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Case number 13-3019 at L, United States of America v. Henry Brandon Williams, appellant.

[00:00:10] Speaker 04:
Good morning.

[00:00:11] Speaker 06:
Good morning, Your Honor.

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I'm Stephen LaCarre, and I'm going to argue on the issue primarily of necessity and the failure to hold a frank hearing, and I've asked for three minutes of rebuttal.

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Essentially, Your Honor, our position – and I want to focus on the March 11th

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2011 wiretap extension.

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The reason I want to focus on that is essentially the vast majority of the government's evidence dealing with the storage shed was revealed as a result of that wiretap extension application.

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Our position is that the government has told you

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that the reason the agents sought to extend the wiretap on March 11th was because they were looking to find the suppliers.

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The problem with the application is that they had been overhearing communications on target telephone number two.

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That was the subject of a wiretap application for two months.

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And not once, not once had any reference come across the intercept as to supply.

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So there was no reasonable basis for them to believe that a continuation of a T-22 wiretap was going to pick up any indicia of supply-side transactions.

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Beyond that, they had a pretty good idea who the supplier was.

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They recognized that it was Mr. Edwards.

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And how do we know that?

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Because we know that in March 19, when they sought to do a wiretap on TT3, a different telephone, they disclosed the existence of a confidential source, CS4,

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who had worked with him for 10 years and who knew Mr. Edwards, Mr. Richards, Mr. Moore, and Mr. Bowman had given the government information that was not disclosed.

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It wasn't disclosed on March 11th about the nature of the conspiracy that the government was investigating.

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Is this the way you argued it in your brief?

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I don't recall you arguing in your brief.

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that the March 11th extension wasn't needed because it was going to be futile.

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No, our argument as to March 11th, Your Honor, was this.

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The government brought up supply side in its opposition briefing.

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We dealt with supply in our rebuttal.

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What we said in our opening brief was that there was no necessity to do a continued wiretap on March 11th for the reason that the agents, which they'd had a wiretap going on for two months, they picked up an enormous amount of information at that point.

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And hundreds of hours of communications that they intercepted.

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That seems to be a different argument than you're making now.

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I mean, it's one thing to say that you don't need the wiretap because you can find information through other investigative techniques.

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Now it seems like you're making an argument that

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They didn't need the wiretap because it wasn't going to show anything because it hadn't shown anything in the time that it had already been issued.

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That's partially correct, Your Honor.

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I'm addressing the government's position that they articulated in their opposition brief that the reason they want, and I said this in our reply brief, that they wanted the extension on TT2 to deal with the supply side issue.

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So what we said in our reply brief was there was no indication on TT2 that they were going to pick up any supply-side transactions.

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That wasn't – in fact, supply-side was only mentioned twice in passing in the application to extend the wiretap on March 11th, as in the joint appendix 380 and 394.

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I'm dealing with an argument here that the government raised in its opposition.

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I think it's a powerful point to recognize there was no basis to believe after two months of continued wiretapping on TT2 that they were going to pick up any supply side transactions.

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In fact, they had been following Mr. Edwards.

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who they suspected was the supplier for two months.

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Agent Bevington had been following him since January.

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In addition to that, they'd been doing visual surveillance photographs of Mr. Edwards and Mr. Bowman and Mr. Edwards' sister's residence and Mr. Bowman's residence.

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They did an ELSA electronic surveillance application on March 9.

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So they knew who Gizo Edwards was, and they recognized his role.

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But to say that they were seeking an extension of the wiretap to pick up the supply side just isn't consistent with what we believe the facts to be.

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And insofar as the retail side, the argument that the government raised essentially is, well, we want to know everything.

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But you always want to know everything with a traumatic intrusion like a wiretap so it can help you know everything.

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The question is, was it truly necessary at that point?

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Because when Title III was enacted, what Congress was trying to do was to say, yes, if you make a show of necessity, you can wiretap.

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If you don't just get the wiretap willy-nilly, you've got to convince the magistrate, the judge, the issuing judge that there is truly necessity.

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And that applies at the beginning and at every step that you seek an extension of the wiretap.

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Here, on March 11th, they picked up, they had hundreds of hours of communications.

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They have not identified anybody new.

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Anybody knew that they picked up after March 11th.

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They didn't know of well before and as to whom they hadn't accumulated literally hundreds of hours of intercepts.

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What should we make of the fact that

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I guess on the TT2 extension on March 11th and then the TT3 application that came later, that they named different people.

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You know, on the TT3 application, some people dropped off, other people were added.

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I mean, doesn't that show that they were trying to be careful about who they were naming and who they were?

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Well, the problem with these is that the judge of the just cold tell it did not allow Frank's hearing of this issue.

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We could have found out essential and one was requested who they knew and when they knew what they what they they believe the people are up to.

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We've identified in our reply brief and I've been referring to pages 18 to 20.

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that we knew the government admits in its opposition as to 11 people, but they knew at that point.

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And they haven't said everybody they knew, but all indications, Judge Wilkins, are that they knew everybody.

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that they were really focusing on.

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The fact that they added additional people, that doesn't mean they didn't know them before.

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I think more first surfaces on March 19th, if I'm correct, and more they knew about back in January.

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They were surveilling him.

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So the fact that they didn't necessarily state every single person,

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on March 19th, but we don't know because there's been no access to their investigatory files as to who they knew and when they knew it.

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All we can work with, because there was no franks hearing upheld, although one was requested, was what have they told us?

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Who have they identified that they knew?

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And that much is pretty clear of about 11 people that they've identified that they knew as of March 11th.

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And they knew they had no difficulty following people, although they claimed that, well, there was a need to avoid furtiveness.

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There was nothing like that here.

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And most importantly, they had confidential source number four, whose all intents and purposes appears to have been highly placed and to have had intimate knowledge of the operation.

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So I see I'm eating into my time.

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So with that, I will reserve the rest of my time.

[00:07:57] Speaker 03:
Fine.

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Thank you.

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Unless the court has any questions.

[00:08:13] Speaker 00:
Good morning.

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May it please the court?

[00:08:15] Speaker 00:
Nate Coleman for the United States.

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I'd like to begin by addressing the last point that counsel made about CS4, because I do want to clear up some confusion.

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As Agent Pock made clear when he described to the district court what CS4 had provided, CS4 was a person, a paid informant, who had worked for the government for a long time.

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who had known some of these people, Edwards, Bowman, Richards, had seen them in the neighborhood, was aware of their past, and believed in what he observed, that they were engaged in drug trafficking.

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He was not, however, a highly placed source.

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He was not a part of the organization.

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He did not have access to that kind of information.

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And as Agent Puck stated in his affidavit,

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because of CS4's relationship with these people, he was not in the position even to try to purchase drugs.

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In other words, for whatever reason, his relationship was not one, and obviously I can't discuss the particulars of who he was or who she was, but this person basically did not have that kind of access.

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So I do want to clear that up for the record.

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I'd like to begin, however, by addressing

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The main point that I think Council is making here about the March 11 extension, which appears to be that it was that the TT2 was no longer needed because at that point the government was only looking for the source of supply and somehow the TT2 line had nothing to do with the source of supply.

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That's simply not correct.

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during the conversations that Mr. Bowman had over TT2 with his various retail distributors in Washington, D.C., he would repeatedly refer to when shipments were coming in.

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He would also talk about how he could go to his man or to various people to try to get drugs for these various distributors when the initial supply was done.

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So there were a lot of references to supply.

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And in fact, if you look at the TT3 application,

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Agent Hock made clear that part of the reason why the government wanted to wiretap TT3 was because the timing of the calls that Mr. Bowman had been making over TT3, when compared to the intercepted communications on TT2, strongly suggested that Mr. Bowman was using TT3 to contact his source of supply, who was believed at that point to be Edwards.

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So again, it's simply not the case that TT2 was now unnecessary.

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What's the rhyme or reason to kind of why the government named certain individuals in the March 11 extension and different individuals in the TT3 application?

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Well, again, the government is required by statute to name the persons as to which the government has probable cause to believe they're involved in the enterprise and that they believe that their communications will be intercepted over that line.

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So that was the policy that the government was following at that time.

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I would point out, as we made clear in the brief, the government has, since this investigation concluded, has changed its practice.

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So now, in a wiretap application, the government will name all persons believed to be a part of the organization, because they might show up on the line, even if they don't expect that they will be using that particular telephone line.

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And certainly, as of March, when the TT2 extension was applied for, at that point, and appellants concede this, there had not been a single recorded call at that point between Bowman and Edwards over the TT2 line.

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So they didn't have any reason to believe that Edwards would be heard communicating over TT2 at that point.

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But after the extension, Edwards was heard on that line.

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Yes, he was heard at some point after the final extension.

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So obviously, if there had been a re-extension at that point, they would have named him.

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But that doesn't render the march.

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Obviously,

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unexpected things can happen but at that point the government certainly had a lot of pen register data and that's a point I'd like to turn to in just a second.

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They had a lot of pen register data over the course of months and had not over those course of months seen any communications over the TT2 line between Bowman and Edwards specifically.

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Another point that I think needs to be made is that the

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Marsh TT2 reauthorization, it was necessary not simply as part of the ongoing efforts to find out the source of supply, but also to try to figure out the full network of Mr. Bowman's retail distributors throughout Washington, DC.

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I think one of the important things to note is that there were an awful lot of transactions that were discovered between Bowman and his distributors, including between Bowman and Williams.

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after that application went through.

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The March 21st transactions involving Williams and Bowman would not have been discovered without the TT2 line because that was what tipped off the

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investigators that they were going to be meeting, not as one of a number of people who would be meeting with Mr. Bowman that day after Mr. Bowman.

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Mr. Bowman, maybe you can help me out.

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A lot of the agents affidavits do read somewhat as boilerplate.

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And knowing as we do that Congress is very concerned about keeping limits on this highly intrusive form of surveillance,

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And following the logic of your argument that it's much more revealing, it's helpful, it seems like in every case law enforcement could say, well, we can't through traditional investigative methods get all the information we need.

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And I guess what I'm asking you is,

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What can you assure us remains in terms of limitation on this mechanism if we approve a wiretap or sustain approval of a wiretap based on these affidavits?

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What narrows this?

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What makes this really stand out?

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I think as the judge found in this case in addressing this very concern as to whether or not the fact that the same things that Agent Pock was saying in the affidavits here had also been said in connection with other investigations,

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As the district judge said, that doesn't mean that they aren't true with respect to this investigation.

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And I think one of the important things to note is that the statute is very clear as to what kind of crimes can be investigated this way.

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It is very clear that there has to be a pretty high level interdepartmental

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a review of any wiretap application, even before it goes to a district judge.

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So there has to be quite a bit of investigative legwork.

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There has to be a determination as to why it's necessary, what it's going to achieve with respect to this investigation.

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And I think what is true is that by the time a wiretap application goes before a judge and the judge approves it,

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In almost every case, it's going to be the kind of criminal enterprise and the kind of investigation that is going to require a wiretap.

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The small-time criminal operation involving only a couple of people, sure, that's probably not going to require a wiretap, and the government isn't going to seek a wiretap in those kind of cases.

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These are enormously expensive and time-consuming operations.

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They aren't easy to carry out.

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And so it's not the case that the government's just going to do willy-nilly.

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It's certainly not under this statute.

[00:16:13] Speaker 02:
Is there any such thing as a small-time drug operation?

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I mean, given that there are people in the position of basically retail, like Mr. Williams in this case, they're connected to something big always.

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So I'm not sure, well, at least in the drug world, that really is much of a limitation.

[00:16:35] Speaker 00:
Well, I think it is in this sense.

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By the time the government's going to go forward and get a wiretap, they're not just going to be looking at one street-level dealer or even just that street-level dealer and their immediate distributor.

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They're going to have an indication, as in this case, as in other cases like Eland and others, that this is a pretty wide-ranging network.

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In other words, this isn't just a couple of people running drugs and selling on their own.

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This is a pretty big network.

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And that's exactly what was at issue in this case.

[00:17:06] Speaker 02:
And why not, for example, GPS technology and traditional surveillance to follow a car to a warehouse?

[00:17:13] Speaker 00:
Right.

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I think, first of all, GPS technology can show you when a person's car is moving.

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But, for example, Mr. Bowman very frequently accessed the storage unit by taking the cab.

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He was pretty careful about that.

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In fact, it's interesting when you read through the evidence how many times this organization used taxi cabs.

[00:17:38] Speaker 02:
And then there's a GPS capability on the very phones that are being tapped.

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Is there a way for the government to just follow the location information without following the voice data?

[00:17:49] Speaker 00:
Well, cell site data can give you, depending on where the person is, can give you some indication of what location they're at, but it's not

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Perfect, it's not pinpoint.

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And the ability to necessarily figure out from somebody's cell phone exactly where they're going, it isn't quite as easy as my understanding from when I've looked at how these kids, how that evidence had- Are frustrations with Uber kind of bear that out?

[00:18:17] Speaker 00:
Well, exactly.

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It's not that, it's just, it's not always easy to pinpoint some of these exact locations.

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And I think the other problem with sort of like visual surveillance, now there's just putting tails on people.

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One can do that to a point, but when you are tailing somebody 24 hours a day or every time they leave their house, the risk of detection increases exponentially.

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And the idea that the government should have to attempt that and risk tipping off

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someone like Mr. Bowman, who is a wealth of information because he's the main wholesale distributor.

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If you tip him off and he then basically goes underground, you've lost a huge ability to try to figure out who he's working with.

[00:19:07] Speaker 01:
Let me ask a question about materiality and how that affects our enforcement or oversight of the statute.

