[00:00:02] Speaker 00: Case number 16-3011 at L, United States of America versus Ernest Milton Glover, also known as Fish, appellant. [00:00:10] Speaker 00: Mr. Ripke for appellant Hilary Price, Mr. Matadu for appellant Ernest Glover, and Ms. [00:00:15] Speaker 00: Heffernan for the appellate. [00:00:22] Speaker 03: Good morning. [00:00:23] Speaker 04: As I understood the division of argument, you're going to be doing the truck bug issue. [00:00:27] Speaker 04: Is that right? [00:00:27] Speaker 03: That's correct. [00:00:28] Speaker 04: And Mr. Maddu is going to do the Bellington issue. [00:00:30] Speaker 03: That's correct. [00:00:31] Speaker 03: Gotcha. [00:00:32] Speaker 03: And I'll also be addressing how the truck bug evidence and the evidence against Mr. Price that's discussed here is so prejudicial that but for it, the result of the verdict here would have been not guilty. [00:00:42] Speaker 03: When we're talking about prejudice in regard to the truck bug, it makes sense, obviously, to go right to the tapes. [00:00:50] Speaker 03: What the jury was told over and over again is, quote, I know brother wants a gallon. [00:00:55] Speaker 03: Quote, if he got the effing gallon sale, shoot, by the end of the week, I should have the other $200, and by then I'm gone. [00:01:04] Speaker 03: Which stuff are we going to give brother, the old water or the new water? [00:01:08] Speaker 03: I edited those when I said them to take out some words because these are graphic recordings. [00:01:13] Speaker 03: And that's the exact point the government made at oral arguments, at closing arguments for the jury, that these truckload of recordings afforded the jurors the opportunity to hear this stuff unfiltered. [00:01:26] Speaker 03: There is no evidence whatsoever in this case against Mr. Price. [00:01:30] Speaker 03: that would tie him to PCP specifically, or even a PCP conspiracy, except for what's on the recordings of this truck bug. [00:01:41] Speaker 05: Can we reconcile your argument with what the panel described the evidence to be against Price on the direct appeal? [00:01:51] Speaker 05: Didn't the panel use the words? [00:01:54] Speaker 05: I'm trying to remember, but [00:01:57] Speaker 05: They didn't say mountain of evidence, but they described the evidence against Price and Ernest Glover as being quite substantial. [00:02:08] Speaker 03: Thank you for the question, Your Honor. [00:02:11] Speaker 03: If you factor in the truck bug evidence, it's a nail in the coffin. [00:02:15] Speaker 03: If you factor in the agent badminton, and all that evidence was what the panel had at its discretion to consider on the direct appeal. [00:02:23] Speaker 03: These quotes I'm giving you, if you're saying this is how we're going to split it up, there's no other evidence that talks about my client [00:02:32] Speaker 03: So brother, these his regular people. [00:02:34] Speaker 03: They get to calling me and saying it ain't right. [00:02:36] Speaker 03: It ain't like it used to be. [00:02:37] Speaker 03: Honestly, I'd rather just give them the good water. [00:02:40] Speaker 03: That's what the panel had on direct appeal. [00:02:42] Speaker 03: That's what should never have been admitted. [00:02:44] Speaker 03: It gives them not only the idea that it's PCP, but it gives them the idea that this man had customers over a period of time, that the supplier knew the customers below the next-lover dealer, and that he was trying to maintain a good relationship because it was something that was occurring over a continuum. [00:03:02] Speaker 03: None of that stuff at all would have come in, came in any other way but through this truck bug as it relates to Mr. Price and for Mr. Glover as well, this truck bug was extraordinarily incriminating. [00:03:13] Speaker 03: So that's how I reconcile it, notwithstanding the Bennington stuff as well. [00:03:20] Speaker 03: We know also that it was that significant because the jury acquitted Glendale Lee. [00:03:26] Speaker 03: Glendale Lee was the only co-defendant who was not mentioned on the Trump book. [00:03:31] Speaker 03: So there is a clear delineation about what the jury did here. [00:03:34] Speaker 03: Glendale Lee was caught with 22 drug vials in his residence, all of which tested with PCP. [00:03:41] Speaker 03: Glendale Lee was on the recordings with subs where subs were saying, was complaining about Lee. [00:03:45] Speaker 03: He's telling people about what we're doing. [00:03:47] Speaker 03: We're going to get a snitch. [00:03:48] Speaker 03: We're going to get in trouble. [00:03:49] Speaker 03: He had Glendale Lee on the tapes talking about two of these and two of these and how much quantity they were dealing. [00:03:58] Speaker 03: The evidence against Glendale Lee was more significant than the evidence against Price if you carve out this truck bug evidence. [00:04:04] Speaker 03: which Gordendale obviously wasn't mentioned on, which I think explains the difference of what happened there. [00:04:12] Speaker 03: The jury, if you didn't have the truck bug evidence, and the government has discussed the other evidence, Your Honor, the tapes and other things like this, there's conversations which, as the government set a trial, they appear to be not talking about what they're talking about. [00:04:29] Speaker 03: But none of those recordings mention drugs at all. [00:04:32] Speaker 03: They could be about any other kind of thing. [00:04:34] Speaker 03: And they could be about drugs that have nothing to do with PCP. [00:04:37] Speaker 05: Assuming we find prejudice, how do we reconcile, I guess, the merits as far as deficient performance given the state of the law at the time of the trial? [00:04:55] Speaker 03: Thank you, Your Honor. [00:04:56] Speaker 03: I believe that the standing state of the law at the time of the trial was the same as it is today. [00:05:01] Speaker 03: And how this was divided up, I mean, the reason, the problem here is that the truck was parked in Maryland. [00:05:10] Speaker 03: The truck wasn't my client's truck or Mr. Glover's truck. [00:05:13] Speaker 03: So it was not in much of a misunderstanding about the law, I feel like, because it wasn't oversight on the fact that the truck wasn't in the jurisdiction at all when it happened. [00:05:23] Speaker 05: But do we have any evidence in the record about why it wasn't raised? [00:05:30] Speaker 03: Well, there wasn't a hearing below, so we don't have testimony exactly. [00:05:36] Speaker 05: But I mean, there could have been a declaration or an affidavit submitted, some sort of a record made, right? [00:05:42] Speaker 03: to show why it wasn't raised at the time? [00:05:46] Speaker 03: Yes. [00:05:46] Speaker 03: Well, of course, that's possible. [00:05:49] Speaker 03: That could have been done. [00:05:51] Speaker 03: And we don't know why, but we can't assume. [00:05:54] Speaker 03: I guess what we look at is Suggs. [00:05:56] Speaker 03: The district court had no problem finding that Suggs' lawyer committed deficient performance by not raising the issue. [00:06:03] Speaker 03: And that holding was clear. [00:06:05] Speaker 03: The difference that the district court was not understanding it. [00:06:09] Speaker 05: But Suggs had [00:06:12] Speaker 05: communications of his that were introduced against him at trial from the truck bug. [00:06:20] Speaker 03: I agree, Your Honor. [00:06:21] Speaker 03: The question was on standing. [00:06:24] Speaker 03: We briefed that well for the Court, if both sides have. [00:06:27] Speaker 03: If you find that we do have