[00:00:01] Speaker 07:
Case number 12-3050 at HAL, United States of America versus Kenneth Benbow.

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

[00:00:14] Speaker 05:
My name's Matt Kaiser.

[00:00:15] Speaker 05:
I'll be arguing the first issue, first day and second issue of morning.

[00:00:21] Speaker 05:
Whether Agent Hannah's testimony was improper and second, that that error was not harmless as to Kenneth Benbow, I'd like to ask for five minutes for rebuttal.

[00:00:30] Speaker 03:
So the government is... We'll do rebuttal after the government's argument on this issue.

[00:00:40] Speaker 03:
Then we'll go to conspiracy and do another rebuttal, okay?

[00:00:44] Speaker 05:
Excellent.

[00:00:45] Speaker 05:
Thank you, Your Honor.

[00:00:46] Speaker 05:
I appreciate that.

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The government's conceded error for a lot of Agent Hannah's testimony.

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And so what I'd like to do first is talk about some of the testimony where they have not conceded error, because I think they're not right about that.

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But first, let me kind of set the background just a little bit.

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This was a case that went on for six and a half, seven weeks that the trial did.

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Over the course of the investigation, there were 6,171 recorded calls.

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About 100 of those came into evidence.

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And Agent Hannah, during the course of the trial, interpreted for the jury, told the jury what those calls meant.

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And this was deeply problematic, because I think as a lot of people recognize during the course of the trial, exactly what the calls mean is really difficult to understand.

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So with that, I'd like to start talking about one of the calls.

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On January 19th, there was a call between Mr. Benbow and Mr. Prey.

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Mr. Benbow is, of course, my client.

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Mr. Prey is the, I think, sort of apex of the alleged conspiracy, where Mr. Benbow says, I'm quoting, this is from the Joint Appendix 2568,

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Mr. Binbo says, about to come to you right quick, grab him, and then I'm going to put him up, and then I'm coming back and give you, yeah, in like 10 minutes.

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And Mr. Prey says, I don't understand that, I think quite reasonably.

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Agent Hannah testifies that it's clear what Binbo wants to do here, that he's got an order of operations for how he wants to run some errands, contrary to Mr. Prey's contemporaneous lack of understanding.

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And moreover, in the part I just read there, when Mr. Bimbo says him, him is a reference to cocaine.

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And the reason for that is because the government says when they talk about cocaine, they use the word Joe.

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And so whenever cocaine, whenever Joe appears, that means cocaine.

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This is, I think, to get to Agent Hannah's interpretation of this call, you've got to make a couple of inferential steps.

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You've got to first believe that Joe equals cocaine.

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And then you've got to believe that Joe means him, that anytime someone uses a male pronoun, he or him, they're talking about Joe, and then in turn, they're talking about cocaine.

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That's the inferential stuff that's not supported by the call that's later played to back that up.

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If you'll just indulge me a second more, there's a second call from a little bit later where

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where Mr. Prey says, I'm going to try to see Joe again, and then a little later on says that he is giving the green light.

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This is a JA 2571.

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The government, after much conversation with the district court, objections says, look, we'll shore this up.

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will play the underlying tape so that the jury can hear that, so that the jury can understand that cocaine means Joe and that Joe means him.

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And so anytime we're talking using the male pronoun, he or him, we're talking about cocaine.

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And what they play is a tape.

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This is at the JA at 1210.

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where, I'm sorry, I forgot one step back there.

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Agent Hanna then testified that again in that call they're talking about cocaine because they're talking about he and they're talking about Joe.

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The tape they play to support that is a tape where apparently there's a musician named Gio Gotti and he was arrested for possessing cocaine and marijuana.

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So, Prey says, Yolgadi got busted for cocaine and marijuana.

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Mr. Benbow says, Joe and marijuana.

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And Prey says, right.

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And from that, the government believes that establishes this two-step inference that cocaine equals Joe and Joe equals him.

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But that's just not right.

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I mean, the touchstone of lay opinion testimony, this is Williams, this is Hampton, is you've got to show your work.

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If you're going to tell the jury this is what phrases mean, you've got to show, and it's lay opinion testimony, not expert testimony.

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It's testimony from this case and this investigation.

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You've got to show, you've got to play for the jury the underlying tapes that allow the agent to make that inference.

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You've got to basically show your work the same way any elementary math student does.

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Here, they didn't show the work.

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What they showed is that first inference, Joe equals cocaine.

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They didn't show that second inference, Joe equals him, that anytime you talk about him or he, that's a reference to cocaine.

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And actually, Joe is a pretty convenient word to use here because we all know it from like getting a cup of coffee, right?

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If I say, get me a cup of Joe, everybody understands me to be saying, get me a cup of coffee.

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But if someone brings me coffee and I say, he's hot, that doesn't make any sense.

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It doesn't make any sense grammatically.

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It doesn't make any sense semantically.

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No one understands the phrase, he's hot, as a colorable, meaningful way to talk about the temperature of coffee.

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So I think for that reason, this testimony is error.

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And more importantly, it's really fundamental bad error because, of course, Agent Hannah's testimony from these, I think, largely unintelligible calls is that they're all about cocaine.

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And any time she's saying he, especially between Mr. Benbow and Mr. Prey, is a reference to cocaine, that's both improper lay opinion testimony, it's not supported, and it's deeply prejudicial.

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Let me talk about one other bit of testimony.

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Mr. Prey, in a call on January 18, 2010, is explaining to another individual, Robert McMillan, he says, the jaunt coming, wrapped up, sealed up, and all of that.

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This is at JA 2554.

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The case agent, Agent Hannah, is asked, this is JAA 1175, do you have an opinion from your work on this case in your experience what they're talking about, what they're discussing?

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And Agent Hannah says emphatically, they're talking about cocaine.

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She's asked, you know, can you tell more about that?

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Explain more about that.

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And she says, when he says the joint wrapped up, sealed up and all of that, that indicates to me that a large quantity of narcotic, and in my experience, kilograms of cocaine are often wrapped and sealed tightly in terms of their packaging.

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Now, the government argues this is proper expert testimony, and that she could have been qualified as an expert.

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And under Smith, this court has held, independent by your honor, that if someone could have been qualified as an expert, but it was lay opinion testimony,

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excuse me, that's harmless error.

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I think that doesn't apply here because of the Williams problem.

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I think for this, when you've got this blend of- The two-headed problem.

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The two-headed problem.

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Exactly, Your Honor.

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Thank you very much.

[00:07:58] Speaker 05:
The touchstone of Hampton, the touchstone of Williams is really jury confusion.

[00:08:02] Speaker 05:
Yeah.

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And here, when the agent is explaining that in my experience, and she's asked about your experience in this case, what she's saying is, this is lay opinion testimony.

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And moreover, this testimony is coming from my deep investigative experience in this case.

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And I think when you look at Hampton and Williams, that's the line.

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You can have lay opinion testimony where you're testifying about what happened in this case.

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You can have expert testimony where you're talking about what happened from an agent's experience in general or from past cases.

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What you can't have is someone who is an expert in this case.

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That's improper.

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And what the agent is telling the jury here is, I am an expert in this case based on my experience in this case, and as a result, I can tell you from that experience in this case that this is how this works.

[00:09:03] Speaker 03:
of the so-called lay testimony was OK, that because of what Williams called the two-headed situation and the mental gymnastics that called,

[00:09:22] Speaker 03:
testimony by Hannah was improper, right?

[00:09:25] Speaker 05:
Is that your theory?

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I don't know that it's quite that broad.

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I mean, I do think there are... I think this is a response to this one bit of testimony that the government defend saying that it was harmless under Smith because it could have been an expert testimony.

[00:09:39] Speaker 05:
She could have been qualified as an expert.

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And had she been qualified as an expert, this wouldn't have been proper.

[00:09:43] Speaker 03:
But under Williams, that doesn't make any difference, right?

[00:09:45] Speaker 03:
Absolutely.

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So that's why I'm asking you.

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Are you arguing that we should just disregard all the Hanna testimony and then go on to the harmless error question?

[00:09:57] Speaker 06:
Yes, Your Honor, basically.

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I don't think all the Hanna testimony.

[00:10:00] Speaker 06:
That can't be your theory, right?

[00:10:01] Speaker 06:
Well, and there's proper

[00:10:04] Speaker 06:
there's proper testimony in there.

[00:10:06] Speaker 05:
I'm hard pressed to find what is proper testimony in here.

[00:10:09] Speaker 05:
I mean, look, not all of her testimony, all of her testimony, I think, where she's interpreting the calls.

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Right.

[00:10:14] Speaker 05:
I mean, obviously, she's saying,

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I don't know, she's authenticating a document.

[00:10:19] Speaker 05:
Of course, that would be a crazy argument.

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I'm not making that crazy argument.

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I wouldn't say that the two-hatted problem is the reason why all of the testimony is wrong.

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Some of it's merely improper lay opinion testimony.

[00:10:34] Speaker 05:
I think the reason it's improper depends slightly on the nature of the testimony, because it could be a 701 problem.

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It could be a 702 problem.

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It could be the two-hatted jury confusion problem that they talk about in Williams.

[00:10:46] Speaker 06:
Where you said the problem is, in essence, that she was testifying as an expert in this case.

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So lay opinion testimony is permissible from an agent like this.

[00:11:00] Speaker 06:
And your point is that when they state a conclusion without showing their work, is that what you're referring to when you say expert in this case?

[00:11:12] Speaker 06:
Yes, that's right.

[00:11:12] Speaker 06:
But if they showed the work,

[00:11:15] Speaker 05:
then it would be okay.

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Look, if there's another call out there where the agents, where the people are talking and they say, you know, cocaine means Joe, and let's refer to Joe as him.

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Let's personify Joe.

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Let's make Joe into a character that walks through our calls.

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And they could play that tape.

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Sure, that would be different, right?

[00:11:37] Speaker 05:
That would be better.

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But the problem is here, they don't have that tape.

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What they've got is instead, Agent Hannah just saying,

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You know, look, I listen to everything, and this is what Joe means.

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This is what he and him means.

[00:11:49] Speaker 06:
Maybe this is blending into harmless error, but it seems that for some of the things, it's pretty obvious what the quote-unquote lay opinion testimony that you say expert in this case

[00:12:03] Speaker 06:
after you've been through a lot of these conversations and hear from the live witnesses who are also talking about what a lot of these terms and names mean, that you're not left with a whole lot where Hannah's the

[00:12:18] Speaker 06:
the key.

[00:12:20] Speaker 05:
I think that does blend into the harmless error.

[00:12:23] Speaker 05:
I think that is basically the harmless error question, which I'm happy to talk about, of course.

[00:12:28] Speaker 05:
But if you strip out the improper opinion testimony, if you strip out Agent Hannah's improper testimony, what are you left with?

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And of course, the calls are still there.

[00:12:37] Speaker 06:
And there was a lot of argument in closing argument, opening argument, closing argument in particular about the contents of those calls.

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It came up, yes.

[00:12:46] Speaker 06:
Yes, there was.

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The defense counsel was saying, listen for yourself, Jers, what that means.

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And there's a lot of discussion about the call 50 minutes before the one murder.

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And there's a lot of debate about that.

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I mean, Hannah wasn't the key to that.

[00:13:04] Speaker 06:
It was telling the jurors, listen to it yourself.

[00:13:07] Speaker 05:
Well, I think, Your Honor, respectfully, those are not my guy's problems.

[00:13:11] Speaker 05:
Yeah.

[00:13:11] Speaker 05:
I expect my colleagues over here.

[00:13:14] Speaker 05:
I know.

[00:13:14] Speaker 06:
I'm just talking about, in general, as a general proposition, a lot of the problems you identify correctly under our precedent, and the government concedes some of that,

[00:13:28] Speaker 06:
is, I don't want to say taken care of, but some of it, arguably, is taken care of for the jury by the other witnesses who are testifying as to the names, the codes, the terms.

[00:13:38] Speaker 06:
And therefore, Hannah's kind of icing on the cake for some of that.

[00:13:43] Speaker 05:
I think he's in a radically different position.

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When you look, the only kind of non-law enforcement, non-rental card document authenticating witness

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on Mr. Benvoe is Mr. Travers, just the one cooperating witness.

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But he's a big problem.

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He's a problem.

[00:14:09] Speaker 05:
Sure, if the jury believes him.

[00:14:11] Speaker 06:
If the jury believes him.

[00:14:12] Speaker 06:
I mean, a lot of this is going to be, does the jury believe some of these cooperators?

[00:14:17] Speaker 05:
Well, but again, I think the harmless error is standing around.

[00:14:19] Speaker 05:
I know your honor is going to talk.

[00:14:21] Speaker 08:
I don't want to interrupt.

[00:14:22] Speaker 05:
So I think the harmless error standard is not sufficiency of the evidence, right?

[00:14:31] Speaker 05:
It's a higher standard.

[00:14:32] Speaker 05:
I agree.

[00:14:32] Speaker 05:
I agree.

[00:14:33] Speaker 03:
When you look at... Does it boil down to if we have any doubt?

[00:14:37] Speaker 03:
Yes.

[00:14:38] Speaker 03:
That's all it is, right?

[00:14:39] Speaker 03:
If we have any doubt, if the court has any doubt, it's not harmless.

