Legal Case Summary

Mr. Chief Judge, may I please the court, Mark Jones for Alan Johnson. In the trial below, the appellant received a trial that was marred a number of errors, some going to basic trial procedure, some to basic trial administration, but there were many that were independently and cumulatively enough that I think we could say that he did not receive a fair trial in the Eastern District of North Carolina. In light of the government's 28J letter, I think the question now is whether in addition to a remand for recentencing, there shall also be a vacator of the judgment or a remand for a new trial. I put forth a number of issues and I understand the unorthodoxy of so many issues normally appearing in the appellate brief. So on that first point, it seems that the court may not have any real reason to oppose the ban, but I'm not sure that the court would have to go along with the Justice Department concession that that's the proper way to sentence. That's the issue with the court side. I agree. It may be just raising issues that we don't need to raise the false five years among. How many years did he get? 50. To the extent that the 28J letter is a motion to remand, we would join in that obviously. I'd like to turn the courts into it. I think what that does, though, if the court intended to remand. Yeah, I called to get it back, right? Yes, and what it would do, it would mood out our first issue, which was the Elaine issue. I'd like to start with argument number five, which is the errors that are rule 801-D1-B. I don't think there is an argument that the government can make that explains why either especially at UBanks was allowed to recite all these prior statements or why he was allowed and asked point blank, do you think his trial testimony was consistent with what he told you? That rule is clear that the only time you can use prior consistent statements is if you are rebutting a claim of recent fabrication or recent improper motive. And the government attempts to argue that there is a allegation that it was recently fabricated. But that recent fabrication or that motive had to predate the statements that were made. In this case, Samuel Gaines and Eric Davis made statement to law enforcement when they already had a motive to curry favor with law enforcement. Davis not to be charged with his 10 and a quarter pounds of marijuana. Samuel Gaines to try to get his time cut in this case. I think that the hedge path case from this circuit is very clear that it says you simply cannot put in prior consistent statements to bolster and the Supreme Court decision in tone. In this court's decision in ACR, citing tone make perfectly clear that you cannot put on additional evidence to bolster the credibility of your trial witnesses. I think that's what happened here and I think that there are grounds given that this case had a lot to do with the credibility of the witnesses to send it back just on that basis

. I think perhaps the next part that sticks out to me are the comments made by the prosecutor during her closing arguments. You may not tell the jury that there is other evidence that you have and that you have heard and not show it to the jury and essentially say trust us, it corroborates what we have. This might have been hyperbably, but what she said was we have 15 other victim witnesses and they had relevant evidence and we could have put them on the stand and they could have testified against them. We had 20 law enforcement officers who could have come in here and testified against them as to what they did. That's 35 additional witnesses corroborating or new information. The government said it had and it said we are choosing not to call them, we don't want to prolong this. That is the government putting it thumb on the scale. There is no crime. We have to put that under plain error review. I know whether we choose to notice the error. That's correct, Your Honor. I think given the egregious nature of those accusations, the court just as to that issue would be within its proper for the court to notice it and send it back for a new trial on that basis. The problem with the number of the issues here is that we either fall into harmless error or plain error and a lot of difference. There are, there are a lot of issues here, but there is a lot of different between plain error and harmless. There is, although I do want to make a point to ask to argument 11, which is that whether it's an error but it's not a plain error or it doesn't rise to the level of a substantial right being impacted. By my point, even if it rises to plain error, we would have to conclude it affected the substantial justices of the outcome of the case. That's a pretty heavy burden. It is, Your Honor, although argument 11 under the cumulative error doctrine says that where we have multiple errors, whether harmless or that would have been errors but didn't count as plain errors, we can aggregate those. And if the aggregate, those errors which individually don't rise to plain error demonstrate error or miscarriage of justice in the court can remain on that basis also. There's a thread that goes through this case, which is, it started at the very beginning with the District Court. Judd said, you're guilty, you're going to get 45 or 50 years, whether you plead or whether you go to trial. And you get the sense in reading this that the judge pushed this case through as quickly as he could. And every time there was an opportunity to speed it up or to shut down an objection, it happened