standing, which I believe we do, then I think the question of deficient performance is clear and falls in our favor, just like the District Court did below. [00:06:36] Speaker 03: That issue turns on the standing question. [00:06:39] Speaker 05: But isn't Suggs' standing a lot easier to see, so to speak, than your client's standing? [00:06:48] Speaker 03: I would agree it's easier in the sense that Sunk's standing is Title III standing and arguably also Fourth Amendment standing. [00:06:57] Speaker 03: But Title III standing is sufficient. [00:07:02] Speaker 03: So I guess while it may be more clear, because it also fits the notion of your voice is caught on the recording, that that's maybe perhaps more intuitive. [00:07:14] Speaker 03: It's not intuitive. [00:07:15] Speaker 04: It's expressed in the statute, right? [00:07:17] Speaker 03: Well, yeah, Your Honor, that's the President's idea. [00:07:18] Speaker 04: A person who is a party to any intercepted wire communication. [00:07:21] Speaker 03: Or if it is, Your Honor. [00:07:22] Speaker 04: Right, so that is expressed, so there's just no doubt that Suggs had standing. [00:07:26] Speaker 03: And I don't think there's any doubt that Price does either because it was directed at him. [00:07:30] Speaker 04: Well, the question is what the meaning of directed at is. [00:07:32] Speaker 04: That's the problem. [00:07:33] Speaker 04: And Rekus suggests that it's a different meaning than the one. [00:07:36] Speaker 04: I'm not saying Rekus is decisive or anything else, but it certainly clouds the [00:07:41] Speaker 04: waters as to, or whatever the appropriate metaphor is, as to standing in a way that there was no, there were no clouds for sucks. [00:07:51] Speaker 03: It is, that distinction is accurate, Your Honor. [00:07:53] Speaker 03: In terms of how cloudy it is or not, I think that it's clear that the type of standing target, the way targeted is used in RACUS, in that kind of context, is different from how this court used it in Scurry. [00:08:07] Speaker 03: And I think I would encourage the Court, as I know you already have, to read the District Court decision in Ford, that they recently spelled this out, you know, more explicitly than maybe it had been in other ways. [00:08:19] Speaker 04: But Enriquez, the Court, expressly says that, well, it says two things. [00:08:23] Speaker 04: One, that Title III was not intended to accept standing law as it was at the time. [00:08:31] Speaker 04: And it says Alderman is a standing law at the time. [00:08:35] Speaker 04: And it says that [00:08:36] Speaker 04: The court in Alderman left no doubt that it rejected the theory by holding that persons who were not parties to unlawfully overheard conversations, or did not own the premises on which the conversations took place, did not have standing to contest the legality of the surveillance, regardless of whether they were targets or not, goes on. [00:08:56] Speaker 04: I'm not saying that decides the question. [00:08:57] Speaker 04: And if we were the Supreme Court, we would reinterpret or could interpret what Raikis meant. [00:09:01] Speaker 04: But it certainly raises the question [00:09:05] Speaker 04: put in a strict one terms was the lawyer below not acting as a lawyer when he didn't realize that this client would have standing here. [00:09:14] Speaker 04: That's the way Strickland puts the meaning of ineffective assistance of counsel. [00:09:20] Speaker 04: So serious that the counsel was not functioning as the counsel guaranteed by the [00:09:24] Speaker 03: Thank you. [00:09:25] Speaker 03: Thank you, Your Honor. [00:09:26] Speaker 03: In this context, we're talking about a pretrial suppression motion in a criminal case. [00:09:30] Speaker 03: What I believe the standard is, and this happens, as Your Honor knows all the time, if there is a colorable argument for it, the government here has admitted at the very least that the law is unsettled in this area. [00:09:43] Speaker 03: If you're at a criminal trial and the government's saying, well, we don't have any case that proves you're wrong, it's unsettled. [00:09:48] Speaker 03: We'll give you that. [00:09:50] Speaker 03: How do you not litigate that issue in a pretrial suppression hearing? [00:09:57] Speaker 03: So I do believe it was deficient performance for them not to raise the issue for the same reasons as it was found for the counsel in Suggs' case. [00:10:05] Speaker 03: And I think that this court's prior president, Williams and Bellosi, which described it as a clear, unambiguous mandate, the standing issue, addresses the rakish argument that's drawn from that footnote. [00:10:22] Speaker 06: Do you have any case law that says [00:10:24] Speaker 06: What you're effectively saying, in a pre-trial suppression hearing, because of a different setting, the burden is different than what we would normally apply in assessing counsel's competence? [00:10:40] Speaker 06: The way you threw out your assertion was, well, it's a different context. [00:10:47] Speaker 06: So in measuring it, it's different than you might otherwise consider your honors. [00:10:50] Speaker 06: You have to assume that a council in that situation is going to throw everything at the wall. [00:10:56] Speaker 06: Is there any case law that says something to that effect? [00:10:58] Speaker 03: Yes, Your Honor, I have Third Circuit and Seventh Circuit decisions in other 2255 cases which are cited in our reply brief. [00:11:05] Speaker 03: The Third Circuit case is Thomas versus Varner, 428, F3D, 491. [00:11:10] Speaker 03: The Rodriguez decision from the Seventh Circuit is 906, F2D, 1153. [00:11:16] Speaker 03: They both say basically because there was a colorable argument in support of the suppression motion, counsel's failure to act on it was objectively unreasonable. [00:11:25] Speaker 04: So there's no, I was looking for colorable. [00:11:27] Speaker 04: I couldn't find any either in our circuit or in the Supreme Court. [00:11:31] Speaker 04: Neither of those authorities use this point, right? [00:11:37] Speaker 03: I would agree with you, Your Honor. [00:11:38] Speaker 03: If I had those, I would certainly hear them. [00:11:40] Speaker 04: I figured. [00:11:41] Speaker 04: You would certainly sound different. [00:11:43] Speaker 03: Yeah. [00:11:43] Speaker 03: But I mean, there isn't anything. [00:11:46] Speaker 03: I mean, the Third and Seventh Circuit decisions are sound on this ground. [00:11:50] Speaker 03: The Seventh Circuit one is from 1990. [00:11:51] Speaker 03: It's been around a long time. [00:11:53] Speaker 03: It's not gone anywhere. [00:11:54] Speaker 03: And frankly, I mean, this is a unique scenario. [00:11:59] Speaker 03: It fits with common sense, though. [00:12:01] Speaker 03: When you're in a suppression motion. [00:12:01] Speaker 04: Why is it a unique scenario? [00:12:03] Speaker 04: I would have guessed it would sort of come up a lot. [00:12:06] Speaker 04: And therefore, I'm surprised that there aren't cases on it. [00:12:11] Speaker 04: Williams, I don't think I can read Williams the same way you do, because the actual holding of the case is that [00:12:20] Speaker 04: Appellants contend that any use of information from the unlawful 7073 wiretaps produced a flaw in the ensuing wiretaps, and therefore they may complain even if their own voices were not overheard or their own premises were not involved. [00:12:35] Speaker 04: That argument has been rejected by numerous courts. [00:12:39] Speaker 04: We agree that an accused is unable to attack in this indirect