[00:14:43] Speaker 05:
I think that's a good, quick way to say it.

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And I think on this record, there should be doubt.

[00:14:50] Speaker 05:
The only thing that ties Mr. Benbow to this conduct, I shouldn't say the only thing, the largest, biggest thing that ties Mr. Benbow to this conduct, the conspiracy to the RICO, is Mr. Travers.

[00:15:05] Speaker 05:
And Mr. Travers, I think, as a witness,

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Again, this isn't a sufficiency challenge.

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If this was a sufficiency challenge, I would be with you that I lose.

[00:15:14] Speaker 08:
But assuming that's what you would say, this is a harmless- So is it actually beyond any doubt because I thought that there was a difference between constitutional harmless error and non-constitutional harmless error.

[00:15:25] Speaker 08:
And with constitutional harmless error, the government has to show harmless beyond a reasonable doubt.

[00:15:29] Speaker 08:
Right, I think- Non-constitutional harmless error, the government still has the burden, but it's to show that there was no substantial effect.

[00:15:34] Speaker 05:
That's right.

[00:15:35] Speaker 05:
The government has the burden, although I'm looking at Williams of 1161, where the Williams court says, any risk that it isn't harmless then means it isn't harmless.

[00:15:45] Speaker 05:
I think it's a little tricky when you're paraphrasing, but I like the way Judge Hales said it.

[00:15:51] Speaker 03:
I'm sure.

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We'll see if the government agrees with that.

[00:15:57] Speaker 03:
But going back to your point about the drug conspiracy and traitors, even if there is some doubt,

[00:16:06] Speaker 03:
They had other evidence.

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They had this intercepted call referring to BBD special during the drug deal.

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In other words, this says BBD is Benbo.

[00:16:19] Speaker 03:
Benbo was arrested with significant quantities of crack.

[00:16:28] Speaker 03:
Why isn't enough for that?

[00:16:30] Speaker 05:
Well, I would disagree that he was arrested with significant quantities of crack.

[00:16:33] Speaker 05:
I mean, I assume what Your Honor is talking about is the infinity stop where he's.

[00:16:37] Speaker 05:
And this is interesting.

[00:16:38] Speaker 05:
When you look at this in the context of the conspiracy that's alleged, or the counts one or two, what you've got is that Mr. Bimbo is standing outside a car with two people who aren't anywhere else in this case.

[00:16:51] Speaker 05:
They're not alleged to be co-conspirators.

[00:16:52] Speaker 05:
They're just like sort of random strangers.

[00:16:55] Speaker 05:
And the officer comes up, Mr. Gimbo gets in the car, drives off.

[00:17:01] Speaker 05:
The car is crashed a few blocks away.

[00:17:03] Speaker 05:
And in that car, there are six grams of crack, a little bit more than six grams of crack.

[00:17:10] Speaker 05:
Six grams of crack, when you look at the record in this case, that's not enough to, there's no testimony that's a distribution amount.

[00:17:19] Speaker 05:
There's a digital scale with it, and the government makes a lot of that.

[00:17:24] Speaker 05:
that on its own.

[00:17:26] Speaker 05:
Those are the only drugs tied to Mr. Bimbo, and they're not even on his person.

[00:17:32] Speaker 05:
They're just, they're in a car that he's related to, and we know there's another passenger in the car.

[00:17:37] Speaker 05:
I'm not sure that, you know, if this were a constructive possession case tried in DC Superior Court, the government would win that on that count alone.

[00:17:46] Speaker 05:
So it's, you know,

[00:17:47] Speaker 05:
What's remarkable about this is Mr. Benbow is convicted of a conspiracy to distribute PCP, cocaine, and marijuana.

[00:17:54] Speaker 05:
And at no point is PCP, marijuana, or cocaine found on his person.

[00:17:59] Speaker 05:
And part of this blends into the multiple conspiracies argument my colleague will talk about.

[00:18:02] Speaker 05:
But I do think for harmless error, this is a remarkably weak case as to Mr. Benbow.

[00:18:10] Speaker 05:
For that reason, there are a few strands that the government ties together on the conspiracy.

[00:18:14] Speaker 05:
But I think once Agent- What about Travers' testimony?

[00:18:17] Speaker 08:
So your argument about Travers' testimony is just that that testimony is subject to dispute?

[00:18:23] Speaker 05:
Well, I think it's subject to dispute.

[00:18:24] Speaker 05:
There are the standard concerns about any cooperating witness.

[00:18:28] Speaker 05:
He's cooperating.

[00:18:29] Speaker 05:
He's got a motive to tell a story that's going to give him time off.

[00:18:32] Speaker 08:
I doubt your rule, or maybe it is, is that

[00:18:37] Speaker 08:
If the only evidence left is a cooperating witness, then by definition, it's harmful.

[00:18:42] Speaker 05:
But no, I think that would be a hard sell.

[00:18:44] Speaker 05:
Yeah, I mean, I think it depends on the nature of the cooperator, right?

[00:18:48] Speaker 05:
So if you had a cooperator who's doing active cooperation, I think that would be different than here.

[00:18:53] Speaker 05:
What we've got with Mr. Travers is really a guy who was locked up, so he couldn't go out and do active drug deals.

[00:18:58] Speaker 05:
He wanted to get his sentence down, and so he did the only thing he could, which is he talked.

[00:19:03] Speaker 05:
And he gave historical testimony.

[00:19:05] Speaker 05:
He doesn't give specific dates.

[00:19:07] Speaker 05:
It's like an autobiography of his time in crime, allegedly with Mr. Benbow.

[00:19:16] Speaker 05:
With Benbow, his half-brother.

[00:19:19] Speaker 05:
Oh, look, absolutely.

[00:19:21] Speaker 05:
And there's, you know, I see the half-brother, the family connection.

[00:19:25] Speaker 05:
I can see how one could look at that as having some import.

[00:19:30] Speaker 05:
But really, the guy is in desperate straits.

[00:19:32] Speaker 05:
He's got quite a career, quite a resume as somebody who's involved in the criminal justice system.

[00:19:38] Speaker 05:
I think this is meaning – Travers' testimony is meaningfully different than somebody who was doing active cooperation, was able to give specifics about individual drug transactions where I can say, you know, yeah, on September 13th I went out with so-and-so.

[00:19:56] Speaker 05:
It really is very, very broad.

[00:20:00] Speaker 05:
kind of desperate cooperator testimony.

[00:20:03] Speaker 05:
I think it's of the weaker kind of cooperator testimony.

[00:20:07] Speaker 05:
And for that reason, I don't think that's enough to meet the harmless service standard.

[00:20:10] Speaker 05:
This is leagues away from the overwhelming evidence cases that the government decided for this.

[00:20:20] Speaker 03:
Let me ask you about the Johnson murder.

[00:20:23] Speaker 03:
So in that case,

[00:20:27] Speaker 03:
Most of the evidence for the Johnson murder was collected prior to the wiretaps.

[00:20:34] Speaker 03:
So the wiretaps couldn't be a problem.

[00:20:40] Speaker 03:
And the evidence that was pre-wiretap is, you know, Travers again, you've got his testimony, but that was corroborated by Robinson, and you've got all the rental shop records.

[00:20:52] Speaker 05:
Well, so a couple of things.

[00:20:55] Speaker 05:
First of all, if you look at the way the Johnson shooting was charged, it's in furtherance of the racketeering enterprise.

[00:21:06] Speaker 05:
So if count two falls because there's not sufficient evidence because of the problems with the testimony from Agent Hannah, then

[00:21:16] Speaker 05:
The conclusion is a racketeering enterprise, and then the count four, which is the Johnson shooting, falls.

[00:21:27] Speaker 05:
I hope I said that clearly enough.

[00:21:30] Speaker 05:
So for that reason, look, if Hannah's testimony infects the racketeering enterprise and there's no enterprise, then count four is gone.

[00:21:39] Speaker 05:
The charges in the Johnson murder is gone.

[00:21:42] Speaker 05:
It happened in Maryland, and so it couldn't be charged as a D.C.

[00:21:45] Speaker 05:
code offense in this court.

[00:21:47] Speaker 05:
So that resolves that.

[00:21:50] Speaker 05:
But I do disagree, Your Honor, about the state of the evidence with respect to the Johnson shooting.

[00:21:57] Speaker 05:
Tell me why.

[00:21:58] Speaker 05:
That's why I asked you a question.

[00:22:00] Speaker 05:
I think I would go back to Agent Hannah's own testimony, right?

[00:22:04] Speaker 05:
When she was asked, why did Detective Doherty go to talk to Mr. Binbo's girlfriend?

[00:22:10] Speaker 05:
And she said, because we had a wire up and I wanted to get some calls.

[00:22:14] Speaker 05:
I wanted to see what they would say.

[00:22:15] Speaker 05:
Trapper's testimony

[00:22:18] Speaker 05:
was, you know, I think what it gives you is Mr. Benbow as, at best, an accessory after the fact.

[00:22:26] Speaker 05:
Somebody who knew about the car, somebody who was trying to help out perhaps Mr. Prey with the car in the aftermath.

[00:22:34] Speaker 05:
I think that explains the Avis documents.

[00:22:37] Speaker 05:
The reason Travers' testimony becomes a problem there is because of another improper opinion testimony, bit of improper opinion testimony from

[00:22:45] Speaker 05:
I'm not sure.

[00:22:47] Speaker 05:
I'm not sure.

[00:22:48] Speaker 05:
I'm not sure.

[00:22:48] Speaker 05:
I'm not sure.

[00:22:50] Speaker 05:
I'm not sure.

[00:22:51] Speaker 05:
I'm not sure.

[00:22:52] Speaker 05:
I'm not sure.

[00:22:53] Speaker 05:
I'm not sure.

[00:22:55] Speaker 05:
I'm not sure.

[00:22:56] Speaker 05:
I'm not sure.

[00:22:58] Speaker 05:
Mr. Bimbo calls Mr. Prey shortly after his girlfriend has approached and says, you know, a bunch of stuff, talking about the joint was under their name or some stuff, paraphrasing, from the rocks, John, or whatever, or something, something, something.

[00:23:15] Speaker 05:
Mr. Prey says, again, pretty reasonably, man, I can't even interpret.

[00:23:20] Speaker 05:
And then Mr. Bimbo goes on to say, look, that gangster grill man,

[00:23:25] Speaker 05:
Agent Hannah testifies that that gangsta grill, this is the JA 1939 to 40, the gangsta grill means that gangsta is cooperating because apparently grill refers to mouth and cooperation is I guess of the mouth in the same way that like al dente pasta is to the teeth.

[00:23:47] Speaker 05:
And she has this, you know, like quite literary interpretation of what gangsta grill means.

[00:23:53] Speaker 05:
But again, if that's lay testimony, the government's got to show its work.

[00:23:56] Speaker 05:
There's nothing there that says this is how people talk about grills, this is how people talk about cooperation.

[00:24:02] Speaker 05:
It's simply not supported by the underlying facts that would be necessary to get this, to get that testimony, that opinion testimony proper.

[00:24:13] Speaker 05:
And moreover, this is pretty damning testimony.

[00:24:15] Speaker 05:
right?

[00:24:16] Speaker 05:
This interpretation of the call, because what it says is that agent, it says that Ben Bowen Prey are worried about Travers and what Travers would be saying if he were cooperating.

[00:24:28] Speaker 05:
That that does a lot for the jury to bolster Travers testimony with respect to the Van Johnson shooting that isn't there if you're just looking at what's independently corroborated by Travers.

[00:24:41] Speaker 05:
One other point on homeless era I'd like to make before I sit down, seeing I'm almost out of time, is the, you know, really I think overwhelmingly when you look at why this is charged as a conspiracy or why this is, sorry, why the jury looked at this as a conspiracy in count one or an enterprise in count two, what you have is everything is tied together by Agent Hannah's testimony, by her interpretation of those calls.

[00:25:09] Speaker 05:
When you distill out that and you're just left with these disparate facts, you're just left with the calls themselves that I think are unintelligent.

[00:25:16] Speaker 05:
I mean, even the prosecutor concedes that a normal person listening to these wouldn't understand what they mean.

[00:25:22] Speaker 05:
Mr. Cohen does it in the course of one of his arguments at 1174.

[00:25:27] Speaker 05:
I think what you're left with is that there's just not enough to meet the harmless error standard as to the entirety of the conspiracy.

[00:25:35] Speaker 06:
What are the drugs that were in his car the day he was arrested?

[00:25:41] Speaker 05:
Respectfully, I believe you mean the infinity.

[00:25:44] Speaker 05:
Yeah, I mean, I think I talked about those earlier where they weren't, again, they're not on his person.

[00:25:51] Speaker 05:
It's a constructive possession argument.

[00:25:54] Speaker 05:
OK, so that's got it.

[00:25:57] Speaker 05:
Thank you very much.

[00:25:58] Speaker 03:
Thank you.

[00:26:19] Speaker 01:
Good morning, Your Honors.

[00:26:20] Speaker 01:
May it please the Court, Deborah Persico on behalf of Appellant Alonzo Marlowe, and I'll be arguing the prejudice prong of the Agent Hanna argument on opinion testimony for Mr. Marlowe.