[00:19:20] Speaker 01:
It's your position, and it's supported by cases, that as long as if there's something that's left out of the statement,

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that's in the affidavit, and it turns out to not be material, as Franks v. Delaware would say is material, then basically no harm, no foul.

[00:19:46] Speaker 01:
So if there's an omission from the affidavit, or if there's something that's false that's included in the affidavit, as long as that

[00:19:58] Speaker 01:
wouldn't affect the ultimate probable cause determination, there's no reason to find a violation, right?

[00:20:09] Speaker 01:
That's your position.

[00:20:10] Speaker 00:
Yes, that's correct.

[00:20:12] Speaker 00:
Yes, I mean, you have to show prejudice.

[00:20:13] Speaker 00:
You have to show, in other words, that this would have made an impact.

[00:20:17] Speaker 00:
And I would point out here that there's been no allegation, certainly no substantive allegation here, that anything Agent Popp said was actually false.

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The only quibbling that's going on here is to whether or not he disclosed everything that he knew.

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But as this court and other courts have been very clear, the government doesn't have to disclose everything that it knows.

[00:20:37] Speaker 00:
I mean, at some point, you know, it could attach hundreds of pages of pen register kits and submit all the videotapes that it has to the authorizing judge, but it wouldn't, you know, that's not going to make a difference.

[00:20:54] Speaker 02:
of a straw argument, I think, because, I mean, the government has an idea of what's really material.

[00:20:59] Speaker 02:
You've sorted things through.

[00:21:01] Speaker 02:
You're in an ongoing investigation.

[00:21:02] Speaker 02:
You would know what a judge would want to know.

[00:21:04] Speaker 02:
And I think the argument, the contention, is that things that were clearly material were not included.

[00:21:10] Speaker 00:
Right, and I don't think any showing of that has been shown, been made in this case, Your Honor.

[00:21:14] Speaker 00:
I don't think anything here that there was nothing that was kept out that was actually material.

[00:21:21] Speaker 00:
Agent Pock was very clear that these other kinds of traditional investigatory methods were going on, hand registers, visual surveillance, the attempt to use confidential buyers from Mr. Bowman.

[00:21:35] Speaker 00:
Agent Pock described the evidence that that had provided

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But then also went on to describe why it wasn't enough and why it had failed to show the full extent of Mr. Bowman's distribution efforts, but also his source of supply.

[00:21:51] Speaker 00:
And I think in this case, both the authorizing judge made the correct determination that Agent Park was correct about that.

[00:21:58] Speaker 00:
And the reviewing judge made the same correct assessment here.

[00:22:05] Speaker 01:
I guess the problem that I have, and it may be just the problem with the way that the case law has evolved over the last 40, 50 years, is that your approach in this case seems to read the words full and complete basically out of the statute, because

[00:22:30] Speaker 01:
Congress could have just said, give us a statement of necessity.

[00:22:35] Speaker 01:
The way that you analyze materiality, we'd have the exact same result.

[00:22:43] Speaker 01:
Because you would say, as long as the statement doesn't omit something that is material in the frank sense, then the statement is fine, right?

[00:22:55] Speaker 01:
So what does full and complete add?

[00:22:59] Speaker 00:
I think it has to be more than just a conclusory statement.

[00:23:04] Speaker 00:
Obviously, it would be inappropriate if the agent were to come in and simply say, it's necessary.

[00:23:08] Speaker 00:
We've tried other stuff.

[00:23:10] Speaker 00:
And I can assure you, it wasn't enough.

[00:23:14] Speaker 00:
That was not what happened here.

[00:23:15] Speaker 00:
I mean, all of these affidavits go on for 40 plus pages describing what efforts the investigators had taken, what evidence had been

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generated and why it was insufficient.

[00:23:27] Speaker 00:
Obviously, you know, it wouldn't be very useful to a reviewing judge to have everything put there because ultimately, you know, that would list every call that had been made or even, I mean,

[00:23:42] Speaker 00:
And I submit that in this case, in fact, Agent Pock did describe.

[00:23:47] Speaker 01:
They're not even taking that position in their briefs, as my colleague said.

[00:23:51] Speaker 01:
They're saying that some things like the fact that there was a PIN register.

[00:23:55] Speaker 01:
on another phone was a discourse.

[00:23:58] Speaker 02:
That showed the connections between Edwards and Bowman.

[00:24:01] Speaker 00:
I'm not sure that that was the, I'm not sure why the pen, the fact that there was a pen register, first of all, was disclosed.

[00:24:09] Speaker 00:
Agent Park described the pen registers that were in place and what data had been generated as to why they thought that TT, for example, beginning with TT2, why TT2 was a necessary line.

[00:24:23] Speaker 00:
When the TT3 application was submitted, your prop described in pretty good detail why they believe that this particular line, which was registered to Mr. Bowman, was likely being used to communicate with Mr. Edwards about the drug supply.

[00:24:39] Speaker 00:
So I don't think that Agent Pock here could be accused of having left anything out about pen register data.

[00:24:46] Speaker 00:
What he did was he described what it had generated, but why it wasn't sufficient without knowledge.

[00:24:50] Speaker 02:
Mr. Coleman, I think some of those particular things, they're not saying give us the whole haystack.

[00:24:54] Speaker 02:
You know, you should give the court the whole haystack.

[00:24:56] Speaker 02:
I think the specific things they said was that, yeah, there were pen registers, but what Pock didn't say was that they'd already established an Edwards-Bohman connection through the frequency of contact between the Edwards and the Bohman phone, that that wasn't

[00:25:09] Speaker 02:
specified by POC that there was a CS4 had detailed relationship between Edwards and Bowman and Richardson that weren't actually explained Edwards and Bowman's physical proximity and I think I mean maybe you've responded to this because I thought you well explained the

[00:25:27] Speaker 02:
symbiosis between the extension on TT2 and the TT3 and the timing and it allows a corroboration between the supply side and the retail side.

[00:25:39] Speaker 02:
So maybe that is a, you know,

[00:25:42] Speaker 02:
explanation why TT2 is still needed.

[00:25:44] Speaker 02:
But I think they're sort of saying, look, you've got information about a relationship, and you're not expecting to find out about Edwards on TT2.

[00:25:51] Speaker 02:
You are expecting to find out about Edwards on TT3.

[00:25:54] Speaker 02:
You need to put that, explain to the judge why you still need TT2.

[00:25:58] Speaker 02:
And I'm not sure the explanation you gave us here today was adequately made at the time.

[00:26:02] Speaker 00:
I'm not sure I, Dan, I apologize.

[00:26:04] Speaker 00:
I'm not sure that I had understood the question correctly then.

[00:26:07] Speaker 00:
The answer to that, I think, simply is this.

[00:26:10] Speaker 00:
The TT2 line did relate somewhat to the supply, but it was mostly, as by that time, certainly by March, it was clearly more relevant to determine the full scope of Bowman's retail distribution operations.

[00:26:27] Speaker 00:
As to that, the existence of his relationship with Mr. Edwards was somewhat tangential.

[00:26:34] Speaker 00:
Because after all, they didn't have any reason to think that Edwards was involved in his retail distribution side.

[00:26:40] Speaker 00:
They did have some reason to suspect that Edwards was involved with Mr. Bowman somehow on the supply side.

[00:26:47] Speaker 00:
But again, having not heard any communications between Bowman and Edwards on TT2 up to that point, or seen any such things,

[00:26:56] Speaker 00:
that wasn't relevant to the assessment of the necessity of TT2.

[00:27:02] Speaker 00:
Again, the TT2 line did have some relevance to the supply side.

[00:27:06] Speaker 00:
It did have a significant relevance to it because it showed when the retail distributors were contacting Bowman, Bowman would talk about whether he had supply, when he expected to get a supply,

[00:27:19] Speaker 00:
And so that was extremely, and then of course, when it was tied up to communications between him and Edwards, it began, it was certainly a lead as to whether or not Mr. Edwards was the source of supply.

[00:27:31] Speaker 00:
But it would have done nothing to reduce the necessity for the TT2 line.

[00:27:36] Speaker 00:
That's why it's not material, and that's why there was no material omission here, such that the Frankfurt hearing was required.

[00:27:47] Speaker 00:
If there are no further questions, I respectfully submit that as to this issue, the judgment of the district court be affirmed.

[00:27:52] Speaker 00:
Thank you.

[00:27:59] Speaker 06:
The problem with the government's argument is that there was no frank showing below, so we're limited in facts.

[00:28:06] Speaker 06:
Make sure you speak into the microphone.

[00:28:08] Speaker 03:
I'm sorry.

[00:28:08] Speaker 03:
Right, so the tape shows it.

[00:28:10] Speaker 06:
I apologize.

[00:28:11] Speaker 06:
The problem with the government's argument.

[00:28:13] Speaker 03:
This is Mr. Lacar.

[00:28:14] Speaker 03:
Lacar.

[00:28:17] Speaker 06:
The problem with the government's argument is that there was no franks here and below, so we can only work with the record as we were given it.

[00:28:24] Speaker 06:
And that's primarily off the affidavits of Mr. Agent Pack.

[00:28:29] Speaker 06:
Now, let me talk about Gizo Edwards, because this is really the heart of the argument.

[00:28:33] Speaker 06:
They don't explain to you anywhere why conventional methods of surveillance couldn't have picked up what Mr. Edwards was up to.

[00:28:40] Speaker 06:
It is clear they knew his role.

[00:28:42] Speaker 06:
They wouldn't have done an ELSER check, an electronic surveillance record check, on March 9

[00:28:46] Speaker 06:
if they weren't focusing heavily on Mr. Edwards, who they've been following since January of 2011 in an investigation that had been going on for two years.

[00:28:56] Speaker 06:
There was no evidence that Mr. Edwards or for that matter Bowman or anybody else was aware of the nature of the investigation.

[00:29:03] Speaker 06:
Nobody had ever detected anything.

[00:29:05] Speaker 06:
So if the government's argument that maybe the agents wanted a wiretap to avoid being caught surveilling, that's unavailing because there was no evidence about it occurring.

[00:29:16] Speaker 06:
They could easily, easily have followed Mr. Edwards as Agent Bevington did.

[00:29:20] Speaker 06:
That's in the record.

[00:29:21] Speaker 06:
He followed him.

[00:29:21] Speaker 06:
He took pictures of him meeting with Mr. Bowman.

[00:29:24] Speaker 06:
Now, Judge Wilkins, you asked about full and complete.

[00:29:28] Speaker 06:
I don't take the position that every jot and tittle has to be put down.

[00:29:32] Speaker 06:
But what I do take the position is this, that you have to give, if you're an agent, you have to give an issuing judge enough information so that he or she can determine, is this really necessary?

[00:29:44] Speaker 06:
Or could conventional methods do?

[00:29:47] Speaker 06:
And in this case, conventional methods certainly could follow.

[00:29:50] Speaker 06:
Judge Pollard, your question about GPS.

[00:29:53] Speaker 06:
I guess I have a little experience with GPS appellate litigation.

[00:29:56] Speaker 06:
And if they really thought that they needed a GPS, it would have been easy, easy to seek a warrant for a limited period of time on Mr. Bowman.

[00:30:05] Speaker 06:
And insofar as a taxi getting into the storage center, all they had to do was you find where the storage shed is, you get the records, then you look at the video surveillance.

[00:30:16] Speaker 06:
All storage sheds of facilities like this have surveillance of who's coming in and going back and forth.

[00:30:21] Speaker 06:
And you do it the right way.

[00:30:23] Speaker 06:
You do it with conventional methods.

[00:30:25] Speaker 06:
It is simply not the case that in every single instance of a drug conspiracy that wiretapping is due to occur.

[00:30:33] Speaker 06:
The court says to decide one thing.

[00:30:35] Speaker 06:
Is it really necessary at some point?

[00:30:37] Speaker 06:
You have to balance privacy interests.

[00:30:39] Speaker 06:
And that's all we're asking you to do.

[00:30:41] Speaker 03:
Thank you.

[00:30:49] Speaker 05:
Good morning.

[00:30:50] Speaker 05:
My name is Ed Sussman.

[00:30:51] Speaker 05:
I represent Henry Williams.

[00:30:52] Speaker 05:
And in the time allotted to me, my goal is to persuade the court of three things.

[00:30:58] Speaker 05:
First, that the unique facts of this case support a conclusion of multiple conspiracies, that the appellant Henry Williams was not part of the single conspiracy charged in the indictment, and perhaps most importantly, that the trial judge committed reversible error by failing to give a multiple conspiracy instruction under these facts.

[00:31:19] Speaker 05:
The conspiracy, as has been discussed, should be the product of the choices and relationships of the various participants.

[00:31:28] Speaker 05:
What we see and see more often, and I think we see in this case, is that the conspiracy becomes structured by the government's mode of investigation.

[00:31:37] Speaker 05:
In the instant case, the government has chosen the wiretap, and my colleague has spoken to that, and it's tantamount to fishing with a net.

[00:31:45] Speaker 05:
Everyone who comes through that wiretap becomes charged as part of that conspiracy, and that's exactly what you've seen.

[00:31:52] Speaker 05:
What is lacking is the kinds of relationships that would comport with the traditional analysis that was first, I think, promulgated in USP Tarantino.

[00:32:03] Speaker 05:
You have a chain, you have a wheel.

[00:32:06] Speaker 05:
As I tried to portray in my reply brief, that oftentimes, and in particular in this case, what you have is an undifferentiated kind of structure.

