[00:00:00] Speaker 03:
Case number 18-3067, United States of America versus Eric Scurry, also known as E, appellant.

[00:00:08] Speaker 03:
Ms.

[00:00:08] Speaker 03:
Davis for the appellant, Mr. Lenners for the appellee.

[00:00:17] Speaker 02:
You may start.

[00:00:19] Speaker 04:
Good morning.

[00:00:20] Speaker 04:
May it please the court?

[00:00:21] Speaker 04:
I'm Mary Davis, and I represent the appellant, Eric Scurry.

[00:00:25] Speaker 04:
This case comes about as a result of Mr. Scurry's motion pursuant to 2028 USC 2255 in which he argued his guilty plea was not knowing and voluntary because the evidence that was suppressed in Scurry one was evidence that induced his plea.

[00:00:46] Speaker 04:
The district court denied that motion finding that Mr. Scurry must have been a target of the wiretap and that he was not a target.

[00:00:55] Speaker 04:
This circuit has not held whether targets of electronic surveillance have standing as an agreed person.

[00:01:01] Speaker 04:
The issue was raised in Glover, but since it was raised in the context of ineffective assistance of counsel, and because this court acknowledged that there's a split in the circuits, the issue was not decided because counsel could not be found ineffective for not raising something that was not clearly the law at the time.

[00:01:20] Speaker 04:
Appellant submits that this case presents the issue in such a light that makes it right for review.

[00:01:26] Speaker 04:
That is, whether someone who was named as a target is an agreed person, and as a result thereof, any evidence that was suppressed could not be used against him in any proceeding.

[00:01:41] Speaker 00:
Suppose you're right about that.

[00:01:43] Speaker 00:
There's still a substantial body of case law

[00:01:49] Speaker 00:
suggesting that a defendant need not know all the particulars about which evidence will or won't come in against the defendant at trial in order for the plea to be knowing.

[00:02:08] Speaker 00:
What do you do with all of those cases?

[00:02:10] Speaker 04:
Well, I think in

[00:02:14] Speaker 04:
Well, Henderson v. Morgan states the plea may be involuntary because the defendant does not understand the nature of the constitutional protections he is waiving.

[00:02:24] Speaker 04:
In this case, Mr. Scurry waived his right to go into trial based on the representations by the government that he was going to be tried for the conspiracy and that the conspiracy was the drugs

[00:02:44] Speaker 04:
that were sold by all the other co-defendants against whom the government dismissed their cases.

[00:02:53] Speaker 04:
So I think that this is somewhat distinguishable from the situations where a defendant may not know what's coming in.

[00:03:00] Speaker 04:
A defendant never knows what's going to come in at trial.

[00:03:03] Speaker 00:
But when something comes in and this just seems

[00:03:08] Speaker 00:
seems a little bit like that.

[00:03:10] Speaker 00:
Your theory is that the plea wasn't knowing because the defendant couldn't have predicted how a suppression motion would have turned out and therefore whether the evidence would have come in or not.

[00:03:25] Speaker 04:
Well, that is true, but... How is it different?

[00:03:31] Speaker 00:
We have just on one side of the line,

[00:03:36] Speaker 00:
What you do need to know are the nature of the charge, that's fine.

[00:03:42] Speaker 00:
The constitutional protections you get if you go to trial, right, not to testify, to confront witnesses, all of that, that's fine.

[00:03:53] Speaker 00:
All of the process that comes from criminal rule 11, and we have cases saying that's almost always gonna be enough.

[00:04:04] Speaker 00:
And then on the other side of the line, there are these Supreme Court cases saying it's not enough just to have the defendant misunderstand the quality of the state's case, misunderstand the admissibility of evidence, specifically a coerced confession, not have access to impeachment evidence.

[00:04:27] Speaker 00:
And this feels a lot more like that latter line of cases.

[00:04:32] Speaker 04:
But this court and Supreme Court has held that a defendant must have noticed that it's sufficient to give him an understanding of the law in relation to the facts of the case.

[00:04:47] Speaker 04:
Part of the law in this case, ultimately, was that all the evidence as a result of the wiretaps was suppressed.

[00:04:55] Speaker 04:
And I think this is distinguishable from the case where

[00:04:58] Speaker 04:
where the defendant later brought up that his confession was illegally obtained.

