[00:00:00] Speaker 00: Case number 21-39-4. [00:00:03] Speaker 00: United States of America versus Lamont Johnson, also known as Black, at balance. [00:00:08] Speaker 00: Mr. LaCarr for the at balance. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Calley, Friday afternoon. [00:00:13] Speaker 01: Good morning, counsel. [00:00:14] Speaker 01: Mr. LaCarr, please proceed when you're ready. [00:00:16] Speaker 05: Thank you. [00:00:16] Speaker 05: Good to see you all here. [00:00:18] Speaker 05: As the court is aware from our briefs, this is not a routine sentencing case. [00:00:22] Speaker 05: It's a de facto life sentencing based on constitutionally unreliable information. [00:00:28] Speaker 05: In the limited time I have, I hope you'll indulge me perhaps 90, a minute to 90 seconds to give you my three core theories, if that's possible. [00:00:37] Speaker 05: The first issue I want to talk about is the uh, relevant conduct. [00:00:42] Speaker 05: The government doesn't really seek to justify a judicial judge's findings, but Mr. uh, my client at the day's multiple discussions of multi-gallon purchases of PCP, [00:00:52] Speaker 05: That's simply unfounded. [00:00:54] Speaker 05: We report all of irrelevant text and the evidence to no cooperators in the appendix. [00:01:01] Speaker 05: No cooperator testified at the trial. [00:01:03] Speaker 05: No cooperator testified at the sentencing. [00:01:06] Speaker 05: Even though those cooperators are clearly under the government's control. [00:01:10] Speaker 05: What the government has done here is switch courses. [00:01:13] Speaker 05: They want you to become a court of first view, not a court of review. [00:01:18] Speaker 05: They want you to decipher near incomprehensible [00:01:22] Speaker 05: coded conversations and try to figure out what happened several years ago. [00:01:27] Speaker 05: They, in effect, want you to reward them for not calling any of the cooperators at the trial or at the sentencing. [00:01:36] Speaker 05: And I don't think the courts should do that. [00:01:38] Speaker 05: They also want the court to consider proffers, what the law declares as notoriously unreliable proffers and culpatory statements of co-detendants that were not presented below in the district judge. [00:01:53] Speaker 05: Now, we've rejected that. [00:01:55] Speaker 05: That's not fair. [00:01:57] Speaker 05: That's something that should have been explored below. [00:01:59] Speaker 05: If they didn't want to call the cooperators, I can understand that. [00:02:04] Speaker 05: But that's the responsibility of the government. [00:02:06] Speaker 05: It's their burden to establish relevant conduct. [00:02:09] Speaker 05: And our position is, quite simply, this is a Stover case. [00:02:13] Speaker 05: This is a case of the United States versus Daniel Stover that we cited in our brief. [00:02:19] Speaker 05: Second, and it should be remanded as a proper fact [00:02:23] Speaker 05: The role in the offense, that's a simple one. [00:02:27] Speaker 05: This case does not meet any of the criteria that the courts typically rely on, that the courts of appeals typically look to, to decide what somebody's role is in the offense. [00:02:38] Speaker 05: Now, in this case, if you look at the government's precincts and memorandum, they depict Mr. Johnson as the drug supplier for the entire Jaihe Marshall drug trafficking organization. [00:02:52] Speaker 05: That's what they put, and it's in the record, in a sexy memorandum. [00:02:57] Speaker 05: Now, if Mr. Johnson was a supplier for the entire network, how could it have thrived when he was unambiguously correct the drugs, unable to pay the rent, unable to meet his car numbers? [00:03:10] Speaker 05: It doesn't make sense. [00:03:11] Speaker 05: He didn't recruit anybody. [00:03:13] Speaker 05: He never met Cheyenne Marshall. [00:03:15] Speaker 05: He wasn't on the scene. [00:03:17] Speaker 05: He didn't share profits. [00:03:18] Speaker 05: At the best, [00:03:20] Speaker 05: their argument then shifts to, well, maybe he controlled his co-venturer. [00:03:24] Speaker 05: The law is, you don't control your co-venturer. [00:03:27] Speaker 01: So I do have a question or two about this part of the case, the manager supervisor one, but can we go back to the drug quantity for where you started? [00:03:35] Speaker 01: So I take it you don't disagree with the [00:03:40] Speaker 01: what the government says at page 49 of its brief in terms of the quantities. [00:03:44] Speaker 01: In other words, if it's true that there was a gallon involved and then eight ounces and then 16 apiece, that that amounts to over three kilograms. [00:03:52] Speaker 05: The question is, I do disagree. [00:03:55] Speaker 01: No, I'm just talking about the math. [00:03:57] Speaker 05: I guess I'm surprised that you disagree with that. [00:04:06] Speaker 01: What I took to be the principal submission is that there's just not evidence that supports the amounts. [00:04:14] Speaker 01: Not that the amounts don't translate into three kilograms. [00:04:17] Speaker 01: Maybe I'm wrong about that. [00:04:19] Speaker 01: But on whether the evidence supports the amounts, and it seems like [00:04:23] Speaker 01: The big question is the one gallon, is whether there was, in fact, one gallon that came from the West Coast. [00:04:29] Speaker 05: Three gallons. [00:04:30] Speaker 05: To get to level 32, you have to have three gallons more of pure PCP. [00:04:35] Speaker 05: I'm sorry, three gallons of a mixture containing PCP. [00:04:39] Speaker 03: They don't have that. [00:04:41] Speaker 03: Why do you say three gallons? [00:04:42] Speaker 03: Isn't the expert testimony 22 grams per fluid ounce? [00:04:47] Speaker 03: Here's the problem. [00:04:48] Speaker 05: That's his testimony, but here's where he missed. [00:04:53] Speaker 05: First of all, let me give them the gimme, what they see from Mr. Johnson's car. [00:04:58] Speaker 05: That's 1.45 kilograms. [00:05:00] Speaker 05: That's about essentially 90 ounces, if you do the mathematics. [00:05:05] Speaker 05: And I've done a calculation table last night. [00:05:09] Speaker 05: If you gave them the 40 ounces, which the evidence doesn't support, [00:05:15] Speaker 05: If you gave them, there's a mixture of 40 ounces of PCP, you still come out under what you need for three kilograms and more of a mixture. [00:05:23] Speaker 05: So the math doesn't add up. [00:05:25] Speaker 05: This is another reason. [00:05:26] Speaker 03: I want to answer, though, to the question of, do you think that it's clear error for the district court, if the district court relied on 22 grams per fluid ounce, that that was clear error? [00:05:40] Speaker 03: And if so, why? [00:05:41] Speaker 05: Well, first of all, that seems to be standard review. [00:05:44] Speaker 05: Do I think it's clear ever? [00:05:45] Speaker 05: Absolutely. [00:05:46] Speaker 05: But I also think you should give the entire methodology a fresh look, as the majority of circuit