[00:32:17] Speaker 01:
Can you just direct us to where in the record

[00:32:21] Speaker 01:
The multiple conspiracy instruction that was requested below appears.

[00:32:28] Speaker 01:
Were the requests for it appears?

[00:32:31] Speaker 01:
The text of the instruction, what would the instruction have said?

[00:32:35] Speaker 05:
I wasn't trial counsel.

[00:32:38] Speaker 05:
My understanding, and I can't recall from the record exactly what the suggested language was, I would assume it would have been a standard multiple.

[00:32:45] Speaker 03:
Well, why don't you provide that to the court for the record?

[00:32:48] Speaker 05:
I will, but I'm obviously not in any position to do that.

[00:32:51] Speaker 05:
Let's not assume.

[00:32:52] Speaker 05:
I'm sorry, ma'am?

[00:32:53] Speaker 03:
Let's not assume.

[00:32:55] Speaker 05:
I will.

[00:32:56] Speaker 05:
I'll go back through the records and send that on to the court forthwith.

[00:33:00] Speaker 01:
But I guess my point is that you're arguing that there was an error in not providing an instruction.

[00:33:08] Speaker 01:
But what I can't gather from the brief is what would that instruction have said that is different than the instructions that were given.

[00:33:19] Speaker 01:
so that we can assess whether it was error and whether that error was prejudicial.

[00:33:25] Speaker 05:
Well, clearly the intent of the counsel for Mr. Williams at trial was to ask the court to give a multiple conspiracy instruction that the conspiracy charge, the single conspiracy, would vary from the multiple conspiracies and to use that as a weapon in his argument.

[00:33:46] Speaker 05:
Along that line, I think it's significant for the court to note that when the jury returned its verdict, the jury did not, as the government requested, find Mr. Williams guilty of five kilograms or more, or even 500 grams or more.

[00:34:00] Speaker 05:
The jury made no quantity finding, which is, inferentially, gives some indication to the court that the jury was looking at something different than it was looking at for... Or that he was a lesser player.

[00:34:17] Speaker 05:
Potentially or possibly but that's why the nature of the request becomes significant Well, as I said, I'm sorry, I'm at a loss on that and I'll supply it to the court if the record does show that I'm I can go back to trial counsel and ask that or I mean you appreciate the significance of the question I do appreciate the significance and I apologize for not not noting it in my preparation

[00:34:41] Speaker 05:
But I do believe if you look at the nature of this particular conspiracy, you have four major players who've been named before, and you have an offshoot.

[00:34:53] Speaker 05:
Mr. Bowman, who does... And then you have...

[00:34:56] Speaker 05:
12, 10, or 12 buyers who have nothing to do with one another, have no knowledge of one another on the record, have no contact with one another, nor any interdependence with one another.

[00:35:09] Speaker 05:
In short, they form the wheel without the rim.

[00:35:13] Speaker 05:
That is in traditional analysis of a conspiracy.

[00:35:17] Speaker 05:
So the notion that there is a single conspiracy stemming from the stash house to

[00:35:24] Speaker 05:
the end product of the unformed wheel, I think is incorrect.

[00:35:30] Speaker 02:
So you would want a conspiracy of each retail salesperson with Bowman.

[00:35:39] Speaker 05:
And I think that would make up the multiple conspiracy, yes.

[00:35:42] Speaker 02:
And then Bowman's conduct becomes ascribable to each retail person through the smaller conspiracy.

[00:35:51] Speaker 05:
or his conduct through the larger conspiracy in which he's clearly a shared participant.

[00:35:58] Speaker 02:
I was going to say, each retail defendant is, even if their conspiracy is a limited one, it's going to include the big fish, or at least the hub guy.

[00:36:08] Speaker 02:
So I'm a little bit missing what you gained from that.

[00:36:13] Speaker 05:
Well, my argument would be that Bowman has entered into multiple conspiracies with each of the 10 named and indicted persons.

[00:36:21] Speaker 05:
Potentially, you could extend that to their customers who are unknown.

[00:36:25] Speaker 05:
But the notion that he is, that all of those people who have no interdependence, don't look out for each other, don't share profits, don't negotiate together, don't do all the things,

[00:36:34] Speaker 05:
that one would do in a conspiracy.

[00:36:36] Speaker 02:
But the really damning thing about someone in Williams' position is not that there are other people in his position that he's grouped together with by being part of the main conspiracy, but that he's together with the person he's buying from.

[00:36:49] Speaker 02:
And either way, small conspiracy that you propose or big, he's grouped together with Bowman.

[00:36:55] Speaker 02:
Right?

[00:36:56] Speaker 02:
He's conspiring, maybe not with all the other buyers, but with the hub.

[00:37:01] Speaker 05:
Well, then the court is saying the equivalent of everyone who sells drugs is a conspirator with someone.

[00:37:09] Speaker 05:
You get it from someone, you sell it to someone.

[00:37:11] Speaker 02:
I think the structure of the thing matters.

[00:37:13] Speaker 02:
You know, who is your one degree of separation person?

[00:37:17] Speaker 02:
And if there's going to be a conspiracy charge here at all, it's going to connect people who deal directly with Bowman with Bowman.

[00:37:26] Speaker 02:
Maybe I'm missing something.

[00:37:27] Speaker 05:
No, but I think you're coming dangerously close to making conspiracy a status crime.

[00:37:33] Speaker 02:
No.

[00:37:34] Speaker 02:
I do think it associates people with other people who do bad things and attributes their illegal conduct.

[00:37:41] Speaker 02:
And that's the nature of conspiracy, which is a troubling concept.

[00:37:44] Speaker 02:
But that's true in every case.

[00:37:50] Speaker 02:
So I think the structure of the relationships do matter.

[00:37:54] Speaker 02:
And I'm not sure the structure here is one that really demands the separate instruction that you're asking for.

[00:38:00] Speaker 02:
And I'm just probing whether you can give me more on that.

[00:38:03] Speaker 05:
I think the government chooses how to indict this case, obviously.

[00:38:06] Speaker 05:
And the choice they made was to indict everybody

[00:38:08] Speaker 05:
who was similarly situated to Mr. Williams.

[00:38:11] Speaker 05:
That was clear.

[00:38:12] Speaker 05:
And there was absolutely no evidence that Mr. Williams had any contact with those people, had any knowledge of their existence.

[00:38:18] Speaker 02:
It's really, it feels like a severance, it feels like you're making your severance argument in the form of a multiple conspiracy charge claim.

[00:38:25] Speaker 02:
And, you know, that's very much within the discretion of the district judge.

[00:38:30] Speaker 05:
It is up to the discretion of the district judge.

[00:38:32] Speaker 05:
And Williams was further disadvantaged by being the only one of the real defendants who sat through the trial, who went to trial.

[00:38:40] Speaker 05:
And perhaps had there been more people there, they would have been more telling in terms of the actual... But that cuts against you, doesn't it?

[00:38:49] Speaker 02:
The prejudice is not really there.

[00:38:52] Speaker 02:
Prejudice from non-severance, whatever there may have been, is there.

[00:38:56] Speaker 02:
But the distinct prejudice from no separate instruction, it's just unclear to me how any such prejudice, assuming there were such prejudices, would be mitigated.

[00:39:06] Speaker 05:
Well, as Judge Rogers indicated, the jury, inferentially, was at least saying, well, he might have been a lesser player, or he might have been involved in something totally different.

[00:39:16] Speaker 05:
than the tinker's-diver's-the-chance kind of conspiracy we typically see as a chain.

[00:39:24] Speaker 05:
Clearly, he had no knowledge of the Stash House, its existence, its placement, the weapons, nor did he have any knowledge at the other end.

[00:39:32] Speaker 05:
What he knew was Bowman.

[00:39:33] Speaker 02:
Can I ask you, Mr. Sussman, this is a little bit of a change of topic, but are you going to address at all the Agent Bevington testimony

[00:39:42] Speaker 05:
No, I think one of my colleagues is going to do that.

[00:39:47] Speaker 05:
So if there are no further questions, I think that concludes my presentation.

[00:39:51] Speaker 02:
Oh, that's right.

[00:39:52] Speaker 02:
I apologize.

[00:39:52] Speaker 02:
You switched sequence.

[00:39:56] Speaker 05:
Scared me for a minute.

[00:39:57] Speaker 03:
All right, thank you.

[00:40:06] Speaker 00:
Thank you.

[00:40:06] Speaker 00:
Once again, Nick Coleman for the United States.

[00:40:13] Speaker 00:
To follow up on what Mr. Sussman was saying, that somehow Mr. Williams was solely dealing with Mr. Bowman, he knew that that was not true.

[00:40:26] Speaker 00:
Because as we know from the conversations that he was having with Mr. Bowman, he was well aware, A, that Mr. Bowman was obtaining drugs for him from another person because he talked about how he needed to talk to his man.

[00:40:41] Speaker 00:
He was also aware because Mr. Williams told him at one point during the calls on March 21st that he was going to be, that he needed to not have everybody come to him at the same time.

[00:40:51] Speaker 00:
On March 21st in particular, it was an extremely busy day for Mr. Bauman.

[00:40:55] Speaker 00:
He met not only after getting more drugs for more, he met with a large number of people, Ismael, Bruce, and Mr. Williams.

[00:41:02] Speaker 01:
But the point of the multiple conspiracy instructions is kind of similar to the point

[00:41:07] Speaker 01:
of the language that the district judge added to the conspiracy instruction here, which is that it's not just if you buy some drugs from someone that you automatically join the conspiracy that your supplier is involved with and all of the people that his supplier supplier are involved with, etc.

[00:41:33] Speaker 01:
Right.

[00:41:34] Speaker 01:
There has to be knowledge and an intent and all of that to join that conspiracy.

[00:41:40] Speaker 00:
Right.

[00:41:41] Speaker 00:
And I think that was shown here, Your Honor, because this isn't good.

[00:41:44] Speaker 01:
But I guess whether it was shown or not isn't the issue.

[00:41:47] Speaker 01:
The issue is

[00:41:48] Speaker 01:
whether it could also have been shown that he was involved in a different conspiracy than that big one that involved Bowman and Edwards and Richards and Moore and all the rest of it.

[00:42:05] Speaker 00:
And I do think that even if that were the case, and we certainly don't concede that, I don't see how Mr. Williams could show prejudice here, because he was not found responsible for the full amount that his co-conspirators were.

[00:42:17] Speaker 00:
And so he didn't, even if he had been convicted of a separate conspiracy with Mr. Bowman, he would have faced the exact same sentence.

[00:42:25] Speaker 00:
So he would not, there would have been no difference.

[00:42:27] Speaker 01:
Well, let's assume for a moment that what if there is a retrial of Mr. Williams, because we find here, for some other reason.

[00:42:36] Speaker 01:
The trial judge wouldn't be dealing with prejudice.

[00:42:39] Speaker 01:
The trial judge would be dealing with, should there be multiple conspiracies, instruction.

[00:42:45] Speaker 01:
So tell me why it would be appropriate not to give one based on this evidence.

[00:42:50] Speaker 00:
I think in this case, first of all, there are two issues here.

[00:42:53] Speaker 00:
One is whether this is strictly a buyer-seller relationship.

[00:42:57] Speaker 00:
And then the second is to whether it's a separate conspiracy.

[00:43:00] Speaker 00:
With respect to the buyer-seller claim, which Mr. Williams has occasionally invoked, that is clearly disproven here by the fact that Mr. Williams had a pretty long-term relationship with Mr. Bowman.

[00:43:12] Speaker 00:
He was able to call him on his line.

[00:43:14] Speaker 00:
He inquired numerous times about when he'd be able to get a spot.

[00:43:17] Speaker 00:
You're not understanding my question.

[00:43:18] Speaker 01:
You're saying that buyer-seller was disproved.

[00:43:20] Speaker 01:
Are you saying that the trial judge shouldn't have given some buyer-seller language in the instruction?

[00:43:26] Speaker 00:
Well, and I believe it was, as part of the conspiracy instruction, other than that it's a mere buyer-seller relationship.

[00:43:31] Speaker 00:
So that was instructed.

[00:43:32] Speaker 00:
I understand.

[00:43:33] Speaker 00:
I'm sorry, go ahead.

[00:43:36] Speaker 01:
I understand.

[00:43:37] Speaker 01:
I mean, my point is, why, if there was sufficient evidence to give a buyer-seller instruction,

[00:43:46] Speaker 01:
Why wasn't there sufficient evidence to give multiple conspiracy constructions?

[00:43:50] Speaker 00:
Because here there was no evidence of a separate conspiracy as opposed to a wider conspiracy.

[00:43:56] Speaker 00:
And I think this court has been pretty clear, if you look at Tarantino, has said a single conspiracy may be established when each conspirator knows of the existence of the larger conspiracy and the necessity for other participants, even if he is ignorant of their precise identities.

[00:44:13] Speaker 00:
And that was exactly the case here.

[00:44:15] Speaker 00:
there was no reason to, there was simply no evidence here to hold that Mr. Williams was unaware of Mr. Bowman's participation in a much wider conspiracy.

[00:44:29] Speaker 01:
You're saying that Tarantino stands for the proposition that if you buy, if somebody buys drugs from someone and they know that there are other people involved, then

[00:44:42] Speaker 01:
per se, there could only be one conspiracy.

[00:44:44] Speaker 01:
That's what Tarantino means.

[00:44:46] Speaker 00:
I think what it shows is if you're going to find a conspiracy, obviously there's, and again, that's why I wanted to address the buyer-seller relationship first.