[00:05:08] Speaker 04:
In that situation, the defendant knew that the confession was illegally obtained at the time that he pled guilty.

[00:05:19] Speaker 03:
Davis, I'm not sure I even understand your theory of

[00:05:26] Speaker 03:
to what he didn't understand.

[00:05:30] Speaker 03:
Your brief at page six says, since the conversations could not be used against him in any proceeding, the guilty plea was not knowing and voluntary.

[00:05:39] Speaker 03:
On what ground would we conclude that they could not be used against him?

[00:05:45] Speaker 04:
Because that is the main issue here, that it could not be used against him because we are arguing that he was a target.

[00:05:54] Speaker 04:
And as a target,

[00:05:57] Speaker 04:
the evidence could not be used against him.

[00:05:59] Speaker 04:
According to 2510 subsection 11, an agreed person is a person against whom the interception was directed.

[00:06:08] Speaker 04:
And directed, some cases have held that directed means a target.

[00:06:14] Speaker 04:
Mr. Scurry was named as a target.

[00:06:17] Speaker 04:
He was named as a potential person whose calls would be heard.

[00:06:25] Speaker 03:
When you say some cases have held that directed means a target, I'm not aware of any case that has held that an individual who was neither the possessor or owner or user of the phone, nor was one of the converses on the phone, but just mentioned as someone about whom the government was seeking evidence, has ever successfully

[00:06:56] Speaker 03:
had their standing recognized to suppress wiretip evidence?

[00:07:02] Speaker 03:
Any case that has so held.

[00:07:03] Speaker 03:
District Court appeals.

[00:07:06] Speaker 04:
But at the same time, as I noted in my brief at page nine and 10, circuits have considered the target theory.

[00:07:16] Speaker 04:
And in Olivia, the court determined the defendant had standing because the affidavits included investigators certifying their belief that the defendant's cell phone was at issue.

[00:07:29] Speaker 03:
Yeah, the defendant's cell phone was at issue.

[00:07:31] Speaker 03:
And that's not the case here, right?

[00:07:37] Speaker 04:
Right.

[00:07:38] Speaker 04:
But Mr. Scurry was listed in some of the wiretap applications

[00:07:46] Speaker 04:
as someone whose conversations may be picked up.

[00:07:53] Speaker 04:
And he was listed as a target in the investigation.

[00:07:58] Speaker 02:
But in fact, none of his, is it accurate that none of his conversations were in fact picked up?

[00:08:06] Speaker 04:
Conversations of his were picked up on his own wiretap.

[00:08:11] Speaker 04:
I'm talking about on the wiretaps.

[00:08:12] Speaker 04:
Correct.

[00:08:14] Speaker 04:
Correct.

[00:08:14] Speaker 04:
They were not.

[00:08:15] Speaker 04:
And that is the point that, the whole point of our argument, the whole premise is that he is still an aggrieved person because directed at, if you look at the language of the statute, directed at

[00:08:30] Speaker 04:
has to mean something.

[00:08:32] Speaker 04:
And I know the government cited a quotation from Jones.

[00:08:38] Speaker 04:
But Rackes basically said that the language from Jones, against whom the search was directed, they basically said that to the extent that language may be read more broadly, it is dictum.

[00:08:53] Speaker 04:
My argument is that when Congress did this statute, when they wrote this statute,

[00:08:59] Speaker 04:
They did not put in extra words.

[00:09:01] Speaker 04:
It's not dictum.

[00:09:02] Speaker 04:
Directed, it has to mean something.

[00:09:04] Speaker 04:
And if you look at the common definitions of directed, you can see that it's a target.

[00:09:09] Speaker 04:
And Mr. Scurry was a target.

[00:09:11] Speaker 04:
And I think that the statute makes him an aggrieved person because directed, it has to mean something.

[00:09:20] Speaker 04:
It's not just put in there,

[00:09:22] Speaker 04:
for no reason.

[00:09:23] Speaker 04:
It means something.

[00:09:25] Speaker 04:
And directed at, as I know in my brief, directed at, if you look at the definitions of directed at and target, they're synonymous.

[00:09:34] Speaker 04:
And that's our argument.

[00:09:36] Speaker 03:
The argument you're making was available to Mr. Scurry at the time that he entered his plea and known to counsel at that time.