[00:26:33] Speaker 01:
So in order to understand why we suggest that all of Agent Hanna's improper opinions should result in reversal of all of Mr. Marlowe's convictions,

[00:26:45] Speaker 01:
We ask that you keep in mind two important points.

[00:26:50] Speaker 01:
One is conspiracy, and one is influence.

[00:26:54] Speaker 01:
As to the conspiracy, the heart of the government's indictment and its entire case against these appellants had to do with conspiracy.

[00:27:03] Speaker 01:
And not just the conspiracy counts, but that each of the substantive charges

[00:27:10] Speaker 01:
and the conspiracies, the government needed to prove a connection between these three men and the cooperators who were testifying.

[00:27:20] Speaker 01:
Now, if you keep that in mind and go to the second step of how Agent Hannah actually influenced this case, I'm going to ask that instead of being judges, you put yourself in the shoes of the jurors.

[00:27:35] Speaker 01:
Every time you hear a government witness who is substantially impeached with plea offers, with hopes of the benefit of a sentence, with lying, even with his own motive to commit murder, along comes Agent Hanna again.

[00:27:54] Speaker 01:
The agent that the judge has told you has superior knowledge, superior experience and skills.

[00:28:03] Speaker 01:
And in fact, she's so skilled that she has the inside track to what's going on.

[00:28:09] Speaker 01:
And you're not going to be privy to all the information that she has because she really knows a lot about this case.

[00:28:16] Speaker 01:
So you look at that and where you as jurors may very well have doubted the cooperators.

[00:28:26] Speaker 01:
Once you see Agent Hannah appearing and reappearing time and again,

[00:28:32] Speaker 01:
and essentially telling you, here's what these calls mean, so you can believe the cooperators, because essentially she's saying, I've worked on this case, I've seen lots of other evidence that you're not gonna see, and here's how these calls should be interpreted.

[00:28:51] Speaker 01:
So our position is that you look at the overall case, that you cannot look at substantive charges or the conspiracies in a vacuum because, as Mr. Kaiser just said, Agent Hannah tied this whole case together with her opinions.

[00:29:10] Speaker 01:
And essentially what she did is she bolstered the cooperator's testimony, which jurors, normal jurors, may have not credited had Agent Hannon not come in as an expert with superior knowledge telling you exactly what was going on.

[00:29:29] Speaker 06:
I thought the centerpiece of the case was the murders, and the murders were part and parcel of an overall business.

[00:29:39] Speaker 06:
a drug business and how do you, from going through the record and reading the closings, how do you show that?

[00:29:48] Speaker 06:
Well, it's difficult to show that unless you have insiders who are testifying as to the operation, unless you have things like GPS evidence that put people in a place at the time of the murder, and you have people who see him coming out after shooting someone with the gun,

[00:30:08] Speaker 06:
and saying, don't say anything.

[00:30:09] Speaker 06:
Yeah, there's a lot of direct evidence that is very damning in this case.

[00:30:15] Speaker 06:
And the murders are the centerpiece, as I understood it, and why were these murders taking place?

[00:30:22] Speaker 06:
It was part of a business.

[00:30:25] Speaker 06:
Revenge, killing a cooperator,

[00:30:27] Speaker 06:
Why is that wrong way to look at it, as opposed to Hannah being the piece that ties together?

[00:30:33] Speaker 06:
When I read the closings, I don't see them starting with, oh, Agent Hannah is the key.

[00:30:36] Speaker 06:
I see them starting with the murders.

[00:30:39] Speaker 06:
And you said to put myself in the shoes of the jurors.

[00:30:41] Speaker 06:
Well, the jurors are listening.

[00:30:42] Speaker 06:
That's what I would be listening to.

[00:30:44] Speaker 01:
OK, but what the jurors have also listened to is not just direct evidence.

[00:30:48] Speaker 01:
They've listened to cross-examination.

[00:30:50] Speaker 01:
Yes.

[00:30:50] Speaker 01:
And every single one of these witnesses was substantially impeached with all sorts of things.

[00:30:57] Speaker 01:
And with inconsistencies.

[00:31:00] Speaker 03:
What about McLeod?

[00:31:01] Speaker 03:
I'm sorry, your honor?

[00:31:03] Speaker 03:
McLeod?

[00:31:03] Speaker 03:
Is that how you pronounce his name?

[00:31:06] Speaker 01:
McLeod?

[00:31:06] Speaker 01:
Oh, McLeod?

[00:31:07] Speaker 01:
Oh, sorry.

[00:31:07] Speaker 03:
He wasn't a cooperator.

[00:31:09] Speaker 01:
Well, he had an immunity letter from the government.

[00:31:13] Speaker 01:
And the other thing with McLeod, I'm not sure if it's McLeod or McLeod, the other thing with his testimony is that

[00:31:22] Speaker 01:
His description to the police of the shooter, whom he claimed was Mr. Marlowe, did not match the description of the other eyewitness, Polly Walker.

[00:31:33] Speaker 01:
Polly Walker, who was not impeached from here to Sunday with plea agreements or anything else, gave a different description than Mr. McCloud did of the shooter.

[00:31:47] Speaker 01:
In fact, her description matched

[00:31:51] Speaker 01:
what Mr. White was wearing at the time of Mr. White's arrest.

[00:31:57] Speaker 06:
The GPS data showed that he was there.

[00:31:59] Speaker 01:
And the GPS data was challenged.

[00:32:01] Speaker 01:
The GPS data was challenged.

[00:32:04] Speaker 01:
Don't forget, this is, what, seven years ago or five years ago, this trial, and longer than that when they had the GPS.

[00:32:12] Speaker 01:
GPS was not as accurate as it probably is now.

[00:32:16] Speaker 01:
And what the expert admitted on cross-examination is that even the GPS signal is degraded by trees.

[00:32:24] Speaker 01:
The signal drops.

[00:32:25] Speaker 03:
What about the, didn't they have the anklet data also?

[00:32:29] Speaker 01:
Well, that's the GPS.

[00:32:30] Speaker 01:
That's the GPS.

[00:32:32] Speaker 01:
He was wearing an ankle monitor that had the GPS device.

[00:32:36] Speaker 08:
And all of that was presented to the jury, right?

[00:32:38] Speaker 01:
And all of that was presented to the jury.

[00:32:40] Speaker 08:
And I guess the question is, if all of that's presented to the jury and then the jury makes a determination one way or the other in this situation adverse to your client, the question becomes, what role, what marginal, incremental role did the Hanna testimony play in swaying the jury?

[00:32:54] Speaker 08:
And there's a case to be made

[00:32:57] Speaker 08:
that the substantial force of the submissions to the jury came from exactly the things you're talking about.

[00:33:03] Speaker 08:
You should credit the GPS evidence.

[00:33:06] Speaker 08:
You should doubt the GPS evidence.

[00:33:07] Speaker 08:
You should credit McCloud's testimony.

[00:33:09] Speaker 08:
You should doubt McCloud's testimony.

[00:33:11] Speaker 08:
And one's left with the potential impression that that's what they were sifting through, not the role of the HANA.

[00:33:18] Speaker 01:
Well, I'm suggesting that they were sifting through that, but on top of all of that, they have the experienced, the knowledgeable, the skilled agent coming in time and again in between the testimony of impeached witnesses, suggesting by her interpretation of these calls

[00:33:39] Speaker 01:
that what the cooperators were saying, the ones that you just heard about that were all, you know, substantially impeached.

[00:33:45] Speaker 01:
It's okay to believe them because this is how you can interpret this call, which suggests that what he just said is true.

[00:33:54] Speaker 06:
In some cases you have other, and this is why I think this is tricky, you have other work call, that phrase, which is I think 50 minutes before the Hodge murder.

[00:34:09] Speaker 06:
And you have testimony about what that means from not just from Hannah.

[00:34:15] Speaker 01:
Exactly.

[00:34:16] Speaker 01:
But I think, Your Honor, you keep going back to the direct evidence.

[00:34:20] Speaker 01:
And what I'm trying to get you to take a look at is, and even the cases say this, you know, you look at whether there was room for doubt of a witness's credibility.

[00:34:31] Speaker 01:
And like Mr. Kaiser said, this is not a sufficiency of the evidence test.

[00:34:35] Speaker 06:
I understand that.

[00:34:36] Speaker 06:
And I agree with that.

[00:34:37] Speaker 06:
And just trying to sort out, as Judge Finnevast said, the marginal

[00:34:41] Speaker 06:
increase that was provided by Hannah.

[00:34:44] Speaker 06:
Some of these, if you just listen to these calls, some of them you would be unintelligible.

[00:34:48] Speaker 06:
Some of it, after you listen to enough of them, I assume you get a sense of what they're talking about when you have the direct witnesses also testifying about what some of the common terms are.

[00:35:00] Speaker 06:
And then Hannah is permitted to testify about code word.

[00:35:04] Speaker 06:
She's permitted to be a code word expert in a

[00:35:07] Speaker 01:
Well, a code word expert is not the only thing that she did though.

[00:35:10] Speaker 01:
She is interpreting entire calls.

[00:35:13] Speaker 01:
She's doing three different things.

[00:35:15] Speaker 01:
I'm sorry?

[00:35:16] Speaker 06:
She's doing three different things.

[00:35:18] Speaker 06:
Expert, she's lay opinion permissible, and then she's lay opinion making inferences where she didn't show her work.

[00:35:24] Speaker 01:
I mean, it got so carried away at one point that she's actually telling the jurors that what Mr. Marlowe and Mr. Prey were talking about were their mothers.

[00:35:32] Speaker 01:
I mean, is that really necessary?

[00:35:34] Speaker 01:
This is why I say that her testimony had a lot of influence.

[00:35:40] Speaker 01:
You could see where it would have a lot of influence when all of the other witnesses were so impeached and contradicted.

[00:35:49] Speaker 01:
So that's what I'm asking the court to do, is balance this in a way where, you know, if Agent Hannah had appeared only once,

[00:35:57] Speaker 01:
this may not have the same kind of influence, but she's interwoven throughout the trial.

[00:36:04] Speaker 06:
So every time, like I said, every time you hear from a substantially impeached witness, she reappears and confirms for the jury that... This is kind of a side point, but the way the case was presented was thematically right, and so it was broken up and it just made sense instead of having her once.

[00:36:22] Speaker 06:
I get your point on that, though.

[00:36:23] Speaker 06:
She's a reappearing person.

[00:36:27] Speaker 01:
I think I'm out of time.

[00:36:29] Speaker 01:
You are out of time.

[00:36:30] Speaker 01:
So thank you very much.

[00:36:31] Speaker 03:
Okay.

[00:36:34] Speaker 03:
Praise counsel.

[00:36:43] Speaker 07:
I'd like to try to take the last shot at answering this question about what I believe is called the incremental effect that Hannah had on this case.

[00:36:57] Speaker 07:
And in the time that I have, I'd like to focus on the five counts

[00:37:04] Speaker 07:
for what she had with respect to Mr. Prey, where she had the greatest influence.

[00:37:10] Speaker 07:
And of course, those are the ones where he would pass away in custody.

[00:37:14] Speaker 07:
They are count one, the Narcotics Conspiracy, count two, the Rico Conspiracy.

[00:37:20] Speaker 07:
Now, there are three others, and they're the murders in furtherance of those.

[00:37:25] Speaker 07:
But what I think I heard as this discussion took place is that this is a little backward.

[00:37:35] Speaker 07:
This case starts with a conspiracy.

[00:37:40] Speaker 07:
in terms, certainly in terms of those counts, that to read the words of the indictment, this enterprise, they allege Mr. Prey ran, was an ongoing organization whose members function as a continuing unit for a common purpose.

[00:37:57] Speaker 07:
If you don't have that, what you have is you have individual homicide.

[00:38:03] Speaker 07:
for different reasons.

[00:38:05] Speaker 06:
Well, another way to look at it is the case starts with dead victims, one of whom's a cooperator, one of whom's revenge.

[00:38:14] Speaker 06:
One of whom's the incident after the night out.

[00:38:21] Speaker 06:
And then you're trying to figure out what was going on with those murders.

[00:38:25] Speaker 06:
And what was going on with those murders, when you keep digging, is that it was part of a overall business.

[00:38:34] Speaker 06:
An illegal business, but a business.

[00:38:36] Speaker 06:
And so when you say it starts with a conspiracy, I think it starts with the dead victims, I think.

[00:38:43] Speaker 06:
And then you say, why did this happen?

[00:38:46] Speaker 06:
What was going on?

[00:38:47] Speaker 06:
And that's why it's ultimately charged as a conspiracy.

[00:38:49] Speaker 07:
Well, to make the math analogy, there's a lower common denominator for two of these murders.

[00:38:55] Speaker 07:
With Crystal Washington, you didn't want to be convicted.

[00:38:59] Speaker 07:
So that this individual was murdered.

[00:39:04] Speaker 07:
In the case of Van Johnson, that there was an alleged beef.

[00:39:15] Speaker 07:
But what makes this onerous is the fact that the motive for it

[00:39:22] Speaker 07:
was a conspiracy that these murders were done, that these were not isolated things.

[00:39:29] Speaker 07:
They were done to further a business, an enterprise.