[00:44:54] Speaker 00:
Somebody who buys one time from one person, even though they're aware that the drugs had to come from Colombia or Mexico or wherever,

[00:45:02] Speaker 00:
and thus is aware that they were brought by another conspiracy, doesn't by itself join the conspiracy, but where you have a person with a relationship and by, in quantities from a person, is aware, is able to contact this person and obtain drugs over a long-term basis,

[00:45:22] Speaker 00:
he's associated himself as part of the conspiracy.

[00:45:24] Speaker 00:
And there's no reason under the law to separate his particular conspiracy from the one that Mr. Bowman was involved in.

[00:45:30] Speaker 00:
It's pretty tough.

[00:45:31] Speaker 02:
I mean, I recognize there's a hard line drawing issue here.

[00:45:34] Speaker 02:
How do you respond to Mr. Locard's point that every buyer of illegal narcotics knows that there is a supply operation behind the person that they buy from?

[00:45:46] Speaker 02:
And you could be a regular retail buyer.

[00:45:49] Speaker 02:
And by that token, you're part of the

[00:45:52] Speaker 02:
Conspiracy.

[00:45:53] Speaker 00:
Are you talking about a user, Your Honor?

[00:45:57] Speaker 02:
Well, I mean, I realize there's like maybe you're casting Williams as sort of a franchise as opposed to just a user.

[00:46:03] Speaker 02:
But the question is, I mean, there's line drawing problems all the way along that spectrum, right?

[00:46:09] Speaker 00:
There's always going to be some line drawing, but I think one of the clearest lines one can draw is this.

[00:46:14] Speaker 00:
The street level buyer who's buying for consumption is not associating themselves with a distribution network.

[00:46:21] Speaker 00:
When you're talking about a middle man, in other words, remember it's a conspiracy to distribute drugs.

[00:46:28] Speaker 00:
So the fact that you purchase, you don't become a part of Home Depot simply because you purchase products from them.

[00:46:34] Speaker 00:
On the other hand, if you become a franchisee of Home Depot, you're acquiring Home Depot's products to resell them under Home Depot's name or simply buy them so that you can resell them.

[00:46:45] Speaker 00:
You have now become part of a distribution network.

[00:46:48] Speaker 00:
Mr. Williams was not buying drugs for his own personal consumption.

[00:46:52] Speaker 00:
He was buying drugs on a regular basis from Mr. Bowman for retail redistribution, as far as we can tell, in quantities that would suggest, or likely in quantities, that he was selling then to street-level dealers, because that's what most of the people in his position were doing.

[00:47:06] Speaker 00:
They were reselling it to street-level dealers who, in turn, were then selling it, presumably, to buyers.

[00:47:13] Speaker 00:
So that's the key distinction there.

[00:47:16] Speaker 00:
That's why, again, the jury was, you know,

[00:47:22] Speaker 00:
correctly informed as to what it had to find here, which is that Mr. Williams was associating himself with a conspiracy to distribute drugs, and that's what he's found.

[00:47:30] Speaker 02:
I think I mixed up.

[00:47:31] Speaker 02:
I referred to the wrong defense counsel.

[00:47:33] Speaker 00:
I think that, yes, that was the wrong counsel.

[00:47:35] Speaker 02:
Apologize, team.

[00:47:37] Speaker 00:
But I think in this case, the evidence of Mr. Williams' knowledge that there were a number of other participants in this scheme and his access to it, to a regular large supply of drugs, one which we frequently access, as shown by the calls, shows why the multiple conspiracies instruction wasn't appropriate.

[00:48:02] Speaker 00:
But again,

[00:48:04] Speaker 00:
In this case, he certainly would not be able to show any prejudice, because even if he had been found guilty of only the single conspiracy that he claims with Mr. Bowman, as if he were unaware of everything else that Mr. Bowman was doing, the result in this case and his sentence would have been exactly the same.

[00:48:23] Speaker 01:
So your hypothetical, your Home Depot hypothetical, if somebody regularly purchases items at Home Depot,

[00:48:31] Speaker 01:
and drives 100 miles away where there are no Home Depots around, and regularly resells those items, or maybe even buys items on consignment.

[00:48:45] Speaker 01:
He's got a car, but the other folks don't, so they tell them what they want from Home Depot, and then he goes and buys it from Home Depot and brings it back to sell to them.

[00:48:55] Speaker 01:
that person is now effectively in a conspiracy with Home Depot because they use Home Depot as their supplier?

[00:49:02] Speaker 00:
Whether they are legally part of the same business or not, it goes far afield from my area of law.

[00:49:08] Speaker 00:
I would say that under my hypothetical, the problem there is that yes, this person is purchasing regularly.

[00:49:14] Speaker 00:
Now again, there's a difference here.

[00:49:17] Speaker 00:
Obviously, Home Depot, the corporation,

[00:49:19] Speaker 00:
may not be aware of what this person is doing.

[00:49:23] Speaker 00:
That's sort of where the hypothetical breaks down here, because Mr. Bowman was certainly aware of what Mr. Williams was planning to do with the drugs.

[00:49:30] Speaker 00:
So that's where, again, the question is, and the distinction that I'm trying to draw, is between the true retail customer and the person who's trying to be yet another link in the supply chain down to the retail customer.

[00:49:43] Speaker 00:
Mr. Williams was that person.

[00:49:45] Speaker 00:
He is the person, either the franchisee or the person, perhaps, who's trying to take some stuff and resell it on an ongoing basis.

[00:49:53] Speaker 00:
But he's not a person who's just buying this for his own personal use.

[00:49:58] Speaker 00:
If there are no further questions, again, we respectfully submit that the judgment of the district court be a firmness to this issue.

[00:50:03] Speaker 03:
Thank you.

[00:50:07] Speaker 05:
Just in response to your question about the transcript citation of the instruction, I think the court refers to footnote 320 in the final brief.

[00:50:18] Speaker 03:
Let's see.

[00:50:18] Speaker 03:
This is Mr. Sussman speaking?

[00:50:20] Speaker 05:
That is.

[00:50:21] Speaker 05:
I'm sorry.

[00:50:22] Speaker 05:
That is referenced.

[00:50:24] Speaker 05:
I will check it as well.

[00:50:25] Speaker 05:
And if it's not complete, I'll furnish that to the court.

[00:50:28] Speaker 03:
All right.

[00:50:28] Speaker 03:
Would you repeat the substance of your statement?

[00:50:31] Speaker 05:
The issue about the instruction that was given

[00:50:36] Speaker 05:
There's a reference in footnote 320 in the final brief to the joint appendix citation where that request was made.

[00:50:45] Speaker 03:
And the final brief being the opening brief or the reply brief?

[00:50:52] Speaker 05:
Opening brief.

[00:50:53] Speaker 03:
Opening brief.

[00:50:53] Speaker 03:
Thank you.

[00:50:55] Speaker 01:
Okay, it looks like that's on page 102.

[00:51:12] Speaker 07:
Good morning, Your Honor.

[00:51:13] Speaker 07:
It's Julian Griesbund on behalf of Mr. Bowman.

[00:51:17] Speaker 07:
And my argument also, I have arguments that relate to Mr. Williams, too, because they were interrelated by virtue of- All right.

[00:51:25] Speaker 03:
Tell us the order in which you would like to argue these issues.

[00:51:29] Speaker 03:
Well, if I- So that we can direct our questions according to that.

[00:51:34] Speaker 07:
Yeah.

[00:51:34] Speaker 07:
If I could, I'd just comment on the multiple conspiracy, just because it came up.

[00:51:37] Speaker 07:
But the order I will argue is the

[00:51:43] Speaker 07:
The reason or the motivation for wiring a Bowman's plea to Williams, whether there's enough

[00:51:55] Speaker 07:
in the record to show a relationship between the lack of evidence against Williams and the wiring of Bowman's plea to keep Bowman in the trial with Williams to benefit from guilt by association.

[00:52:11] Speaker 07:
So I have to discuss that lack of evidence briefly.

[00:52:16] Speaker 07:
I just ticked them off.

[00:52:18] Speaker 07:
And then other indis- I don't have a witness.

[00:52:21] Speaker 07:
from the U.S.

[00:52:22] Speaker 07:
Attorney's Office that said, yes, we wire Bowman's plea to Williams' pleading guilty to keep, in case Williams did not plead, to keep Bowman in the case to get the benefit of all this evidence against Bowman to spill over to Williams.

[00:52:41] Speaker 07:
And interestingly, that relates to the multiple conspiracy issue in some way as well as the severance issue.

[00:52:47] Speaker 07:
It's all interrelated.

[00:52:49] Speaker 07:
So I will address them as quickly as I can and hopefully point out to the court the interrelationship of those matters.

[00:52:58] Speaker 03:
But the key question, I think— We trust you are going to discuss the Hampton issue.

[00:53:04] Speaker 07:
Excuse me?

[00:53:05] Speaker 03:
Agent Bevington's testimony.

[00:53:07] Speaker 07:
Oh, absolutely.

[00:53:08] Speaker 07:
Absolutely.

[00:53:08] Speaker 07:
Because when Mr. Coleman says, well, Mr. Williams was discussing where he could get his drugs from and this and that, and always mentioning drugs, that's all Agent Bevington's testimony.

[00:53:19] Speaker 07:
There was no evidence that they talked Williams and Bowman in coded conversations.

[00:53:26] Speaker 07:
There was no evidence of any narcotics.

[00:53:27] Speaker 07:
I'm definitely going to discuss Agent Bevington.

[00:53:33] Speaker 07:
But if I could just briefly tick off the factors, and then I'll come to Bevington.

[00:53:41] Speaker 07:
Mr. Coleman said there was a long-term relationship between Mr. Williams and Mr. Bowman.

[00:53:47] Speaker 07:
What long-term relationship?

[00:53:48] Speaker 07:
He had a couple calls in January of 2010 and didn't meet with him until March and met three times.

[00:53:59] Speaker 07:
And when he says it was a long-term relationship and they were discussing their context, they had this key conspirator in the case testify.

[00:54:08] Speaker 07:
An inside court conspirator, Willie Sean Moore, didn't say boo about Mr. Williams.

[00:54:15] Speaker 07:
That's a person.

[00:54:16] Speaker 07:
They had another conspirator.

[00:54:17] Speaker 07:
There was no witness to say that Bowman conspired with Mr. Williams.

[00:54:23] Speaker 07:
And I think I can point out to the court what happened here.

[00:54:28] Speaker 07:
All right.

[00:54:30] Speaker 07:
In response to the question, is there enough to show a relationship between the lack of evidence against Williams and the wiring, the conditioning of a plea by Bowman upon Williams pleading guilty, no coded language, no discussion of cocaine whatsoever,

[00:54:50] Speaker 07:
No possession of cocaine by Williams.

[00:54:54] Speaker 07:
No seizure of cocaine.

[00:54:56] Speaker 07:
No inside witness implicating him.

[00:54:58] Speaker 07:
A very brief encounter.

[00:55:00] Speaker 07:
And if it was me, and I happened to be talking to Bowman during that period, and we were talking about things, and then I met with him three times because Bowman was the... I'm guilty.

[00:55:11] Speaker 07:
I'm guilty because of all this other evidence of everything Bowman was doing.

[00:55:16] Speaker 07:
And that will relate to the severance of the multiple conspiracy as well.

[00:55:21] Speaker 07:
All right, now we'll get to Bevington.

[00:55:25] Speaker 07:
But I want to mention, which troubles me, two things.

[00:55:30] Speaker 07:
They had Williams in phone calls in January.

[00:55:34] Speaker 07:
Where's the investigation of him?

[00:55:38] Speaker 07:
Later on, when they did the takedown, they were seizing stuff.

[00:55:41] Speaker 07:
They were going into people's apartments.

[00:55:44] Speaker 07:
Maybe they did track him.

[00:55:46] Speaker 07:
Maybe they tracked Williams.

[00:55:48] Speaker 07:
And they came up with nothing to show he was possessing and distributing.

[00:55:51] Speaker 07:
I think they did.

[00:55:52] Speaker 07:
But it didn't come out, because with all the other conspirators that got arrested, they searched their apartments.

[00:55:58] Speaker 07:
We discussed that in our brief.

[00:56:00] Speaker 07:
They recovered things.

[00:56:02] Speaker 07:
I think they did.

[00:56:02] Speaker 07:
They didn't come up with anything.

[00:56:04] Speaker 07:
So there's no investigation.

[00:56:09] Speaker 07:
They had a shortcut.

[00:56:10] Speaker 07:
That shortcut, which I also argued was in bad faith, was Agent Babington.

[00:56:16] Speaker 07:
All right?

[00:56:17] Speaker 07:
Well, we didn't do any investigation.

[00:56:18] Speaker 07:
There's no cocaine.

[00:56:21] Speaker 07:
There's no money.

[00:56:22] Speaker 07:
We've got nothing.

[00:56:23] Speaker 07:
But we'll use Agent Bevington to supply what's missing.

[00:56:29] Speaker 07:
And when the defense asked for discovery of all opinions under Rule 701, which is lay opinion, and 702, what did the prosecutors say?

[00:56:41] Speaker 07:
No expert opinions because no coded language.

[00:56:45] Speaker 07:
And they also said, and this is in our brief, that ancient Bevington is not going to interpret any phone calls between Williams and Bowman as having any particular meaning.

[00:57:00] Speaker 07:
Well, that tells me there's going to be no paintings.

[00:57:03] Speaker 07:
They sandbagged them.

[00:57:04] Speaker 07:
Because at trial, that's all Bevington did.

[00:57:08] Speaker 07:
He said, well, Williams meant this.

[00:57:10] Speaker 07:
You'll see.