fashion those wiretaps that it could not challenge directly. [00:12:46] Speaker 03: My understanding of that is that they're talking about ensuing orders after the first one, which is different here. [00:12:52] Speaker 03: There was an order and then there were several... I don't disagree that it's a distinguishable case. [00:12:55] Speaker 04: I just don't think it supports your proposition, that's all. [00:12:59] Speaker 04: I mean, I think it has words that suggest against, but I agree it doesn't resolve your case. [00:13:06] Speaker 04: But you were citing it as if it were dead on precedent for your point. [00:13:11] Speaker 03: I understand the question, Your Honor. [00:13:15] Speaker 03: It does say in there, squarely directed at standing. [00:13:17] Speaker 03: And that's the way the government cited this case in their initial memorandum in the district court, that it included directed at standing. [00:13:24] Speaker 03: I think that if we read the scurry decision, if we look at even the precedent from Pelosi from this court, they really [00:13:34] Speaker 03: I respectfully submit that the notion that it is directed at standing straight from the statute is fairly unambiguous. [00:13:44] Speaker 04: There's no doctors directed against standing, not directed at, but directed against, right? [00:13:49] Speaker 04: And the question is, what does it mean? [00:13:51] Speaker 03: Yeah, it's a great question. [00:13:54] Speaker 03: It is a great question. [00:13:55] Speaker 03: I mean, unless we're going to read it in a way that it means absolutely nothing and it disappears from the statute, it talks about people at whom they're directing. [00:14:04] Speaker 03: In this one, we check every one of those boxes, except for his voice being on the recording. [00:14:07] Speaker 03: They used his evidence and his name to get the affidavit in the first place. [00:14:12] Speaker 03: in the judge's order and all the subsequent orders. [00:14:14] Speaker 03: His name is in there. [00:14:15] Speaker 03: He's called a target. [00:14:17] Speaker 04: They're obviously they say we want to go up that vehicle because he's been in around it and when you say that it would leave nothing in the statute, I'm not sure it says the statute says means a person was a party or a person against whom the interception was directed. [00:14:31] Speaker 04: Those are the two categories in the statute, right? [00:14:34] Speaker 04: So somebody who who's [00:14:39] Speaker 04: whose house is targeted, whose own cell phone is targeted, whose own landline is targeted, whose own truck is targeted, but who's not a party to the conversation would come in as a person against whom it was directed. [00:14:55] Speaker 04: So there is a category that it would fit. [00:14:57] Speaker 04: I appreciate you have a different argument as to another group you'd also like to fit, but the government's reading doesn't make the statute, effectively phrased, [00:15:09] Speaker 04: irrelevant. [00:15:10] Speaker 03: Well, I understand the point. [00:15:12] Speaker 03: Your Honor, that's very good. [00:15:13] Speaker 03: I think in the circumstance you gave just then, the example would include the traditional Fourth Amendment standing. [00:15:20] Speaker 04: Yes, that's right. [00:15:21] Speaker 04: So that's right. [00:15:22] Speaker 04: And that would fit with, I don't know what the right answer area is, but I know enough to know I'm confused. [00:15:27] Speaker 04: And Rakus suggests that it's the Fourth Amendment standing that was provided by Title III. [00:15:36] Speaker 03: I understand what John is saying about Rekes. [00:15:39] Speaker 03: I don't agree with that interpretation of it. [00:15:41] Speaker 03: I believe the way this Court has handled it, these decisions coming back, and I understand what John said about Williams, too, and looking at Pelosi as well, which the government, when they made their alderman argument, the footnote, which John mentioned, Pelosi addressed that issue. [00:15:56] Speaker 03: and reconcile those two things from this court decades ago. [00:16:00] Speaker 03: And I think that if done it as well as could be done it, it squares it up at the time. [00:16:07] Speaker 03: I don't know how you read Scurry or what's happened since then in a way if you're not recognizing that there is that element, and that numerous other courts have. [00:16:18] Speaker 03: not the Supreme Court squarely, although I can give your honor, Giordano, 416 U.S. [00:16:26] Speaker 03: 505, 1974, indicates [00:16:32] Speaker 03: that title 3 standing and 4th amendment standing are not identical. [00:16:38] Speaker 04: I don't want to beat a dead horse here, particularly since I don't know what the right answer is. [00:16:45] Speaker 04: But a scurry just says, covers anybody who is a target or a person party to a wiretap intercept. [00:16:52] Speaker 04: And target is just obviously the court's use of directed against and we don't know what that means. [00:16:58] Speaker 04: We don't know whether the target is the person whose phone it is or the person whose property it is or whether it means which is the government's argument or it's what you mean. [00:17:08] Speaker 04: But Scurry doesn't have any holding with respect to that question. [00:17:12] Speaker 03: I submit that the most reasonable interpretation of directed at would include Mr. Price and Mr. Glover under these facts, given all the information. [00:17:22] Speaker 03: And when other courts have addressed this issue more squarely, other district courts, that's what they look to. [00:17:28] Speaker 03: Are they in the orders authorizing the warrant or not? [00:17:32] Speaker 03: Were they trying to get them in order to get the warrant? [00:17:34] Speaker 03: And they rely on them to get the warrant. [00:17:35] Speaker 04: There's a mix of district courts on this. [00:17:37] Speaker 04: I agree with that. [00:17:39] Speaker 04: OK. [00:17:39] Speaker 04: Are there further questions? [00:17:40] Speaker 04: OK. [00:17:40] Speaker 04: Thank you. [00:17:41] Speaker 03: Thank you very much, Your Honor. [00:17:42] Speaker 04: And now we'll hear from Mr. Madhub. [00:17:47] Speaker 04: Yes. [00:17:47] Speaker 04: Okay. [00:17:47] Speaker 04: And you're going to talk about the batting condition. [00:17:49] Speaker 02: Yes, your honor. [00:17:54] Speaker 02: In terms of deficient performance, this court's precedence in Hampton and its progeny couldn't be more clear. [00:18:01] Speaker 02: When a lay witness provides interpretations or opinions to the jury without identifying his or her objective basis for that opinion, the testimony violates federal rule of evidence 701. [00:18:15] Speaker 02: In this case, the proffered basis for Agent Bevington's lay opinion testimony in the district court was that he had this institutional knowledge of the entire investigation [00:18:28] Speaker 02: and having listened to all the intercepted conversations in this case, that proper basis was insufficient. [00:18:35] Speaker 02: Below the district court would not entertain that categorical objection and instructed trial counsel to object line by line, which counsel wholly and entirely failed to do. [00:18:51] Speaker 04: So does that lead us to no ineffective assistance at the trial level? [00:18:57] Speaker 04: Because trial counsel made the objection. [00:19:01] Speaker 04: I wasn't sure I was following what you just said. [00:19:03] Speaker 02: Where do you end up? [00:19:05] Speaker 02: Well, that objection wasn't entertained. [00:19:09] Speaker 04: So at that