. And so in looking at plain error or harmless error, we don't have a lot of good, competent other evidence to look at. There was plenty of evidence, but everything the government put in somehow has some little hitch to it, some mar to it. And so it's hard to say that looking at all of the evidence, he got a fair trial. We don't have a body of other evidence that wasn't marked by some error to look at. And so to whether it's harmless error or a plain error standard, it's hard to look at the rest of the body of this trial and say that he got a fair trial or just isn't good evidence that came in without some error. The 404B evidence, I think, is illustrative of that. The prosecutor said when he was arrested in August, I want them to know he had a gun when he was arrested in August. The prosecutor didn't say, I'm offering this for knowledge or I'm offering this for intent or here's how it's related to knowledge or here's how it's offered for intent or any other 404B purpose. She said propensity. He had it in August. He likely had it in July. And the government and its reply says well no limiting instruction was asked for. Well, when defense counsel objected to it, the judge told him to go sit down. He said we're having too many of these sidebar discussions. So there was a hostility that the defense counsel at the trial level faced with everything. Turning back a little bit to the 801-D1B issue. He was defense counsel during calls was trying to suss out the different contradictory and inconsistent statements that Davis had made. And he was trying to pin down. It had he initially lied about the marijuana. When did he tell about the quarter pound marijuana? When did he tell about the 10 pounds of marijuana? And he was delving into the character for truthfulness of that witness. And the judge said it's not that's not what it's about. And he shut him down. He said he's a drug dealer

. We know he's a drug dealer. That doesn't mean he can't get shots. He simply sit down. The district court involved itself in this proceeding from start to finish that indicated that it had an opinion as what needed to happen here. I've argued in one section that the questions and the number of the questions that the judge asked were inappropriate. He asked questions that clearly indicate that he knows what the answer is going to be. He knows what the evidence is. He's directing the witness to indicate that he had been shot. He really does move Davis through a lot of his testimony. There was the district court certainly has broad discretion to control how the evidence comes in. And it should clarify issues that are uncertain. And he does a good job of that in places where the witness can't be heard. He asks good clarifying questions. But other times he takes these witnesses through the paces and gets in chunks of the evidence. I think the confrontation clause issue, one that's particularly important for the court to look at, they put the case agent on the stand and they say did you get involved in this. And then they say seriously tell us about your investigation. And what he does is sort of walk through everything that he has received in his investigation. And particularly of importance are the accusations of the non-testifying co-dependent. And instead of saying yes I spoke with this individual. Or objections made to those. Yes, Your Honor. So that's a harmless area. It is your Honor

. And the government's response is this is not offered for the truth of the matter asserted. It was offered to show why he was being investigated. And I understand that and there are cases that say that's a valid basis. But there must be some balancing in this case. It cannot be that a case agent gets to talk about everything that he heard every witness say, just to let the jury know why his investigation went where it did. There are certainly ways that he could have discussed what he did without divulging the contents of the highly prejudicial statements in this case. The same is true about the statements that other victims of the able auto robbery saw this green turquoise car. We had victims from able auto who testified. Neither of them saw a green car. And to link back to the voucher, the bolstering during the closing arguments, there's the agent saying we had these victims that told us X. And you have the prosecutor saying I had all these other victims that I could have called. The jury is going to link that up and think that there's other evidence that they've been told about by the case agent. And that's who the prosecutor is referencing. Let me ask you some questions. I'm scared you don't run out of time before you get to these issues. Tell me, I could not figure out what went back to the jury. Did a CD of the entire interrogation go back to the jury? Here's what I believe went back to the jury, Your Honor. We first have Exhibit 51, which is the disc. And that is the disc of the actual video. And that was admitted for all purposes at Joint Connect 268. Then we have the clips, the two little clips, which was Exhibit 58, admitted at 269, which were published, but never actually admitted, and they were attempted to be played, but they were unintelligible. When those failed, the government had binder, which was 52, which was the pages of the transcript. And then, when they were discussing the evidence, page 294