courts of appeal do. [00:05:53] Speaker 05: This circuit has never directly ruled on methodology. [00:05:56] Speaker 05: And I've urged in my opening brief and my reply, there should be a de novo standard review. [00:06:02] Speaker 05: And the fact of the matter is, the judge's findings, when you read the sanctioned transcript, they just don't make sense. [00:06:08] Speaker 05: The way he approached it, there was some confusion in the record. [00:06:11] Speaker 03: Tell me why 22 grams per fluid ounce, even if we review this de novo, shouldn't be used. [00:06:20] Speaker 03: Where was that contested below? [00:06:22] Speaker 03: 22 grams per fluid ounce. [00:06:29] Speaker 03: We've got to convert from liquid in ounce gallon measurements to grams in kilograms for [00:06:38] Speaker 03: the purpose of the sentencing tape? [00:06:40] Speaker 05: In the sentencing memorandum below, he did contest the amount. [00:06:45] Speaker 05: And if you calculate, if you look at a mixture, if you take a mixture of PCP, because that's what they got. [00:06:52] Speaker 05: It wasn't your PCP. [00:06:54] Speaker 05: If you have 1.45 kilograms, that computes out essentially to just about 50 ounces. [00:07:03] Speaker 05: If you gave them 40 ounces, [00:07:06] Speaker 05: It still wouldn't get them to where they're looking. [00:07:08] Speaker 03: How are you doing that conversion? [00:07:11] Speaker 03: What unit of ratio? [00:07:13] Speaker 03: I did it. [00:07:13] Speaker 03: It's kilogram to ounces conversion, Your Honor. [00:07:17] Speaker 03: Pilogram to ounces by fluid ounces or by weight? [00:07:24] Speaker 03: The problem is that a gallon [00:07:28] Speaker 03: There's 128 ounces, but that's fluid ounce. [00:07:31] Speaker 03: Right. [00:07:32] Speaker 03: That's what I did. [00:07:33] Speaker 03: So that is not the same as how many ounces in weight a gallon of milk or a gallon of water or a gallon of PCP weigh. [00:07:43] Speaker 05: The problem is it's a mixture. [00:07:45] Speaker 05: It's not pure PCP. [00:07:46] Speaker 05: There are two alternatives. [00:07:48] Speaker 05: If you have 300 grams of pure PCP, that takes you to level 32. [00:07:53] Speaker 05: If you have a mixture, you have to have three gallons or more of a mixture. [00:08:00] Speaker 05: As the Barrows case that we cited in our brief said, caution has to be taken when you're looking at quantity. [00:08:06] Speaker 05: And what the district judge's core finding was that they shifted on, his core finding was that there are multiple discussions of multi-gallons of PCP. [00:08:16] Speaker 03: Your brief at page four, opening brief, says, because based on the intercepted conversations that he was seeking [00:08:30] Speaker 03: gallon. [00:08:31] Speaker 03: Your brief acknowledges that. [00:08:33] Speaker 03: I think that's right, but there were multiple conversations concerning multiple gallons. [00:08:37] Speaker 03: So I guess if he was seeking a gallon and the record supports that he got a gallon in the beginning of October and then there were a couple prior sales of eight ounces, 16 ounces, [00:08:54] Speaker 03: If you add that gallon to those prior sales and use 22 grams per fluid ounce conversion, then you're over three kilograms. [00:09:02] Speaker 03: Here's the problem about argument. [00:09:04] Speaker 05: There's no argument to the prior sales. [00:09:06] Speaker 02: Wait, hold on. [00:09:08] Speaker 02: Am I misreading the... Doesn't the expert testimony in this case, which I think is undisputed, it says that a gallon plus 16 ounces is more than three kilograms. [00:09:20] Speaker 02: Am I reading that wrong? [00:09:24] Speaker 02: The undisputed expert testimony in the case, you said there was nothing in the record that support it. [00:09:31] Speaker 02: But the undisputed expert testimony in the case says that a gallon plus 16 ounces is more than 3 kilograms. [00:09:41] Speaker 02: Am I reading that wrong? [00:09:43] Speaker 05: No, you're not. [00:09:45] Speaker 05: That may be an undisputed expert testimony, but that's based on the assumption that all of the transactions were sales. [00:09:51] Speaker 05: They're at the key issue here. [00:09:53] Speaker 02: No, but you just, in response to Judge Wilkins, you admitted and you said in your brief that the wiretaps show at least one gallon, show a gallon, and later the wiretaps also show [00:10:09] Speaker 02: The 16 ounces, and those are both in your brief. [00:10:13] Speaker 02: You can see the wiretap show both of them. [00:10:15] Speaker 02: And then you have an expert who says those two add up to more than three kilograms. [00:10:20] Speaker 05: There's a mistake here. [00:10:21] Speaker 05: What I'm saying is- Wait, where's the misstatement? [00:10:25] Speaker 05: The mistake is the expert's testimony is based on the assumption that there were prior sales in late July, July 26th, 28th. [00:10:35] Speaker 05: There was a very coded discussion that nobody can decipher. [00:10:39] Speaker 05: You can't figure out what happened here. [00:10:41] Speaker 05: There's no, the people who were engaged in those coded discussions, specifically Tavern and Jamar Gage, were never called by the government to testify. [00:10:55] Speaker 05: Nobody testified about it, although the experts assumed it was over a sale. [00:10:59] Speaker 03: There's evidence about what the coded discussions meant. [00:11:04] Speaker 03: You know, maybe that testimony was reliable, maybe it wasn't, it came in, [00:11:10] Speaker 03: And the jury must have found it credible because they convicted your client. [00:11:17] Speaker 03: And you're not making a sufficiency or any other argument challenging the conviction. [00:11:23] Speaker 03: So if the coded discussions were sufficient to justify a conviction, why aren't they sufficient to justify [00:11:40] Speaker 05: Because of all the respect you're looking at the Long Island Telescope, again, the 1.4 kilograms that were seized in October, that's a gimme. [00:11:54] Speaker 05: The jury finding was one kilogram more. [00:11:58] Speaker 05: There was a discussion below in the record of should we have specific jury findings as to the quantity. [00:12:04] Speaker 05: The government decided not to go for that. [00:12:06] Speaker 05: They went with one kilogram more. [00:12:08] Speaker 05: So of course the jury found one kilogram more. [00:12:11] Speaker 05: Let's be realistic. [00:12:12] Speaker 05: That was what was seized. [00:12:14] Speaker 05: What this case turns on is the difference between what was seized and those amorphous conversations that the district judge's findings just don't address. [00:12:24] Speaker 05: His findings are, quote, there were multiple discussions throughout the case, multi-gallon, [00:12:29] Speaker 05: deals, there is no such discussion. [00:12:32] Speaker 05: I have spread every single one of those texts in the record. [00:12:35] Speaker 05: There are nobody testifying to support that. [00:12:38] Speaker 05: It was the expert whose