[00:09:49] Speaker 03:
And indeed, there was a condition on the plea

[00:09:52] Speaker 03:
that defendants would be, including Mr. Scurry, would have an opportunity to withdraw if they maintained an opportunity to appeal the suppression issue.

[00:10:06] Speaker 03:
And if they prevailed, would have an opportunity to withdraw, which, as you know, happened to the other co-defendants.

[00:10:13] Speaker 03:
So it's a counsel problem, not a court problem.

[00:10:19] Speaker 03:
Or is it?

[00:10:23] Speaker 03:
in this situation, the choice made by Mr. Scurry was to enter the plea with this condition, not a broader condition that would have allowed him to withdraw if the other defendants were attached were suppressed.

[00:10:44] Speaker 04:
I think the condition in Mr. Scurry's plea was that he could, um,

[00:10:49] Speaker 04:
appeal.

[00:10:50] Speaker 04:
I did not do his direct appeal.

[00:10:52] Speaker 04:
But I understand that- You did appeal to him at the police stage.

[00:10:56] Speaker 04:
Yeah, I did.

[00:10:57] Speaker 04:
I did.

[00:10:57] Speaker 04:
And my understanding, looking back, is that the condition was that he could appeal the district court's decision on his motion to suppress.

[00:11:08] Speaker 03:
When I first read it, I thought it was actually ambiguous on that point.

[00:11:10] Speaker 03:
It says, defendant may enter a conditional guilty plea reserving his right to appeal the court's order of August

[00:11:18] Speaker 03:
2012, denying defendants plural, motions plural, to suppress the wiretap evidence.

[00:11:26] Speaker 03:
But then it says specifically documents, confusingly it says documents plural, 59 in this case, but document 59 is the order with respect to, or his motion, I believe, only Mr. Scurry's motion.

[00:11:40] Speaker 03:
So I think you're right that the better reading is that he only reserved the right

[00:11:48] Speaker 03:
in the event that his own motion did not include these grounds, was granted.

[00:11:53] Speaker 03:
But what I'm saying is, if you think that Mr. Scurry had standing to suppress evidence resulting from the wiretaps of his co-defendants, then why didn't you counsel him to require that his condition in the plea so reflect?

[00:12:13] Speaker 03:
And why didn't counsel in moving to suppress move on Mr. Scurry's behalf

[00:12:18] Speaker 03:
to suppress the evidence coming from the other taps?

[00:12:22] Speaker 04:
I believe at the time that when Mr. Scurry entered his plea, it was on the day of trial.

[00:12:29] Speaker 04:
And the government was quite strict on what they would allow the plea to be conditioned upon.

[00:12:40] Speaker 04:
I know that Mr. Scurry's the amount of drugs that he was

[00:12:44] Speaker 04:
that he pled guilty to, I believe it was higher than some of the other defendants in the case who pled earlier on.

[00:12:51] Speaker 04:
So the government was not inclined to give Mr. Scurry a whole lot of benefits for his plea.

[00:13:03] Speaker 02:
The amount of drugs that you're referencing was the amount from the full conspiracy, not his individual sales?

[00:13:08] Speaker 02:
That's correct, yes.

[00:13:10] Speaker 02:
And I have just a procedural question for you, and that is,

[00:13:14] Speaker 02:
I think this whole thing started post appeal when Mr. Scurry filed a motion to dismiss the indictment.

[00:13:24] Speaker 02:
And then I take it you

[00:13:26] Speaker 02:
You came to him and said you could supplement, and I guess that's, and then you created the 2255.

[00:13:32] Speaker 02:
Is that how that happened?

[00:13:34] Speaker 04:
That is how it happened, yes.

[00:13:35] Speaker 04:
Because as you know, as your honor knows, ECF, I was getting notifications of what Mr. Scurry was filing and what the government was filing in response.

[00:13:46] Speaker 04:
And at that point in time, after discussions with Mr. Scurry, it was determined that filing a 2255 was the route.

[00:13:54] Speaker 02:
So you saw what Mr. Scurry had done and so you approached him?

[00:14:00] Speaker 02:
Excuse me, Your Honor?

[00:14:01] Speaker 02:
You saw what he had filed on your ECF and that caused you to approach him?

[00:14:04] Speaker 02:
Yes, yes.

[00:14:06] Speaker 02:
You had been removed from his case, his direct appeal, because of a conflict of interest.