. I've read it. My question is, again, did the DVD of the full two-hour interrogation go back to the jury? I believe the disc of the full interrogation went back to the jury. It's answer yes or no. I'll ask you again. Did the DVD of the full two-hour interrogation go back to the jury? I believe that's what the record shows. And here's why, Your Honor. The discussion about substituting out part of it, substituting 59 or the segments is about the binder. They removed 52, which was the transcript, all of it, and put in the segments, which was essentially 52 amended. And I think 52 amended, along with the disc of the whole thing, 51 and 59, the transcript, on another disc. I think those three things went back to the jury. What about the judge hole? I thought there were some things that the judge said wouldn't go back. He was looking at 52, which was the binder. And I do think that he recognized that there was a problem with all of it going back, having already admitted it against Mr. Johnson for all substantive purposes. He was in. I understand, but I'm trying to follow up on Judge Tracks' question. I believe. What he held back the transcript, and the disc was basically unintelligible. That's why they had the transcript. And I didn't think either of those, the disc may have gone back, if it's unclear, but I thought the transcript was held up. And the question is, if the jury just had the transcript of the excerpts and the entire disc, but I believe the paper, the paper copy that it had were the excerpts. And then it also had two discs. One was a PDF of the transcript, and one was the disc of the full transcript

. But even if the only thing that did go back was just the 16 page paper excerpts, even those were problematic. Because on the last page of those, and I think it's page 339 of the joint appendix, there's a discussion where Agent UBANKS is telling the interviewee, or it comes out, we have this other evidence against you. We have the photo lineup of Davis, where Davis said you were there. And we know that's not true. This is one of the ruses that UBANKS was trying to play on the interviewee to get him to confess. And Davis and his testimony said, I don't know that guy. Davis never identified him, but yet we have in this transcript other evidence where the special agent, it's coming in for substance purposes, has said, yes, there's been an out of four identification of you as the defendant. One of the issues that I think bears noting is the part of the excerpt of Jack Tutwin was admitted. It was. All of the transcripts were objected to. Yes. And did you have the means of playing the DVD? The word sure that it did. Now, with regard to the jury charge, my recollection correct that the judge said, I'm going to charge the request that you've given me, but didn't do it. That's correct, Your Honor. All right. Is there any evidence that that affected closing argument about the offense council or anything like that? You know, a lot of times, the offense council will say, I expect you'll hear the judge will charge you so and so and allow me to say something like that. The prosecutor made arguments regarding what the instructions were and I will say that I believe that her arguments asked the instructions were equally invalid as the law. I know I was talking. My question was did affect defense counsels. The chart, no, you're the charge was made. He said he was going to do it, but the charge was made after they had already argued. So I don't think they. I said, okay, so they didn't know for sure

. Did any explanation for why the judge didn't do what he said he was going to other than the charge other than my belief, Your Honor, that it was going to take too long and it was ready to get this case over with. The definition of interstate commerce. What is the inadequacy specifically in that way he chose to phrase it? It is not that there's some connection with something that has moved between one state and another or a person or a place. Here we have a person who is robbed and a place his house. The evidence was that the house was not used to sell drugs, but it's not that you happen to place be involved in interstate commerce when it's a home. You have to connect not just that it's a person replace it moved in interstate commerce, but that it had effect on something that moved. You thought he said before that it has to effect interstate commerce and then he explained that it can be asked to go between states. He says what it means to effect interstate commerce. Yes, so he used the word effect interstate commerce and then his explanation, which is I clearly agree with you. I thought he was addressing what interstate commerce means and it means connected to things going back and forth. He really should probably say affecting commerce that was going back and forth. It's that connected, but he did. I thought he did use the term earlier. It's not beautiful. I don't know if I've talked about my head around or whether or not he had said interstate commerce and that was his definition or not, but when he went to define it, he used an artful and an actor. I was just thinking that it was ambiguous and he may have simply been explained that you have to have two states involved, as opposed to the relationship to the commerce. He did use, I don't know why he's asking while we're connected to, or something. It was a funny word. Yes, it was that a person replaced, that was robbed in some way, has some connection to something moving between one state and another. I would effectively reserve that balance for my time. You've got some time remaining. Let's hear from his friends. May I please the court? My name is Christine Fritz and I represent the United States in this matter