testimony is based on his own assumption. [00:12:44] Speaker 05: It was his assumption. [00:12:45] Speaker 03: His testimony is based on conversations where he's saying, Slim or Shorty's going to give me a hole or I'm going to get a hole this time. [00:12:54] Speaker 03: And then testimony that [00:12:57] Speaker 03: usually comes in a gallon, sometimes in a half gallon, and the inference being that if he's saying a whole, then he's referring to a gallon. [00:13:07] Speaker 03: Why is that unreliable for the purpose of making a sentencing? [00:13:15] Speaker 05: As I've said, the district judge didn't make a correct finding here. [00:13:21] Speaker 05: These are coded discussions that nobody, the actual participant, [00:13:25] Speaker 05: The people who were best situated to know what happened were not called by the government. [00:13:30] Speaker 01: So there might be, I mean, maybe it's true that there could be better evidence, but the question that we're reviewing is whether it was clear error to find that that the three kilogram threshold was found. [00:13:40] Speaker 01: And as I read the government's brief, [00:13:43] Speaker 01: The three kilograms, the biggest amount that gets you to three kilograms is the one gallon PCP shipment from the West Coast. [00:13:52] Speaker 01: That's the bulk up. [00:13:53] Speaker 01: That's 2,700 per the government's calculation on page 49 of its brief. [00:13:57] Speaker 01: Can I just finish? [00:13:59] Speaker 01: Per the government's calculation on page 49 of its brief. [00:14:02] Speaker 01: So if it's not clear error to think that there's a gallon, according to the government's calculation, that gets you to 2,700. [00:14:11] Speaker 01: That's pretty close to three kilograms. [00:14:13] Speaker 01: Now I'm going to assume you can contest it, but I'm going to assume that the 22 ounce threat ratio is OK. [00:14:20] Speaker 01: I'm just going to assume it for purposes of this question. [00:14:24] Speaker 01: Let's just assume that that's OK. [00:14:25] Speaker 01: I guess the question then becomes, is there actually enough evidence that there was one gallon? [00:14:30] Speaker 01: Because that gets you pretty close on the 22 ratio, the 22 gram ratio. [00:14:36] Speaker 01: And on the question of whether there is in fact one gallon, there's enough evidence of the one gallon. [00:14:40] Speaker 01: I guess my question is, as Judge Wilkinson, as Judge Wilkins said, there's the reference to a whole one that was stated by Johnson. [00:14:50] Speaker 01: And then there's the testimony from the government's expert at page 590 of the Joint Appendix that says typically at least a gallon is shipped from the West Coast. [00:15:00] Speaker 01: So why don't the combination of those [00:15:03] Speaker 01: at least suffice to show that it wasn't clear error to think that there's a one gallon amount from the West Coast. [00:15:10] Speaker 01: And if there's a one gallon amount from the West Coast, then per the 22 gram ratio, which I'm assuming is OK, that gets you pretty close in and of itself to three kilograms. [00:15:20] Speaker 05: It's pretty close, but it's close. [00:15:22] Speaker 05: It's like horseshoes and hand grenades. [00:15:24] Speaker 05: You've got to be right on. [00:15:25] Speaker 05: It's not quite there. [00:15:26] Speaker 01: OK, so then let's [00:15:28] Speaker 01: You may think that there's not enough other stuff, and we can talk about that, but I just want to know what's wrong with that to get you to 2,700. [00:15:38] Speaker 01: Assuming that the math, the 22 gram ratio is okay, what's wrong with that construction of why there's in fact a gallon? [00:15:45] Speaker 05: I think what's wrong with it is there's no testimony or anything, there's no real testimony other than a casual reference and what sees and what sees isn't enough. [00:15:57] Speaker 01: No, but there's not just that because there's the reference to a whole one. [00:16:01] Speaker 01: at Johnson, that's in the record. [00:16:03] Speaker 01: And then there's the testimony from the government's expert that from the West Coast, typically at least a gallon. [00:16:08] Speaker 01: And the testimony, as I recall, was to the effect of no one's going to bother to get something from the West Coast unless it's a pretty good quantity. [00:16:15] Speaker 01: So typically, it's at least a gallon. [00:16:17] Speaker 01: So you get that plus the whole one, and that gets you to a gallon, which gets you to 2,700, which gets you to pretty close. [00:16:23] Speaker 01: There may be debate about whether you can get past the three kilograms, but I just want to know what's wrong with getting us pretty close. [00:16:29] Speaker 05: I think what's wrong about it is [00:16:32] Speaker 05: There's no, but the actual participants weren't called, the people who knew, who were in a position to know what happened. [00:16:40] Speaker 05: Theoretically, you assume, when I called a testimony, this court is sitting here trying to guess what happened. [00:16:45] Speaker 05: Is there a discussion of a whole one? [00:16:48] Speaker 05: Yes, I'll grant you that. [00:16:50] Speaker 05: And do you think a whole one means a whole gallon? [00:16:52] Speaker 05: No, I'm not saying that's a whole gallon. [00:16:54] Speaker 05: For all I know, it's a mixture of something. [00:16:57] Speaker 05: But I know what the expert testified. [00:17:00] Speaker 05: The problem is, [00:17:01] Speaker 05: that what the government is again asking you to do is to make the decision that should have been made below by the district court. [00:17:08] Speaker 05: And the district court's view was mistaken. [00:17:10] Speaker 05: But there were multiple discussions throughout the whole case of multiple gallons of PCT. [00:17:15] Speaker 03: So your argument is that the finding that was made by the district court was that there were multiple discussions of gallons. [00:17:26] Speaker 03: And there's no evidence for that, and we can't reconstruct [00:17:31] Speaker 03: the finding on appeal to one that comports with, you know, the defensible view of the evidence. [00:17:43] Speaker 03: You have to vacate the sentence and send it back. [00:17:47] Speaker 05: Not only was that my argument, but I'll tell you one better. [00:17:50] Speaker 05: Who caused that problem? [00:17:51] Speaker 05: It was caused by the government. [00:17:52] Speaker 05: It was their sentencing memorandum and their position at the sentencing that he was the supplier for this whole network. [00:17:58] Speaker 05: That's just physically impossible. [00:18:00] Speaker 05: They said there was a guy referenced in the record to a guy who was a supplier named Eric Scott in the spring. [00:18:06] Speaker 05: My client happened to be picked up at the very tail end of a two-and-a-half, three-year investigation. [00:18:12] Speaker 05: And what happened was they overheard him on a wiretap, and they had what the law recognizes as confirmation bias. [00:18:20] Speaker 05: He's showing up