[00:14:16] Speaker 02:
That's why you didn't handle the direct appeal.

[00:14:18] Speaker 02:
He moved the district court to have you withdrawn as counsel because he was going to allege that you had been ineffective with respect to the plea.

[00:14:26] Speaker 02:
And so you were withdrawn on the direct appeal, correct?

[00:14:30] Speaker 04:
I will believe you.

[00:14:33] Speaker 04:
I don't recall.

[00:14:34] Speaker 04:
I know Dennis Hart took over the appeal.

[00:14:37] Speaker 02:
Yeah, that was the reason, a conflict of interest, a sort of conflict of interest.

[00:14:40] Speaker 02:
Did you discuss that conflict of interest with him when you went to?

[00:14:44] Speaker 02:
Assist him with his 2255 petition.

[00:14:47] Speaker 04:
Yes.

[00:14:48] Speaker 04:
Yes, your honor.

[00:14:48] Speaker 02:
We had conversations a Conversations, do you have a written waiver of the conflict of interest?

[00:14:54] Speaker 04:
No, I do not I may actually make an informed waiver of the conflict of interest Well, your honor, mr. Mr. Scurry never raised in effect assistance of counsel

[00:15:10] Speaker 02:
That's not my question.

[00:15:12] Speaker 02:
My question is, you were aware that he had said he wanted to make an argument before his direct appeal that you had rendered ineffective assistance as counsel with respect to the plea.

[00:15:23] Speaker 02:
And then now you were coming in on your own initiative, as you just said, to assist his 2255.

[00:15:30] Speaker 02:
And you as counsel, of course, are responsible.

[00:15:34] Speaker 02:
He's not.

[00:15:35] Speaker 02:
You're responsible for obtaining a waiver.

[00:15:39] Speaker 04:
Well, Your Honor, I will say that when Mr. Scurry entered his plea and was sentenced, I do not recall, even now, what the reason was that I don't have a file.

[00:15:58] Speaker 02:
You'll have to trust me on that.

[00:15:59] Speaker 02:
I have his filing.

[00:16:00] Speaker 02:
It was conflict of interest.

[00:16:02] Speaker 02:
OK.

[00:16:02] Speaker 04:
Well, I believe you.

[00:16:03] Speaker 02:
But at the time when I. So it sounds like, in fact, that because

[00:16:08] Speaker 02:
time had elapsed and you didn't recall all these events that there we don't have a written waiver of this conflict of interest from mr scurry before you came into the 2255 motion that's correct but if your court would like me to obtain one from mr scurry i don't think after the fact is going to be appropriate well then mr scurry of course can uh request to file a success of 2255 based on that well those are really hard things to do the question is the question is the difficulty is

[00:16:36] Speaker 02:
that the nature of the claim you've raised here, as the Supreme Court has explained, and as my colleagues have explained, can't really be raised as a voluntariness, as the way you've teed it up.

[00:16:49] Speaker 02:
The way the claim you've presented here is supposed to be raised in a 2255 petition is through an ineffective assistance of counsel claim.

[00:16:58] Speaker 02:
Well, I think- Or it sounds like it's said directly in McMahon.

[00:17:02] Speaker 02:
Right, and I think that McManus- You didn't raise it as an ineffective assistance of counsel claim.

[00:17:07] Speaker 02:
Excuse me?

[00:17:08] Speaker 02:
You didn't raise it as an ineffective assistance of counsel claim, as the Supreme Court has said the type of argument you made should be packaged, because you would have had to argue your own ineffectiveness.

[00:17:19] Speaker 02:
So that's true, had I been aware.

[00:17:22] Speaker 02:
Seems like a bit of a conflict of interest.

[00:17:25] Speaker 02:
It may be, but as I said- It may be a conflict of interest, okay.

[00:17:30] Speaker 04:
I mean, I don't think that there was a conflict of interest because in all of my conversations and emails with Mr. Scurry, we discussed all different aspects of the 2255.

[00:17:42] Speaker 04:
And I'm not going to represent to the court a falsehood.

[00:17:46] Speaker 04:
Mr. Scurry never once suggested that he wanted to raise ineffectiveness.