. And as noted in our 28J letter, we're requesting that the 924C sentences be vacated and be remanded the district court. We ask that the convictions through the trial and also through the defendant's guilty things. I'm going to ask you, it's loatable that the government takes that position and it seems to me it's an act of fairness in your assessment of how this should be done. But was it error or the district court to do it the way it did it? The Department of Justice policy is yes that it was error. Well hold it, the policy doesn't make it error. The position. The position of the Department of Justice is that it was error because 924C. That's what I wanted to understand. What is there something in the guidelines that says what order you have to apply these enhancements? No, and that's the problem. Well it's the problem, but the question is whether it's error. The way the Department reads 924C is that it doesn't specify the order. It doesn't tell you. You adopted a policy in the interest of fairness. Yes. But my whole point is council do this sometime. I want to remand the case because the government confesses error and we never hear it. And here we're reversing a district court judge on that basis when there's no error just simply because the government thinks it would be fairer to do it a different way. And I think that's a little dicey without determining whether it is legal error. The way that we read the statute is that it is ambiguous as to which 924C conviction is to go first. And it's not addressed. Yes, so it's not ambiguous. It's just that it's not addressed. And that our position is that under the rule of lenity the question should be resolved in the favor of the defendant so that the less the sentence carrying the less or mandatory minimum be placed first

. And that it's the rule of lenity that we believe that that is appropriate under. Well, I'm not criticizing the policy. Please understand. It's a noble policy, but I just worry about us exceeding to a stipulation without determining ourselves that it was error or not error. And obviously you have prosecutorial discretion. And I suppose maybe we yield to that. I think sending that back. Yes, we would rely on the rule of lenity. Of course, if the court disagrees, then finds that the ordering was not. You don't need to vote. Okay. Go ahead and address your point. I think the heart of the defendant's argument, it's fair to say that it focuses on the closing arguments and on UBANK's testimony. The closing arguments, the claim of vouching or bolstering is reviewed for plain error. There was no objection to this. We submit that nothing about the government council's statements suggests that she had a personal belief or that she was giving personal assurances of the credibility of these witnesses. And I'd like to focus on the three different things about the closing argument that the defendant challenges. First, he challenges that a statement by the prosecutor that can reasonably be understood to be a reference to the trial exhibits and discussing the interstate nexus of the able and shadow insurance. We had introduced basically transmittal reports for three different insurance companies that were out of state and closing arguments, although she does reference policies. I think in saying that she can't lay her hands on these right now, it is not a reference to something outside of the record. Now, the statement about not calling all of the victims of able, auto insurance robbery or the various officers involved in the investigation. I'd ask the court to consider that in context here. In the beginning of the closing arguments, the government council explained this has been a long day