point... So that means the district judge erred, but it doesn't assume you're right, which I think you are. [00:19:16] Speaker 04: But it doesn't mean the counsel is ineffective. [00:19:19] Speaker 04: It just means the counsel's argument wasn't accepted. [00:19:22] Speaker 02: I disagree, Your Honor, because at that point, [00:19:25] Speaker 02: The district court is saying, I don't like this testimony. [00:19:28] Speaker 02: I don't want Agent Bevington to be a mouthpiece for the government. [00:19:32] Speaker 02: And I need trial counsel to object line by line on that basis. [00:19:37] Speaker 02: And in the trial, throughout the trial, that's exactly what Agent Bevington did. [00:19:41] Speaker 02: He was a mouthpiece for the government. [00:19:46] Speaker 02: Both Price and Glover were prejudiced in this case for three reasons. [00:19:51] Speaker 02: So are you saying then that [00:19:54] Speaker 04: Is there any of Bevingston's testimony then that could have been acceptable had there been a line-by-line objection? [00:19:59] Speaker 04: Was it an all-or-nothing thing or was it... Are you saying that some things were okay and some not and the problem here is that the council didn't go ahead and object to the things that were not okay? [00:20:09] Speaker 02: Our position, Your Honor, is that any time Agent Beddington provided an opinion or an interpretation of a word, phrase, or an entire series of conversations without identifying the objective basis for that testimony, yes, it violated Hampton and it violated Federal Rule of Evidence 701. [00:20:28] Speaker 06: The failure to do the line-by-line objection, you're saying, was inefficient. [00:20:32] Speaker 02: Correct, Your Honor. [00:20:35] Speaker 02: So both Price and Glover are prejudiced in this case for three distinct reasons. [00:20:41] Speaker 02: One, the dominant role Agent Bevington played throughout the trial. [00:20:45] Speaker 02: Two, the lack of overwhelming physical evidence against either appellant. [00:20:49] Speaker 02: And three, the fact that when you strip away the recorded conversations and Agent Bevington's interpretation of those conversations, there's no other evidence that goes to establishing the conspiracy itself. [00:21:04] Speaker 02: Regarding the dominant role played, this court knows that in a nine-day drug conspiracy trial, the government called Agent Bevington a total of eight times for the principal purpose of playing recordings both from the truck bug and Mr. Sugg's wiretap phone, and then having Agent Bevington summarize those conversations in a conclusory fashion [00:21:32] Speaker 02: essentially boiling it down to the ultimate issue in this case. [00:21:37] Speaker 02: On what is perhaps the most egregious instance of Hampton error, the government plays a series of phone calls where Suggs and Glover talk about getting together and they use terms like pocky book or broad. [00:21:52] Speaker 02: And after these five or six conversations, the government asks Agent Bevington simply, well, what's going on there? [00:22:01] Speaker 02: It's at that point, Agent Bevington summarizes what is the entire issue of this case at the trial and says, well, what was going on is Mr. Suggs sold Mr. Glover a quantity of PCP. [00:22:13] Speaker 02: Mr. Glover resold that to another customer. [00:22:16] Speaker 02: Well, actually two customers. [00:22:18] Speaker 02: One of the customers had complaints about the quality and the other one didn't. [00:22:22] Speaker 02: that establishes the prejudice in and of itself. [00:22:27] Speaker 02: It doesn't take but a little bit of poison to ruin the drinking water in the entire well. [00:22:35] Speaker 02: Agent Bevington's dominant role is one reason this court can be satisfied that both appellants were prejudiced in this case. [00:22:45] Speaker 02: But in Williams, this court sets up a distinction between cases where Hanton error occurs and the [00:22:52] Speaker 02: defendant is also facing, quote, overwhelming physical evidence versus another case where the defendant is not. [00:23:03] Speaker 02: And the bulk or the key portion of the evidence against that defendant is the recording conversations as interpreted by Bevington. [00:23:13] Speaker 02: For both Price and Glover, they fall in that latter category. [00:23:18] Speaker 02: You know, in Suggs, obviously, the court was presented with a different scenario. [00:23:24] Speaker 02: That case included an overwhelming amount of PCP that was found in this home. [00:23:29] Speaker 02: But beyond that, Suggs was recorded acknowledging the existence of that, talking with another co-conspirator about that. [00:23:39] Speaker 02: In this case, the evidence that was found in Ernest Glover's home [00:23:46] Speaker 02: On what recording was he doing that? [00:23:49] Speaker 02: On Suggs' wiretapped phone. [00:23:52] Speaker 02: He's having a conversation with his girlfriend. [00:23:54] Speaker 04: And was that with clarity or is that one that Bevington interpreted? [00:23:58] Speaker 02: That is with some clarity. [00:24:00] Speaker 02: They're talking about the odor and police being outside and that if you know the odor, you know the odor. [00:24:06] Speaker 04: But is that one that Bevington said odor means PCP? [00:24:10] Speaker 04: In other words, he was giving an interpretation meaning that they're talking about PCP? [00:24:16] Speaker 02: I will have to check on that and respond. [00:24:18] Speaker 04: Because our court then says even assuming error in all this, the evidence was still sufficient. [00:24:24] Speaker 04: And I guess that would have to have excluded Bevington's testimony about that conversation, right? [00:24:30] Speaker 02: That was not a conversation on the truck bug. [00:24:33] Speaker 02: And I don't think it was excluded because of Agent Bevington's interpretation, which sets up the distinction between what was found in Ernest Glover's home, which we submit does not go to establish a conspiracy at all. [00:24:44] Speaker 02: and the overwhelming physical evidence that was located in Defendant Suggs' home. [00:24:50] Speaker 04: And what was the evidence for Glover, the physical evidence? [00:24:53] Speaker 02: Throughout the home, there is money located in Glover's [00:25:02] Speaker 02: There is drugs found in Ernest Glover's, at the time, minor child's bedroom. [00:25:09] Speaker 02: There's also some vials and PCP found in the basement. [00:25:17] Speaker 02: As we stated in our moving papers, [00:25:21] Speaker 02: You know, beyond what was found in the home, nothing goes to proving the actual conspiracy itself. [00:25:30] Speaker 02: If anything, the evidence found in the home goes to prove an entirely different crime altogether. [00:25:36] Speaker 02: That is possession with the intent to distribute, not conspiracy to possess. [00:25:40] Speaker 04: And the 404B evidence about the prior sales? [00:25:43] Speaker 04: Same issue, same point? [00:25:45] Speaker 02: Your Honor, I think even considering the 404B evidence, which was admitted for a limited purpose to prove knowledge, again, even in that light, the evidence itself doesn't go to proving the conspiracy. [00:26:05] Speaker 05: But I thought that the defense at trial was that [00:26:11] Speaker 05: There was a conspiracy, but there wasn't evidence that your client joined that conspiracy. [00:26:21] Speaker 02: I think the defense at trial was that these recordings could be interpreted in a number of different ways, and that Ernest Glover was not a member of the overall conspiracy. [00:26:33] Speaker 