[00:17:54] Speaker 02:
And your understanding of the rules of ethics, do you as an attorney

[00:17:58] Speaker 02:
informed about the rules of ethics, a member of the bar and officer of the court have an obligation when you have previously, when the defendant has previously said he wishes to raise an ineffective assistance counsel claim and then wishes to raise a claim on 2255 about his plea that according to the Supreme Court can only be presented as an ineffective assistance counsel claim and you were the plea counsel.

[00:18:24] Speaker 02:
Is your position that you had no obligation

[00:18:28] Speaker 02:
on your own to raise that conflict.

[00:18:32] Speaker 02:
with him, discuss it, and obtain a formal written waiver?

[00:18:36] Speaker 04:
As I said, I had many discussions with Mr. Scurry.

[00:18:39] Speaker 02:
That's not the question I asked you.

[00:18:41] Speaker 04:
Well, I did believe your honor, I thought your honor asked me, did I discuss it with him?

[00:18:46] Speaker 02:
No, I'm asking whether your obligation to raise that specific conflict, say the claim you want to present under Supreme Court precedent needs to be presented as an ineffective assistance of counsel claim.

[00:19:00] Speaker 02:
that would require me to argue against my own performance at the district court stage.

[00:19:07] Speaker 02:
Was that one of the conversations you had with him?

[00:19:14] Speaker 04:
That what the Supreme Court law was?

[00:19:17] Speaker 04:
No, I did not discuss that with him, but I would note that McMahon is distinguishable from the situation.

[00:19:23] Speaker 04:
in McMahon, it was, the law was clear at the time of the plea.

[00:19:28] Speaker 04:
The law was clear that, the law was clear that the, what the defendant was complaining about, I believe it was, of course, confession, that was known at the time of the plea.

[00:19:43] Speaker 04:
And I, and I, and I think, you know, look at, and so in McMahon said,

[00:19:53] Speaker 04:
that if the defendant thought his confession was involuntary and not usable against him at trial, it is unlikely he would have pled guilty.

[00:20:01] Speaker 04:
And later, the court wrote, surely allegations that the confession rendered his plea involuntary would appear incredible.

[00:20:08] Speaker 04:
And so at that point, the defendant knew when he pled guilty that there was an illegal confession that could be or could not be used against him.

[00:20:18] Speaker 02:
I think we have your argument on the merits there.

[00:20:20] Speaker 02:
Do my colleagues have any further questions?

[00:20:23] Speaker 02:
Okay, all right, we'll hear from the government now.

[00:20:29] Speaker 01:
Good morning and may I please record Dan Lenners for the United States.

[00:20:35] Speaker 01:
The defendant's attack on the knowing voluntary nature of his guilty plea is foreclosed by a long line of Supreme Court precedent that makes clear that a guilty plea represents a break in the chain of events that preceded it that renders any prior constitutional or here statutory violations irrelevant because the defendant has solemnly sworn under oath that he is factually guilty of the offense.

[00:21:05] Speaker 02:
You would agree, though, that it could be.

[00:21:07] Speaker 02:
I'm sure you would dispute the merits of the claim to be clear.

[00:21:10] Speaker 02:
But this type of claim under existing precedent could have been pressed, had it been pressed as an ineffective assistant with a counsel claim.

[00:21:18] Speaker 01:
Yes, Your Honor.

[00:21:19] Speaker 01:
That's what McMahon and Toll and its progeny make clear, is that there are two ways in which such an attack could be made.

[00:21:27] Speaker 01:
One is as a rule 11 violation, which the defendant has never alleged here, and the other is through ineffective assistance of counsel.

[00:21:34] Speaker 02:
Yep.

[00:21:35] Speaker 01:
OK.

[00:21:38] Speaker 01:
I'm happy to talk about Target standing.

[00:21:40] Speaker 01:
I don't think the court need reach that issue here.

[00:21:44] Speaker 02:
Can I clarify one thing?

[00:21:45] Speaker 02:
I just wanted to confirm with both parties.

[00:21:47] Speaker 02:
It seemed to me from the briefing and everything in the case, but I just wanted to confirm for the record that, like Mrs. Davis, you agree that his voice didn't show up on any of these wiretaps, even in momentary or fleeting.

[00:22:01] Speaker 02:
The other four wiretaps of the other four defendants.

[00:22:04] Speaker 01:
So your honor, I can't speak to the true facts of the wiretaps.