. You've heard a lot of testimony. And I think that she was conveying to the jury that the government selected the most important witnesses to provide the most relevant information. What we had presented to the jury was sufficient to give a clear picture of what happened and it was sufficient for the jury to render its verdict. I don't think that there's anything about that reference to suggest that what these other individuals would have said about their experience or what the officers would have said about their actions corroborated these other testimonies. Instead, it was just that we elected not to choose. We elected not to call every possible witness. What do you posit as the purpose for making that statement to the jury? I think it was to, in a way, having set up that this was a very long trial. You received a lot of testimony. Please keep in mind that the government. We acted selectively and presenting the testimony to you. We did not want to prolong this trial or waste your time. And I think that is... Does the jury conclude from just what you said that our other evidence would be strong and important? We just selected the most important. But if we put it all on a BSLand, don't we? I don't think that that is what is being conveyed. I don't. I think that if you look at the following statements, she points to Gaines' testimony. She points to the defendant's confession. I think she is basically conveying that we presented enough for you to render your verdict. I don't think that the reference to these other witnesses was in any way to corroborate what was said. I mean, doesn't say that they would have said the same thing. She says we could have had them talk about what they experienced, what they did. But we didn't do that. Is he correct? Is defense counsel correct? Is he briefed that at no point that any witness identified the defendant in the courtroom as a person who committed these crimes? He is correct. It never happened. Nobody ever said that's the guy. Unfortunately, it did not. And of course, it would have been better practice for that in court identification to have occurred. But the law does not require an in court identification. This court's opinions are the law required by a proof of criminal agency. If not an identification of the defendant as the person who committed the crime. Oh, to be clear, there needs to be an identification of the defendant, but there does not need to be appointing by a witness to a defendant saying that was the man. The defendant is shown to the jury. Yes. The video clips of the two pieces that were reattempted to play of the confession that did depict the defendant. I think also we have the testimony of the defendant's uncle who says this is my nephew. But what connects? How does that testimony? That's my nephew. How does that connect? Did he ever say my nephew committed the crime with me? In other words, how do you connect in the evidence, in the record, including the video that apparently nobody could hear? How do you connect the person sitting in the courtroom with your burden to show beyond a reasonable doubt that the person sitting in the courtroom is the same person who committed the offense? Well, I would direct this court's attention to United States versus Taylor. It's a 1990 published opinion. I don't believe it's cited in our brief, but it's at 900 F seconds, 7-7-9. In that opinion, this court has said, quote, a witness need not physically point out a defendant, so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime. And then more recently... What was the evidence supporting the inference in Taylor? It was one individual who identified the defendant by name, and then went on to say, connected the defendant's name to the defendant

. But we didn't do that. Is he correct? Is defense counsel correct? Is he briefed that at no point that any witness identified the defendant in the courtroom as a person who committed these crimes? He is correct. It never happened. Nobody ever said that's the guy. Unfortunately, it did not. And of course, it would have been better practice for that in court identification to have occurred. But the law does not require an in court identification. This court's opinions are the law required by a proof of criminal agency. If not an identification of the defendant as the person who committed the crime. Oh, to be clear, there needs to be an identification of the defendant, but there does not need to be appointing by a witness to a defendant saying that was the man. The defendant is shown to the jury. Yes. The video clips of the two pieces that were reattempted to play of the confession that did depict the defendant. I think also we have the testimony of the defendant's uncle who says this is my nephew. But what connects? How does that testimony? That's my nephew. How does that connect? Did he ever say my nephew committed the crime with me? In other words, how do you connect in the evidence, in the record, including the video that apparently nobody could hear? How do you connect the person sitting in the courtroom with your burden to show beyond a reasonable doubt that the person sitting in the courtroom is the same person who committed the offense? Well, I would direct this court's attention to United States versus Taylor. It's a 1990 published opinion. I don't believe it's cited in our brief, but it's at 900 F seconds, 7-7-9. In that opinion, this court has said, quote, a witness need not physically point out a defendant, so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime. And then more recently... What was the evidence supporting the inference in Taylor? It was one individual who identified the defendant by name, and then went on to say, connected the defendant's name to the defendant. So, John Doe, that's John Doe, and a man named John Doe committed the crime with me. Is that what you mean? I think that the... I mean, was that Taylor? I think that there was greater discussion about the defendant, his involvement in the offense, but the point... You mean in Taylor or in this... In Taylor. In Taylor. Now, but there was... What is it here that connects the guy who was in the courtroom for that one day trial and the offense is in the indictment? Well, I would point to the testimony of Gaines and also the testimony of... Point to the video. It's just where I'm done. Yes, and also the video. Hands in the video, and they can see the video, and they can see the man in the court. What did he say in the video that the jury heard? He said it's what his appearance, right? I would agree