02: I think that's correct. [00:26:35] Speaker 02: Further questions? [00:26:38] Speaker 02: Thank you, Your Honor. [00:26:41] Speaker 06: Ms. [00:26:41] Speaker 06: Heffernan. [00:26:47] Speaker 01: It's the court, Patricia Heffernan on behalf of the United States. [00:26:50] Speaker 01: Picking up on the Bevington issue first, the [00:26:56] Speaker 01: All of the drug and paraphernalia in Glover's home certainly informed the jury's inference and informed the jury's understanding of the calls and was significant proof of Glover's participation in this drug conspiracy. [00:27:15] Speaker 01: And I disagree wholeheartedly. [00:27:17] Speaker 01: The Sugs evidence is absolutely relevant evidence in determining whether or not [00:27:24] Speaker 01: Glover and Price were members of the conspiracy. [00:27:27] Speaker 01: What the calls as a general matter show, looking at them in their entirety, is you have Suggs who is distributing massive amounts of PCP. [00:27:38] Speaker 01: He's having repeated calls with both these defendants and others that show that he's supplying something to them and they're supplying something to customers below [00:27:46] Speaker 01: who are pressed for it, and are in need of... Are these as interpreted by Bevington? [00:27:52] Speaker 01: No. [00:27:53] Speaker 01: Thank you. [00:27:53] Speaker 01: There were 80 calls admitted at trial. [00:27:56] Speaker 01: Bevington opined about 10 of them. [00:28:01] Speaker 01: To read the appellant's brief, you'd think that he spent the entire trial opining, and that's absolutely inaccurate. [00:28:06] Speaker 01: there were, I think the district court said, 51 calls or so that he said absolutely nothing about. [00:28:12] Speaker 01: Some of the calls, he simply explained to the jury what was going on at the time. [00:28:15] Speaker 01: He, with respect to Juju Johnson, said that he was bald. [00:28:19] Speaker 01: And during one conversation, he explained to the jury that the wiretap group, that they, after they got this call, they sent two guys out, two agents out to surveil the meeting. [00:28:28] Speaker 01: And then he explains that they called off the surveillance because the telephone calls between the two [00:28:34] Speaker 01: indicated that they were aware, they had seen the antennas, and they knew that they were being surveilled. [00:28:38] Speaker 01: So the wiretap room told them to call it off. [00:28:40] Speaker 01: So sometimes what he was saying was simply giving some background about what was going on at the time. [00:28:46] Speaker 01: And Bevington was called repeatedly, both because he testified at first as an overview witness, and then he introduced all the calls. [00:28:53] Speaker 01: And the government kept the evidence separate with respect to each defendant. [00:28:57] Speaker 01: There were four defendants at trial, and then there's also all of the Lonnell Glover information that informed [00:29:03] Speaker 01: the evidence in the conspiracy also. [00:29:06] Speaker 01: So that's why he was called repeatedly. [00:29:10] Speaker 01: With respect to deficiency on the Beddington issue, Hampton was decided after these defendants' convictions were affirmed on direct appeal. [00:29:19] Speaker 01: And the opinion in Hampton relies really on Second Circuit case law. [00:29:27] Speaker 01: It's not at all accurate to say that council wasn't performing as a council guaranteed by the Sixth Amendment, at least certainly on appeal, by not relying on Hampton. [00:29:39] Speaker 01: And with respect to the question this question of the district court telling the lawyers that she wanted them to go line by line after first Overruling the first of the court overruled the objection citing Island, which was this district court case and then [00:30:00] Speaker 01: spent some significant time explaining how she didn't like the way the government was trying these cases, having Bevington or an agent testify about all of the calls. [00:30:10] Speaker 01: And as she noted in her district court opinion, I can't remember whether it was in Sugs or in this case, but in one of the 2255 opinions, she noted that was effective because the government, in fact, called, put in very little of Bevington's opinion. [00:30:24] Speaker 01: And that's accurate. [00:30:27] Speaker 01: So I think when she said that she wanted the lawyers to go line by line, she was referring to this notion that, hey, I'm not going to let you put your whole case in this way. [00:30:36] Speaker 01: She overruled the objection, but said the government, hey, government, you can't try the whole case this way. [00:30:41] Speaker 01: You've got to be moderate with respect to the amount of opinion that you elicit, and you have to make sure that there's some stated basis. [00:30:52] Speaker 05: But that's not what she said. [00:30:54] Speaker 05: I mean, she's directing, when she says line by line, she's directing it to the defense counsel, not to the government. [00:31:02] Speaker 05: She's not acknowledging the government. [00:31:04] Speaker 01: I agree, but I think it's not crystal clear, but I think what she was saying was after discussion how she didn't [00:31:12] Speaker 01: want the government to try the case in this manner by eliciting so much opinion testimony. [00:31:16] Speaker 01: I think she was saying to defense counsel, we'll go line by line, because at some point, I'm gonna put an end to all of these opinions. [00:31:24] Speaker 01: Or if there's an opinion where they don't state a basis, because she's discussed this notion of how can you say a hairdryer means PCP, and then she says, I'll just have to hear the testimony. [00:31:35] Speaker 01: So I think what she's saying to defense counsel is, we'll go line by line, not with respect to [00:31:40] Speaker 01: an island Hampton type objection, but with respect to the amount of opinions that are elicited. [00:31:48] Speaker 01: I think at the end of the day it doesn't matter for this court which way it reads it. [00:31:54] Speaker 01: I think that the transcript is a little confusing, but that's the government's reading of that transcript. [00:32:00] Speaker 01: I don't think she said she first rejected the objection on island grounds and then kind of backtracked on [00:32:11] Speaker 01: what she was saying, I think she. [00:32:12] Speaker 04: Are you saying the defendant raised the subjection below or didn't raise the subjection? [00:32:17] Speaker 01: They raised it below. [00:32:18] Speaker 04: So what does that get you with respect to appellate, I see. [00:32:22] Speaker 01: The appellate counsel. [00:32:23] Speaker 04: Yeah. [00:32:23] Speaker 01: Yes. [00:32:24] Speaker 01: With respect to appellate counsel, Hampton had not been decided at the time of the direct appeal. [00:32:29] Speaker 01: And all that was still out there was an island, which under the island district court opinion, which the district court followed, it appeared that. [00:32:38] Speaker 04: The island district court opinion is not [00:32:40] Speaker 04: authoritative for the next trial in any way. [00:32:43] Speaker 04: I understand. [00:32:43] Speaker 01: Yes. [00:32:44] Speaker 01: And Hampton hadn't been decided. [00:32:45] Speaker 01: So there was no authoritative opinion in this circuit. [00:32:50] Speaker 04: Well, didn't we read the Hampton? [00:32:52] Speaker 04: And Hampton, though, basically reading Rule 701 on its face to require this? [00:32:57] Speaker 01: Well, I think the Hampton also relied on Second Circuit case law. [00:33:00] Speaker 04: Which read Rule 701 on its