[00:39:34] Speaker 07:
The only way you get to that, because you can't have a common purpose and a common organization with these discrete acts.

[00:39:42] Speaker 07:
They have to be bridged together.

[00:39:44] Speaker 07:
The only way you can do that is through, well, conversations, talking.

[00:39:50] Speaker 07:
And that's what the era for Hannah was, because Hannah supplied the conspiratorial motive to all of this, separate it apart from the underlying facts.

[00:40:03] Speaker 07:
Count four, of course, is the murder of Van Johnson.

[00:40:06] Speaker 07:
He was charged in furtherance of Rico.

[00:40:10] Speaker 07:
Count six was Crystal Washington.

[00:40:13] Speaker 07:
But there's a count seven, which is a DC murder violation, what you would do.

[00:40:20] Speaker 07:
If a witness was murdered on the way to trial, that's the motive.

[00:40:27] Speaker 07:
But the government says no.

[00:40:29] Speaker 07:
It was much farther than that.

[00:40:31] Speaker 07:
It was to advance a conspiracy.

[00:40:33] Speaker 07:
And that's the gap, and that's where there's the doubt.

[00:40:37] Speaker 07:
Erase the doubt.

[00:40:39] Speaker 06:
When you've posed that as an either or, can it be both?

[00:40:44] Speaker 07:
Well, yes, it can be both.

[00:40:46] Speaker 06:
Because the business is going to end if the witness testifies and the people who are running the business are convicted and are incarcerated.

[00:40:56] Speaker 07:
That could be, but there's something more direct that happened.

[00:41:00] Speaker 07:
that Agent Hannah said in the hundred calls that she, every time she testified about the calls, what she was doing, and I think the court could ignore this, she was imparting to the jury, this is a secret organization, an illegal one, I have an insight into how it works, and I'm giving you a window into this business enterprise.

[00:41:22] Speaker 07:
Now, that was her role, and she did a good job, and with respect to,

[00:41:27] Speaker 07:
with respect to Mr. Prey, counts one, two, and then the three Rico murders, four, six, and eight.

[00:41:35] Speaker 07:
That is what really hurt him, and the other defendants, too.

[00:41:40] Speaker 07:
It was done by Hanna, because Hanna supplied the organization, the common purpose, the direction.

[00:41:48] Speaker 07:
It would not ordinarily exist with those acts.

[00:41:51] Speaker 07:
My final point is this.

[00:41:54] Speaker 07:
In let's say the 100 calls,

[00:41:56] Speaker 07:
Take an arbitrary number, 50 of them are good and 50 of them are no good.

[00:42:00] Speaker 07:
How is it possible for an appellate court to say what calls influence the jury in terms of proving the conspiracy now?

[00:42:10] Speaker 07:
And what did it?

[00:42:12] Speaker 07:
Did they only select the valid calls, or did they select them all?

[00:42:17] Speaker 07:
That's an impossible task.

[00:42:19] Speaker 07:
Because it's impossible, there's a doubt.

[00:42:22] Speaker 07:
And that's why those convictions, with respect to Mr. Prey, counts one, two, four, six, and eight.

[00:42:29] Speaker 06:
Just a comment.

[00:42:30] Speaker 06:
I mean, I think you're right.

[00:42:31] Speaker 06:
It's a very difficult task for an appellate court, but we're required to make the best of it.

[00:42:38] Speaker 06:
But I agree with you.

[00:42:39] Speaker 06:
Going through the record and trying to recreate what would have happened and what did happen and what influence, and to Judge Srinivasan's question, that's very difficult.

[00:42:46] Speaker 08:
Your Honor, that means there's a doubt in our opinion.

[00:42:48] Speaker 08:
Can I just ask you one question, which is on, so I get your argument about

[00:42:52] Speaker 08:
the murder accounts that are tied directly to the conspiracy, then there's the freestanding murder accounts that aren't, like Count 7.

[00:43:00] Speaker 08:
And what's your point about that?

[00:43:03] Speaker 08:
Because I take it what you're saying is if Hannah takes out 1 and 2,

[00:43:08] Speaker 08:
than the murder counts.

[00:43:10] Speaker 07:
Four, six, and eight go.

[00:43:11] Speaker 08:
Yeah.

[00:43:11] Speaker 08:
What do you say about seven, for example, which in Washington?

[00:43:16] Speaker 07:
Essentially, I mean, Prey was not there.

[00:43:18] Speaker 07:
It's her interpretation of the calls of what he was doing that does.

[00:43:23] Speaker 07:
She's testifying to two things, overt acts, and then by implication, the conspiracy and the connections.

[00:43:30] Speaker 07:
And with respect to Washington and, of course, of Hodges, she's directly intervening

[00:43:38] Speaker 07:
and what these calls meant right after, and it could be reversed on those grounds.

[00:43:44] Speaker 07:
But what is, I don't think it's beyond any doubt, her testimony about the recode and narcotics conspiracy, that creates these homicides in furtherance of them, and those should be reversed along with Health 113.

[00:43:59] Speaker 03:
Thank you.

[00:43:59] Speaker 03:
Thank you.

[00:44:01] Speaker 03:
We'll hear from the government.

[00:44:09] Speaker 00:
Thank you, Your Honor.

[00:44:10] Speaker 00:
May it please the Court, Dan Lenners for the United States.

[00:44:13] Speaker 00:
I'd like to, if I may, address the defendant's arguments in the same order that they raised them, which is to first address which aspects of Agent Hannah's testimony were erroneous and then to address the harmlessness.

[00:44:27] Speaker 00:
The defendants are wrong when they claim that everything that came out of Agent Hannah's mouth about the wiretaps was erroneously admitted.

[00:44:36] Speaker 00:
Agent Hannah was properly qualified as an expert in words and phrases used by drug dealers under Rule 702.

[00:44:44] Speaker 00:
And in many instances, she testified about the meaning of specific words and identified as the basis for her opinion of the meaning of those words, her past experience, or the fact that it was commonly used, or some other reference to the fact that she was providing that opinion based upon her Rule 702 expertise and not based upon what she learned from the wiretaps in this case.

[00:45:09] Speaker 00:
So in those instances, things like interpreting what people is, or interpreting what work means, where she explicitly referred to her past experience, that was properly admitted under Rule 702.

[00:45:23] Speaker 00:
There were also very small amounts of proper testimony under Rule 701.

[00:45:29] Speaker 00:
As Mr. Benbow's counsel conceded, if the government's witness shows its work,

[00:45:38] Speaker 00:
and that is given to the jury, then it is proper lay opinion testimony under Rule 701.

[00:45:44] Speaker 00:
And this issue where Agent Hannah said that the defendants used the term Joe to mean cocaine was just that.

[00:45:54] Speaker 00:
She expressly testified that she was basing that opinion on a specific call.

[00:46:00] Speaker 00:
That specific call was played for the jury.

[00:46:03] Speaker 00:
And as Mr. Kaiser described, the defendants replaced the word cocaine with the word Joe.

[00:46:10] Speaker 00:
And in fact, in that instance, Judge Collier explicitly instructed the jury that Agent Hannah might not go beyond what they had heard.

[00:46:20] Speaker 00:
And so the jury understood that it was to evaluate Agent Hannah's specific opinion that Joe made cocaine based upon the calls that were before it.

[00:46:29] Speaker 00:
I think there was maybe only one other instance we relied on in our brief of proper Rule 701 testimony, and that occurred early in Agent Hannah's testimony where she's discussing an individual named Robert Smith who told Mark Prey that he had to empty a joint out.

[00:46:48] Speaker 00:
And she opined that that meant he had to pour out a bottle of PCP.

[00:46:52] Speaker 00:
And she said that she was basing her opinion there on the fact that Mr. Smith had been arrested the night before with an empty bottle of PCP at his feet.

[00:47:02] Speaker 00:
And in fact, the officer from the Metropolitan Police Department who arrested Mr. Smith testified at this trial and testified that he had arrested Mr. Smith.

[00:47:11] Speaker 08:
Can I ask you this question?

[00:47:12] Speaker 08:
So part of what I take to be the lesson from our cases that led to the government's acknowledgement

[00:47:17] Speaker 08:
of these substantial portions of Agent Hannah's testimony were problematic is this notion that it's difficult for the jury to keep track of the capacity in which an agent of this type is testifying and there's the possibility for confusion as between 701 and 702, within 701 is between evidence that's in the case, evidence that's otherwise known.

[00:47:37] Speaker 08:
So in light of that knowledge now, and in light of the fact that the government has acknowledged that at least a reasonable portion of Agent Hannah's testimony is problematic, what would you do?

[00:47:50] Speaker 08:
What's the way that you present Hannah's testimony in a case like this that doesn't give rise to the need to get to harmlessness at all?

[00:47:58] Speaker 00:
That's a question we've been struggling with in my office, Your Honor, and my advice has been that

[00:48:08] Speaker 00:
you present it like she presented the Joe equals cocaine call, which is to play the call in which Pray and Benbo used Joe to replace cocaine.

[00:48:20] Speaker 00:
And then also play the other calls in which they appear to be, where they explicitly do it, and then play the calls where they implicitly do it, and allow her to give her opinion based upon that first call.

[00:48:32] Speaker 00:
It's her lay opinion that they're doing the same thing in the second call, or like they did it with the Robert Smith arrest, which is to say she explicitly says, my opinion that he is describing emptying out a bottle of PCP is based upon the fact that he was arrested the night before emptying out a bottle of PCP and then present

[00:48:51] Speaker 00:
testimony from the officer from the Metropolitan Police Department who arrested Mr. Smith, who saw him pour out a bottle, who said it smelled like PCP, who recovered an empty glass vial at his feet.

[00:49:02] Speaker 00:
I think that would be proper, so long as I think the two-headed witness problem

[00:49:08] Speaker 00:
Agent Hanna would also not testify as the government's words and phrases experts.

[00:49:14] Speaker 00:
So you need two witnesses, right?

[00:49:15] Speaker 00:
We would need a second witness who would interpret 32nd Street to be 32 ounces.

[00:49:22] Speaker 06:
Is it at the practice now to have two witnesses in a situation like this?

[00:49:27] Speaker 00:
That's the advice I've been giving.

[00:49:30] Speaker 00:
I don't know if we've tried cases yet where this has arisen.

[00:49:34] Speaker 06:
So the issue is you needed to have two witnesses, and then the lay opinion witness needs to show the work on connecting the underlying initial calls.

[00:49:45] Speaker 06:
I mean, in essence, these were two shortcuts that the government used.

[00:49:50] Speaker 06:
The law at the time hadn't frowned on that yet.

[00:49:54] Speaker 00:
That's correct, Your Honor.

[00:49:57] Speaker 00:
And to the degree that the two-headed witness problem comes into play here, it doesn't infect her proper Rule 702 testimony.

[00:50:08] Speaker 00:
The two-headed problem is that the jury would attribute undue weight to the lay opinion testimony because she's been qualified as an expert.

[00:50:18] Speaker 00:
So it doesn't run in both directions.

[00:50:20] Speaker 00:
When she properly testified as a Rule 702 expert,

[00:50:23] Speaker 00:
that there's no undue influence that the jury would be giving to that testimony.

[00:50:29] Speaker 06:
And you think work call is 702.

[00:50:32] Speaker 00:
I believe in that context where she explicitly said that it was based on her past experience that work call is 702.

[00:50:42] Speaker 00:
It's also harmless.

[00:50:43] Speaker 00:
Three different witnesses testified that work means violence.

[00:50:48] Speaker 00:
Travers testified to that, Benton testified to that, and White testified to that.

[00:50:53] Speaker 00:
White testified that Alonzo Marlowe was work called, meaning if somebody do something, Marlowe's going to kill them.

[00:51:01] Speaker 08:
I guess then the question becomes to what extent do we anticipate, and this is Judge Kavanaugh was discussing the difficulties of an appellate court and putting ourselves in the position of trying to assess what the jury would have definitely understood even absent the problematic evidence.

[00:51:22] Speaker 08:
Then the question becomes for an issue like work, yes, it's true that it was mentioned elsewhere, to what extent would the jury make that association with respect to this call when

[00:51:31] Speaker 08:
when at least there's one count that's entirely dependent on the call, on knowing that the call is connected to the conspiracy, and to what extent would we anticipate that the jury would see, okay, if I take out Hannah's testimony, which is obviously the most direct testimony about what work means in this particular context, would I otherwise know, based on other stuff that's been presented in the course of a long trial, that I can piece together that work now in this context must mean violence.

[00:51:57] Speaker 00:
So in this case, I believe that Agent Hanna's testimony was proper, rule 702.

[00:52:02] Speaker 00:
Right, you've got that argument.

[00:52:03] Speaker 00:
But for cases like that.

[00:52:05] Speaker 06:
If we agree with that, that answers the question.

[00:52:09] Speaker 06:
But if we don't agree with that, then Judge Chernoboss is.

[00:52:11] Speaker 00:
And I think in this case, the

[00:52:16] Speaker 00:
As Judge Kavanaugh recognized earlier, when you read through the transcripts in this case and read through the calls, it very clearly becomes apparent where Agent Hannah is divining her lay opinion.

[00:52:31] Speaker 00:
The calls become clear and the meaning becomes clear in context not of Agent Hannah's lay opinion testimony, but in context of all the other evidence in the case.