. So, John Doe, that's John Doe, and a man named John Doe committed the crime with me. Is that what you mean? I think that the... I mean, was that Taylor? I think that there was greater discussion about the defendant, his involvement in the offense, but the point... You mean in Taylor or in this... In Taylor. In Taylor. Now, but there was... What is it here that connects the guy who was in the courtroom for that one day trial and the offense is in the indictment? Well, I would point to the testimony of Gaines and also the testimony of... Point to the video. It's just where I'm done. Yes, and also the video. Hands in the video, and they can see the video, and they can see the man in the court. What did he say in the video that the jury heard? He said it's what his appearance, right? I would agree. So, you're saying that the police can make a movie of anybody they want and bring them in the courtroom, and that's enough? That is not what I'm saying. Okay, I thought that's what you were saying to Judge Neemar. I think that... Did you hear the confession? The jury heard portions, but it was truncated. Because... We heard portions. We attempted to play the transcript, and some of it was heard, however, at the point where the court was concerned that it was not being understood by all the jurors, it was stopped. And so did the jury get the transcript? The jury received the relevant pages of the transcript. Where he said I did it? Yes, redacted 52, where he goes through, and he says that he confessed. You also have the testimony of the arresting officer who arrested Mr. Johnson, and took his statement. That's you, Banks. He said that I arrested Mr. Johnson, and he confessed to me, and I think that it is absolutely fair given that, given Gaines' testimony, given the video, that the jury can't infer that the person sitting at the defendant's table was Mr. Johnson. I actually thought you were going to say, and the Rule 29 motion didn't mention any of this. The Rule 29 didn't mention any of this. So why didn't you just say that? If it's waived, it's waived. Well, it's true that it hasn't been raised in the Rule 29 motion, and I would also point out that the defendant did, through his closing arguments, attempt to make this sort of an argument to the jury

. So, you're saying that the police can make a movie of anybody they want and bring them in the courtroom, and that's enough? That is not what I'm saying. Okay, I thought that's what you were saying to Judge Neemar. I think that... Did you hear the confession? The jury heard portions, but it was truncated. Because... We heard portions. We attempted to play the transcript, and some of it was heard, however, at the point where the court was concerned that it was not being understood by all the jurors, it was stopped. And so did the jury get the transcript? The jury received the relevant pages of the transcript. Where he said I did it? Yes, redacted 52, where he goes through, and he says that he confessed. You also have the testimony of the arresting officer who arrested Mr. Johnson, and took his statement. That's you, Banks. He said that I arrested Mr. Johnson, and he confessed to me, and I think that it is absolutely fair given that, given Gaines' testimony, given the video, that the jury can't infer that the person sitting at the defendant's table was Mr. Johnson. I actually thought you were going to say, and the Rule 29 motion didn't mention any of this. The Rule 29 didn't mention any of this. So why didn't you just say that? If it's waived, it's waived. Well, it's true that it hasn't been raised in the Rule 29 motion, and I would also point out that the defendant did, through his closing arguments, attempt to make this sort of an argument to the jury. But if you didn't believe it. If you didn't include it in the Rule 29 motion, it doesn't matter, doesn't. I would give you. I mean, for playing our purposes, sure. But if you didn't raise a failure of proof as to identity, it's only before us on playing error. It is, and the defendant can't meet that heavy burden. Well, it is, unless you view it as one of many mistakes made throughout this trial. Right. And you have to take it into consideration and evaluating the cumulative effect of this trial, which has, frankly, a lot of mistakes. This wasn't a perfect trial. Is this her first trial? Her first felony trial? No, this was not her first felony trial. I am not certain. She is a salsa, and I think is more accustomed to practicing in the state court. And she sort of got really, she got the bum rush here not to put to find a point on it. By the district court, I get the impression that the court really wanted to finish this thing in one day. And the court did finish this thing in one day. I think it's fair to say that the court wanted to keep the case moving along. Hobbs that robbery, including wealth, never mind. And in response to the jury go home. I'm not entirely certain. I think they went home around dinner time. Dinner time. Yes, I'm not sure