face to require this? [00:33:04] Speaker 06: I mean, what's magical in case law? [00:33:06] Speaker 06: You've got the rules. [00:33:07] Speaker 06: It's pretty clear what 701 says. [00:33:09] Speaker 01: Well, 701 does not. [00:33:11] Speaker 06: You know, on its face it does say what it says. [00:33:14] Speaker 01: It does say what it says. [00:33:14] Speaker 06: And it's pretty clear there's a problem here. [00:33:19] Speaker 06: I'm trying to figure out where your argument is. [00:33:20] Speaker 06: You're saying, okay, we understand there's a 701 problem. [00:33:23] Speaker 06: You need Hampton to say that. [00:33:25] Speaker 06: There was a 701 problem. [00:33:26] Speaker 06: Are you saying there was no prejudice? [00:33:30] Speaker 06: I'm not sure. [00:33:30] Speaker 06: Are you really seriously arguing there was no 701 issue? [00:33:34] Speaker 06: You're saying that it raised the objection? [00:33:36] Speaker 06: No, no, no. [00:33:36] Speaker 01: We're saying they raised the objection. [00:33:37] Speaker 06: Okay, so if there's any burden that's on appellate counsel, that's what I mean. [00:33:40] Speaker 01: And on appellate counsel, our position with respect to appellate counsel is appellate counsel isn't required to raise every issue that's out there. [00:33:47] Speaker 01: There were a lot of issues raised on the direct appeal, and they're not deficient simply because they didn't present this particular issue. [00:33:53] Speaker 01: It's a pretty big issue. [00:33:54] Speaker 01: Well, and that gets me to the prejudice. [00:33:57] Speaker 01: We don't think it is. [00:33:58] Speaker 01: And we spent, I think, 13 pages in our brief outlining why this wasn't prejudicial. [00:34:03] Speaker 01: And I think that the court, it's very easy for the court to dispose of the issue on prejudice grounds. [00:34:10] Speaker 01: Because as I said, there really weren't that many opinions. [00:34:14] Speaker 01: Most of the opinions, Bevington either stated his reason on the record, [00:34:19] Speaker 01: or it's quite plain and implicit from the record why he issued that opinion. [00:34:23] Speaker 01: There are only two opinions that the district court pointed out where he didn't say anything. [00:34:28] Speaker 01: One of them was his Activation 87, and that was a conversation between Suggs and Parker. [00:34:33] Speaker 01: And it was elicited by Suggs' counsel, where Suggs' counsel says, they say they're going to get together tomorrow. [00:34:38] Speaker 01: How do you know they're not getting together for gambling purposes? [00:34:41] Speaker 01: And Badgington simply says, [00:34:43] Speaker 01: First of all, I concede that he can't say why they're getting together. [00:34:47] Speaker 01: And then he simply throws out, you know, I think it's something different. [00:34:50] Speaker 01: That was Defendant Parker, so that can't possibly be a problem here. [00:34:54] Speaker 01: And then the second opinion is the one, it's Activation 248, which counsel referred to in his argument. [00:35:01] Speaker 01: And there, it was a discussion that there were a series of calls over three days where [00:35:08] Speaker 01: They kept discussing how Sugs was going to provide something. [00:35:12] Speaker 01: What he was going to provide kept changing. [00:35:13] Speaker 01: It was Sister Sister magazine or a sample of that book. [00:35:19] Speaker 01: Information. [00:35:20] Speaker 01: Information. [00:35:20] Speaker 01: Information. [00:35:21] Speaker 01: And ultimately the final call is this extended discussion [00:35:26] Speaker 01: In the final call, there's an extended discussion about women, and their defense counsel cross-examined extensively to establish, I think, six or seven points, as we outline in our brief, why this conversation could have been about women. [00:35:40] Speaker 01: And the district court found that de minimis, and that's because [00:35:44] Speaker 01: At that point, it made more sense to cross-examine than move to strike the opinion, because the opinion had been the jury understood what his basis was and the flaws in the opinion. [00:35:55] Speaker 01: And that was made very clear for the jury. [00:35:57] Speaker 01: So with respect to that, that's the only other call where he does state a basis that is not absolutely in the record, as we showed in our brief, or implicit from the discussion. [00:36:10] Speaker 01: And as she said, and sometimes, [00:36:12] Speaker 01: that the opinion was a plausible reading, meaning it's just, you know, obvious from the language of the conversation itself. [00:36:22] Speaker 05: Let me tell you where I have a problem. [00:36:25] Speaker 05: In my training to be a public defender way back many moons ago, one of the things that we had was evidence blocking 101. [00:36:35] Speaker 05: It was like [00:36:38] Speaker 05: Basic to being a criminal defense lawyer that you first try to block the government's evidence that's going to be in culpability. [00:36:49] Speaker 05: If that doesn't work, then you figure out how to mitigate it on cross-examination or whatever. [00:36:58] Speaker 05: I mean, here, there wasn't even an objection in coming to the bench and saying, [00:37:06] Speaker 05: Before he gives this opinion, we'd like to know what he's going to say and what his basis is, so that you're not put in a position of having the jury to hear it first and then try to figure out how you want to unring the bell, put the toothpaste back in the tube, whatever, move to strike it or mitigate it. [00:37:26] Speaker 05: I mean, none of that was done. [00:37:28] Speaker 05: And that's like 101, criminal defense. [00:37:33] Speaker 05: So why isn't that deficient performed? [00:37:36] Speaker 01: We can't say he wasn't functioning as a counsel guaranteed by the Sixth Amendment. [00:37:40] Speaker 01: And if, as I said, there were 18 times. [00:37:45] Speaker 01: The test isn't if it's ideal. [00:37:50] Speaker 01: It's just whether it's counsel who falls so far below. [00:37:54] Speaker 06: I think that's ideal. [00:37:55] Speaker 06: I think that's a low standard. [00:37:56] Speaker 06: That's just kind of a base standard. [00:37:57] Speaker 06: That's all they're going to say. [00:37:59] Speaker 06: It's not like it's so basic that it's uninteresting. [00:38:03] Speaker 01: I think this is a difficult conversation to have in a backing, because I think you need to look at the particular opinions that are being elicited before, you know, if it's so obvious, if it's so- No, wait. [00:38:13] Speaker 06: Wait, to help me, okay? [00:38:14] Speaker 06: You heard what Judge Wilkins said. [00:38:16] Speaker 06: So take that as a given and accept my proposition. [00:38:19] Speaker 06: That is pretty straightforward, that any defense counsel would understand. [00:38:23] Speaker 06: And there was that feeling. [00:38:24] Speaker 06: So now the question that he's raising for you is, if we're right, how does the government respond? [00:38:29] Speaker 01: I think sometimes it was so obvious from the conversation itself. [00:38:35] Speaker 01: It's reasonable for defense counsel not to stand up and object every single time there's something that's potentially objectionable. [00:38:41] Speaker 01: And here where the opinion was either to be so obvious from the language itself or from the calls that preceded it. [00:38:48] Speaker 01: For example, again, you had [00:38:51] Speaker 01: The jury heard three or four calls where they're talking about Sister, Sister magazine. [00:38:55] Speaker 01: What they're discussing, the object