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Case number 19-3088, United States of America, Gregory Seacook, a balance.

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Mr. Zucker, for the balance.

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Mr. Hansford, ready, I believe.

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Mr. Zucker is now on mute.

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Good morning, Mr. Zucker.

[00:00:19] Speaker 03:
Good morning, Judge.

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May I begin?

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Sure, please.

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Okay.

[00:00:22] Speaker 03:
Good morning.

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May I please record John Zucker on behalf of the appellant.

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Five minutes for rebuttal, please.

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The issue here before us is a recurring one in drug cases.

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And it almost doesn't matter whether it's a possession with intent to distribute or a conspiracy, both of which were at play in this case.

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And the issue comes about frequently in cases where the evidence is all circumstantial.

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And the issue that is recurring is where do we draw the line between justifiable inferences and speculation?

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And that's what this case comes down to, as have many of the other cases.

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Now, there's no direct evidence that Mr. Cook ever possessed any cocaine or heroin or any of the other contraband in this case.

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There's no evidence that he ever distributed any.

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And there's no overt evidence or direct evidence that he conspired with the co-defendant to commit this offense.

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The government is essentially trying to cobble together

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bunch of disparate pieces of circumstantial evidence connecting him with the code offender and hoping that the amalgamation of all that circumstantial evidence creates sufficient evidence from which the inference that they seek to be drawn is, can be drawn.

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And I suggest to the court that what they're relying on here is essentially a lot of disparate evidence

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And that is speculative to confer or to infer in this case, with all due respect to Judge Boasberg, as he did, that Mr. Cook was part of this conspiracy or that he had the ability to exercise the meaning and control over the drugs that were never in his possession.

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The fact that- Are you contending that our case law, that there's no difference between direct and circumstantial evidence, is that that's not the law or that- No, that's not-

[00:02:25] Speaker 03:
No, no, no, that's clearly the law.

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That's clearly the law.

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A case can be based on circumstantial evidence and circumstantial evidence is entitled to the weight that the evidence warrants based on what the circumstances are.

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But in this case, there was no evidence.

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I mean, the judge said that the most logical inference is that in response to the call, Mr. Cook collected the drugs and the guns and the cash inside the apartment, put them into a pack,

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and had the minor child leave with them.

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Well, that's possible.

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It's possible that did occur, but there's no evidence supporting that proposition that that, in fact, is what occurred.

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The child was never called.

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There's no indication that Cook ever touched anything in the bag.

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There was no physical evidence connecting him with the bag.

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It is, in this case, pure speculation to believe that is what occurred.

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Can I ask a procedural question?

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Sure.

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There was a Pinkerton instruction given with respect to all three of the possession was intent to distribute counts.

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And you don't challenge that instruction.

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That was certainly not part of our brief.

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I don't, I frankly do not even recall that at this point.

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I mean, I take your word for it, but I don't recall it.

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Yeah, it's at the 688 and 89 of the separate appendix.

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So if indeed we disagree with you in hold that there was sufficient evidence of a conspiracy,

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Doesn't that mean necessarily that there was sufficient evidence for the three possession with intent to distribute counts?

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If there was a sufficient basis to conclude there was a conspiracy, does that if so facto mean that he's guilty of the possession with intent to distribute?

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I mean, I guess it would determine what the scope of that conspiracy was as a practical matter.

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Considering that there was no evidence that there was any agreement between them,

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the agreement is all being inferred from conduct?

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Well, what I'm saying is that the jury was instructed that they could find possession with intent to distribute based on the Pinkerton theory, which is that

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that each member of the conspiracy is responsible for crimes committed by the other members as long as those crimes were committed to help further or achieve the objective of the conspiracy and were reasonably foreseeable as a necessary or natural consequence of the agreement.

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That's at essay 688.

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In the similar language appears on the verdict form for the possession counts.

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well, particularly for the possession count for the cocaine possession with intent to distribute cocaine base of 28 grams or more.

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And so what I'm saying to you is that the jury had before it, the Pinkerton theory, and if we find that the evidence of conspiracy was sufficient,

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Um, then that's necessarily isn't necessarily sufficient than full for the possession with intent to distribute counts.

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Is there some argument that it wouldn't be And I hit it in your briefs.

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I guess my response off the top of my head is it would depend what you found the conspiratorial agreement was.

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Have you found that, for instance, the conspiratorial agreement applied to that only which was within the backpack, then that would exclude the possession of the intent to distribute for the drugs that were made in the house that were not placed in the backpack.

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Did that answer the question?

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Well, I'm not sure that it did, but I don't want to monopolize the time further with it.

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But I suggest that there is simply no evidence to indicate that Mr. Cook exercised the minimum control over any of the contraband in this case that was recovered, and that was the basis for these charges.

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And I think what we have here is analogous to the situation in Ziegler, where at the close of the government's case, there was not sufficient evidence, and it should have never gone to the jury, but that that evidentiary gap was filled in

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And certainly the government is allowed to rely upon evidence that is introduced by the defense.