[00:57:11] Speaker 07:
And we cite on our brief, the opening brief, we give a litany of his opinions.

[00:57:16] Speaker 07:
Williams meant this.

[00:57:17] Speaker 07:
He got cocaine this.

[00:57:18] Speaker 07:
He's going to pay him for cocaine the day before.

[00:57:20] Speaker 07:
There's no evidence.

[00:57:21] Speaker 07:
If they could use that, why didn't they follow him?

[00:57:24] Speaker 07:
Why didn't they arrest him?

[00:57:25] Speaker 07:
Why didn't they obtain cocaine from him?

[00:57:28] Speaker 07:
Why didn't they see if he's distributing to anybody?

[00:57:30] Speaker 07:
They didn't have it.

[00:57:32] Speaker 07:
They didn't have the evidence, and they knew they didn't have it.

[00:57:34] Speaker 07:
And that's why they wired Bowman's plea to Williams.

[00:57:37] Speaker 07:
Now, I will say I'm very troubled by one thing in this case, because when you say in these kind of cases to a main defendant that we'll cut 20 years off your jail sentence if this little marginal guy pleads, if he vanishes from the case, I don't think that's a very good thing to do.

[00:57:56] Speaker 07:
I'm very troubled by that.

[00:57:58] Speaker 02:
But why, Mr. Greenspun, is that a complaint of Bowman's?

[00:58:03] Speaker 02:
If I were trying to identify who is disadvantaged by that, I would be very afraid for Mr. Williams because it creates, as you're suggesting, pressure on Bowman to take care of Mr. Williams and his... Yes.

[00:58:20] Speaker 02:
failure to plead guilty.

[00:58:21] Speaker 02:
But I'm not sure why there's any kind of pressure or coercion that we under our precedence can find impermissible against Bowman.

[00:58:30] Speaker 07:
I'm just saying I'm bothered by it.

[00:58:32] Speaker 02:
I'm not saying that Bowman can't... Well, you're objecting to the wired plea.

[00:58:35] Speaker 02:
I mean, that's one of your...

[00:58:37] Speaker 07:
Yeah, yeah, yeah.

[00:58:38] Speaker 07:
It's a wire play.

[00:58:40] Speaker 07:
I'm just troubled by the concept of wiring somebody, in this case, saying, well, it'll take 20 years of adjustment, when you have a very weak, virtually nonexistent case to get that conviction, to get him out of the case.

[00:58:53] Speaker 02:
Why is that, though?

[00:58:56] Speaker 02:
I mean, you're arguing that on behalf of Bowman.

[00:58:58] Speaker 07:
Why are they doing it?

[00:58:59] Speaker 07:
Yes.

[00:58:59] Speaker 02:
No, no, no.

[00:59:00] Speaker 02:
I'm asking, what is impermissible from Bowman's perspective legally?

[00:59:05] Speaker 02:
about having done that.

[00:59:07] Speaker 07:
Conditioning his, okay, legally conditioning his plea upon a plea by Williams giving him 20 years off but refusing to let him.

[00:59:17] Speaker 07:
They offered Bowman a plea with 25 years in jail instead of 45, but they said

[00:59:23] Speaker 07:
The last thing they said was, but only if Williams plead guilty.

[00:59:27] Speaker 07:
Bowman has no control over what Williams does.

[00:59:30] Speaker 02:
True.

[00:59:30] Speaker 02:
Did they offer him, the record is slightly ambiguous on this, did the government also offer Bowman a plea if he would cooperate?

[00:59:38] Speaker 07:
They did, originally, and he said he didn't want to cooperate.

[00:59:42] Speaker 07:
But the last thing, the last condition, and actually, I think this is a piece of very telltale evidence.

[00:59:47] Speaker 07:
They said, well, OK, you don't have to cooperate.

[00:59:51] Speaker 07:
We'll let you out if Williams also pleads guilty.

[00:59:56] Speaker 02:
Yeah, he does not control over it, but that's life.

[00:59:58] Speaker 02:
There are a lot of things we don't have control over.

[01:00:00] Speaker 02:
That doesn't make it coercive.

[01:00:02] Speaker 02:
with respect to him, does it?

[01:00:04] Speaker 07:
Well, when they say in the end, he said he'd take the plea, he said, I'll plead.

[01:00:08] Speaker 07:
The government didn't require him to testify.

[01:00:11] Speaker 02:
But typically, one only gets a plea in exchange for something that helps the government.

[01:00:17] Speaker 02:
And the question is, they're giving him two options.

[01:00:19] Speaker 02:
One, OK, you get the plea and its benefits.

[01:00:24] Speaker 02:
If you cooperate, that would help us.

[01:00:27] Speaker 02:
He says, no.

[01:00:28] Speaker 02:
OK, here's another idea.

[01:00:29] Speaker 02:
You get the plea if Williams

[01:00:33] Speaker 02:
takes a plea.

[01:00:35] Speaker 02:
There's some relationship there up to you guys.

[01:00:37] Speaker 02:
Maybe he gets lucky and Williams just looks at the evidence against him and decides to plead.

[01:00:41] Speaker 02:
Maybe they have a conversation.

[01:00:42] Speaker 02:
In any event, I don't see what's impermissible.

[01:00:46] Speaker 02:
You need to help me appreciate what's impermissible under the case law about conditioning Bowman's plea on whether Williams says or doesn't plead.

[01:00:55] Speaker 07:
Because if they wanted to get a

[01:00:59] Speaker 07:
conviction if the purpose of saying, well, well, let you plead if he pleads guilty.

[01:01:04] Speaker 07:
And their purpose in doing that has an unconstitutional purpose, which is it's more directly against what I admit that.

[01:01:12] Speaker 07:
But it also affects Bowman.

[01:01:14] Speaker 07:
Because if you're saying, if the purpose is that they want to get, if Williams decides to go to trial, a conviction through the guilt by association of sitting through this trial of Bowman and all this stuff, when they have

[01:01:28] Speaker 07:
a very shaky case if a case of all against Williams.

[01:01:34] Speaker 07:
I contend is an unconstitutional purpose.

[01:01:38] Speaker 07:
Now Pollard, if I can refer to the Pollard case, they said to Pollard, if you plead guilty, we'll go softer on your wife.

[01:01:47] Speaker 07:
Pollard had control over that, total control.

[01:01:50] Speaker 07:
OK, the court said they were bothered by wire pleas in Pollard.

[01:01:55] Speaker 07:
But Pollard could decide, OK, I'll plead or not.

[01:01:59] Speaker 07:
But in here, Bowman wanted to plead, but he couldn't plead because, and that cost him an extra 25 years, because Williams didn't want to plead.

[01:02:13] Speaker 07:
Williams had a right to a trial by jury.

[01:02:16] Speaker 07:
So what's Bowman supposed to do?

[01:02:19] Speaker 07:
They did offer him, which thought that he merited 25 years, only 25 years.

[01:02:25] Speaker 07:
It cost them a net.

[01:02:26] Speaker 07:
Why?

[01:02:28] Speaker 07:
Why cut 20 years off?

[01:02:29] Speaker 07:
That's what they were willing to settle for.

[01:02:32] Speaker 07:
But to deny him that so they could get in all this evidence when they had no case, they had no, they really didn't have a case against them.

[01:02:42] Speaker 07:
They didn't have any cocaine, I repeat, I don't want to sell my town.

[01:02:46] Speaker 02:
Can you take with the Bevington testimony?

[01:02:47] Speaker 02:
Because they rely heavily on that and they say that's permissible and we do have a case.

[01:02:52] Speaker 02:
So it seems to me you have to persuade us not to rely on that in order to

[01:02:58] Speaker 02:
put the capstone on your argument that they have no case against Williams.

[01:03:02] Speaker 02:
They have Bevington testifying, for example, that Williams was letting Mr. Bowman know he had money for him that was owed for the cocaine Mr. Bowman had supplied the previous day.

[01:03:17] Speaker 02:
That's pretty straight up

[01:03:20] Speaker 02:
evidence of Mr. Williams' involvement.

[01:03:23] Speaker 02:
They were arranging to meet so that Mr. Williams could pay Mr. Bowman for cocaine that he previously received.

[01:03:27] Speaker 02:
That's J.A.

[01:03:28] Speaker 02:
1947.

[01:03:31] Speaker 02:
So we have a lot of Bellington testimony implicating Mr. Williams, and you need to take that on.

[01:03:36] Speaker 07:
Right.

[01:03:37] Speaker 07:
And if I can just draw the analogy, if you have a bid-rigging case and FBI agent is investigating, you can't say, well, they're discussing rigging bids and they're going to match bids and so forth, in my opinion.

[01:03:49] Speaker 07:
You can't do it.

[01:03:50] Speaker 07:
You're supplying the elements of the offense to the jury.

[01:03:53] Speaker 07:
And we cite cases.

[01:03:54] Speaker 07:
And I'll repeat some of the citations now.

[01:04:00] Speaker 07:
that I made saying that kind of lay opinion is improper because they hired back to the oath helpers, you know?

[01:04:08] Speaker 01:
You know, the judge said... I mean, I think that the government can essentially confesses error, but they say it's harmless.

[01:04:16] Speaker 01:
Why don't you address the harmless decision?

[01:04:18] Speaker 07:
Okay, well...

[01:04:20] Speaker 07:
It might have been harmless had they had evidence against Williams, but when you have a case, Your Honor, where they don't have Williams talking about cocaine,

[01:04:36] Speaker 07:
One of the cases says, you know, I'm going to repay the money I owe you.

[01:04:39] Speaker 07:
They never talk about cocaine.

[01:04:41] Speaker 07:
The FBI never seized cocaine from him.

[01:04:45] Speaker 07:
They don't have any evidence of him distributing cocaine.

[01:04:50] Speaker 07:
They had him in a wiretap since January.

[01:04:52] Speaker 07:
How do they explain that, that they didn't investigate him?

[01:04:55] Speaker 07:
Unless they did, and they didn't come up with anything.

[01:04:59] Speaker 07:
But they're keeping him in this conspiracy

[01:05:02] Speaker 07:
The other thing they did was in their – I don't want – I just need to digress for a second.

[01:05:07] Speaker 07:
In their opposition to severance against Williams, they said we have – there's a strong case, and he's interconnected with all the other conspiracy – he didn't know anybody else except Bowman.

[01:05:18] Speaker 07:
And he ignores his substantial role in the conspiracy.

[01:05:23] Speaker 07:
He met with him three times.

[01:05:24] Speaker 07:
The FBI had no evidence.

[01:05:27] Speaker 07:
What they were going to do was they were going to shortcut the fact that there was no investigation by using Bevington with these expert opinions.

[01:05:35] Speaker 07:
And there's the Garcia case from 2005 in the Second Circuit.

[01:05:42] Speaker 07:
See, if in their discovery, in their responses to discovery,

[01:05:47] Speaker 07:
when Williams' attorney asked for the evidence, or what they were going to provide, by the way, of expert lay opinions, and they said, there is no expert opinion, and also said, he's not going to interpret any words or... And then boom, one right after the other.

[01:06:07] Speaker 07:
So that's what he was doing.

[01:06:10] Speaker 07:
And by doing it that way, the defense never even had a chance to brief it.

[01:06:14] Speaker 07:
And there were plenty of cases prior.

[01:06:17] Speaker 07:
Hampton is the case in the circuit that says no lay opinions, telling the jury what conclusions to draw.

[01:06:23] Speaker 07:
You know, the government says, well, it's obvious what they meant.

[01:06:26] Speaker 07:
Well, if it's so obvious, why did you need the strength and the force of an FBI agent to come and tell the jury what conclusions to draw?

[01:06:33] Speaker 07:
You know, a jurist could say, well, I think it might have been.

[01:06:35] Speaker 07:
Another one might say it might not have been.

[01:06:36] Speaker 07:
And then the jurist says, yeah, but the FBI agent who knows a lot about this, he said that it involved narcotics.

[01:06:42] Speaker 07:
So it's like saying in a fraud case, SEC for whatever kind of fraud.

[01:06:48] Speaker 07:
Well, I think that they were discussing how they were going to defraud this customer.

[01:06:53] Speaker 07:
And when he says that they were going to acquire cocaine, and he meant, I'll get the cocaine, and I got a customer waiting,

[01:07:00] Speaker 07:
He's supplying the elements of the offense to a jury.

[01:07:04] Speaker 07:
I don't think you can have a law enforcement agent come up and do that.

[01:07:08] Speaker 07:
And we cite the Garcia case in the second.

[01:07:10] Speaker 07:
So there's a couple of Garcia cases.

[01:07:12] Speaker 07:
There's one in the Fourth Circuit.

[01:07:13] Speaker 07:
That may be Yuri.

[01:07:15] Speaker 07:
Or the Second Circuit was Yuri in 2005.

[01:07:17] Speaker 07:
And that cites the Grinnell case, a very important case.

[01:07:22] Speaker 02:
I think our Hampton case from this circuit is quite relevant.

[01:07:26] Speaker 07:
Yeah, they said it's plain error.

[01:07:29] Speaker 07:
But it was plain error before that, before the Hampton case.

[01:07:33] Speaker 07:
What is a lay opinion?

[01:07:38] Speaker 07:
A lay opinion is color, speed, weight, things in our ordinary experience.

[01:07:47] Speaker 07:
It's difficult to describe in words.

[01:07:50] Speaker 07:
Well, he was going faster than this truck.

[01:07:52] Speaker 07:
So you say, I think he's going 35 miles an hour.

[01:07:54] Speaker 07:
But not something acquired through specialized knowledge.