[00:52:41] Speaker 00:
And so I think in that respect, one can be fairly assured that the jury would likewise understand work to mean violence.

[00:52:50] Speaker 00:
In fact, Judge Collier followed up with Marvin Benton.

[00:52:53] Speaker 08:
That sounds like a 701 argument.

[00:52:56] Speaker 08:
as opposed to a 702 argument.

[00:52:58] Speaker 08:
I thought your point about... It's a harmlessness argument.

[00:53:01] Speaker 00:
I think Your Honor asked, in cases where the opinion is not proper 702 testimony and we're conceding error, how can we be assured that the jury would have, nevertheless, understood the word to mean what Agent Hannah said it meant?

[00:53:15] Speaker 00:
And my response is that

[00:53:17] Speaker 00:
reading the transcripts, serialum, and looking at the witnesses' testimony, much of what Agent Hannah testified to was already clear from the record itself by what other witnesses had said.

[00:53:33] Speaker 08:
And so the court can... It seemed like, because one thing I noticed was that in the indictment, all the counts that relate to the calls talk about the calls as being partially coded.

[00:53:44] Speaker 08:
I think every single one of them says partially coded in the indictment, which indicates that somebody's got to tell the jury how to decipher the code.

[00:53:53] Speaker 00:
I think that that's true, and the witnesses, both Agent Hanna as a Rule 702 witness and the cooperators deciphered many of the calls.

[00:54:05] Speaker 00:
So Carlos Tolliver, who was the PCP seller to Prey and Marlowe, interpreted many of the calls between himself and Prey.

[00:54:15] Speaker 00:
Lawson White, the person who gave Marlowe the gun to kill Gerald Hogg, interpreted calls between himself and Prey.

[00:54:23] Speaker 00:
Marvin Benton, the person who testified that Prey was going to get Marlowe to kill Washington, interpreted jail calls between himself and Prey.

[00:54:34] Speaker 00:
And then you had witnesses, those witnesses and others, testifying to the meaning of terms that they were using in trial.

[00:54:41] Speaker 00:
So they would refer to defendants, other co-conspirators by their nicknames, and the government would put up a photo of that person and identify them.

[00:54:49] Speaker 00:
Or they would say a thing like, Marlowe was work call.

[00:54:52] Speaker 00:
And the government would follow up, what does that mean?

[00:54:54] Speaker 00:
It means he's going to kill somebody.

[00:54:56] Speaker 00:
Likewise, with Marvin Benton, there was lots of follow up as to what he meant by holding the guns or by work call.

[00:55:03] Speaker 00:
And so many of these phrases repeated themselves

[00:55:08] Speaker 00:
throughout the trial, thus rendering harmless any improper opinion testimony that Agent Hannah gave.

[00:55:19] Speaker 03:
Can I take you back to your point about 702?

[00:55:20] Speaker 03:
I mean, your point that, look, some of this witness, some of her testimony was clearly legitimate 702 testimony, right?

[00:55:29] Speaker 03:
So I'm looking back at my notes on Williams.

[00:55:30] Speaker 03:
And I take your point that the prejudice goes one way, right?

[00:55:35] Speaker 03:
The risk is that the fact she's an expert could confuse a jury about her, whether she has any expertise as a lay witness, right?

[00:55:46] Speaker 03:
But Williams seems to say the other problem was that the jury just couldn't tell when this witness was testifying as an expert and when he was testifying as a lay witness.

[00:55:57] Speaker 03:
And that's true here, too, isn't it?

[00:55:58] Speaker 00:
I suppose I have two responses to that, John.

[00:56:03] Speaker 00:
It's I believe that the dish report

[00:56:07] Speaker 00:
required the government to have Agent Hannah testify that she was basing certain opinions on past experience as a way of signaling to the jury.

[00:56:15] Speaker 03:
But didn't we say that was not sufficient in Williams?

[00:56:18] Speaker 00:
The district court here, presiding over the trial, thought it was sufficient.

[00:56:22] Speaker 03:
But even if not, that's... In Williams, we said it wasn't.

[00:56:25] Speaker 00:
Even if it's not, it's still a one-way error issue, because the implication in Williams is that they understood all of the testimony to be Rule 702 testimony.

[00:56:37] Speaker 00:
And so that only infects the Rule 701 lay opinion testimony.

[00:56:42] Speaker 00:
So I still think it's merely a one-way error.

[00:56:46] Speaker 06:
By one way error, I just want to make sure I understand this.

[00:56:48] Speaker 06:
Do you mean that if the evidence was proper expert testimony, then there's, and she was qualified as an expert, then there's no error from the fact that she was also testifying as to some lay opinion testimony?

[00:57:05] Speaker 06:
Is that what you mean?

[00:57:05] Speaker 00:
Yes, sir.

[00:57:08] Speaker 00:
And there's only one other issue that didn't come up in appellant's opening argument, but was in the brief, which was Agent Hanna's testimony as to numerous conspirators' nicknames.

[00:57:17] Speaker 00:
I think that's proper factual testimony.

[00:57:20] Speaker 00:
She listened to calls in which people identified themselves by their nicknames.

[00:57:25] Speaker 00:
She interviewed conspirators after the case was taken down.

[00:57:29] Speaker 00:
They told her their nicknames.

[00:57:31] Speaker 00:
That's no different than them telling her

[00:57:33] Speaker 00:
their names, and it was also repeated throughout trial, other defendants identified many people by their nicknames.

[00:57:41] Speaker 00:
So the nickname evidence that they reference, specifically Travers being gangster, is proper factual testimony, but also harmless.

[00:57:52] Speaker 00:
As for the harmlessness argument, the defendants discount to

[00:58:02] Speaker 00:
inappropriate degree the cooperator testimony in this case.

[00:58:07] Speaker 00:
This was in fact a murder case.

[00:58:09] Speaker 00:
It was a case about three murders that occurred over a two year period.

[00:58:15] Speaker 00:
A conspiracy that was charged beginning in September 2006

[00:58:21] Speaker 00:
that ended with a three-month wiretap.

[00:58:23] Speaker 00:
So it was a three-and-a-half-year conspiracy with a wiretap tagged on at the end.

[00:58:29] Speaker 00:
And the jewels of this conspiracy, the jewels of this case, were the three murders.

[00:58:35] Speaker 00:
As to Mr. Bendabow,

[00:58:38] Speaker 00:
Mr. Kaiser, I think, calls Daryl Travers' testimony into doubt in a way that is completely unsupported by the record.

[00:58:49] Speaker 00:
If nothing else, this court can rest assured that the jury believed Mr. Travers because it convicted Prey and Benbow murdering Van Johnson and attempting to murder Steven Robinson.

[00:59:00] Speaker 00:
If the jury had any doubt about Daryl Travers' testimony, they would not have convicted

[00:59:05] Speaker 00:
and pray on those counts because he was the sole sort of eyewitness, if you will, to those murders.

[00:59:14] Speaker 00:
The court can also analyze Travers' testimony and the myriad ways in which it was corroborated in the slightest detail.

[00:59:25] Speaker 00:
everything right about the murders, the colors of the cars, where the murders occurred, how many guns were used, where Benbo parked the car after crashing it, fleeing from the scene, the fact that Johnson and Robinson were from 37th Street,

[00:59:45] Speaker 00:
Robinson testified to that.

[00:59:46] Speaker 00:
Johnson was wearing a 37th Street piece of jewelry on the outside of his clothing.

[00:59:52] Speaker 00:
He was right about where they got the car, who the car rental company was, the fact that when the car rental company brought a replacement car, it had out-of-state license plates that Benbo didn't like, which Benbo returned that night.

[01:00:06] Speaker 00:
He was right about the fact that the car was rented by Benbo's girlfriend's mother.

[01:00:12] Speaker 00:
His testimony about these murders was corroborated in the smallest degree by the Avis records, by Ben Bo's phone calls, showing that he called his girlfriend, called 411, called a tow truck company, and then called Travers the night of the shootings.

[01:00:29] Speaker 00:
It was corroborated by Robinson's testimony by the Avis records.

[01:00:33] Speaker 00:
And so not only can you be assured that the jury

[01:00:39] Speaker 00:
believe Travers, based upon its verdict.

[01:00:42] Speaker 00:
But you can also analyze the testimony for yourself and see how incredibly trustworthy it was.

[01:00:48] Speaker 00:
And it was Travers who was the link between Prey and Benbow.

[01:00:55] Speaker 00:
He was the one who tied them together in a conspiratorial relationship.

[01:01:00] Speaker 00:
He testified that Prey and Benbow, that he and Benbow combined money to buy drugs

[01:01:08] Speaker 00:
between a quarter of a kilogram and a kilogram a week on average for months in 2006, and that during that time, they bought drugs from Mark Prey.

[01:01:20] Speaker 00:
He testified that during that time, Prey asked him to put cocaine into crack, and he did that for Prey.

[01:01:28] Speaker 00:
Travers then went to jail when he got out two years later in July 2008.

[01:01:33] Speaker 00:
He said that Bembo and Prey were closer by that time, that they were like brothers.

[01:01:37] Speaker 00:
and that he and Benbow continued to buy and deal cocaine together.

[01:01:43] Speaker 00:
He said that he continued to, that once again, Cray asked him to cook cocaine and to crack for him, and that Benbow, in fact, brought Travers the cocaine from Cray to Travers, that Travers tried to cook up in one location, it didn't work, so he went to a house on Eaton Road and did it again.

[01:02:02] Speaker 00:
And it was shortly thereafter that this Van Johnson

[01:02:06] Speaker 00:
murder occurred.

[01:02:08] Speaker 00:
The other evidence.

[01:02:10] Speaker 00:
excuse me, of Benbo's drug dealing that I think Mr. Kaiser misunderstood your question, Judge Kavanaugh.

[01:02:16] Speaker 00:
Benbo was found with crack on two different occasions.

[01:02:19] Speaker 00:
He crashed his infinity in March of 2008, and they found 6.2 grams of crack.

[01:02:25] Speaker 00:
But when the case was taken down... On the arrest day, too.

[01:02:28] Speaker 00:
On the arrest day, they found 215 grams of crack.

[01:02:31] Speaker 06:
Yeah, in the car.

[01:02:32] Speaker 00:
In the car.

[01:02:33] Speaker 06:
In his car.

[01:02:33] Speaker 00:
And he was in a constructive possession case.

[01:02:36] Speaker 00:
But there was...

[01:02:38] Speaker 00:
Lots of evidence that Bembo owned these cars that we didn't mention in our brief.

[01:02:43] Speaker 00:
Papers were found in the backseat of the Infiniti with Bembo's name on it.

[01:02:47] Speaker 00:
A transfer of money to Travers in the Bureau of Prisons was found in the back of the Infiniti when it was crashed.

[01:02:54] Speaker 00:
Travers testified that Bembo told him that he crashed the Infiniti when the police came and he was dirty so he ran.

[01:03:01] Speaker 00:
That's exactly what happened.

[01:03:02] Speaker 00:
The police came, Benbo had a gun and cracked in his car and he ran.

[01:03:07] Speaker 00:
He also had a digital scale in the back seat, or excuse me, in the trunk.

[01:03:12] Speaker 00:
And he had a handgun with rubber bands around the handle that his girlfriend or the woman who was with him threw from the car before it crashed.

[01:03:21] Speaker 00:
The rubber bands on the handle are significant because other conspirators, including Mark Prey, in this conspiracy had this distinctive feature of putting rubber bands around the handles of their handguns.

[01:03:33] Speaker 00:
The pistol found in Crystal Washington's house in September 2006 that she attributed to Mark Prey had rubber bands around the handle.

[01:03:40] Speaker 00:
One of the long guns that was Marvin Benton's that was found in the house that day had rubber bands around the handle.

[01:03:46] Speaker 00:
When the case was taken down in March 2010, in Prey's ductwork, they found yet another handgun that had rubber bands around the handle.

[01:03:56] Speaker 00:
The use of digital scales in drug dealing was readily apparent from the record in this case.

[01:04:02] Speaker 00:
Linda Battle testified that when Prey took over her house,

[01:04:05] Speaker 00:
He used scales.

[01:04:06] Speaker 00:
When the officer went into Crystal Washington's house and found Mark Pray seated at a table with PCP, marijuana, and crack, there was a digital scale.

[01:04:14] Speaker 00:
The prosecutor who testified as to what Ms.

[01:04:17] Speaker 00:
Washington told her said that when Mark Pray would call Crystal Washington, Crystal Washington said she would get out his drugs and scale.

[01:04:25] Speaker 00:
So, Marvin Benton testified that he would buy drugs from prey to redistribute between 3.5 and 7 grams.

[01:04:34] Speaker 00:
So all of this shows that these amounts were drug dealer amounts of crack, and all of these things tied Bembo to conspiracy.

[01:04:41] Speaker 00:
Bembo's wallet was in the car when the officers took the Honda in March 11, 2010.

[01:04:50] Speaker 06:
Right, the Honda was the car on the arrest day.

[01:04:52] Speaker 00:
On the arrest day, with a turn of 15 grams of crack.

[01:04:55] Speaker 00:
And Mr. Kaiser tried to minimize that by saying it's a constructed possession case.