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But in this case, I think what happened is very similar to what happened in the Ziegler case, where the defendant put on a defense that was not credited and the jury drew adverse inferences to fill in the gaps in the government's case because they did not credit the defendant, I'm sorry, the co-defendant witness, but was clearly trying to exculpate

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Mr. Cook, as she had done from the beginning.

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When the case first came in at the preliminary hearing, she went to the prosecutor and said he didn't have anything to do with it.

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The drugs are all mine.

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And she testified to that throughout.

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It was clear the jury didn't credit her on that, but that's where the negative, I'm sorry, the missing gaps in the evidence came from the impermissible drawing of negative, of a adverse inference.

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My time is up.

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Yeah, you're into your rebuttal time.

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So if my colleagues have no further questions, we'll hear from the government.

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Good morning, Your Honor, and may it please the court, Eric Hansford for the United States.

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We think Appellant's arguments here ignore two basic requirements of sufficiency review.

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First, you must view the evidence in the light most favorable to the government.

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And second, you have to look at all of the evidence in the case, not the evidence piece by piece.

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And the evidence as a whole here does strongly support a conclusion.

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that the defendant was working together with Rice to distribute drugs.

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You've got the phone call when Rice is stopped by the police where the person who she decides to call at that point is the defendant.

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And then the defendant seems to help Dante, her son, get out of the apartment with a backpack full of drugs and money, and then lies to the police afterwards, moments later, when they ask about the child's whereabouts.

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And you've got the recorded jail phone call where the defendant is discussing knowledge about the case that only an insider would know.

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And then you've also got the fact that there's a bag of evidence recovered at the Waldorf house, which is a drug encrusted Pyrex.

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That's the defendant's house in Waldorf, a drug encrusted Pyrex, Cornelia Rice's old school bus driver ID and a commercial money counter.

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And related to the commercial money counter, you've got unexplained wealth of the defendant, particularly thousands of dollars of unexplained cash deposits.

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And there's reason to think that's linked to the apartment, given that his ATM card for that account is found in the apartment and he's using the ATM that's closest to the apartment.

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And then you've got his general ties to this apartment where there's drugs out in the open.

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He's got a key.

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He's free to come and go.

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And so based on all of that, we do think there's sufficient evidence here.

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We think it's similar in many ways to the evidence that this court went through in, or the types of evidence that this court went through in Gaskins that's typical in a drug conspiracy that was found lacking in Gaskins, but is present here.

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And we think it's similar in many ways to the evidence found sufficient in Childress.

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In terms of circumstantial evidence, of course, circumstantial evidence is just as valid as direct evidence.

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The jury was instructed as to that.

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We do think there's direct evidence in this case, in particular, the recorded phone call from the jail and the bag of contraband found in the Waldorf house.

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But even if that is all considered circumstantial evidence, we do think that's just as valid

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And then just on the back, can you name a case where we or any court has found sufficient evidence of a conspiracy or a person who was never found in possession of any drugs themselves and never participated in, there's no evidence that they participated in a transaction themselves.

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I think that may map on to the Childress case.

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Certainly the defendant there was not found in possession of any drugs.

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I do not recall at this point if she may have acted as a go-between in that case.

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So I don't have

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case may be exactly on those facts.

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But I think that it is reasonable to infer that the defendant here was in possession of the drugs that were in the backpack.

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And so you can draw circumstantially whether or not there's direct evidence of that.

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You can find circumstantially that he was in possession of the drugs.

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And I don't think that's a real one.

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But to find him guilty of possession with intent to distribute 28 grams or more, we have to either

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hold him accountable for the 14 plus grams that were in Ms.

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Rice's bra or the cocaine cookie that was underneath a dumbbell in the bedroom and not in plain view?

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Well, I think there's all of the, I believe there was more than, there was something like 32 grams of crack cocaine found in the backpack itself.

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So there was more than 28 grand in the backpack.

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I believe that's correct.

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I would also just in, I'm thinking based on your prior question, yeah, I think there were 34 grams in the backpack.

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But based on your prior question, the Supreme Court's decision in Ocasio said that in a drug conspiracy case, it's DICTA, but the Supreme Court said in a drug conspiracy case, there need not be direct evidence or there need not be evidence that the defendant ever agreed to distribute drugs

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It's enough if he was storing the drugs.

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So I think that is a situation where the court is recognizing that in a conspiracy, in order to be convicted based on a conspiracy, you don't need to actually take all of the steps of the underlying crime.

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You just need to agree to help someone else commit the crime.

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And I think that is what we have here.

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And just in terms of the backpack and what Judge Boesberg said about the backpack, whether or not the defendant is actually the one who packed up the backpack is not the relevant question.

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The question is whether he is helping Dante escape with the backpack full of drugs and understanding what's in there.

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And we do think there's circumstantial evidence of that, given that he's

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shortly before Dante emerges poking out his head and noticing the police.

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Um, and then right after Dante has left, he's lying to the police about Dante's whereabouts.

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Suppose we're concerned about a situation where you could have, you know, someone who is a roommate of, or a housemate of a drug dealer.

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And they know that that's what's going on.

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They have no,

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no involvement in it, but you know, that's, that's where they live and they're for whatever reason stuck living there.