[01:07:58] Speaker 07:
What he was doing was providing expert opinions, which he shouldn't have been allowed to do anyway, under the guise of lay opinion.

[01:08:05] Speaker 07:
And then he switched heads.

[01:08:06] Speaker 02:
I'm not sure I see this as expert opinion, because there's no field of expertise that allows one to listen to

[01:08:13] Speaker 02:
someone saying I got that for you and some more and translating that into Williams was letting Mr. Bowman know that he had money for him that was owed for the cocaine Mr. Bowman had supplied the previous day.

[01:08:25] Speaker 02:
I don't know what field of expertise allows one to make that translation, but I am

[01:08:31] Speaker 02:
curious about your views, given that there is a role for lay opinion testimony under federal evidence 701.

[01:08:40] Speaker 02:
How, if the government were to do this, would they have done it properly?

[01:08:44] Speaker 02:
The theory being here's

[01:08:46] Speaker 02:
an agent who has a lot of observation and knows more about the context and might be able to understand because of his information about the context what actually was being said.

[01:08:58] Speaker 02:
Is there some background evidence that could have been specifically identified that would have then allowed Agent Bevington to point to these in a way that would inform the jury or

[01:09:14] Speaker 07:
Just off limits altogether.

[01:09:15] Speaker 07:
There is a way to do it.

[01:09:16] Speaker 07:
Tell me what that is.

[01:09:18] Speaker 07:
The way to do it is the government has to do that in summation.

[01:09:21] Speaker 07:
That's the place to do it, because the courts have said you can't use a summary witness either, whereby the prosecution gets essentially two summary witnesses, but one in the form of FBI testimony, which the jury gives strong credence to.

[01:09:35] Speaker 03:
Well, Hampton makes clear that the summary witness precedent is relevant.

[01:09:41] Speaker 03:
But I suspect the government is going to argue that that's not what we're dealing with here.

[01:09:47] Speaker 03:
So that's, I assume, the basis for Judge Pillard's question about how could Agent Bevington properly be used as a lay witness, a lay opinion witness under Rule 701.

[01:10:03] Speaker 07:
He can't be used this way to say, to opine on state of mind and provide the elements of the offense.

[01:10:12] Speaker 07:
That's our system of justice.

[01:10:14] Speaker 03:
But he can be a reporter as to what happened.

[01:10:19] Speaker 03:
A warrant was issued, they seized the drugs, et cetera.

[01:10:23] Speaker 07:
Yes.

[01:10:24] Speaker 03:
Now, the district court tried to draw or drew a distinction

[01:10:28] Speaker 03:
between his testifying as an expert as to coded terms.

[01:10:35] Speaker 03:
And the argument is there were no coded terms in the recorded conversations in which Williams was a party to the conversation.

[01:10:45] Speaker 03:
So is there no role for an FBI agent who is a case investigator to

[01:10:57] Speaker 03:
Give lay opinion testimony?

[01:11:00] Speaker 07:
Not providing the elements to the jury.

[01:11:02] Speaker 02:
I find that confusing when you say not providing the elements.

[01:11:05] Speaker 02:
I mean, every witness, the whole point of the trial is every witness is testifying to facts that support the elements of the offense.

[01:11:13] Speaker 02:
So you need to be a little bit more precise.

[01:11:15] Speaker 03:
In other words, what could he say when he says to the jury,

[01:11:23] Speaker 03:
I listened to the tape recording on January 10th, and the two parties said X and Y. Now, and he say, consistent with Rule 701, when they talked about X and Y, they were referring to a purchase of cocaine.

[01:11:48] Speaker 07:
My argument is he can't.

[01:11:50] Speaker 03:
He cannot.

[01:11:51] Speaker 07:
My argument is he can't.

[01:11:52] Speaker 03:
Could he do so as an expert witness, in your view?

[01:11:56] Speaker 07:
If they use coded language.

[01:12:00] Speaker 03:
Only if they... Well, that was a district court's ruling because she qualified him as an expert, but an expert as to coded language only.

[01:12:09] Speaker 07:
Right.

[01:12:10] Speaker 07:
And Bevington also testified they did not use coded language.

[01:12:15] Speaker 07:
And the government said pre-trial, we are not going to use Bevington to attribute any particular meaning to what Williams and Bowman were discussing.

[01:12:27] Speaker 07:
So they can't.

[01:12:29] Speaker 07:
If they can, why can't they in a fraud case, which is very complex, a lot of these fraud cases, why can't an agent say,

[01:12:37] Speaker 07:
Yes, I listened to the conversations, and I think they were discussing how they were going to deceive these investors.

[01:12:47] Speaker 07:
There's really no difference, but you can't do it.

[01:12:50] Speaker 07:
Because if you could do it, I could be coming along.

[01:12:54] Speaker 07:
I could have a conversation with Bowman.

[01:12:56] Speaker 07:
I could have several conversations with Bowman.

[01:12:58] Speaker 07:
At the same time, he's doing all these other things.

[01:13:01] Speaker 07:
OK?

[01:13:02] Speaker 07:
And I could even meet with Bowman.

[01:13:05] Speaker 07:
All right?

[01:13:06] Speaker 07:
Now, and then I leave.

[01:13:08] Speaker 07:
And that's what I've done.

[01:13:10] Speaker 07:
And there's no evidence.

[01:13:10] Speaker 07:
I discussed narcotics, no evidence I possessed it.

[01:13:13] Speaker 07:
Maybe I was talking to him about a restaurant.

[01:13:15] Speaker 07:
But Bellington comes in and whammo.

[01:13:17] Speaker 07:
I'm guilty.

[01:13:18] Speaker 03:
All right.

[01:13:19] Speaker 03:
Why don't we hear from the government, and we'll give you a couple of minutes in reply.

[01:13:23] Speaker 03:
Sure.

[01:13:23] Speaker 03:
All right.

[01:13:24] Speaker 07:
Thank you.

[01:13:38] Speaker 00:
Thank you.

[01:13:39] Speaker 00:
Again, this is Nick Coleman for the United States.

[01:13:42] Speaker 00:
I'd just like to very briefly address the wire plea offer issue before proceeding to the Agent Bevington testimony issue.

[01:13:49] Speaker 00:
I think the basic fact is this.

[01:13:52] Speaker 00:
Mr. Bowman's counsel has argued repeatedly that Mr. Bowman was not able to plead.

[01:13:56] Speaker 00:
That is not true.

[01:13:57] Speaker 00:
He had three options, obviously only one of which was beyond his control.

[01:14:03] Speaker 00:
One was to try to

[01:14:05] Speaker 00:
convinced Mr. Williams to take the wire plea offer with him.

[01:14:08] Speaker 00:
Obviously, he didn't have control over that.

[01:14:10] Speaker 00:
He could have, as he acknowledges here, testified or agreed to cooperate and thus accepted a plea that way.

[01:14:18] Speaker 00:
Third, he could have pleaded to the indictment if he didn't want to cooperate and accepted and gotten the

[01:14:25] Speaker 00:
reduction in sentence for having accepted responsibility.

[01:14:28] Speaker 00:
So those are his options.

[01:14:29] Speaker 00:
He elected not to take any of them.

[01:14:31] Speaker 00:
So it's simply not the case that he had no options here and that he was not permitted to plead.

[01:14:38] Speaker 00:
He just didn't get the plea offer that he wanted, namely an unwired plea offer with the same charges and agreed upon sentence as the wire plea offer.

[01:14:49] Speaker 03:
So there was a separate cooperation offer

[01:14:53] Speaker 03:
That was unlinked to any action by Williams?

[01:14:58] Speaker 00:
Yes.

[01:14:58] Speaker 00:
That was discussed at the September hearing before the October hearing is the one where the final rejection of the wire plea offer is discussed.

[01:15:06] Speaker 00:
But in September, the government did state that it had discussed a plea offer under which Mr. Bowman would cooperate.

[01:15:15] Speaker 00:
But Mr. Bowman, through counsel, stated he was not interested in talking to the government about that.

[01:15:20] Speaker 00:
So again, the idea that there was some sort of unconstitutional purpose behind this, because it's not unconstitutional for the government to wire a plea.

[01:15:33] Speaker 00:
It's not unconstitutional for the government to seek to resolve an entire case or a large chunk of a case by pleading out all of the defendants at the same time.

[01:15:45] Speaker 00:
That's not unconstitutional, and there certainly was no unconstitutional pressure put on Mr. Bowman.

[01:15:50] Speaker 00:
As we hear today, it seems like the only unconstitutional pressure they're talking about is with respect to Mr. Williams.

[01:15:58] Speaker 00:
But again, Mr. Williams isn't raising this issue.

[01:16:02] Speaker 00:
It's only Mr. Bowman who claims prejudice from it.

[01:16:07] Speaker 00:
Yes, Fran?

[01:16:07] Speaker 02:
I'm really interested in your views on whether the Bevington error was harmless or not and what you think the unaffected evidence is and why that would support a conviction.

[01:16:20] Speaker 00:
Well, and I take it here, although it was Mr. Bowman's counsel arguing that really the only issue here is to whether or not this was harmful with respect to Mr. Williams.

[01:16:28] Speaker 00:
After all, with respect to Mr. Bowman and Mr. Edwards, there was a very large amount of evidence completely unaffected by Agent Bevington's testimony, which I won't go into here.

[01:16:38] Speaker 00:
But even with respect to Mr. Williams, the government, we've tried to summarize on pages 25 through

[01:16:45] Speaker 03:
But that's all Agent Bevington.

[01:16:49] Speaker 00:
Well, Bevington is certainly involved in all of this evidence presented against Mr. Williams in the sense that he has asked about his interpretation of the calls.

[01:16:58] Speaker 03:
He's the key witness, isn't he?

[01:17:00] Speaker 00:
He's the only one.

[01:17:01] Speaker 00:
Well, he was the agent through whom all of the wiretap calls were introduced in the sense that he authenticated them and could testify as to when they were made and who was on the call.

[01:17:12] Speaker 00:
He then was also called upon

[01:17:14] Speaker 00:
to do two things.

[01:17:16] Speaker 00:
With respect to other witnesses, he was called upon to give expert testimony as to the use of certain code words.

[01:17:23] Speaker 03:
Let's focus on words.

[01:17:26] Speaker 00:
OK, right.

[01:17:26] Speaker 00:
With respect to Mr. Williams.

[01:17:27] Speaker 02:
And the problem here, which is not the expert testimony, but the expert testimony juxtaposed with lay testimony, where he is making leaps that, in light of our Hampton opinion, I realize that that was not on the books when the judge was managing this trial, but it's somewhat

[01:17:45] Speaker 02:
startling to see the translations that he makes and try to understand those as rationally based on his perception and as opinions that a jury has any factual ground to independently assess.

[01:18:00] Speaker 02:
I just don't see it and I'd like your help.

[01:18:03] Speaker 00:
I think if you go through what Mr. Williams actually said during these calls when he's discussing with Mr. Bowman, and when you also compare it with the conversations that Mr. Bowman was having at the same time with other retail distributors, I think when the prosecutor argued to the jury, you don't even need an agent's testimony to understand what was going on.

[01:18:26] Speaker 03:
That was a last guess.

[01:18:28] Speaker 03:
I mean, the problem is that they did have this argument was based on Agent Bevington's testimony.

[01:18:36] Speaker 03:
And that's the way the case was presented to the jury.

[01:18:39] Speaker 03:
And what I'm trying to understand is it's not a question of sufficiency of evidence to convict.

[01:18:46] Speaker 03:
It's how can we be certain that the jury was not substantially influenced

[01:18:54] Speaker 03:
by this impermissible testimony.

[01:18:57] Speaker 00:
I do think, I just want to respond to one factual point.

[01:19:00] Speaker 00:
The prosecutor in closing certainly did not say, as Agent Bevington told you about these calls between Mr. Williams and Mr. Bowman, you know, that's how you know in fact it was quite the opposite.

[01:19:11] Speaker 00:
I don't think it was a last guess because after all at this time

[01:19:15] Speaker 00:
Nobody even thought that it was error to introduce this.

[01:19:19] Speaker 03:
Well, with all due respect to the government on that, 701 has been on the books for some time.

[01:19:23] Speaker 00:
Yes, Your Honor.

[01:19:24] Speaker 03:
In this circuit, we have issued cautionary statements.

[01:19:27] Speaker 03:
The other circuits were holding clearly that there are problems here.

[01:19:33] Speaker 03:
So this is the United States government.

[01:19:35] Speaker 03:
There's an alert out there, it seems to me, that you have to be really careful here.

[01:19:40] Speaker 03:
And you confess error in your brief.

[01:19:43] Speaker 00:
Yes, we can.

[01:19:44] Speaker 00:
Well, we have to post post camp.

[01:19:47] Speaker 00:
We understand it.

[01:19:48] Speaker 00:
But of course, Hampton wasn't on the books at the time.

[01:19:50] Speaker 03:
My only point is that if you look at how the prosecutor Hampton is coming up with some unusual rule that is not signaled

[01:19:59] Speaker 03:
why the difference between lay opinion testimony and expert testimony.

[01:20:03] Speaker 00:
My point is whether or not the prosecutor here, if the point is that the prosecutor here was somehow just trying to throw something in to render this harmless in the future argument, I think when you look at the prosecutor's argument in total, his argument to the jury was, look, you don't even need an agent because when you look at what Mr. Williams was saying

[01:20:25] Speaker 00:
juxtaposed with what we know about Mr. Bowman's interactions with Mr. Moore, about his sources of supply, how he's talking to other distributors.