late. [00:18:21] Speaker 05: Ah, he's the guy who must be the main supplier. [00:18:24] Speaker 05: But he wasn't. [00:18:24] Speaker 05: There's no evidence of that. [00:18:26] Speaker 05: What happens here is essentially it's a nice conjecture as to what the relevant conduct is. [00:18:33] Speaker 05: And it is a departure. [00:18:37] Speaker 03: Let me ask you a question about the enhancement for supervisor or manager. [00:18:45] Speaker 03: Sure. [00:18:46] Speaker 03: With respect to Ms. [00:18:47] Speaker 03: Johnson, [00:18:50] Speaker 03: If there's evidence that she didn't really want to be involved with drugs at all, but he compelled her to do so by calling her, badgering her, et cetera, why isn't that control? [00:19:08] Speaker 03: I mean, control is getting someone to do something that they don't want your controlling [00:19:13] Speaker 03: Well, first of all, if it were Ms. [00:19:15] Speaker 05: Johnson alone, it would be a two-point enhancement, not a three-point enhancement, because he clearly had nothing to do with the Marshall ring. [00:19:21] Speaker 05: He's not their supplier. [00:19:23] Speaker 05: He's an independent trader. [00:19:25] Speaker 05: But with respect to Ms. [00:19:27] Speaker 05: Johnson... And why is it only a two-point enhancement? [00:19:30] Speaker 05: Because she's the only person he's dealing with. [00:19:33] Speaker 05: You have to look at a hierarchy. [00:19:35] Speaker 03: But aren't there five people [00:19:37] Speaker 03: for more total that are involved in the conspiracy? [00:19:41] Speaker 05: Under Graham and under Weaver, it's a seven-circuit case that I submit is actually elegantly written. [00:19:47] Speaker 05: Under both two cases, what one looks through is there a hierarchy. [00:19:52] Speaker 05: The only hierarchy in that case would be he and Mrs. Johnson, but there is no hierarchy of he and Mrs. Johnson. [00:19:58] Speaker 05: It was a one-off episode. [00:20:00] Speaker 05: She was perfectly happy to get that gun out of a house, let's be realistic, and get that cooking stuff out of a house. [00:20:07] Speaker 05: But there's no evidence in the record that she was a participant in that. [00:20:11] Speaker 05: And I suggest the Mankiewicz case out of the Seventh Circuit, which we discussed in our opening brief. [00:20:17] Speaker 05: In Mankiewicz, the son ran a large marijuana operation. [00:20:21] Speaker 05: He asked his father, would you put some of the bales on the other side of the barn? [00:20:25] Speaker 05: And the father said, yeah, sure. [00:20:26] Speaker 05: OK, I'll be happy to do that. [00:20:28] Speaker 03: That's not a managerial role. [00:20:29] Speaker 03: Was anything found in the [00:20:34] Speaker 03: premises of Mrs. Johnson, as far as drugs. [00:20:39] Speaker 05: Boy, that's a good point. [00:20:40] Speaker 05: I don't remember. [00:20:42] Speaker 05: Perhaps it's, I'm certainly being the inventor and the trial transfer, but I'd be happy to submit something. [00:20:48] Speaker 03: I'm just, yeah, I'm just, the search warrant that was executed was not at the residence that she lived. [00:20:57] Speaker 03: Is that what you're saying? [00:20:59] Speaker 03: I think it was. [00:21:00] Speaker 03: Well, that's kind of my point. [00:21:03] Speaker 03: is that the wiretaps appear to show that she didn't want to be associated with any of this. [00:21:13] Speaker 03: And yet the stuff is found at her house. [00:21:16] Speaker 03: That would imply that it was put there against her will. [00:21:23] Speaker 03: She didn't want it. [00:21:24] Speaker 03: And that would imply control. [00:21:27] Speaker 05: What control requires is more of a one-off situation. [00:21:34] Speaker 05: And that's the Weaver case. [00:21:36] Speaker 05: What control requires is a sort of a continuous situation where one has economic coercion over somebody else. [00:21:43] Speaker 05: There's no showing that she's a participant getting money for this. [00:21:46] Speaker 05: There's no showing that she's doing anything to facilitate the offense. [00:21:50] Speaker 05: The fact that her husband may have used the house to store PCP, which we know PCP deals them to do, [00:21:59] Speaker 05: That doesn't make her a participant. [00:22:01] Speaker 05: Judge Hogan did not put an enhancement there for running a crack house. [00:22:06] Speaker 05: I'm sorry, for a PCP house. [00:22:08] Speaker 05: That's an important fact. [00:22:09] Speaker 05: He recognized the house wasn't being used for anything other than perhaps storage. [00:22:14] Speaker 05: And that's done by him, not by Karen Johnson. [00:22:16] Speaker 05: She's not a participant. [00:22:18] Speaker 05: Because what the law of participation requires is that more, as I said, than a one-off episode requires [00:22:25] Speaker 05: acquiescence requires dealing over time and furthering the offense. [00:22:31] Speaker 05: She's she's his wife. [00:22:32] Speaker 05: She wasn't happy about this, but that doesn't make her a participant. [00:22:38] Speaker 01: Make sure my colleagues don't have additional questions at this time. [00:22:40] Speaker 01: We will give you some time for rebuttal. [00:22:43] Speaker 03: One last question. [00:22:45] Speaker 03: Who whose name was on the lease? [00:22:48] Speaker 03: I'm sorry. [00:22:49] Speaker 03: What's the evidence about whose name was on the lease in a lease? [00:22:54] Speaker 05: I don't want to guess, I would assume, but I'm a little weary about making assumptions. [00:22:59] Speaker 05: Rather shabby environment, but the pictures are probably rather big-scale. [00:23:04] Speaker 01: Thank you, counsel. [00:23:06] Speaker 01: It's Kelly. [00:23:14] Speaker 00: Good morning, Your Honors. [00:23:15] Speaker 00: May it please the court? [00:23:16] Speaker 00: Katherine Kelly on behalf of the United States. [00:23:19] Speaker 00: Your Honors, in this case, the district court properly found by a preponderance of the evidence [00:23:24] Speaker 00: that there was indeed support for a level 32 drug quantity, that Mr. Johnson was indeed a manager or supervisor and thus was entitled to the subject of the enhancement and that the credible threats enhancement properly applied in this case. [00:23:37] Speaker 01: So can we start with the drug quantity? [00:23:39] Speaker 01: So the way that you presented the arguments in your brief, the part that gets you the closest to three kilograms is the gallon. [00:23:48] Speaker 00: That gets you 2,750 grams. [00:23:50] Speaker 01: Right, so that gets you pretty. [00:23:51] Speaker 01: That's the bulk of it. [00:23:52] Speaker 01: In other words, you're not going to get there but for that. [00:23:55] Speaker 00: That's right. [00:23:56] Speaker 01: OK. [00:23:56] Speaker 01: So on the gallon, what is there in the record that supports the gallon and that marries with the way the district court, this kind of top line that the district court articulated in support of this three-kilogram threshold? [00:24:11] Speaker 01: Because