking and the court specifically found that this gun was in fact related to the drug trafficking in which Mr. Bell was involved for the entire period from 1992 through 2003 at the latest.

[01:16:40] Speaker 04:
Therefore, there was ample basis for the court's application of the firearm enhancement.

[01:16:49] Speaker 04:
If the court has no further questions, we would ask that you affirm the sentences of Mr. Bell and Mr. Wilson.

[01:16:57] Speaker 06:
All right.

[01:16:57] Speaker 06:
Thank you.

[01:17:02] Speaker 06:
Mr. Becker.

[01:17:03] Speaker 03:
Thank you.

[01:17:07] Speaker 03:
Just to come back to the issue of the offense, I think even with regard to relevant conduct, there needs to be a temporal and

[01:17:17] Speaker 03:
real link between the relevant conduct and the crime of conviction.

[01:17:23] Speaker 03:
What the sentencing guidelines punish is the crime of conviction.

[01:17:28] Speaker 03:
And without either a temporal connection or a logical connection here to the crimes for which Mr. Bell was convicted,

[01:17:38] Speaker 03:
The gun is not present in this case anymore.

[01:17:43] Speaker 03:
The mere fact that it was involved in the conspiracy that was acquitted, if that's the standard, that any defendant who is a drug dealer, who has at some time in his past, within the time frame of the case when it started, has had a gun, will be penalized under the gun bomb.

[01:18:06] Speaker 03:
regardless of the connection between that gun and the crimes for which the person was actually committed.

[01:18:13] Speaker 03:
And that's a, I think, a very broad reading of that guideline and is not warranted by, certainly, by the application.

[01:18:22] Speaker 03:
Thank you.

[01:18:23] Speaker 06:
All right.

[01:18:23] Speaker 06:
Mr. Becker and Ms.

[01:18:25] Speaker 06:
Engler, you were both appointed by the court to represent your clients, and you've done an able job in the court.

[01:18:31] Speaker 06:
Thank you.