keeps changing. [00:38:59] Speaker 01: But it remains the fact that he's trying to get something from Sugs. [00:39:04] Speaker 01: And it's obvious from the calls that were played right before it. [00:39:10] Speaker 06: Your scenario is assuming it's going to come in, do the line by line. [00:39:13] Speaker 06: George Wilkins has said, no, that's not the way you do it. [00:39:17] Speaker 06: if you're average defense counsel. [00:39:19] Speaker 06: You try and block it first to protect your client. [00:39:23] Speaker 06: You don't let it get to the jury because then you can't get the toothpaste back in the tube. [00:39:28] Speaker 06: I mean, that seems to me so straightforward. [00:39:31] Speaker 06: It really is uninteresting. [00:39:33] Speaker 06: That's a straightforward proposition. [00:39:35] Speaker 06: And what he has asked you is, why is that not deficient when you don't even try? [00:39:39] Speaker 06: Now, if the trial judge says no when you're forced to go forward, then we're in a different scenario. [00:39:44] Speaker 01: Some of these opinions weren't at all powerful. [00:39:47] Speaker 01: You're talking about, you know, a conversation between Parker and Suds. [00:39:50] Speaker 06: It has nothing to do with... So your argument is, we'll accept that it's true, but as it turned out, there was nothing that was prejudicial. [00:39:58] Speaker 06: That's your argument. [00:39:58] Speaker 01: No, our argument, and I'm not sure I have much more to say than this, which is, we don't, I don't agree that it's deficient if you don't object to every single thing that you think you possibly can object to to keep it out first. [00:40:14] Speaker 01: We disagree with that. [00:40:15] Speaker 01: Some of these opinions were not at all prejudicial to these to these defendants. [00:40:19] Speaker 01: Some of them, as I said, it's the obvious. [00:40:23] Speaker 06: You said you approach the bench and you make an inquiry. [00:40:26] Speaker 06: We'd like to know what's coming. [00:40:27] Speaker 06: We don't want to be put in a situation where the jury hears it first and then was scrambling. [00:40:31] Speaker 06: And he's asking, why wasn't that done? [00:40:34] Speaker 06: That's not a blanket we object to everything. [00:40:38] Speaker 06: That is a request to the judge. [00:40:40] Speaker 06: Wait, let's hold off some of this stuff that apparently is going to violate 701. [00:40:44] Speaker 06: We'd like to have a sense of it and pose our objection now so the record's clear. [00:40:49] Speaker 06: Now, if your answer is, well, as it turned out, it was no big deal. [00:40:55] Speaker 06: You're right. [00:40:55] Speaker 06: That's probably what should have happened. [00:40:57] Speaker 06: But as it turned out, there was nothing that was precious. [00:41:00] Speaker 06: Is that your argument? [00:41:01] Speaker 01: Well, our argument, it depends on the call we're talking about. [00:41:03] Speaker 01: In some of these calls, it was so obvious what the basis was going to be for the opinion. [00:41:09] Speaker 01: As I said, for example, [00:41:11] Speaker 01: They played three or four calls that lead up to this opinion. [00:41:14] Speaker 01: It was just a clear loser. [00:41:16] Speaker 01: And council's not deficient for failing to raise an objection that's going to be an obvious loser. [00:41:25] Speaker 01: Moving on to the truck bug issue, just briefly, as I think the exchange indicated, [00:41:36] Speaker 01: Williams does not stand for the proposition that defendants who are in an appellant situation clearly have standing to under Title III. [00:41:46] Speaker 01: Raucus, in fact, suggests the very opposite. [00:41:49] Speaker 01: And so it can't possibly be the case that counsel is deficient in failing to assert standing with respect to these truck bug communications. [00:42:00] Speaker 01: It's objectively [00:42:03] Speaker 01: especially at the raucous, that it looked like that, in fact, was not at all a feasible argument to make. [00:42:10] Speaker 05: Can I understand what your position is as to how we're supposed to interpret the statute? [00:42:16] Speaker 05: I mean, aren't we required to look at the language of 25, 10, 11 for a griefed person and just interpret that language? [00:42:31] Speaker 05: I mean, what does Rakus have to do with this? [00:42:35] Speaker 01: Our argument is the court shouldn't be interpreting 25, 10, 11 at all. [00:42:41] Speaker 01: That's not what the court should do on appeal from a 2255. [00:42:44] Speaker 01: This is a collateral attack. [00:42:46] Speaker 01: And so the court shouldn't decide the merits. [00:42:49] Speaker 01: Here where the merits are so unclear, and the question is whether counsel is deficient. [00:42:53] Speaker 01: The answer is counsel couldn't possibly have been deficient. [00:42:56] Speaker 01: because the merits are so unclear that you can't say that he's not functioning as counsel guaranteed by the Sixth Amendment. [00:43:02] Speaker 01: So we don't think the court ought to be interpreting 25, 10, 11 in this case. [00:43:08] Speaker 05: Well, here's why I guess I'm going to push back some here. [00:43:13] Speaker 05: You're saying the merits are unclear because of rakas, rakas, however you want to pronounce it. [00:43:19] Speaker 05: That begs the question of what relevance rakas really has to us. [00:43:24] Speaker 05: when the motion to suppress under Title III isn't brought under the Fourth Amendment, it's based on the language in 2518. [00:43:36] Speaker 01: Yes. [00:43:37] Speaker 01: Our position is, Ragus's discussion, and also Alderman, where the Supreme Court has said that [00:43:51] Speaker 01: to the 25 10 11 standing is to be considered is consistent with Fourth Amendment principles. [00:43:58] Speaker 01: Given that it, uh, it to the extent none of those cases were deciding. [00:44:05] Speaker 05: Um, none of those cases that were deciding, um, uh, I guess a title three motion to suppress, right? [00:44:17] Speaker 01: That's right. [00:44:18] Speaker 01: That's right. [00:44:18] Speaker 01: But what Regus was saying, Regus was rejecting this notion of a target theory. [00:44:25] Speaker 01: And I think it's clear that this court has not decided the issue. [00:44:31] Speaker 01: That's clear. [00:44:32] Speaker 01: And because this court has not decided the issue, and the Supreme Court hasn't decided the issue, and the discussion in Regus suggests that the government's got the better of the argument here. [00:44:44] Speaker 01: that 25, 10, 11 ought to be read consistent with Fourth Amendment principles, which is you need to establish that your own privacy interests have been invaded. [00:44:55] Speaker 01: It can't be that counsel was deficient in failing to move to suppress by asserting this standing ground, which is unsupported. [00:45:07] Speaker 01: and looks, at least, Rankin suggests that it's the government's view of the statute that prevails. [00:45:14] Speaker 05: Well, let's suppose a conversation of prices had been intercepted from the truck bug, and it was a conversation where he was just standing outside of the truck talking to Lonell Glover. [00:45:35] Speaker 05: And the truck bug picks up the conversation. [00:45:39] Speaker 05: They're just standing there. [00:45:44] Speaker 05: Does he have some sort of privacy interest in a conversation that he has standing on the street next to a truck? [00:45:55] Speaker 01: Yes. [00:45:56] Speaker 05: Under the Fourth Amendment? [00:45:57] Speaker 01: Yes, he was picked up. [00:45:59] Speaker 01: His privacy