what I see is one quote that said, I had a whole one there this time. [00:24:18] Speaker 01: And then that alone, there's no testimony that I could find about what a whole one means. [00:24:24] Speaker 01: A whole one what? [00:24:26] Speaker 00: Your honor, it was the government's position that a whole one was a gallon because of the expert's testimony, which was that if you're going to go to the expense of $32,000 to $36,000 a gallon to ship it from the West Coast, that you were indeed going to get a large amount. [00:24:42] Speaker 01: His experience... I didn't even see anywhere, but you can definitely correct me. [00:24:47] Speaker 01: I didn't see anywhere where the government actually said that a whole one means a whole gallon. [00:24:53] Speaker 00: Maybe that's true. [00:24:54] Speaker 00: It's my understanding that throughout the case, the government's position was that a hole was indeed. [00:24:59] Speaker 01: But I mean, it might be the position in somebody's own mind, but I'm just looking for something. [00:25:02] Speaker 01: And was that ever articulated anywhere that a hole one means one means one gallon? [00:25:11] Speaker 00: I don't believe that there was testimony that a hole was a gallon. [00:25:14] Speaker 03: And was it in a sentencing memo? [00:25:17] Speaker 03: Because I don't think I saw it in the government's sentencing memo either. [00:25:21] Speaker 00: The government referred to one gallon, but I [00:25:23] Speaker 00: I don't recall any statement in the government sentencing memo that a whole is equivalent to a yes. [00:25:31] Speaker 03: So where are we getting this argument that the government's position has always been that a whole one is a gallon because the government never said that out of their mouth in the district court or on the page? [00:25:42] Speaker 00: I'm trying to recall the closing argument, Your Honor, and I'm sorry I don't have a site right at my fingertips, but the arguments that the government was making definitely [00:25:53] Speaker 00: were that he was getting, based on the expert's testimony, that he's getting at least a gallon from the West Coast, because that's in line with what- Well, so one thing that I thought was interesting is that the brief doesn't say at least a gallon. [00:26:07] Speaker 01: It says one gallon. [00:26:10] Speaker 01: So I mean, I think- Right. [00:26:11] Speaker 00: The expert said that in his experience that the suppliers are the people who were drug [00:26:21] Speaker 00: dealers in DC, when they ordered from the West Coast, they would get at least a gallon sometimes more, but that in his experience, it was mainly that he had seen one gallon. [00:26:30] Speaker 01: Right, and so then the government's theory was that Johnson got one gallon. [00:26:35] Speaker 00: Right, during this time between July, that he ordered, I believe it was around the end of August, and our main support for that is the call that he had with Mr. Prelo on the 22nd of August 2017, and that's cited at Joint Appendix 664 through 670. [00:26:51] Speaker 01: Right, that's the statement. [00:26:52] Speaker 01: I had a whole one on there this time. [00:26:54] Speaker 00: That's right, and I shouldn't say that it was our position that [00:26:57] Speaker 00: he only received that one gallon. [00:27:00] Speaker 00: So to the extent that I may have indicated that earlier that's not correct because there were additional statements in there in that same call indicating that he had done this three times previously. [00:27:12] Speaker 00: This is a call if your honor will recall that he has first realized that day August 22nd that the money he has given to the suppliers from the west coast [00:27:24] Speaker 00: He was expecting that supplier to come visit him. [00:27:27] Speaker 00: And then he got on social media and realized, after the supplier failed to visit him, that they had in fact gone back to the West Coast without delivering the drugs at that time. [00:27:36] Speaker 01: Right. [00:27:36] Speaker 01: But in your brief, the prior stuff is in a footnote, in footnote 26 on page 49, as I see it. [00:27:42] Speaker 01: And so what you're really relying on in principle force is the one gallon. [00:27:48] Speaker 00: But for the one gallon, we're seeing the whole on page 664. [00:27:52] Speaker 00: And then on page 668 of that same conversation, Mr. Johnson is going on to say that I ran a certain amount three times, you know, and then saying that's in a footnote. [00:28:01] Speaker 01: That's in a footnote. [00:28:02] Speaker 01: And on the on the whole one, I still if there's nothing that the government ever said, not a thought, the government said on the written page argument that a whole one means one gallon. [00:28:14] Speaker 01: And why did [00:28:16] Speaker 01: How do we reach the conclusion that the shipment was, in fact, a gal? [00:28:20] Speaker 00: Well, we did say at the sentencing, Your Honor. [00:28:22] Speaker 00: And of course, I would like to point out to the prosecutor, told the court at the sentencing that was prepared to discuss the actual drug quantities. [00:28:28] Speaker 00: The court did not take the prosecutor up on that. [00:28:31] Speaker 00: But at the end of the sentencing when they were talking about the government's position that Mr. Johnson should get a 405-month sentence, [00:28:39] Speaker 00: The government did note Mr. Johnson's acquisition of a gallon of PCP. [00:28:44] Speaker 00: That's at page 159 of the government's supplemental appendix. [00:28:47] Speaker 00: And then also mentioned drug expert Cardinal's trial testimony saying that when you receive a gallon, that you would take that gallon of PCP in order to make that any profit after paying up to $36,000 to ship it from the West Coast. [00:29:02] Speaker 00: a dealer would or who is supplying others would then cut that to make it two gallons, which is supported by the expert's testimony. [00:29:11] Speaker 00: So in that sense, we did talk about the acquisition of the gallon. [00:29:15] Speaker 00: We didn't at that point say a whole equals a gallon, but it's quite clear that we're talking about that gallon that's being discussed. [00:29:20] Speaker 01: Right, but I think there was arguments that at least a gallon [00:29:24] Speaker 01: was, and maybe just one gallon was received. [00:29:27] Speaker 01: What I didn't see anywhere is something that tied the comment, the statement, the whole one, to one gallon. [00:29:34] Speaker 01: I didn't see anywhere that the government said, what is meant by the statement, a whole one, is one gallon. [00:29:40] Speaker 00: I don't recall a statement as specific as Your Honor said, but I would just point out that at the sentencing, we were talking about the acquisition of a gallon. [00:29:48] Speaker 00: And we had put in the testimony at trial of the August 22nd call. [00:29:54] Speaker 03: So help me understand some. [00:29:57] Speaker 03: The draft pre-sentence report is submitted to the parties, and it says that