[01:05:00] Speaker 00:
Officers had seen Benbo in the Honda going into Prey's apartment building in January.

[01:05:06] Speaker 00:
But officers also found Benbo's wallet in the car on March 11, 2010.

[01:05:13] Speaker 00:
In the Honda?

[01:05:14] Speaker 00:
In the Honda, yes.

[01:05:15] Speaker 00:
Sorry.

[01:05:16] Speaker 03:
Did you have more questions on this subject?

[01:05:19] Speaker 03:
Can I ask you to go on to Prey and his conviction for the Hajmer?

[01:05:28] Speaker 03:
Other than the Hannah testimony, is there any testimony or physical evidence linking them to that?

[01:05:41] Speaker 00:
Yes, and the testimony that the prosecutor focused on in closing argument was a snippet of the call that Agent Hannah said nothing about.

[01:05:57] Speaker 00:
it was about making the ball bounce yourself.

[01:06:01] Speaker 00:
And the prosecutor argued to the jury that that was Prey telling Marlow, you can do this on your own.

[01:06:07] Speaker 00:
You don't have to wait for Lamar Larkins.

[01:06:10] Speaker 00:
Agent Hannah said nothing about that testimony during her interpretation.

[01:06:15] Speaker 00:
But the more fundamental issue is that

[01:06:20] Speaker 00:
One, well, there's another issue which is Prey argued in closing argument that he had nothing to do with that murder.

[01:06:27] Speaker 00:
He argued to the jury that he was in fact telling Marlowe not to commit the murder during the course of that call.

[01:06:34] Speaker 00:
And the jury obviously rejected that.

[01:06:37] Speaker 00:
But it's a conspiracy case.

[01:06:39] Speaker 00:
And so, Prey is independently responsible for acts taken, foreseeable acts taken in furtherance of the conspiracy.

[01:06:47] Speaker 00:
It was plainly foreseeable to Prey that Marlowe was going to commit this act of violence.

[01:06:53] Speaker 00:
First of all, this drug organization routinely committed acts of violence.

[01:06:57] Speaker 00:
But this was specific retribution for the shooting of Lamar Larkins.

[01:07:02] Speaker 00:
which was another close associate of Prey, someone who Prey bought wholesale amounts of cocaine with, as Marvin Benton testified.

[01:07:11] Speaker 06:
And so it wasn't – But it's – in the closing, the government counsel said it was that conversation that makes the murder of Hodge reasonably foreseeable to Prey, the conversation that occurred – the phone conversation that Hannah described.

[01:07:25] Speaker 00:
uh... fifty minutes before the murder now you say part of that conversation uh... hannah did not testify about which is the ball i think i'm getting that correct the ball bouncing yes in fact much of the conversation she didn't testify about there's conversation about marlo parking the bat up top work call work calls part of that conversation work calls part of that conversation she testified about that off the top of my head

[01:07:52] Speaker 06:
Your point about that earlier was that that was expert testimony.

[01:07:56] Speaker 00:
It's our position that it's proper rule 702 expert testimony and that it's harmless because three different witnesses testified that work means violence.

[01:08:05] Speaker 00:
Okay.

[01:08:05] Speaker 06:
About that call, she never said... That call is key, even though you said, take a step back, this is reasonably foreseeable and further into the conspiracy.

[01:08:13] Speaker 06:
At least at closing, the government counsel said, well, the key to that reasonably foreseeable point is

[01:08:19] Speaker 06:
conversation.

[01:08:20] Speaker 06:
So the conversation is critical, right?

[01:08:23] Speaker 00:
The conversation is, but Agent Hannah's interpretation of that conversation was quite limited.

[01:08:28] Speaker 00:
She didn't say they're discussing going to murder Gerald Hodge.

[01:08:33] Speaker 00:
She didn't give her understanding in the way that she gave her understanding of some of these other drug calls.

[01:08:39] Speaker 00:
She said work means violence, loafing means not paying attention or being lazy, which was corroborated by Daryl Travers' testimony about the same thing.

[01:08:50] Speaker 00:
She said that

[01:08:57] Speaker 00:
I believe she said that Squeak meant Lamar Larkins.

[01:09:04] Speaker 00:
That's the nickname.

[01:09:05] Speaker 06:
Right.

[01:09:06] Speaker 06:
And then the name, I guess he was getting voicemail.

[01:09:10] Speaker 00:
So she testified that when Marlo said, I've been calling Squeak's phone, it's going straight to voicemail, she testified that Squeak was Lamar Larkins.

[01:09:18] Speaker 06:
That's Larkins.

[01:09:18] Speaker 06:
Larkins wasn't around.

[01:09:19] Speaker 06:
And then Larkins, they do get, Marlowe does get a hold of Larkins.

[01:09:23] Speaker 00:
Well, we don't know.

[01:09:24] Speaker 00:
But Larkins was at the scene.

[01:09:25] Speaker 00:
He's at the scene.

[01:09:27] Speaker 00:
But that was corroborated by the phone records.

[01:09:30] Speaker 00:
The government introduced Marlowe's phone records, which show that right before calling prey, he had twice called Lamar Larkins for calls that lasted something like four and seven seconds each.

[01:09:41] Speaker 08:
So I'm not sure I understand the conspiracy point that what we should be focusing on as reasonable foreseeability be because

[01:09:47] Speaker 08:
I thought the substantive counts with respect to prey and the hodge murder were eight nine thirty eight and thirty nine and those alleged things like aiding and abetting murder.

[01:09:58] Speaker 08:
or using, I think a couple of them were 924C counts.

[01:10:03] Speaker 08:
But the counts weren't about whether it was reasonably foreseeable to pray that a murder would happen.

[01:10:09] Speaker 08:
The counts required the jury to find substantive involvement with the murder.

[01:10:14] Speaker 08:
Am I misunderstanding?

[01:10:17] Speaker 00:
You may not be misunderstanding.

[01:10:19] Speaker 00:
I was thinking of them as RICO predicates.

[01:10:22] Speaker 00:
The murders were also charged as RICO predicates.

[01:10:26] Speaker 08:
But weren't they actually charged as Vicar counts and as 924C counts?

[01:10:32] Speaker 08:
And as to those, I think the theory was that prey aided and abetted.

[01:10:37] Speaker 08:
Marlowe's commission of the murder.

[01:10:40] Speaker 00:
I'd have to look back at the indictment to see if aiding and abetting, I know aiding and abetting was charged, but if that was the only charge or if there was also, I think you're right that there was no conspiracy to commit murder charge.

[01:10:52] Speaker 00:
I don't know if the vicar may have been conspiracy.

[01:10:56] Speaker 08:
I didn't understand it to be, so I guess my point is that in order to implicate Hodge, I mean, I'm sorry, in order to implicate Prey in the Hodge murder,

[01:11:04] Speaker 08:
The government was required to do more on these counts than to simply show that it was reasonably foreseeable to Prey that Hodge's murder would come about.

[01:11:14] Speaker 08:
They had to show that Prey was actually involved in the murder.

[01:11:18] Speaker 00:
There was other evidence showing that Prey was involved.

[01:11:20] Speaker 00:
So Prey went to speak to Lamar Larkins the night of the shooting and asked if he knew who shot him, and Larkins nodded yes.

[01:11:29] Speaker 08:
Right, which tells us that

[01:11:32] Speaker 08:
Prey could have understood what a motive for Hajj's murder could be, but it doesn't tell us that Prey was actually involved in the murder.

[01:11:40] Speaker 00:
Well, it suggests that Prey transferred that knowledge to Marlowe so that Marlowe could commit the murder.

[01:11:47] Speaker 00:
Is that any of the vetting murder?

[01:11:49] Speaker 00:
If you tell someone who to kill in retribution.

[01:11:53] Speaker 08:
If you tell them who to, if you actually direct them who to kill, and I would say yeah, but if what we know is that

[01:12:01] Speaker 08:
you know who the person was, that in and of itself doesn't seem to me to be aiding and abetting murder.

[01:12:06] Speaker 08:
Something more has to happen to tie the individual to the crime.

[01:12:08] Speaker 00:
I don't understand Agent Hannah, the erroneous aspects of Agent Hannah's testimony to go to the point that your honor is making.

[01:12:19] Speaker 00:
Her interpreting Marlowe's statement, work call, Marlowe's statement, loafing, Marlowe's statement, squeak, shows nothing about whether prey aided and abetted that murder.

[01:12:32] Speaker 08:
But it shows his null, I mean, I think that's, I see that's why the government was making, was eliciting the testimonies.

[01:12:37] Speaker 08:
It shows that

[01:12:38] Speaker 08:
And to the degree that the court is

[01:12:56] Speaker 00:
particularly concerned about that call.

[01:12:58] Speaker 00:
I would merely restate that we believe that Lorkin, Lofeng were 702, Squeak was proper, or just factual testimony, and that all of it was harmless given that numerous other witnesses testified to the same thing, as well as the fact that the government's argument, while it did focus on this call, it focused on the ball bouncing aspect as being praise direction to Marla that he could do it on his own without Lorkin's.

[01:13:25] Speaker 00:
And that's something that Agent Hannah provided no testimony about whatsoever.

[01:13:33] Speaker 00:
If the court has no other questions, I can respond to the Prey and Marlowe harmlessness arguments, but there's nothing there.

[01:13:43] Speaker 00:
They murdered Crystal Washington, and Agent Hannah interpreted no calls whatsoever about that murder.

[01:13:51] Speaker 00:
There was GPS evidence showing, placing Marlowe at the scene of both the Washington and the Hodge murders.

[01:13:59] Speaker 00:
There was corroboration.

[01:14:00] Speaker 00:
Benton testified that Pray told him that, or that, yeah, Pray told him he was going to have Marlowe kill Washington.

[01:14:09] Speaker 00:
That was corroborated by the

[01:14:11] Speaker 00:
Jail calls between Benton and Prey, in which Benton told Prey that Washington was in a halfway house, asked was that Zoe in court the other day, the day that Zoe came to Superior Court to be able to see whether Washington was going to be testifying against Prey.

[01:14:28] Speaker 00:
And by the fact that Prey called Washington Waingrove, which was a character in the movie Heat who was killed because he was cooperating,

[01:14:37] Speaker 00:
Eric McLeod was an eyewitness to the Hodge murder, and he was not a cooperator.

[01:14:45] Speaker 00:
He had an immunity letter that allowed him to say he bought drugs from Mark Prey, but he was Joel Hodge's best friend.

[01:14:51] Speaker 00:
He saw Marlow coming around the dumpster immediately after shooting Hodge, putting a gun with an extended clip in his waistband, and testified that Marlow then said, you better not say nothing.

[01:15:02] Speaker 00:
Hodge testified that he told Hodge's uncle Monty that evening that he had seen Zoe kill Hodge.

[01:15:12] Speaker 00:
And then the next day, one of the co-conspirators called Mark Pray to say Monty McLeod told E.U., which McLeod said was his nickname, told Monty some wild stuff about Zoe.

[01:15:25] Speaker 00:
thus corroborating McCloud's testimony.

[01:15:28] Speaker 00:
Polly Walker, the woman who was much farther away from that murder, who was on Stevens Road, not in the alley, corroborated all of McCloud's testimony about what he and Hodge did that day, going from Eason to Stevens, going back to the alley, the exact directions, up the alley versus down the alley, that McCloud and the murderer went after the murder.

[01:15:49] Speaker 06:
It sounds like McCloud walked away from that.

[01:15:53] Speaker 06:
I'm sorry?

[01:15:53] Speaker 06:
It's odd that McLeod walked away from that interaction.

[01:15:56] Speaker 00:
You mean that he wasn't also murdered?

[01:15:59] Speaker 00:
Given Marlowe's reputation and what he was proven in this case to be, I agree with that, Your Honor.

[01:16:06] Speaker 00:
But it doesn't make his testimony less credible.

[01:16:09] Speaker 00:
And in fact, the fact that he saw his best friend shot

[01:16:14] Speaker 00:
certainly suggested.

[01:16:15] Speaker 08:
Well, somebody else also testified that they saw McLeod at the scene and that McLeod walked away, right, within Washington.

[01:16:21] Speaker 00:
Pauli Walker, who corroborated his testimony about

[01:16:26] Speaker 06:
And what I meant by, yeah, my question was, it's hard that he wasn't killed.

[01:16:30] Speaker 00:
I agree.

[01:16:31] Speaker 00:
He's a lucky man.

[01:16:33] Speaker 00:
And the ballistics from White's trap house.

[01:16:37] Speaker 08:
Can I just ask you a theoretical question?

[01:16:39] Speaker 08:
So I thought that the defendant's arguments on these points was that,

[01:16:44] Speaker 08:
The murder accounts, at least several of the murder accounts, are tied to racketeering and the conspiracy.

[01:16:51] Speaker 08:
And so if you take out, this is a big if, as far as you're concerned, I get that.

[01:16:55] Speaker 08:
But if you take out counts one and two on the basis that they go south as a consequence of Hannah's testimony, then the murder and aid of racketeering necessarily comes out, because everything that comes after the in aid of is out.

[01:17:10] Speaker 08:
And do you disagree with?

[01:17:11] Speaker 08:
I know you disagree that we shouldn't do that because you don't think Council wanted to are defective as a consequence of Hannah's testimony.