. But if you didn't believe it. If you didn't include it in the Rule 29 motion, it doesn't matter, doesn't. I would give you. I mean, for playing our purposes, sure. But if you didn't raise a failure of proof as to identity, it's only before us on playing error. It is, and the defendant can't meet that heavy burden. Well, it is, unless you view it as one of many mistakes made throughout this trial. Right. And you have to take it into consideration and evaluating the cumulative effect of this trial, which has, frankly, a lot of mistakes. This wasn't a perfect trial. Is this her first trial? Her first felony trial? No, this was not her first felony trial. I am not certain. She is a salsa, and I think is more accustomed to practicing in the state court. And she sort of got really, she got the bum rush here not to put to find a point on it. By the district court, I get the impression that the court really wanted to finish this thing in one day. And the court did finish this thing in one day. I think it's fair to say that the court wanted to keep the case moving along. Hobbs that robbery, including wealth, never mind. And in response to the jury go home. I'm not entirely certain. I think they went home around dinner time. Dinner time. Yes, I'm not sure. And I think that I'd like to respond to the cumulative error argument, and part by pointing out that there are certain things that the defendant claims are error, and we submit that they're not. With respect to the confrontation clause argument, UBANKS is statement that Gerald Eumann implicated himself the defendant and gains. That was offered as background information. It was offered as context to explain why the defendant or why UBANKS then started looking into gains and the defendant. And... Wouldn't you agree that is extremely prejudicial to the defendant? I think that in the context of this case, no, it's not extremely prejudicial. Well, I do believe that it was a brief reference given just as background to explain, because the immediate follow-up question is, well, what did you do in response to this conversation with Eumann? And I think that where you have the co-dependent testifying, and you also have a confession of the defendant, this passing reference that one of the co-dependence and one of the robberies... Who's not testifying? Who's not testifying? Who said he did it? Yes, but again, I think it is not being... I can't imagine much better evidence than that. Well, I think that it's not being introduced for the truth of the matter asserted. Oh, Jewish don't understand that. Well, that is my position, that it wasn't being offered for the truth of the matter asserted, and the confrontation clause is just not implicated if it's not hearsay. Now, with respect to the argument for the hearsay objections, I'll note that we discussed it as being a harmless analysis in our brief, but on close to review, it is definitely a plain-air analysis as to the comments about Davis. If you look on page 261 where there is a question about, did you speak with Davis? Did he discuss the details of you? There is no objection by defense counsel to that portion. Now, with respect to gains, I would also make the argument that it would be plain-air as to him, too, on 258 through 260. Government counsel did ask, and you were sitting here in the courtroom and Mr. Gaines testified