[01:20:34] Speaker 00:
It's easy to tell what they're talking.

[01:20:36] Speaker 02:
But Mr. Coleman, that's precisely Mr. Greenspan's argument, is that that's the right way to do it.

[01:20:42] Speaker 02:
And we've all done trials.

[01:20:43] Speaker 02:
We know that you put in the mosaic pieces.

[01:20:46] Speaker 02:
They don't necessarily all compute when they're being put in evidence.

[01:20:51] Speaker 02:
You know, you have this little bit cryptic conversation, and then the prosecutor has to say to the jury, look at that next to that, OK?

[01:21:00] Speaker 02:
Draw your own inferences.

[01:21:02] Speaker 02:
And that's not the way this case was tried.

[01:21:05] Speaker 00:
I'm sorry, go ahead.

[01:21:06] Speaker 02:
It's very hard to sort of think we could unwind that when Mr. Babington has gotten up on the stand and things that say nothing about cocaine and paying for cocaine are translated for the jury into things that say things about cocaine and paying for cocaine.

[01:21:21] Speaker 02:
It's just very hard for us to see what your case is for why we could still go ahead and confirm, given the Hampton era.

[01:21:31] Speaker 02:
That's what I'd like to hear, is what do we rely on and how?

[01:21:35] Speaker 00:
In this case, we know from Mr. Moore's testimony, for example, just the March 21st transactions alone, you have the recorded conversations between Mr. Bowman and Mr. Moore arranging to acquire more supply from Mr. Moore.

[01:21:52] Speaker 00:
Immediately after, at the same time, Mr. Bowman is telling Williams, he's telling, I think, Brooks, I think he's telling Ismael, he's telling us several other people similarly situated to Mr. Williams.

[01:22:06] Speaker 00:
I need to talk to my man, and I'm going to get this.

[01:22:09] Speaker 00:
He meets with Moore, Moore testifies at trial, I provided him with the drugs, and then you have a series of meetings between not just Williams and Bowman,

[01:22:21] Speaker 00:
But Mr. Bowman and a number of the other participants in this scheme, right after that.

[01:22:30] Speaker 00:
In context.

[01:22:30] Speaker 00:
And that would be your case.

[01:22:32] Speaker 00:
Yes.

[01:22:32] Speaker 02:
That would be your case.

[01:22:34] Speaker 02:
without Mr. Bevington.

[01:22:36] Speaker 02:
That would be the way you would try the case.

[01:22:40] Speaker 02:
Yes.

[01:22:40] Speaker 02:
And then the question is, well, defense counsel could argue, well, they were talking about theater tickets, not about getting drugs.

[01:22:48] Speaker 02:
They had whatever.

[01:22:51] Speaker 02:
But the question is, I think that we have an obligation to look at the potential taint from the erroneous testimony of Mr. Bevington

[01:23:00] Speaker 02:
And how do we have any confidence that the jury wasn't quite overwhelmingly swayed?

[01:23:07] Speaker 00:
Two things, I think, are interesting to note.

[01:23:09] Speaker 00:
If you look at where this court has found the specific error in this kind of thing, if you look at Miller, for example, which was decided after Hampton,

[01:23:17] Speaker 00:
What this court said, and this is on page 384, I'm sorry, let me make sure I get the right pagination.

[01:23:25] Speaker 00:
Yes, page 384 of Miller, which is 738F3R361.

[01:23:31] Speaker 00:
The admission, this court held that the admission of the government agent's interpretive lay opinion testimony about these various calls was plain error under Hampton.

[01:23:39] Speaker 00:
Their interpretations of non-coded language was erroneously admitted because they did not set forth the specific bases, events, other calls, seizures, and contraband upon which their opinions rested, other than broad claims about knowledge they had gained from the investigation.

[01:23:56] Speaker 00:
One of the interesting things that's different in this case is that most of the time,

[01:24:00] Speaker 00:
Agent Bevington was asked, what do you base that conclusion on?

[01:24:05] Speaker 00:
He would say it was based on those two calls from earlier.

[01:24:08] Speaker 00:
So the jury was told what Agent Bevington was basing his opinion on in a lot of these cases.

[01:24:14] Speaker 00:
Now, sometimes he didn't.

[01:24:17] Speaker 00:
OK, we have to admit that sometimes he said his knowledge of the investigation.

[01:24:22] Speaker 00:
But in this case, he made very clear that he was interpreting the calls, and he made clear during cross-examination that he didn't know he had seen cocaine, but he was interpreting that.

[01:24:32] Speaker 00:
So I think the jury was well aware that this was an agent's interpretation, an agent who was part of the investigation.

[01:24:39] Speaker 00:
They were well aware of what the evidence actually was against Mr. Williams, and there wasn't really much risk here that they were being misled by Agent Bevington's testimony into thinking that there was other evidence out there.

[01:24:50] Speaker 01:
Was the jury given any kind of instructions about how to interpret Agent Bevington's testimony?

[01:24:56] Speaker 00:
I'd have to go back and check and see how the, I do believe obviously they got the standard instructions about expert opinions.

[01:25:03] Speaker 00:
I'm not sure whether there was a lay opinion instruction.

[01:25:05] Speaker 00:
I'll have to go back and check that.

[01:25:07] Speaker 01:
Did the standard expert instruction say anything about Bevington in particular?

[01:25:12] Speaker 01:
Was the jury ever told that he was an expert, what he was an expert for, what he

[01:25:20] Speaker 01:
The answer to that is yes.

[01:25:24] Speaker 00:
They were told that he was testifying as an expert only with respect to the code words.

[01:25:29] Speaker 00:
And even with respect to his discussion of these calls, the government was very explicit in framing its questions as to whether or not he was asking Mr.

[01:25:40] Speaker 00:
for an expert opinion about the meaning of a code word or whether this was his opinion based on some other piece of knowledge.

[01:25:48] Speaker 00:
So that was clearly defined for the jury.

[01:25:52] Speaker 00:
The expert instruction, as I recall, I didn't have it right in front of me, but as I recall, it didn't specifically tell

[01:25:59] Speaker 00:
the jury what Agent Bevington was testifying about as an expert.

[01:26:04] Speaker 00:
But it did tell the jury, as they always does, that they were free to accept or not accept the expert's opinions.

[01:26:11] Speaker 00:
Now, I have to go back and check about the lay opinion testimony to see if there was an instruction given.

[01:26:15] Speaker 03:
At JA 1815, the district court refers to orders she has issued.

[01:26:24] Speaker 03:
And she references these orders in later discussions with the Prosecutor in Defense Council regarding concerns about Agent Bevington's testimony.

[01:26:36] Speaker 03:
Neither I nor my clerk have been able to find those orders in the record that we have.

[01:26:41] Speaker 03:
Could you supply those for us?

[01:26:43] Speaker 03:
Yes, and I'm sorry, if you could remind me what you need.

[01:26:47] Speaker 02:
1815 so it may be that they're just you know from the bench spoken determinations but I had the same question whether there's anything more fulsome and systematic that's drawing the line that she's then referring back because when you read what the district court has said the implication is in these orders whether they were oral or written she has

[01:27:14] Speaker 03:
outline precisely how Agent Bevington may testify.

[01:27:21] Speaker 03:
And even though the defense had objected, she had ruled.

[01:27:25] Speaker 03:
And at points, the prosecutor says, yes, Your Honor, I understand, et cetera.

[01:27:29] Speaker 03:
And then he asks a question saying, Agent Bevington, you're expert.

[01:27:32] Speaker 03:
Now, my second question is, were all the telephone calls admitted into evidence?

[01:27:40] Speaker 00:
every intercepted call in this investigation.

[01:27:47] Speaker 00:
In other words, in total.

[01:27:49] Speaker 00:
I'm not sure, I do, I know for a fact that all of the calls that we've referenced in our brief were certainly in evidence.

[01:27:57] Speaker 03:
No, that's not my question.

[01:27:58] Speaker 00:
There is a practice, I know sometimes where the every wiretapped conversation is sort of submitted as a disc.

[01:28:05] Speaker 00:
I don't, I'll have to go back and check and see if that was in evidence.

[01:28:07] Speaker 03:
Would you give us a record site on that?

[01:28:09] Speaker 03:
Sure.

[01:28:10] Speaker 03:
And Agent Febbington at one point says, I've listened to all the calls.

[01:28:15] Speaker 03:
And he says something else like, I've looked at the videotapes, but all the videotapes are not before the jury.

[01:28:24] Speaker 03:
I don't know whether he's saying they're never going to be before the jury, or simply that the jury hasn't seen them at that point.

[01:28:32] Speaker 03:
So I'd also be interested in whether all the videotapes were entered into evidence.

[01:28:40] Speaker 03:
Because as you know, our court, as well as

[01:28:44] Speaker 03:
other circuits have focused on that as to whether the jury has this independent means.

[01:28:52] Speaker 03:
And it's not simply the agent saying, I heard or I listened to the call on January 10th and here's my opinion about what's going on.

[01:29:04] Speaker 03:
And Hampton seems to impose on the government a much higher burden in terms of indicating the basis of the prosecutors, excuse me, indicating the basis of the 7-0 witnesses' lay opinion.

[01:29:22] Speaker 00:
Right.

[01:29:23] Speaker 03:
So that Bevington has already told the jury he's listened to all the calls.

[01:29:29] Speaker 03:
So that if he is talking about the January 10th call,

[01:29:34] Speaker 03:
how is it influenced or not influenced by the other court.

[01:29:39] Speaker 03:
I'm assuming, but I can't tell from this record whether or not there was a discussion off the record or in chambers with the judge about how this was going to proceed and these issues were going to be handled.

[01:29:55] Speaker 00:
I have no information about any off-the-record conversations.

[01:30:00] Speaker 00:
Of course, I don't have any information as to whether that even occurred.

[01:30:03] Speaker 00:
I do think with respect to the calls involving Williams,

[01:30:10] Speaker 00:
You know, frequently Agent Bemington specifically stated, you know, his lay opinion was based on this call and the previous calls heard with Williams.

[01:30:17] Speaker 00:
In other words, were they gone in a sequence of playing calls that involved Williams, and then saying on the basis of those calls, I think this is what they were talking about.

[01:30:25] Speaker 00:
I'm not aware of very many, certainly no instances where Agent Bemington expressly stated, I know of other evidence, or this is based on, you know, other observations that were made.

[01:30:36] Speaker 01:
Why don't you turn to page 71 of your brief?

[01:30:39] Speaker 01:
Yes, Your Honor.

[01:30:40] Speaker 01:
very top of the page.

[01:30:47] Speaker 01:
There's a reference to J. A.

[01:30:50] Speaker 01:
1906 1907.

[01:30:52] Speaker 01:
Yes.

[01:30:54] Speaker 01:
And it says a pining based on calls and meeting between Bowman and Williams on March 12 2001.

[01:31:01] Speaker 01:
that when Williams told Bowman during a conversation on March 13 that he quote, got that for inserting Bowman and some more, end quote, Williams was letting Bowman know that he had the money for cocaine Bowman provided the previous day.

[01:31:20] Speaker 00:
Yes.

[01:31:21] Speaker 01:
How can you give that opinion just based on what you've heard in phone calls?

[01:31:31] Speaker 01:
Well, yeah, I'd have to... I mean, you say he's not giving the opinion just based on what he's heard in phone calls.

[01:31:37] Speaker 01:
You say in your brief... Right, based on the meeting.

[01:31:40] Speaker 01:
Based on meetings.

[01:31:41] Speaker 00:
Yes, and he had specifically testified about specific meetings that had been videotaped.

[01:31:46] Speaker 00:
In other words, that testimony was also provided.

[01:31:48] Speaker 00:
So the jury, certainly, those meetings, he testified, and I think at least one other agent also introduced videos.

[01:31:54] Speaker 01:
What's the basis for him to say that it's cocaine that he's talking about as opposed to marijuana, heroin, or...

[01:32:00] Speaker 01:
girl scout.

[01:32:02] Speaker 00:
Right.

[01:32:02] Speaker 00:
I think the basis here was this way.

[01:32:04] Speaker 00:
We certainly knew that.

[01:32:07] Speaker 00:
Bowman was trafficking in cocaine.

[01:32:09] Speaker 00:
That was what he sold.

[01:32:11] Speaker 00:
That was the only drug that he was selling as part of this conspiracy.

[01:32:16] Speaker 00:
The fact that, as the jury was well aware, he had made several controlled deliveries of cocaine.

[01:32:25] Speaker 00:
We had testimony from Moore that Moore had provided cocaine.

[01:32:28] Speaker 01:
I understand all of that, but here's my point, is that you're making this seem like lay opinion testimony under 701 is what this is.

[01:32:37] Speaker 01:
and it's really just somebody not really using any specialized expertise, they're just listening to some phone calls and saying that based on the language in that call, they can tell that when they say, you know, X and Y, they're really mean Z. What you're telling me now is that

[01:33:02] Speaker 01:
My opinion isn't based on kind of, you know, really interpreting the language.

[01:33:07] Speaker 01:
It's based on interpreting the fact that there's been all these other controlled buys, that we saw a meeting that happened, et cetera, et cetera.

[01:33:16] Speaker 01:
And it's 95% based on things that happened other than the phone calls.

[01:33:22] Speaker 00:
right?

[01:33:23] Speaker 00:
Well, I think there there certainly was a lot of evidence from which the jury could conclude and we would submit overwhelming evidence from which to conclude that that was exactly the subject of these series of calls over the course of a couple of months with other people as well with other people as well.