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They've got a key.

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They come and go.

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They have an association with the drug dealer.

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What if we're concerned about opening the possibility of liability for conspiracy for people like that?

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I think it's clear under this court's case law that that would not be enough.

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Simply knowing or being in the presence of drugs would not be enough to convict someone of conspiracy.

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I think that the jury was appropriately instructed that simply being in the near presence of the drugs was not enough to find the defendant guilty

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of possessing the drugs and so but I think that's ultimately in many of those cases like that in that scenario So if if if you have that situation and the roommate gets a call from the drug dealer Saying, you know, i'm with the police And and they say oh you're with the police

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Okay, well, I'll come check on you.

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And then the drug dealer's son or accomplice hears that and decides to leave with drugs.

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You know, you would say we would infer that they caused them to leave with the drugs or that that shows that they're part of the conspiracy.

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even if they could be leaving because they know that there's drugs in the house that they and if the police might come there they need to get them out of the house.

[00:16:27] Speaker 01:
I don't think we would we certainly would not say that I think we would say it's a jury question what the defendant is thinking at that point but we would not say that someone the innocent roommate who gets a call and is told to leave who knows about the drugs.

[00:16:41] Speaker 00:
Well you would say the most favorable to the government you can infer that they

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that they told the person they're part of the cons where no, I mean, I think that that is what the defendant because shortly before he p

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The police take special note of the police and then right afterwards lies to the police about where the child has gone.

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Plus, there's all of this other evidence.

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But I think that's it is because he knows that the kid took drugs with him and, you know, he doesn't want the kid to get in trouble and end up in foster care.

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So I think those are entirely permissible jury arguments to be made.

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And I think they were made in this case.

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But I think once the jury has made the decision, has rejected that that is what the defendant's doing and has found instead that what the defendant is doing is intentionally helping because he has agreed to help distribute the drugs and possess with intent to the distribute.

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I think on appeal, this court has to defer to that

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finding of the jury on that sort of factual scenario.

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I fully agree that there is a triable jury question in that case.

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It's just not a situation where on that evidence you'd be overturning it on appeal.

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And so if there are no further questions, we would ask this court to affirm.

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Thank you.

[00:18:23] Speaker 03:
May I proceed, Judge?

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Yes.

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Turn first to the Childress case.

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I think with all due deference to the prosecutor, his recollection is somewhat mistaken.

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In Childress, it was one of, that was the Rachel Edmonds case, and it was one of the relatives, also named Edmonds,

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who that issue came up and the evidence showed in that case that not afterwards, but during the course of the conspiracy, there were recorded calls where that person was discussing drugs, avoiding the police, introducing couriers, accepting money when her significant other boyfriend wasn't around, who was the principal.

[00:19:02] Speaker 03:
There was much more than there is in this case.

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So I think that case points exactly in favor of the defense that because the conversation after the fact was was after the fact it was in and and it's

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unfair to hold it against the defendant that because he knows of the activities of the principal of Ms.

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Rice, therefore it's reasonable or has to be inferred that he is a participant.

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There simply is no basis to draw that conclusion.

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Regarding the cash deposits, the amounts involved in this case were not

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I mean, the pattern that the officer testified to was that before the mortgage payment of 900 and change was due, there were frequently cash deposits to cover that mortgage.

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I would say that that in and of itself does not establish and is not consistent with the type of cash that we see in a drug distribution ring.

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It's somebody who's dealing with cash.

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As the officers acknowledged, there are people who do.

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Regarding the government places great reliance on this claim that Mr.

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went to the door prior to Dante's leaving.

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Interestingly, whatever occurred at the door, the officer didn't think it was significant enough to note or broadcast about until after the arrest of Mr. Cook.

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And the officer sitting next to him contradicted, Hashida contradicted, who had the same view.

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He says, from where we were seeing, the door was closed.

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We couldn't see the person's face.

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The lighting wasn't good enough.

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So I say the court should have some concern about the exaggerations.

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with the other officer.

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Regarding the evidence that is recovered from Waldorf, I'm not sure how far that gets us.

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It's a house in Waldorf.

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The defendant owned the house, but his brother lived there, and his brother had a record, and they found his brother's Bureau of Prisons identification there.

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It's clear that Mr. Cook couldn't have been there for at least a week.

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because he was incarcerated.

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So how is he, how is what's there attributable to him when he hasn't been there and there's no evidence when he was there last and there's no evidence linking him to any of the contraband that was recovered.

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The contraband that was recovered had Miss Rice's ID in it and she says that she was being evicted so she had personal property removed and stored at Mr. Cook's house.

[00:21:26] Speaker 03:
I see my time is up.

[00:21:29] Speaker 03:
Are there any other questions?

[00:21:31] Speaker 02:
I don't think so.

[00:21:32] Speaker 02:
I don't hear any.

[00:21:33] Speaker 02:
Mr. Zucker, you were appointed by the court to represent Mr. Cook, and we are grateful to you for your assistance.

[00:21:38] Speaker 03:
Thank you.

[00:21:39] Speaker 02:
Thank you both.

[00:21:40] Speaker 02:
The case is submitted.