Mr. Johnson is responsible for over three kilograms of PCP. [00:30:11] Speaker 03: There's a written objection that's filed to that. [00:30:15] Speaker 03: It says, no, the jury only made findings that would support over one kilogram [00:30:21] Speaker 03: And the government's opposition, as I read it, didn't explain any more than the draft sentence report as to how we got to the three kilograms. [00:30:38] Speaker 03: Am I missing something? [00:30:42] Speaker 00: I don't recall anything specific in the government's sentencing memorandum that went through that calculation. [00:30:52] Speaker 00: in regard to one gallon. [00:30:54] Speaker 00: I recall there being additional, we made a more general reference to wire caps supporting that a gallon was delivered. [00:31:05] Speaker 00: And then went into discussions about the 32 ounce sale in July 2017 and then the additional arrangements for at least eight ounces. [00:31:17] Speaker 03: So basically the government's theory below was that if we [00:31:21] Speaker 03: find if the district court were to find it, you got a gallon and that would have been around shortly before the arrest. [00:31:31] Speaker 03: And then there was a prior sale of 16 ounces or even that that would be sufficient in and of itself to get you over the three kilo plus 16. [00:31:44] Speaker 03: But the government would say, [00:31:45] Speaker 03: there were a couple more transactions that were supported by the wiretaps, 16 and an eight, whatever. [00:31:54] Speaker 00: Correct. [00:31:54] Speaker 00: We were saying that there was a 32 ounce sale in July, 16 each to Mr. Gage and then to Mr. Tabron and then an additional arrangement where Mr. Johnson was selling an additional eight ounces to Mr. Tabron. [00:32:09] Speaker 03: But your expert also testified that [00:32:12] Speaker 03: not necessarily that you always get a gallon. [00:32:15] Speaker 03: You could get a half gallon. [00:32:18] Speaker 00: He said that was possible. [00:32:20] Speaker 03: And from the wiretaps, it appears that Mr. Johnson was searched and arrested within maybe two days of getting the shipment. [00:32:37] Speaker 00: I believe it was four days. [00:32:39] Speaker 00: The drugs came on the 9th. [00:32:40] Speaker 00: And he was arrested on the night of the 13th. [00:32:44] Speaker 00: And there were additionally two situations in between there where he's meeting with Mr. Pralow. [00:32:49] Speaker 00: And he's also arranging to meet somebody who was not identified who said that they were by the shrimp boat. [00:32:55] Speaker 00: And he was clearly in those calls going to bring drugs. [00:33:01] Speaker 03: And what he's got is less than a half gallon when the search was executed. [00:33:11] Speaker 00: I'm sorry, Your Honor, I haven't done the conversion to what 1,429 grams would be back into gallons. [00:33:17] Speaker 00: But there were 1,429 grams of PCP found in the 36 bottles in his. [00:33:24] Speaker 03: And that had been diluted down, right? [00:33:30] Speaker 00: It was 12% purity. [00:33:31] Speaker 00: I don't know what purity level he got it at, for instance, but there's certainly evidence that he was... What's the evidence about what purity level you would get from the West Coast in your gout? [00:33:43] Speaker 00: I don't recall there being testimony about the purity level of what we'd normally received from the West Coast. [00:33:48] Speaker 00: Certainly there was evidence that Mr. Johnson did cut the PCP because there was starter fluid bottles found in the apartment. [00:33:58] Speaker 03: Well, that's my point. [00:34:01] Speaker 03: is let's suppose he got a gallon and he cut it so that he would have two gallons. [00:34:07] Speaker 03: And then he could sell that. [00:34:11] Speaker 03: So how is it that he gets a gallon on the ninth, he cuts it to make it two gallons or some greater quantity of a gallon? [00:34:21] Speaker 03: And you got evidence of maybe a couple different sales, but yet they only find about a half gallon. [00:34:31] Speaker 03: at his house, if he started out. [00:34:36] Speaker 00: I don't recall there being any evidence in the record of him specifically cutting this shipment. [00:34:41] Speaker 00: So I don't know. [00:34:44] Speaker 00: Well, let's suppose he did. [00:34:46] Speaker 00: Suppose he didn't. [00:34:47] Speaker 03: Then he sold a half gallon between the 9th and the 12th, according to your theory. [00:34:53] Speaker 03: Where'd it go when your evidence is [00:34:59] Speaker 03: two transactions of not nearly that amount. [00:35:03] Speaker 00: Well, the evidence is a call with Mr. Prelo on the 11th, which is at Joint Appendix 744, and a call with an un-clarified person, which is Supplemental Appendix 88 through 91, where he appears to be making a sale. [00:35:22] Speaker 00: But the point is, Your Honor, is the question is [00:35:25] Speaker 00: that you just needed at least three kilograms of a mixture and substance that contained piece. [00:35:30] Speaker 00: So whether or not it's been cut or not during that time, you still have, given the calculations at page 49 of our brief, we still had over three gallons. [00:35:40] Speaker 03: I understand that. [00:35:42] Speaker 03: Or over three kilos. [00:35:43] Speaker 03: But my point is that even if it's never been cut and he gets a gallon, [00:35:54] Speaker 03: on more about October the 9th, on the 12th, he's got about a half gallon. [00:36:02] Speaker 03: So, well, 2,700 grams according to you is, if a gallon translates into 2,700 grams and he's got about 1,400 or so grams, that's about a half gallon. [00:36:21] Speaker 03: So even if nothing was cut, [00:36:24] Speaker 03: then that means a half gallon was sold or given or something happened to it in those three days between him acquiring it in the search warrant being executed. [00:36:39] Speaker 03: And I guess all I'm saying is that how does that line up with the evidence of what he was doing in those three days? [00:36:49] Speaker 03: And it doesn't seem to line up. [00:36:53] Speaker 00: So we would say that it does line up because of the calls that I mentioned before with Mr. Prelo and then the additional person saying that they were wanting me. [00:37:06] Speaker 03: And the discussions of those, I thought that the discussions, at least with Mr., what's his name, Prelo, were a pretty small quantity. [00:37:18] Speaker 03: And he's arrested with something like 16 ounces, right? [00:37:24] Speaker 00: Several days later, he was arrested with I think it was. [00:37:28] Speaker 01: In other words, those discussions that you're relying on don't get you to the entire rest of the half gallon. [00:37:33] Speaker 01: They get you. [00:37:35] Speaker 01: You don't mention specific quantities that would... There's no reason to think that it encompasses, there's no affirmative reason to think that those discussions encompass, let's just stay with the math, that encompasses the entire rest of the half gallon or even something close to it because we're