[01:17:17] Speaker 08:
But do you disagree that if if Council and wanted to are defective as a result of Hannah's testimony, then the murder in aid of racketeering doesn't also follow?

[01:17:27] Speaker 00:
I do disagree with that, your honor.

[01:17:30] Speaker 00:
And I can discuss in detail the Travers testimony for the Van Johnson murder.

[01:17:36] Speaker 00:
So Van Johnson had no underlying DC murder account because it was committed in Maryland.

[01:17:40] Speaker 00:
So the only substantive charge was a Vicar murder.

[01:17:43] Speaker 00:
That murder occurred in September of 2008, more than a year and four months before the wiretap in this case.

[01:17:52] Speaker 00:
And it was Travers' testimony who tied that murder to the conspiracy, who said that Prey and Bembo were like brothers.

[01:17:59] Speaker 00:
They were dealing drugs together.

[01:18:01] Speaker 00:
And that Prey murdered Van Johnson because Van Johnson was putting Bembo's life in danger.

[01:18:07] Speaker 00:
And so the fact that Agent Hannah may have improperly testified about calls that occurred 16 months later would not have affected the jury's determination as to whether or not a murder that had occurred in the past was in furtherance of the conspiracy.

[01:18:27] Speaker 00:
Where the reverse true, there might be a problem because once a conspirator, always a conspirator until you withdraw from the conspiracy.

[01:18:34] Speaker 00:
But there's no danger that the jury projected backwards in time and said that because Benlo and Prey were continuing to conspire together in January of 2010, which we decide because of Hannah's calls, that means that this

[01:18:51] Speaker 00:
earlier murder was also in furtherance of the conspiracy.

[01:18:53] Speaker 00:
The jury and the parties in their argument instead focused entirely on Traver's testimony.

[01:19:00] Speaker 00:
And so for that reason, I think even if the court were to find, which it shouldn't, that Agent Hannah's testimony would cause a reversal as to Ben Bozrico's conspiracy conviction, the Vicar conviction would still stand.

[01:19:15] Speaker 06:
On the aiding and abetting point that Judge Navastan raised earlier,

[01:19:20] Speaker 06:
I just want to make sure I understood your response, so I'm going to say what I thought you said, and you tell me if that's wrong, which was that if there's a problem with those, it has nothing to do with Hannah's testimony.

[01:19:32] Speaker 00:
I think that's right.

[01:19:33] Speaker 00:
She didn't testify as to the meaning of any conversation.

[01:19:37] Speaker 06:
There's a problem with that.

[01:19:38] Speaker 06:
It's kind of an insufficiency problem.

[01:19:41] Speaker 00:
That would be correct.

[01:19:43] Speaker 00:
And I don't understand that defendants have challenged the sufficiency of the substantive evidence as to that murder.

[01:19:51] Speaker 00:
OK.

[01:19:52] Speaker 03:
I'm done.

[01:19:53] Speaker 03:
OK.

[01:19:53] Speaker 03:
Thank you.

[01:19:55] Speaker 03:
So where are we with Rebuttal?

[01:19:58] Speaker 03:
Who has what?

[01:20:03] Speaker 03:
You all want to take rebuttal time?

[01:20:05] Speaker 03:
Or just one of you?

[01:20:07] Speaker 03:
Just one?

[01:20:09] Speaker 03:
Go ahead.

[01:20:10] Speaker 05:
OK.

[01:20:11] Speaker 03:
You can take four minutes.

[01:20:13] Speaker 05:
Thanks, Your Honor.

[01:20:15] Speaker 05:
I'm in a slightly awkward situation because much of what was talked about just doesn't involve my guy.

[01:20:20] Speaker 05:
So I'm hoping not to talk about it.

[01:20:24] Speaker 05:
But we'll see where we go.

[01:20:27] Speaker 05:
Let me start first with the harmless error conversation about the

[01:20:31] Speaker 05:
the conspiracy in Mr. Benbow.

[01:20:33] Speaker 05:
And, Your Honor, I apologize for misunderstanding your question at the end of my argument.

[01:20:37] Speaker 05:
I thought you were talking about the Infinity and not the Honda.

[01:20:38] Speaker 05:
I get my cars mixed up.

[01:20:42] Speaker 05:
I think even though there's cocaine that's associated with Mr. Benbow, and I don't mean to give up, and it's not on his person, it's in his car.

[01:20:49] Speaker 05:
I see the government's argument there.

[01:20:51] Speaker 05:
I think we've got a response that it's still constructive.

[01:20:56] Speaker 05:
Tying cocaine to Mr. Benbow does not tie him into the conspiracy.

[01:21:01] Speaker 05:
Regrettably, there's a lot of cocaine in Washington, DC.

[01:21:04] Speaker 05:
And just because a guy's got cocaine doesn't mean he's associated with every other cocaine dealer.

[01:21:11] Speaker 05:
That's where Agent Hannah's testimony really undercuts counts one and two, because without Agent Hannah's testimony, Mr. Bimbo is not tied to the conspiracy in the enterprise that's alleged in count one and two.

[01:21:29] Speaker 06:
That's why... I mean, you heard counsel say Travers is the key there.

[01:21:33] Speaker 05:
I think I did hear the testimony.

[01:21:36] Speaker 05:
I think if I were the government, I would talk about Travers a lot too.

[01:21:40] Speaker 05:
I mean, I think what Travers does, especially around the Van Johnson shooting, is he ties Mr. Ben Bow to some objective facts.

[01:21:47] Speaker 05:
But look, if a cooperating witness is going to be effective, what the cooperating witness is going to do is take what's established and not subject to dispute and then shade it.

[01:21:55] Speaker 05:
What the Traverse corroborating stuff gives you is that Mr. Bimbo knew about the car in some way.

[01:22:03] Speaker 05:
I think at best it gives you accessory after the fact or some sort of involvement in the cleanup effort.

[01:22:10] Speaker 05:
And there are problems with Mr. Travers' testimony as well, right?

[01:22:14] Speaker 05:
I mean, the government stipulated to this, that the Van Johnson shooting happened at 2 or 3 in the morning, and that there was a telephone call from Mr. Benbow to Mr. Prey that started at 1.59, and it lasted for eight minutes.

[01:22:30] Speaker 05:
Now, in closing our argument, the government said, well, that's just a butt dial, or we don't know what that is, but just ignore it, right?

[01:22:37] Speaker 05:
I don't think you can have an eight-minute inadvertent call.

[01:22:40] Speaker 05:
A voicemail clicks off.

[01:22:42] Speaker 05:
So this isn't a case where there's just a mountain of evidence on the government side and no evidence on Mr. Benbow's side.

[01:22:49] Speaker 05:
There is evidence on Mr. Bimbo's side.

[01:22:51] Speaker 05:
There's this inexplicable call.

[01:22:53] Speaker 05:
There's no reason why Mr. Prey and Mr. Bimbo would be talking on the phone if they're sitting a foot away from each other in the car, as Mr. Travers says.

[01:23:02] Speaker 05:
So his testimony is not wholly consistent with the objective evidence.

[01:23:08] Speaker 05:
And I think I said in my prior argument a lot about why I think Mr. Travers shouldn't be credited.

[01:23:19] Speaker 05:
The harmless error standards should not be whenever there's one cooperating witness.

[01:23:25] Speaker 05:
That means any error is harmless.

[01:23:28] Speaker 05:
That feels, that's just too low to meet the standard as we talked about in the opening argument.

[01:23:37] Speaker 05:
on the two-handed problem, the government argued that the two-handed just goes one way.

[01:23:43] Speaker 05:
I think when you look at Williams, that's what Williams gives you, but when you look at the reason behind Williams, I don't think that makes sense.

[01:23:49] Speaker 05:
And the reason for this is because, you know, the test is what the jury's confused with, what the jury's thinking.

[01:23:58] Speaker 05:
Here, especially on the packaging testimony, the 702 sort of harmless error packaging testimony that is interpreting the call that matters to my clients, less the work stuff that doesn't touch Mr. Benbow.

[01:24:10] Speaker 05:
The jury had been hearing from the government about how this is about your experience.

[01:24:15] Speaker 05:
This is in your experience working on this case.

[01:24:18] Speaker 05:
It was tied specifically to this case.

[01:24:21] Speaker 05:
And what Agent Hannah did is answering it in connection with this case, said this is how narcotics are packaged.

[01:24:27] Speaker 05:
A juror listening to that, knowing and having heard that Agent Hannah is just summarizing stuff that happened in this case, would conclude there was a bunch of other packaging that happened that is a part of this.

[01:24:39] Speaker 05:
I think it increases jury confusion, even though it's going in a different direction than what one saw in Williams.

[01:24:47] Speaker 03:
Thank you, Your Honor.

[01:24:51] Speaker 03:
OK.

[01:24:51] Speaker 03:
Thank you.

[01:24:51] Speaker 03:
So we'll move on to the multiple single conspiracy issue, OK?

[01:24:55] Speaker 03:
Here from a parent.

[01:25:06] Speaker 02:
May it please the court?

[01:25:07] Speaker 02:
My name is Amelia Schmidt.

[01:25:09] Speaker 02:
I'm here representing Kenneth Bimbo.

[01:25:11] Speaker 02:
I'll be arguing the third issue in our brief, that the government's evidence at trial supported two conspiracies and not one.

[01:25:20] Speaker 02:
The government's evidence at trial supported two conspiracies and not one.

[01:25:26] Speaker 02:
They proved at most two conspiracies, one between Kenneth Benbow and Mark Prey to distribute cocaine.

[01:25:35] Speaker 02:
Separately, a conspiracy between Mr. Prey, Mr. Marlowe, and others in the Buried Farm neighborhood of southeast DC to distribute PCP.

[01:25:47] Speaker 02:
This means there was a fatal and prejudicial variance in the indictment

[01:25:54] Speaker 02:
Because the government just couldn't show.

[01:25:56] Speaker 02:
The government alleged one conspiracy in the indictment and couldn't show it at trial.

[01:26:01] Speaker 02:
They could only show two.

[01:26:02] Speaker 02:
So I'd like to talk about that a little bit.

[01:26:05] Speaker 02:
The government's own counsel.

[01:26:06] Speaker 06:
This is a general matter.

[01:26:09] Speaker 06:
I mean, you could have two smaller conspiracies and one larger conspiracy all overlapping.

[01:26:17] Speaker 06:
I mean, these cases are often presented to us as either or.

[01:26:20] Speaker 06:
Either it was one conspiracy or smaller conspiracies.

[01:26:26] Speaker 06:
But it seems to me as if lots of times there's lots of overlapping conspiracies.

[01:26:32] Speaker 06:
As a general proposition, what's wrong with, or is there anything wrong with what I just said?

[01:26:37] Speaker 02:
I don't think there's anything wrong with what you said, Your Honor, based on the cases in this circuit.

[01:26:42] Speaker 02:
I think that there are oftentimes there's evidence of overlapping participants, but there also has to be more.

[01:26:50] Speaker 02:
There has to be evidence of a shared goal, which I don't believe there was in this case.

[01:26:55] Speaker 02:
There also has to be evidence of interdependence, something that connects the different co-conspirators.

[01:27:00] Speaker 02:
In this case, the only connection that the government could show was Mark Prey.

[01:27:04] Speaker 02:
They could show that Mr. Benbow knew Mark Prey.

[01:27:07] Speaker 02:
They could show that Mr. Prey knew Mr. Marlowe.

[01:27:09] Speaker 02:
But none of the testimony at trial could ever connect Mr. Benbow to Mr. Marlowe, and it couldn't connect Mr. Benbow to PCP or to the Berry Farms neighborhood.

[01:27:18] Speaker 02:
There's been a lot of talk about Daryl Travers, the key cooperating witness the government got to testify against Mr. Bembo.

[01:27:23] Speaker 02:
Mr. Travers never testified about Mr. Bembo having any involvement with PCP, and he even testified that he and Mr. Bembo never sold drugs in Berry Farms.

[01:27:34] Speaker 02:
The government's star law enforcement witness, Agent Hannah, testified that she knew of no evidence linking Bembo to PCP or to the Berry Farms neighborhood.

[01:27:43] Speaker 02:
What's more, the government even said, in its own closing argument, of Mr. Bembo,

[01:27:47] Speaker 02:
Is he a PCP guy?

[01:27:49] Speaker 02:
Maybe not.

[01:27:50] Speaker 02:
That's at the Joint Appendix 2343.

[01:27:53] Speaker 02:
And yet the jury was given a verdict form.

[01:27:56] Speaker 02:
They were asked to check whether it was proven or not proven that Mr. Benbow had conspired to distribute PCP.

[01:28:03] Speaker 02:
And the jury checked proven.

[01:28:06] Speaker 02:
If that's not spillover prejudice, I don't see what is.

[01:28:09] Speaker 02:
When there's no evidence that can establish that he had any involvement with PCP or Berry Farms,

[01:28:15] Speaker 02:
And the jury sits through a six-week trial with 140 hours of testimony, four of which in total was devoted to Mr. Benbow bringing witnesses on to testify about him.

[01:28:27] Speaker 02:
Only six of the more than 50 witnesses the government put forward even knew Mr. Benbow's name.