interest was invaded. [00:46:01] Speaker 01: So he has standing under your scenario. [00:46:04] Speaker 05: under the Fourth Amendment just because they happened to pick up his conversation. [00:46:09] Speaker 01: He was intercepted, yes. [00:46:12] Speaker 05: So someone standing next to him who he's talking to but who never others a word, they don't have any privacy interest in the conversation because [00:46:32] Speaker 05: They never utter the word. [00:46:34] Speaker 01: Correct. [00:46:37] Speaker 01: And briefly, with respect to the issue of prejudice, pages 27 through 31, I think, extensively describe how, in fact, if you take out the truck bug activations, given the volume of evidence and the character of the phone calls, both [00:46:55] Speaker 01: with Glover and Suggs, Price and Suggs, and also as informed by the other conversations Suggs had with their co-conspirators, there is no reasonable probability of a different outcome. [00:47:08] Speaker 01: And I did want to just point as to Glendale Lee, because he was mentioned. [00:47:11] Speaker 01: Glendale Lee was somebody who was living in the basement of Suggs' grandmother's home. [00:47:15] Speaker 01: And these vials had residue in them. [00:47:18] Speaker 01: They were in a gym bag somewhere in the basement where he was sleeping. [00:47:22] Speaker 01: And his phone calls, where he wanted one for me and one for Doc, really made him look like a user rather than a conspirator. [00:47:33] Speaker 01: And so I think that sort of explains the jury's verdict as to Glendale Lee, that he was a very, very bit player in the relative scheme of things. [00:47:43] Speaker 05: Let me ask you about Title III, generally. [00:47:49] Speaker 05: So in 2520, which authorizes recovery of civil damages, Congress said that a person could sue and receive civil damages. [00:48:02] Speaker 05: It says any person whose wire, oral, or electronic communications is intercepted in violation of this chapter. [00:48:12] Speaker 05: So they made it very clear that civil damages would be limited to someone whose communications were intercepted. [00:48:25] Speaker 05: So they knew how to do that. [00:48:28] Speaker 05: Why didn't they do the same thing then in 2518, the motion to suppress provisions? [00:48:33] Speaker 01: Because I don't think they're trying to just limit it to people whose communications are intercepted. [00:48:38] Speaker 01: We think they're also trying to include, as a grieved party, people whose homes have been bugged, their phones have been bugged, their computers have been bugged, their cars have been bugged. [00:48:51] Speaker 01: That's our view of directed at. [00:48:54] Speaker 01: And so I think that's the distinction. [00:48:57] Speaker 05: So that's the work that against whom interception was directed means. [00:49:04] Speaker 01: That's the government's view of it, yes. [00:49:06] Speaker 05: So then why didn't Congress use a grieved person in 2518 for A, which is the provision about who is entitled to an inventory once there's been an interception? [00:49:29] Speaker 01: I have to say that I have not focused on that provision, so I don't have an answer for that. [00:49:35] Speaker 05: Because there, Congress said, the inventory must be served on the persons named in the order or the application in such other parties to intercept the communications, as the judge may determine in his discretion, that's in the interest of justice. [00:49:58] Speaker 05: But they could have just as easily said, aggrieved persons there. [00:50:07] Speaker 05: if it means what you say that it means. [00:50:15] Speaker 01: I have to say I haven't given a whole lot of, you know, I haven't focused on the inventory provision as opposed to the, but the fact that Congress might find that different aspects of what happens when a wiretap is authorized might impact different people different ways, I don't think, [00:50:37] Speaker 01: undermines the government's view of what it meant in 25-10-11. [00:50:42] Speaker 01: If there are no further questions, we'd ask that the order be affirmed. [00:50:51] Speaker 04: Okay, I think both are out of time, right? [00:50:54] Speaker 04: Do you want to have a minute, a piece? [00:50:56] Speaker 04: Or a minute, a minute, a piece? [00:51:01] Speaker 03: Thank you very much for the honor of discussing this issue today, as well as the expeditional time that was provided. [00:51:06] Speaker 03: Briefly, I agree this is a statutory interpretation question, not a constitutional Fourth Amendment question. [00:51:12] Speaker 03: It has to do with what the statute means. [00:51:15] Speaker 03: The court, I know, has looked at the information provided by the amicus that was appointed to the Federal Public Defender's Office at page 842 of the Joint Appendix. [00:51:23] Speaker 03: There is some legislative history information there, I believe from Senator Hart. [00:51:27] Speaker 03: talking about the intent that it would cover folks like my client. [00:51:30] Speaker 04: Unfortunately, that's Hart's dissenting opinion objecting to Title III. [00:51:36] Speaker 03: There's also, if the court looks at Page, excuse me, our brief where we address the rakers' issue in response to what they had to say there, I do think you look at the individual blocks of the statute and look at that separately from the constitutional issue. [00:51:53] Speaker 03: That's what the district court did in Ford, that's what happened in Scurry. [00:51:57] Speaker 03: There wasn't an addressing, there was a recognition that the two are distinct from each other. [00:52:01] Speaker 03: And the Supreme Court president I cited earlier also addressed the same thing. [00:52:07] Speaker 03: Briefly, what was mentioned in terms of prejudice on this issue was we've heard of Glendale Lee. [00:52:12] Speaker 03: I know that Mr. Lee would have probably, like the government's argument here today, would have been made for him at the trial, because they certainly argued the evidence very differently there as they did here. [00:52:23] Speaker 03: This was obviously extremely prejudicial. [00:52:25] Speaker 03: Council should have raised the issue, and if it had been raised, we respectfully submit that the result of this would have been not guilty. [00:52:34] Speaker 03: Thank you very much. [00:52:41] Speaker 02: Thank you, Your Honor, for the extra time. [00:52:43] Speaker 02: Very briefly, I wanted to address the court's issue about the conversation between Sugs and Ms. [00:52:49] Speaker 02: Joy. [00:52:49] Speaker 02: It's our understanding that that conversation was not interpreted and that it was pretty clear from the conversation itself. [00:52:57] Speaker 02: And the next day, a search warrant was executed at the home where 22.3 gallons of PCP was found. [00:53:04] Speaker 02: In terms of deficient performance, the government equates Hampton to looking to the interpretation as if [00:53:14] Speaker 02: reasonableness or plausibility is the standard. [00:53:18] Speaker 02: It is not. [00:53:19] Speaker 02: And the government also views Hampton in what I consider the inverse. [00:53:24] Speaker 02: That is, if there's nothing in the record to suggest that the opinion was not based on information provided to the jury, when I think Hampton clearly says, if the witness does not provide an objective basis to the jury, that opinion violates 701. [00:53:41] Speaker 02: Thank you. [00:53:43] Speaker 04: Okay, thank you. [00:53:44] Speaker 04: We'll take the matter under submission. [00:53:46] Speaker 04: You can call the next case.