talking about what was ultimately found as ounce, pretty small ounce quantities. [00:37:55] Speaker 00: It's not entirely clear what amounts were passed over at that time. [00:37:59] Speaker 00: But it's also, though, I think it's very important to note, too, that you're talking about what is he responsible for. [00:38:07] Speaker 00: It doesn't mean that if you're found with half a gallon in the end, that that means that's all that you arranged for. [00:38:14] Speaker 01: Because if you got, I mean, I think it's true that if you got the full gallon, [00:38:19] Speaker 01: and the 22 ratio works that gets you pretty close. [00:38:23] Speaker 01: And the question becomes, is there enough evidence to support that? [00:38:28] Speaker 01: In fact, the full gallon came from this coast to him. [00:38:32] Speaker 00: And we believe there is given the calls and given the amount that was found on him at that time. [00:38:37] Speaker 00: And indeed, as your honors have pointed out, the additional drugs were found on Mr. Prailer, which we had obviously point would have been that that was from the gallon. [00:38:46] Speaker 00: Um, [00:38:47] Speaker 00: But again, we're dealing with the preponderance of the evidence standard here, which the court used and the government used and met. [00:38:54] Speaker 00: And additionally, we have, in this case, a situation where their... But we've got to review a finding. [00:39:03] Speaker 03: And the finding is that there were multiple discussions of Gallup, right? [00:39:08] Speaker 03: That's the finding that the district court made. [00:39:11] Speaker 00: That's what the district court said, your honor. [00:39:13] Speaker 00: But I think that the true point here is not the number of discussions that was had. [00:39:17] Speaker 00: The question is what was discussed. [00:39:19] Speaker 00: And here it is, the call on August 22nd shows the poll which the government had interpreted as a gap. [00:39:29] Speaker 00: And that's based on the expert's testimony. [00:39:32] Speaker 03: But nobody made that argument at the sentencing. [00:39:37] Speaker 00: Well, we said at the sentencing that Johnson had acquired a gallon PCP, but you didn't say because he said that he was getting a hole. [00:39:48] Speaker 00: We did not say that. [00:39:51] Speaker 03: Um, I mean, how are we supposed to know what this mean? [00:39:56] Speaker 03: We're a quarter review. [00:39:58] Speaker 03: How are we supposed to know what the district work actually found where [00:40:04] Speaker 03: PSR doesn't articulate a theory as to why there's three kilograms or more. [00:40:10] Speaker 03: The government's theory doesn't appear that it articulated in argument or in its sentencing memo doesn't appear to match up with what the district court found. [00:40:26] Speaker 03: So how are we supposed to review that? [00:40:29] Speaker 00: There was additional evidence in the PSR, Your Honor, which the court adopted in its statement of reasons afterwards, talking about the phone calls on the 26th to the 28th of July that supported the additional 40 ounces. [00:40:42] Speaker 00: And then there was discussion of the wiretaps supporting the larger amounts. [00:40:47] Speaker 00: And I will say that it did not specify an amount in that situation. [00:40:52] Speaker 00: But we did lay out at sentencing as best we could since the court did not take us to [00:40:59] Speaker 00: explain each of the actual drug quantities that we were prepared to explain. [00:41:06] Speaker 00: But the evidence that we've stated here today about prior transactions, the whole, and then the receipt of the drugs in October plus the transactions. [00:41:20] Speaker 03: You're kind of making it seem like this is the district judge's fault because he wouldn't let you argue what you wanted to argue. [00:41:26] Speaker 03: But that's why you file a sentencing [00:41:30] Speaker 03: put in the record what needs to be put in the record and make the argument. [00:41:36] Speaker 03: So maybe I'm sensitive because I'm a former district judge, but you seem to be throwing the district judge under the bus. [00:41:44] Speaker 03: This was something that was in the prosecutor's role. [00:41:47] Speaker 00: I certainly don't mean to throw the district judge under the bus. [00:41:50] Speaker 00: I apologize. [00:41:51] Speaker 00: I've made it sound like that. [00:41:53] Speaker 00: But given, we would just say that the evidence that was at trial, the court's statements at the sentencing itself, he mentioned knowing of gallons and other quantities of PCP, which would be an apparent reference to the July sales and at least the amount that came in mid-October, that there was a sufficient finding, particularly by proponents of the evidence. [00:42:16] Speaker 00: The evidence is certainly in the record. [00:42:20] Speaker 00: And if I may just. [00:42:21] Speaker 01: Can I just ask you just just to simply just address this suppose let's just assume. [00:42:26] Speaker 01: Arguendo you'll resist it, but let's just assume, argue endo that the reference to a whole one means nothing. [00:42:33] Speaker 01: Because there's nothing that ties a whole one to some quantity. [00:42:36] Speaker 01: It could be a whole gram. [00:42:38] Speaker 01: It could be a whole ounce. [00:42:39] Speaker 01: Let's just assume that away. [00:42:42] Speaker 01: If we assume that away, then how do we sustain the three kilograms that's predicated on a gallon? [00:42:57] Speaker 00: It would really be on the expert's testimony that when somebody is being [00:43:02] Speaker 00: from the West Coast, which is clear from the calls that in the experts experience that gallon was the most common amount. [00:43:09] Speaker 01: And is that the government's position that even if you totally discount the whole one, because there was never link made to what a whole one means, that we affirm a district court's finding of three kilograms as the district court described it based on testimony. [00:43:26] Speaker 01: And I can't remember exactly how the district court articulated. [00:43:29] Speaker 01: But what we do is we sustain it based on the government's expert's testimony that it's typically at least a gallon, but sometimes a half gallon. [00:43:37] Speaker 00: Yeah, and I would say that the reference to half gallon was a very minor one. [00:43:41] Speaker 00: The expert was saying also that sometimes he's seen two gallons as well. [00:43:46] Speaker 00: But in his experience, his most common experience in this area, that you would get a gallon. [00:43:53] Speaker 00: Thank you. [00:43:54] Speaker 00: Thank you. [00:43:55] Speaker 00: If I just may make one brief point about control of Mrs. Johnson, the defense counsel has said that this was a one-off episode, and I just wanted to make clear that this was not. [00:44:05] Speaker 00: We mentioned a September 11th text that Mr. Johnson sent to Mrs. Johnson saying that he needed to get into the apartment because he needed to make some hits. [00:44:15] Speaker 