[00:22:08] Speaker 01:
I haven't listened to them.

[00:22:09] Speaker 01:
They occurred 10 years ago.

[00:22:11] Speaker 01:
He has never alleged that any of his conversations were intercepted on the Hudson wiretaps, which were the ones that said that they expected that he was a potential interceptee.

[00:22:24] Speaker 02:
Did his trial counsel have access to hear every, I just don't know if the way these proceedings were going

[00:22:31] Speaker 02:
Were they ever turned over to him in a timely fashion so that his counsel could have listened to them all to determine if he was actually on any of these?

[00:22:39] Speaker 01:
I assume that all of the wiretaps were turned over to counsel well in advance.

[00:22:46] Speaker 01:
Ms.

[00:22:46] Speaker 01:
Davis represented that Scurry pled guilty the day of trial.

[00:22:51] Speaker 02:
Certainly all of the wiretaps would have been turned over by then so that you know, when in the process I was not a criminal trial lawyer, you know,

[00:23:01] Speaker 02:
When in the process, are they usually turned over well in advance of trial?

[00:23:07] Speaker 01:
I don't know.

[00:23:09] Speaker 01:
I assume so.

[00:23:10] Speaker 01:
There's substantive evidence that would be turned over so that the defendants can make an appropriate motion to suppress.

[00:23:19] Speaker 01:
So all of this is an assumption, Your Honor.

[00:23:25] Speaker 02:
He did move to suppress his own wiretaps.

[00:23:27] Speaker 02:
But we don't know if he'd had access to the other four defendants or not at the time of his filing of a motion to suppress, or if anybody just got their own wiretaps.

[00:23:38] Speaker 01:
We don't know that, Your Honor.

[00:23:39] Speaker 01:
The defendants did move to join each other's motions.

[00:23:44] Speaker 01:
And the district court in denying the motions to suppress the wiretaps did have a section on standing in which it ruled basically in the government's favor and said that the defendants only had standing to challenge a wiretap that was on their phone or where one of their conversations was intercepted.

[00:24:07] Speaker 02:
No, I understand that.

[00:24:08] Speaker 02:
I understand your argument on that front.

[00:24:11] Speaker 02:
That's exactly my question.

[00:24:12] Speaker 02:
I'm asking the factual question that's the predicate for that legal argument.

[00:24:16] Speaker 02:
And that is, does anybody actually know if his voice showed up on any of the, I'm going to call them the four, the fours, that they weren't all suppressed.

[00:24:27] Speaker 02:
I know two were.

[00:24:27] Speaker 02:
And then the government concededly says to the third, we'll call it the four defendant wire caps.

[00:24:31] Speaker 02:
So nobody, I mean, I'll have to ask counsel again on rebuttal.

[00:24:37] Speaker 02:
Does any, the government doesn't know, at least at this point, whether he had access to all of the wiretaps of all four co-defendants.

[00:24:49] Speaker 01:
Sitting here today, I don't know that, Your Honor.

[00:24:52] Speaker 03:
Thank you, I appreciate it.

[00:24:55] Speaker 03:
If the district court had ruled the way our court rules, if it had in the first instance

[00:25:04] Speaker 03:
granted the suppression for the lack of the appropriate signature with respect to the four.

[00:25:10] Speaker 03:
I don't know.

[00:25:15] Speaker 03:
I know you're an appellate lawyer, but you have a sense of the logistics of how the government would have proceeded against Mr. Scurry on, for example, conspiracy charges.

[00:25:24] Speaker 03:
How do they get those wiretaps in?

[00:25:32] Speaker 03:
Would they be hearsay?

[00:25:34] Speaker 03:
Typically, they're being introduced against the defendant party.

[00:25:39] Speaker 01:
Well, so to the degree that they were statements by a co-conspirator made in furtherance of the conspiracy, the government could introduce them under that hearsay exception as substantive evidence.

[00:25:53] Speaker 02:
Only if you had independent evidence of the conspiracy, independent of the wiretaps under our circuit precedent.

[00:26:00] Speaker 01:
Correct.

[00:26:01] Speaker 01:
But there was ample evidence of Scurry's involvement in a conspiracy from the wiretap on his own phone, which was not suppressed.

[00:26:12] Speaker 02:
The descriptions in your brief were just about him selling to his clients.