[01:28:34] Speaker 02:
the two assistant U.S.

[01:28:35] Speaker 02:
attorneys who are handling the grand jury proceedings and the Superior Court case that the government was connecting with the Crystal Washington murder.

[01:28:42] Speaker 02:
Both those AUSAs testified at Mr. Bendo's trial that they never heard of him in their investigation.

[01:28:49] Speaker 02:
There were thousands of calls, which I understand my colleagues have talked about already, but at most we're talking about

[01:28:56] Speaker 02:
about two that he was charged with.

[01:28:59] Speaker 06:
On the Berry Farm point, I thought the government at trial was clear that Berry Farm's obviously a big part of the case and Locust, but that was not the entirety of the drug operation.

[01:29:14] Speaker 06:
It was not charged or proved as a Berry Farm case.

[01:29:18] Speaker 06:
Is that fair?

[01:29:20] Speaker 02:
Well, I'm sorry, Your Honor.

[01:29:21] Speaker 06:
Is that fair?

[01:29:24] Speaker 02:
Well, I want to talk about that a little bit.

[01:29:26] Speaker 02:
So they did say, I think there were occasional nods to the fact that maybe this isn't a Berry Farms conspiracy.

[01:29:33] Speaker 02:
And they were trying to shoehorn Mr. Benbow into that narrative.

[01:29:37] Speaker 02:
But it just never really made sense, because they couldn't connect Benbow to anything in Berry Farms.

[01:29:43] Speaker 02:
They couldn't put Mr. Benbow in any of the drug houses that were in the Berry Farms neighborhood.

[01:29:48] Speaker 02:
Really, if you look at the way the government litigated the case, even if they didn't say it's the Berry Farm case, it really was the Berry Farm case.

[01:29:56] Speaker 02:
I mean, the opening, which was about an hour and a half, dedicated maybe about 10 minutes to talking about Mr. Venbo.

[01:30:02] Speaker 02:
Otherwise, they talk about Crystal Washington, who was one of the victims in the case.

[01:30:08] Speaker 02:
and was tied to one of the drug houses.

[01:30:11] Speaker 02:
They spent about two weeks of the first six weeks of that trial putting on witnesses about the Washington murder and about PCP.

[01:30:17] Speaker 02:
It's two weeks before they even start talking about Mr. Benbow or put Hannah on to testify about calls that Benbow was on.

[01:30:26] Speaker 02:
They spend a day, maybe two, on testimony about that.

[01:30:30] Speaker 02:
Then there's another three weeks where they just bring on more witnesses to testify about the Washington murder, about the Hodge murder, about PCP.

[01:30:39] Speaker 02:
It's another three weeks before anyone gets around to putting Travers on the stand or testifying about cocaine transactions.

[01:30:47] Speaker 02:
It's a long time.

[01:30:48] Speaker 06:
And the jury in the meantime, there's a lot else going on as another way to interpret that in both in the charge conspiracy and improving the case.

[01:30:57] Speaker 06:
But I guess what matters is not how often he wasn't discussed, but how often he was discussed and what the substance of that was.

[01:31:04] Speaker 02:
And he wasn't discussed hardly at all.

[01:31:06] Speaker 02:
And most of the witness testimony that came in, to the extent counsel for Benbow at trial even had any questions to ask of most of the witnesses, they would ask, do you know who Benbow is?

[01:31:16] Speaker 02:
Most of those witnesses said no.

[01:31:20] Speaker 08:
This is a sufficiency argument, it sounds like, right?

[01:31:22] Speaker 08:
Because the instructions allow the jury to find that an individual was not a member of the overarching conspiracy if they thought that there were multiple conspiracies.

[01:31:31] Speaker 02:
I wouldn't say it's a sufficiency argument.

[01:31:33] Speaker 02:
It's really a variance argument.

[01:31:35] Speaker 02:
So under the variance standard, what we need to show is that there was substantial likelihood that the jury transferred guilt from one defendant to another.

[01:31:44] Speaker 02:
That's not quite the same as sufficiency.

[01:31:45] Speaker 02:
I do understand in some of the case law on single versus multiple conspiracies, sufficiency is the governing standard.

[01:31:53] Speaker 02:
I don't think that the court has to get there.

[01:31:55] Speaker 02:
I do think for all the reasons I've talked about that there really wasn't evidence showing that he was in a giant narcotics conspiracy with the other defendants.

[01:32:04] Speaker 02:
But I don't think that we have to go there.

[01:32:06] Speaker 02:
I think that they're just, because of the way the government litigated the case, there was so much in there that made the jury think

[01:32:13] Speaker 02:
Oh, well, sure, throw Benbow in the soup with the rest of them.

[01:32:17] Speaker 02:
You've proven the case that he's just, he knows a bad guy, Mark Prey, and that should be enough.

[01:32:23] Speaker 02:
And I think that under the case law in this circuit, that's just not right.

[01:32:28] Speaker 02:
There has to be more.

[01:32:28] Speaker 02:
There has to be some sort of interdependence and a shared goal.

[01:32:31] Speaker 02:
And that just wasn't proven in this case.

[01:32:34] Speaker 03:
You mentioned interdependence.

[01:32:38] Speaker 02:
Yes, I did, Your Honor.

[01:32:40] Speaker 03:
So there's evidence in the record, there's evidence that Marlow, according to you, he's a member of the PCP conspiracy.

[01:32:48] Speaker 02:
If you believe the evidence, the other four are the charges.

[01:32:50] Speaker 03:
Right, we're just saying there's evidence, right?

[01:32:52] Speaker 03:
Yes.

[01:32:52] Speaker 03:
He's a member of the PCP conspiracy under your three, right?

[01:32:55] Speaker 03:
He killed Hodge in retaliation for an attack on Larkins, who's a member of the cocaine conspiracy.

[01:33:02] Speaker 03:
So that's evidence.

[01:33:03] Speaker 03:
If you believe the evidence, there's your interdependence.

[01:33:06] Speaker 02:
Well, but I don't think you can connect, you still can't connect Benbow to any of the others.

[01:33:12] Speaker 02:
I don't think that's quite enough to get there with interdependence.

[01:33:16] Speaker 02:
I mean, there was no evidence that linked Benbow at all to the Hodge murder.

[01:33:20] Speaker 03:
No, but it just has to be the conspiracies are interdependent.

[01:33:23] Speaker 03:
And here's evidence that the conspiracies are interdependent.

[01:33:26] Speaker 02:
Again, respectfully, I don't think that just Mr. Benbow having sold cocaine, if I'm understanding your argument, or your question, and please correct me if I'm not.

[01:33:38] Speaker 02:
As I understand it, if Mr. Larkins is tied to conspiracy and he was, if you believe the evidence the government put forward involved in the Hodge murder, that's still just, that's not quite enough to tie Mr. Benbow.

[01:33:53] Speaker 02:
to the conspiracy.

[01:33:54] Speaker 02:
That's not enough to show that Mr. Benbow was ever involved in the Cagan conspiracy.

[01:33:59] Speaker 02:
And I also believe there was even testimony on February 29th.

[01:34:03] Speaker 02:
It was the afternoon session.

[01:34:05] Speaker 02:
I'm looking at page 33, lines 10 through 15, where there was testimony that there was no evidence of a Larkins and Benbow deal.

[01:34:17] Speaker 06:
Isn't the theory that prey is the key to the whole thing, and Ben does, obviously, tight with prey?

[01:34:23] Speaker 02:
I think to the extent that the government's arguing it's a conspiracy, it does appear to be that prey would be the hub.

[01:34:29] Speaker 03:
Everybody's selling prey as drugs.

[01:34:31] Speaker 02:
I'm sorry?

[01:34:32] Speaker 03:
Everybody's pushing prey as drugs, right?

[01:34:35] Speaker 03:
That's what this conspiracy is.

[01:34:37] Speaker 02:
But again, I do think that's not enough.

[01:34:39] Speaker 02:
I think under Tarantino, there are a couple of different elements.

[01:34:42] Speaker 02:
You've got to show a shared goal, which I don't think was necessarily right.

[01:34:46] Speaker 03:
They're pushing prey as drugs.

[01:34:48] Speaker 02:
I don't think that's necessarily it.

[01:34:49] Speaker 02:
I think there was testimony at the trial that showed that there were some people who actually explicitly declined to deal in PCP, others who explicitly declined to deal in cocaine.

[01:34:59] Speaker 02:
And we set the Glen case in our brief for reasons why that wasn't enough to show a shared goal.

[01:35:05] Speaker 02:
And I think that still goes back to the interdependence.

[01:35:08] Speaker 02:
The government never put evidence that tied Venvo to anyone else in this case other than Mark Prey.

[01:35:14] Speaker 02:
And I would even say in closing, defense counsel said, what's Mr. Ben Boswell's crime?

[01:35:18] Speaker 02:
He's got a friend.

[01:35:19] Speaker 02:
His friend is Mark Prey.

[01:35:20] Speaker 02:
That's a JA-2205.

[01:35:23] Speaker 02:
I think that under the evidence is just so thin in this case, having bad friends is exactly what Mr. Ben Boswell is being punished for.

[01:35:31] Speaker 02:
And I don't think that that's what the law enforcement allows.

[01:35:36] Speaker 03:
Thank you.

[01:35:38] Speaker 03:
We'll hear from the government.

[01:35:48] Speaker 00:
Thank you, Your Honor.

[01:35:48] Speaker 00:
Dan Lenners again for the United States.

[01:35:51] Speaker 00:
This is a sufficiency inquiry.

[01:35:53] Speaker 00:
The jury was, the defendants say in both the opening and reply brief that the jury was not given a multiple conspiracy instruction, but that's wrong.

[01:36:02] Speaker 00:
The judge granted Mr. Benbow's request to give a multiple conspiracy instruction.

[01:36:07] Speaker 00:
That instruction in written form is at JA 580.

[01:36:11] Speaker 00:
In the transcript, it's JA 2367 to 68.

[01:36:15] Speaker 00:
Mr. Benbow's entire closing argument was focused on his, I'm a member of a different conspiracy theory.

[01:36:24] Speaker 00:
And the jury, after hearing the evidence in this case, rejected that.

[01:36:28] Speaker 00:
And it appropriately rejected that.

[01:36:30] Speaker 00:
As we noted, they all shared a goal of distributing narcotics for profit and committing violent acts in the furtherance of that narcotics scheme.

[01:36:40] Speaker 00:
There was ample evidence of interdependence, not just the Hodge murder, but also the Washington murder, where Washington, when she went into her own home that day, Craig gave her a dipper of PCP and she fought crack from him.

[01:36:54] Speaker 00:
And he had both crack and PCP on the table, so she would have been a witness against him in both of these alleged conspiracies.

[01:37:01] Speaker 00:
And the fact that Mr. Benbow was never seen dealing with PCP, as the court is aware, is irrelevant.

[01:37:13] Speaker 00:
knowingly participated with the core conspirator in achieving a common objective with knowledge of the larger venture.

[01:37:19] Speaker 00:
And there was ample evidence given the close relationship between Benbo and Prey that they were like brothers, the calls in which Prey discussed other co-conspirators with Benbo or discussed Benbo with other co-conspirators showing that there must have been knowledge of this larger venture, and thus the evidence was plainly sufficient to establish the single conspiracy charged in this case.

[01:37:46] Speaker 03:
Thank you.

[01:37:52] Speaker 03:
Would you like a minute?

[01:37:54] Speaker 03:
Sure.

[01:37:55] Speaker 03:
Go ahead.

[01:38:02] Speaker 02:
Your Honor, I would just like to respond to a couple of points.

[01:38:07] Speaker 02:
One, on the interdependence question, again, I talked about the way the government litigated the case.

[01:38:14] Speaker 02:
Brittany Brown, Ms.

[01:38:15] Speaker 02:
Washington's daughter, was also asked explicitly on cross if she'd ever heard of Mr. Benbow or if she knew him.

[01:38:21] Speaker 02:
She said no.

[01:38:22] Speaker 02:
There's nothing that tied Mr. Benbow to the Washington murder, nothing that tied him to the Hodge murder.

[01:38:26] Speaker 02:
Any of the witnesses called on the Hodge murder just didn't say anything about Kenneth Benbow.

[01:38:30] Speaker 02:
So I just don't think that's enough to show that Mr. Benbow was interdependent on anyone in this conspiracy.

[01:38:37] Speaker 02:
As to ample evidence of knowledge,

[01:38:40] Speaker 02:
I understand counsel to be referring to one line from Mr. Travers that Mr. Pare and Mr. Benbow were like brothers.

[01:38:47] Speaker 02:
I think that that can't be enough to show that he knew anyone else in that conspiracy.

[01:38:53] Speaker 02:
I think that, and I would also submit that as to calls, I believe the government's referring to what they say in one, their brief with the Larkin's call.

[01:39:01] Speaker 02:
I think for the reasons we've stated in our briefs, that's just not enough to show interdependence and conspiracy.

[01:39:07] Speaker 02:
I believe I may be out of time.

[01:39:09] Speaker 03:
Thank you.

[01:39:10] Speaker 03:
Thank to all of you.

[01:39:13] Speaker 03:
Your briefs and arguments today were very helpful and the case is submitted.