01: So I do have a couple of questions about that. [00:44:17] Speaker 01: So it's a husband and wife who are talking. [00:44:21] Speaker 00: They were, but they were estranged. [00:44:22] Speaker 01: I get that. [00:44:24] Speaker 01: But still, I mean, they are husband and wife. [00:44:26] Speaker 01: And it's typically in these kinds of situations where you have a manager-supervisor relationship, there's something more than this. [00:44:32] Speaker 01: I mean, this is the kind of discourse that often happens among people who share a house. [00:44:38] Speaker 01: It doesn't strike me as obvious that somebody is managing somebody else with whom they share a place. [00:44:44] Speaker 01: And especially if they're in a spousal relationship. [00:44:46] Speaker 01: And yes, they're estranged. [00:44:47] Speaker 01: And so you can say, well, they didn't really share this space. [00:44:49] Speaker 01: But they have some joint dominion and control over it. [00:44:54] Speaker 01: And it just struck me that the kinds of conversations that are going on are typically the kinds of conversations that occur among spouses. [00:45:01] Speaker 01: I need you to do this for me. [00:45:03] Speaker 01: I need you to make sure my, you know, [00:45:07] Speaker 01: My dinner's warm the time I get home. [00:45:10] Speaker 01: Nobody would say that somebody's managing their spouse. [00:45:13] Speaker 01: That's just the way that spouses talk to each other. [00:45:16] Speaker 00: Well, the way the evidence came in, first of all, Your Honor, I want to make clear that they were not only estranged, but they were not living together. [00:45:21] Speaker 00: Only Mrs. Johnson was in that apartment. [00:45:24] Speaker 00: And on several occasions, including September 11th and I believe it was October 9th, he was saying, you need to let me in. [00:45:30] Speaker 00: So this isn't even a situation where he apparently has a key to the apartment. [00:45:33] Speaker 00: He can't even go there on his own. [00:45:35] Speaker 00: And it's not just a please warm up my dinner kind of conversation. [00:45:39] Speaker 00: These are texts and wiretap calls where he's ordering her to bring him his cooler, his bottles, his funnels. [00:45:46] Speaker 00: He's insisting that she let him come over to the apartment that night, which was, I believe, on the 11th. [00:45:55] Speaker 01: Is that not how estranged partners or spouses talk to each other? [00:46:04] Speaker 01: It just seemed typical of the way people might interact without having managerial supervisory relationship. [00:46:13] Speaker 00: The reason he's making these insistences is that he needs to get to his drug paraphernalia. [00:46:19] Speaker 00: He needs to get his bottles. [00:46:21] Speaker 00: He needs to get his cooler so you won't be able to smell the PCP when he's transiting it. [00:46:25] Speaker 00: And it's clear that all his conversations in telling her what to do are related to the drug transactions and his [00:46:33] Speaker 00: his desire to get these items out on the street. [00:46:38] Speaker 00: And it's not a matter of just insisting certain things. [00:46:44] Speaker 00: They're saying, you've got to bring my gun downstairs. [00:46:46] Speaker 00: You've got to get the cooler into the back of my Cadillac and so forth. [00:46:52] Speaker 00: And she clearly acceded to this, even though it didn't seem like she wanted to in times, which again just shows that he is controlling her. [00:47:01] Speaker 00: And it was neither a one-off experience nor was it a situation where, this is just a normal situation between husband and wife just talking whether they're estranged or not. [00:47:13] Speaker 00: They're specifically, he's ordering her around in regard to his drug trade. [00:47:18] Speaker 00: And for that reason, I believe the manager said. [00:47:20] Speaker 00: I'm sorry. [00:47:21] Speaker 03: What of the argument that even if we were to accept that, it's at most enhancement instead? [00:47:30] Speaker 00: But it applies for the three-point enhancement because all you have to do is manage or supervise one person who is criminally responsible for the offense and a criminal activity that included five or more people. [00:47:42] Speaker 00: So it meets all the requirements for a subsection B enhancement for three levels. [00:47:49] Speaker 00: Certainly, if there was some reason to in this case, it would be possible to apply the level two enhancement under subsection C [00:47:57] Speaker 00: But given that the government showed by preponderance of the evidence and the court accepted it on that standard, there's no reason to disturb the. [00:48:08] Speaker 00: And I would just know one final final point is that there is case law, including the clerk decision that indicates that just because you're somebody's relative, you can still be in that manager supervisor position. [00:48:21] Speaker 00: So we would respectfully request that the court from the judgment district. [00:48:26] Speaker 00: Thank you. [00:48:27] Speaker 01: Thank you, counsel. [00:48:28] Speaker 01: Mr. Lacar will give you two minutes for rebuttal. [00:48:31] Speaker 05: Let me see if I can get it done in one minute. [00:48:36] Speaker 05: Good. [00:48:36] Speaker 05: 35 years of a man's life, a defacto life sentence hangs on Delphic discussions and unfounded findings by the district judge. [00:48:45] Speaker 05: And I noticed that we've had three circuit court of appeals judges of the second most powerful circuit in this country sitting here 40 minutes trying to interpret [00:48:56] Speaker 05: the money record. [00:48:58] Speaker 05: This is not, that's not the role of this court. [00:49:01] Speaker 05: This case could be remanded for all and all reasons, but certainly as to the relevant conduct. [00:49:07] Speaker 05: Government counsel couldn't say, and to her credit, she strove mightily, she couldn't say, she said it's not entirely clear, it's not specific. [00:49:16] Speaker 05: The findings on relevant conduct were driven by the government over trying the case [00:49:22] Speaker 05: And by the government sentencing member, Animas portrayed my client wrongfully as a supplier for this whole network, which certainly was a large network. [00:49:30] Speaker 05: As the managerial role, let me in, you have to let me in, Weaver. [00:49:36] Speaker 05: Weaver answered that. [00:49:37] Speaker 05: One off episode, she was not, nothing that she did, nothing that Karen Johnson did facilitated the offense that my client unfortunately engaged in. [00:49:49] Speaker 05: I thank you. [00:49:50] Speaker 01: Thank you, counsel. [00:49:52] Speaker 01: Thank you. [00:49:52] Speaker 01: I don't believe so. [00:49:53] Speaker 01: Thank you, counsel. [00:49:53] Speaker 01: Thank you to both counsel. [00:49:55] Speaker 01: We'll take this case under submission. [00:49:57] Speaker 01: Mr Lacar, you are appointed by the court to represent appellant in this matter, and the court thanks you for your assistance.