[00:26:17] Speaker 02:
I didn't see descriptions in your brief of evidence of a conspiracy, and certainly not

[00:26:25] Speaker 02:
Again, from your brief, and maybe there's more there, I saw nothing to support the money laundering charge.

[00:26:31] Speaker 02:
on his way.

[00:26:32] Speaker 01:
So as I recall, Your Honor, from the wiretap conversations, as well as the government's description of the case and its notice of intrinsic evidence, it was through the wiretap on Scurry's phone that the government learned that he was working with, I believe it was Robinson, one of the charged co-conspirators as a street level dealer at the second court location.

[00:26:59] Speaker 02:
and the Robinson wasn't the one of the parties to the direct case was it my misremembering the names but I thought it was um it was different I thought it was all right let me get there it was Hudson and Johnson and Savoy and Brown there was no Robinson where it goes the other four

[00:27:27] Speaker 01:
On whose phone there was a wiretap, but Robinson was a co-conspirator, your honor.

[00:27:32] Speaker 01:
So, and the government supplement.

[00:27:35] Speaker 02:
Okay.

[00:27:35] Speaker 02:
He was in this case.

[00:27:36] Speaker 02:
I haven't seen reference to him in this case.

[00:27:39] Speaker 02:
I'm sorry.

[00:27:41] Speaker 02:
That's just my

[00:27:43] Speaker 01:
No, there was an individual named Nathan Robinson who was charged as one of the six defendants.

[00:27:51] Speaker 01:
The government's notice of extrinsic evidence, which is in our supplemental appendix, talks about how scurry, redistributed, crack in the second court area, that Robinson also did that, and that those two would work together.

[00:28:08] Speaker 02:
But that wouldn't be a basis for getting in Wari Taps and four different people.

[00:28:13] Speaker 01:
Well, that would establish a your honor asked about independence.

[00:28:17] Speaker 02:
It would be evidence.

[00:28:17] Speaker 02:
I want to establish would be evidence of conspiracy with Robinson that doesn't connect them to Hudson Johnson's very or sorry, I keep forgetting the other one.

[00:28:28] Speaker 02:
Brown.

[00:28:29] Speaker 01:
But then I think the point of investigating Hudson was to figure out who Scurry was obtaining his crack from.

[00:28:37] Speaker 01:
And so that would have been additional evidence of this larger conspiracy that allowed the government to work up the chain.

[00:28:46] Speaker 01:
But regardless, as we pointed out in our brief, the government had ample evidence

[00:28:52] Speaker 01:
of Scurry's own distribution of more than 200.

[00:28:56] Speaker 02:
You outlined that pretty thoroughly in your brief but that's not conspiracy and that's not money laundering for the two charges to which he pled.

[00:29:06] Speaker 01:
So the money laundering I

[00:29:08] Speaker 01:
Just having reviewed the plea agreement briefly involved him using his crack proceeds to buy a car and other things, which wouldn't have depended on wiretap evidence at all.

[00:29:20] Speaker 01:
And the, as I said, the conspiracy charge started with him and Robinson working together and the notice of extrinsic evidence expressly states that.

[00:29:31] Speaker 01:
And so that would be a conspiracy, as would the typical chain narcotics conspiracy, which is you conspire with the people above you in the chain, even if you don't know who they are, because you know that the drugs that you're selling must be coming from somewhere.

[00:29:47] Speaker 03:
So the four wiretaps that were suppressed as to their, as the people who are in possession of the phones would have come in

[00:30:01] Speaker 03:
to a case, a Scurry case, as statements by co-conspirators.

[00:30:07] Speaker 03:
And the conspiracy, the threshold conspiracy evidence that would open the door to that is evidence from Mr. Scurry's wiretap that he was working together with Robinson.

[00:30:21] Speaker 03:
And that becomes evidence of a conspiracy.

[00:30:25] Speaker 03:
And then unnamed people up the chain, otherwise hearsay evidence,

[00:30:31] Speaker 03:
among and between them comes in based on that predicate?

[00:30:36] Speaker 01:
I believe the Scurry wiretap established that he was obtaining crack from Hudson, which is why the government was able to get a wiretap on Hudson's phone.

[00:30:47] Speaker 01:
He was the first person after Scurry, so the government was moving up the line.