[01:33:40] Speaker 02:
Yes, one of the things you said today was

[01:33:42] Speaker 02:
helpful to me.

[01:33:42] Speaker 02:
I'm really still trying to understand how the lay testimony can be used properly, if at all, in a context like this.

[01:33:48] Speaker 02:
And I thought one of your responses earlier was quite helpful in that regard.

[01:33:51] Speaker 02:
You were saying one of the ways Agent Bevington thinks he knows what this call is about, even though it's so cryptic, is that you have more explicit parallel conversations going on right around the same time with other people who are in a similar position vis-a-vis Bowman to Williams's position.

[01:34:08] Speaker 02:
He's calling around and saying, it's coming in, it's coming in, it's coming in, it's coming in.

[01:34:15] Speaker 02:
And there's a pattern, some of them more explicit than others, timing, the background.

[01:34:19] Speaker 02:
What I would expect to see, if this is a lay witness and is being put on in a way that the jury can evaluate, is for the agent to say,

[01:34:27] Speaker 02:
Did you, you know, is this an accurate recording of a conversation between Mr. Williams and Mr. Bowman?

[01:34:32] Speaker 02:
Yes.

[01:34:34] Speaker 02:
Do you have an opinion about what he means when he's talking about paying you money and what he's paying for?

[01:34:39] Speaker 02:
Yes.

[01:34:40] Speaker 02:
On what do you base that opinion?

[01:34:41] Speaker 02:
Well, I had listened to a bunch of other calls.

[01:34:44] Speaker 02:
And this call said explicitly this.

[01:34:46] Speaker 02:
That call said explicitly this.

[01:34:48] Speaker 02:
That call said explicitly this.

[01:34:49] Speaker 02:
Plus, we had information from physical surveillance about a big shipment of drugs coming in.

[01:34:54] Speaker 02:
And when I put all the timing together and when I look at the analog here and I know inferentially what I know about Williams, I draw the conclusion that he's talking about drugs.

[01:35:05] Speaker 02:
Then the jury can sit back and say, oh, OK, I see his chain of reasoning.

[01:35:09] Speaker 02:
I see the observations.

[01:35:11] Speaker 02:
You know, this is the lay testimony aspect from which he's making those inferences.

[01:35:16] Speaker 02:
But when you read the record in this case, what do you base it on?

[01:35:19] Speaker 02:
Did you have an opinion based on a bunch of phone calls of what this meant?

[01:35:23] Speaker 02:
Yes.

[01:35:23] Speaker 02:
What did it mean?

[01:35:24] Speaker 02:
I mean, it's very cryptic and mystified for the jury.

[01:35:27] Speaker 02:
And it really comes off from a witness who was also an expert witness as

[01:35:34] Speaker 02:
We trust him.

[01:35:34] Speaker 02:
He knows everything.

[01:35:36] Speaker 02:
And so that's the problem that we have, the prejudice problem that we have here.

[01:35:39] Speaker 02:
And I just would love your thoughts on that.

[01:35:42] Speaker 00:
Well, certainly it would be very nice, obviously, if we had that kind of very explicit description of the basis with respect to why Agent Bevington was testifying as he did.

[01:35:53] Speaker 00:
And do you not ever do it that way?

[01:35:55] Speaker 00:
Well, I remember this is beforehand.

[01:35:57] Speaker 00:
No, no, I know.

[01:35:58] Speaker 02:
But you also have to take Judge Rogers' points about this is a long developing concern.

[01:36:02] Speaker 02:
And just rationally, when I read rule 701 and think it has to be rationally based on perception, and I know about the jury's role, it doesn't take rocket science to think that it has to be something along those lines.

[01:36:15] Speaker 00:
Right.

[01:36:15] Speaker 00:
And in this case,

[01:36:18] Speaker 00:
You know, we've conceded that there was certainly at least some error under Hampton with respect to Agent Bevington's testimony.

[01:36:25] Speaker 00:
Obviously, we can't go back in time and change that testimony, but nevertheless, I do think that if you look carefully at how the prosecutor argued this case, he made the kind of points that you're making right now.

[01:36:36] Speaker 00:
He talked about juxtaposing.

[01:36:40] Speaker 00:
what we know from Moore's testimony about these meetings, juxtaposing the calls, looking at who was coming there.

[01:36:47] Speaker 00:
I think he talked very explicitly about March 21.

[01:36:53] Speaker 00:
But you're talking about closing.

[01:36:54] Speaker 00:
Yes, in closing, right.

[01:36:55] Speaker 00:
So I think this, in other words, the jury was told pretty explicitly with respect to Mr. Williams,

[01:37:02] Speaker 00:
transactions, and that's really what we're talking about here, got a pretty fulsome picture of what the government's case was against Mr. Williams and why it was compelling.

[01:37:12] Speaker 00:
Yes, it was certainly circumstantial in that we didn't have, you know, he wasn't out there walking around with cocaine in his hands, this is true, and he wasn't openly talking about cocaine over the phone as none of them ever did.

[01:37:25] Speaker 00:
But nevertheless, that there was absolutely a compelling case based on everything that Mr. Bowman was doing that day, his activities and what we know from Mr. Moore about what he had been providing to Mr. Bowman, that the

[01:37:41] Speaker 00:
that Mr. Williams was one of a number of customers that day who met Tolbert, Mins, Ismael, Brooks and others who were meeting sequentially with Mr. Bowman.

[01:37:58] Speaker 00:
Remember, Mr. Bowman also says, he's telling him, I don't want all of you coming at the same time.

[01:38:04] Speaker 00:
When you take all of this together and put it in context, you don't need Agent Bevington's testimony.

[01:38:09] Speaker 00:
Quite frankly, it's doing exactly what the prosecutor does in summation and what any reasonable juror could come up to.

[01:38:15] Speaker 00:
And that's what we think in this case.

[01:38:18] Speaker 00:
Although there was some error under Hampton, it was nevertheless harmless.

[01:38:22] Speaker 01:
That's very helpful.

[01:38:24] Speaker 01:
Thank you.

[01:38:25] Speaker 01:
They only convicted them of something between a detectable amount and 500 grand.

[01:38:31] Speaker 01:
Right.

[01:38:32] Speaker 00:
Well, because I think obviously it wouldn't have been possible.

[01:38:35] Speaker 00:
And AJ Bamington, I don't recall ever testifying at any point as to what specific amount.

[01:38:46] Speaker 00:
Mr. Williams got in this case.

[01:38:49] Speaker 00:
The only specific testimony as to amount that was out there was Mr. Moore had talked about some amounts that he'd provided, and then there was some testimony from Agent Bevington about how much he, based on words that were used, how much Tolbert got that day.

[01:39:04] Speaker 00:
But nevertheless, so at that point, the jury could be pretty confident that Mr. Williams had gotten drugs for resale from Mr. Bowman, but didn't have specific testimony from which he could make a drawing conclusion as to how much that he got.

[01:39:20] Speaker 00:
But in this case, I think again, because the jury was able to make that distinction focusing on the actual evidence against Mr. Williams, we can be confident that it properly assessed that evidence independently and did so independently of Agent Bevington's testimony.

[01:39:35] Speaker 01:
Can you just want to be clear about your answer to my prior question?

[01:39:41] Speaker 01:
What, if any, guidance did the judge give the jury about how to consider the lay opinion testimony of evidence?

[01:39:49] Speaker 00:
And again, I have to go back and check the record, Your Honor, to see if there was an express instruction given about lay opinion testimony.

[01:39:56] Speaker 00:
I will try to find that.

[01:39:57] Speaker 01:
I mean, I read through the instructions that you provided in the appendix, and I didn't see it.

[01:40:01] Speaker 00:
Right.

[01:40:01] Speaker 00:
So I don't know that there was an express instruction given beyond the expert instruction that was given.

[01:40:07] Speaker 00:
in which case the jury was told that he was an expert as to code words.

[01:40:12] Speaker 00:
But I don't think that there was a specific instruction, but I have to go back and check.

[01:40:16] Speaker 00:
I do apologize.

[01:40:17] Speaker 00:
I don't have the right in front of me as to when he began testifying, whether or not the jury, the judge gave a lay opinion instruction.

[01:40:25] Speaker 00:
I do think that the

[01:40:28] Speaker 00:
that obviously this court or other courts have really gone to depth into sort of instructions that are given as to lay opinions as opposed to expert opinions because it's actually drawn the most concern as to telling the jury how to treat it.

[01:40:43] Speaker 00:
In this case, I think that, you know, again, the

[01:40:48] Speaker 00:
Even without such an instruction, I think the jury got the message, both through the cross-examination of Agent Bevington and from the government's own closing argument, that it was very clear that Agent Bevington was interpreting the calls.

[01:41:02] Speaker 00:
He was trying to look at it based on the same evidence that the jury had.

[01:41:08] Speaker 00:
And so the question of what the government was arguing to the jury was that it should, in fact, look at these calls and at Mr. Willing's interactions with Mr. Bowman as relating to cocaine.

[01:41:19] Speaker 03:
All right.

[01:41:20] Speaker 00:
If there are no further questions, we respectfully submit that the judgment of the district court should be affirmed.

[01:41:24] Speaker 00:
Thank you.

[01:41:24] Speaker 03:
Thank you very much.

[01:41:27] Speaker 03:
All right.

[01:41:31] Speaker 03:
Mr. Greenspun?

[01:41:32] Speaker 07:
Yes.

[01:41:32] Speaker 07:
I'm going to make a couple of brief points, Your Honor.

[01:41:37] Speaker 07:
In terms of the questions and concerns about, well, what can we do in these cases?

[01:41:46] Speaker 07:
Agent Bevington was really not testifying, as we understand this.

[01:41:51] Speaker 07:
He was accusing.

[01:41:54] Speaker 07:
Williams of discussing cocaine.

[01:41:57] Speaker 07:
These were accusations he was making.

[01:42:01] Speaker 07:
And if I can take it one step further, if they don't have the evidence, they don't have the evidence.

[01:42:08] Speaker 07:
You know, the Gaskins case and the Gaskins, US versus Gaskins in this circuit, and it cites Ingram, say that a defendant's responsibility in a conspiracy must be proven by his own acts and declarations.

[01:42:23] Speaker 07:
They didn't have that in this case.

[01:42:25] Speaker 07:
They didn't have it.

[01:42:26] Speaker 07:
They didn't bother to investigate and follow up.

[01:42:29] Speaker 07:
They had plenty of time.

[01:42:31] Speaker 07:
If the government doesn't have the evidence by their own acts and declarations,

[01:42:36] Speaker 07:
They don't have it.

[01:42:38] Speaker 07:
I don't believe yet.

[01:42:39] Speaker 07:
I mean, it's going back to a very dark time when you say an agent or a government official could come in and accuse somebody of doing this, and that's it.

[01:42:47] Speaker 07:
They're guilty, okay?

[01:42:48] Speaker 07:
Because the jurors will give that a lot of weight.

[01:42:52] Speaker 07:
And the other thing I would like to say is if you cut out Bevington's testimony from this case,

[01:43:03] Speaker 07:
I think that Williams is entitled to a judgment of acquittal.

[01:43:07] Speaker 07:
It was entitled to it because they didn't prove it, his participation and knowledge in the conspiracy.

[01:43:15] Speaker 07:
And I just repeat one last time that because the government's last position was that Bowen could plead, if Williams pled, shows that their objective in cutting 20 years off the guy's sentence

[01:43:33] Speaker 07:
was to get a conviction of Williams through guilt by association out of the multiple conspiracy argument.

[01:43:39] Speaker 07:
Here's another reason multiple conspiracy is important, because you have to be guilty of the conspiracy charge.

[01:43:47] Speaker 07:
If you don't prove that, you're not guilty of that conspiracy.

[01:43:50] Speaker 07:
The other thing is, without the multiple conspiracy, all the evidence of all the other acts

[01:43:56] Speaker 07:
can all come in and be held against the defendant because it's one conspiracy.

[01:44:02] Speaker 07:
It's not one conspiracy.

[01:44:04] Speaker 07:
OK?

[01:44:05] Speaker 07:
I mean, the jury verdict shows that.

[01:44:06] Speaker 07:
And that's all I have to say.

[01:44:07] Speaker 07:
And thank you very much for your attention.

[01:44:10] Speaker 03:
All right.

[01:44:10] Speaker 03:
Counsel Mr. Lecar, Mr. Sussman, and Mr. Greenspan, you were appointed by the court to represent appellants in this case or in these cases.

[01:44:21] Speaker 03:
And we express our appreciation and thank you for your assistance.

[01:44:28] Speaker 02:
Could I just mention, we had asked for if you had the proffered jury instruction, and then we were appointed to a footnote in the brief, and that actually is just a reference to the order of the court on the issue.

[01:44:40] Speaker 02:
We have the jury instructions as given, but it would be useful to have the jury instruction that was proffered, which I think is in, maybe it's in the district court record, but it would be helpful to have your confirmation of the actual jury instruction that was given.

[01:44:57] Speaker 02:
Right, right, I think it may be in the district court record, but it would just be helpful to have, we don't have it in this record.

[01:45:04] Speaker 02:
It would be helpful to have confirmation.

[01:45:06] Speaker 02:
Thanks.

[01:45:07] Speaker 03:
All right, may I just follow up by saying, today is the 11th of March.

[01:45:13] Speaker 03:
Could we ask that these responses be submitted to the court by next Friday?

[01:45:20] Speaker 03:
Is that too quick a turnaround?

[01:45:24] Speaker 03:
Sorry, so that's March 18th?

[01:45:26] Speaker 03:
Thank you.