[00:30:51] Speaker 01:
And your honor, the court's asking a lot of questions that I'm not really prepared to answer because the disposition of this case seems so clear.

[00:31:00] Speaker 01:
But I believe it's likely that the scurry wiretap established sufficient evidence of his distributor or his supplier for the government to then move up to Hudson.

[00:31:11] Speaker 01:
And that was one of the flawed wiretaps, which is what rendered everything thereafter problematic.

[00:31:18] Speaker 01:
But this was the government's attempt to work its way up to the highest level supplier.

[00:31:24] Speaker 01:
And so I believe that there was likely sufficient evidence of scurry in a larger conspiracy from his own phone, which is what established the connection with Hudson, which is what allowed the government to get the wiretap on Hudson.

[00:31:39] Speaker 01:
And that evidence would have been put forth in the affidavit in support of a search warrant for Hudson's phone, which is in the defendant's appendix.

[00:31:50] Speaker 03:
Right.

[00:31:52] Speaker 03:
That's really helpful.

[00:31:56] Speaker 01:
If the court has no further questions, we'd ask that the judgment of the district court be affirmed.

[00:31:59] Speaker 02:
Any more questions?

[00:32:01] Speaker 02:
Thank you very much, Mr. Leonard.

[00:32:04] Speaker 02:
All right, Ms.

[00:32:04] Speaker 02:
Davis, you didn't have any time left, but we'll give you a minute.

[00:32:09] Speaker 02:
I'm sorry, two minutes.

[00:32:10] Speaker 02:
I apologize.

[00:32:11] Speaker 02:
Thank you.

[00:32:13] Speaker 02:
Before you start, I would like you to answer this question for me.

[00:32:18] Speaker 02:
Can you advise me as to whether

[00:32:22] Speaker 02:
you as plea counsel had access to and listened to all of the wiretaps from the other four defendants and you hurt when you told me you didn't recall his him being on those that you can tell me that he was not on those or it's something that's really not known

[00:32:47] Speaker 04:
Your Honor, I was not appointed counsel in this case.

[00:32:51] Speaker 04:
Christopher Davis was.

[00:32:53] Speaker 04:
The reason I ended up doing the plea on that particular day is because Mr. Davis was in another trial, I believe, and he came in later that day.

[00:33:05] Speaker 04:
And I believe Mr. Davis did the sentencing.

[00:33:08] Speaker 04:
So it would have been Mr. Davis who listened to everything.

[00:33:12] Speaker 04:
I'm certain, though, that he would

[00:33:17] Speaker 04:
I believe, Your Honor, I can't say if everything was given to each council.

[00:33:25] Speaker 02:
Can you tell me whether Hudson's name, whether there was evidence on the wire caps of Mr. Scurry's phone?

[00:33:34] Speaker 02:
Evidencing that he obtained drugs from Mr. Hudson.

[00:33:38] Speaker 04:
Yes.

[00:33:38] Speaker 04:
Yes.

[00:33:39] Speaker 04:
And because that is how from Mr. Scurry's water test.

[00:33:43] Speaker 04:
That's how they were able to get the what was the you know what it was.

[00:33:48] Speaker 04:
I don't know, Your Honor.

[00:33:51] Speaker 04:
I wouldn't make a couple of corrections here, is that this scurrying one suppressed only the wiretap evidence for Hudson and Johnson.

[00:34:06] Speaker 04:
They did not, it did not, did not go to the other defendants.

[00:34:11] Speaker 04:
When the case was sent back down to the district court, the government made the choice to dismiss the cases against all of the defendants other than Mr. Scurry.

[00:34:24] Speaker 04:
So I would note that

[00:34:26] Speaker 04:
That is one correction to the record here.

[00:34:29] Speaker 04:
And the other point I would like to make is that if there was other evidence of a conspiracy, as the government states, then they wouldn't have dismissed the cases against all the defendants.

[00:34:41] Speaker 04:
The wiretaps were the evidence, and so there's nothing else.

[00:34:45] Speaker 04:
And my final point is that this issue could not have been raised in the terms of ineffective assistance of counsel, because that is what happened

[00:34:56] Speaker 04:
and Glover, and the point of the issue was not decided.

[00:35:04] Speaker 02:
My colleagues have any further questions?

[00:35:07] Speaker 02:
All right, thank you.

[00:35:08] Speaker 02:
The case is submitted.