. And I think that I'd like to respond to the cumulative error argument, and part by pointing out that there are certain things that the defendant claims are error, and we submit that they're not. With respect to the confrontation clause argument, UBANKS is statement that Gerald Eumann implicated himself the defendant and gains. That was offered as background information. It was offered as context to explain why the defendant or why UBANKS then started looking into gains and the defendant. And... Wouldn't you agree that is extremely prejudicial to the defendant? I think that in the context of this case, no, it's not extremely prejudicial. Well, I do believe that it was a brief reference given just as background to explain, because the immediate follow-up question is, well, what did you do in response to this conversation with Eumann? And I think that where you have the co-dependent testifying, and you also have a confession of the defendant, this passing reference that one of the co-dependence and one of the robberies... Who's not testifying? Who's not testifying? Who said he did it? Yes, but again, I think it is not being... I can't imagine much better evidence than that. Well, I think that it's not being introduced for the truth of the matter asserted. Oh, Jewish don't understand that. Well, that is my position, that it wasn't being offered for the truth of the matter asserted, and the confrontation clause is just not implicated if it's not hearsay. Now, with respect to the argument for the hearsay objections, I'll note that we discussed it as being a harmless analysis in our brief, but on close to review, it is definitely a plain-air analysis as to the comments about Davis. If you look on page 261 where there is a question about, did you speak with Davis? Did he discuss the details of you? There is no objection by defense counsel to that portion. Now, with respect to gains, I would also make the argument that it would be plain-air as to him, too, on 258 through 260. Government counsel did ask, and you were sitting here in the courtroom and Mr. Gaines testified. I was. Did he testify consistently with what he told you? He did. And then the agent goes on to say, and let me correct myself, the very next day after the interview, some of the information we received was that the suspects went to. That's when the objection comes in. It is not to the testifying consistently, nor is it to later on where further details of the statement were given. And with gains, we estimate that it was the evidence of the prior consistent statement was admissible under 801-D1-B. I suppose I should ask you, in fairness, was it his first felony trial as well? I don't believe so. Okay. His second? I don't know, but I would agree that as a practice pointer, additional prep could have been beneficial. On both sides. Yes. But it was offered to rebut an express or implied charge that Gaines recently fabricated his story. Now point out to you that these offenses were in July of 2011. Gaines gave his statement, I believe, in August of 2011. It was not until October 2012 that Gaines entered a guilty play and agreed to cooperate with the government. And then January 2013 is the trial. And if you look at the very opening of defense attorneys' cross of Gaines, it says, it's essentially you just recently agreed to plead guilty and cooperate with the government. And you just recently decided to testify. He is absolutely suggesting that based on the plea agreement and the agreement to testify, and the decision to testify, the Gaines would be trying to curry favor with the government. And the fact that that statement is consistent with what he made more than a year earlier is admissible to rebut the implication that there's that motive. With respect to the judicial intervention and bias, that too is a plain air standard. I think that the parties disagree about that. The defendant's position is that it should be denovo

. I was. Did he testify consistently with what he told you? He did. And then the agent goes on to say, and let me correct myself, the very next day after the interview, some of the information we received was that the suspects went to. That's when the objection comes in. It is not to the testifying consistently, nor is it to later on where further details of the statement were given. And with gains, we estimate that it was the evidence of the prior consistent statement was admissible under 801-D1-B. I suppose I should ask you, in fairness, was it his first felony trial as well? I don't believe so. Okay. His second? I don't know, but I would agree that as a practice pointer, additional prep could have been beneficial. On both sides. Yes. But it was offered to rebut an express or implied charge that Gaines recently fabricated his story. Now point out to you that these offenses were in July of 2011. Gaines gave his statement, I believe, in August of 2011. It was not until October 2012 that Gaines entered a guilty play and agreed to cooperate with the government. And then January 2013 is the trial. And if you look at the very opening of defense attorneys' cross of Gaines, it says, it's essentially you just recently agreed to plead guilty and cooperate with the government. And you just recently decided to testify. He is absolutely suggesting that based on the plea agreement and the agreement to testify, and the decision to testify, the Gaines would be trying to curry favor with the government. And the fact that that statement is consistent with what he made more than a year earlier is admissible to rebut the implication that there's that motive. With respect to the judicial intervention and bias, that too is a plain air standard. I think that the parties disagree about that. The defendant's position is that it should be denovo. And I would point the court to one of the cases that we cited in our brief United States v. Smith. In that case, the court applied a plain air standard to the defendant's argument that they were denied a fair trial, because the district court improperly intervened with prosecution friendly questions and interruptions. And United States v. Goodwin, which is cited in Smith, was the first time that this court resolved in a published opinion that a plain air standard applies. Furthermore, to the extent that there's a claim of bias, this defendant never sought to have this judge recused. Never brought to the court's attention, it's concerned that it was biased. That too is subject to plain air. I would urge the court in looking at the questions asked by the district court, they did not suggest favoritism to one side or another. Generally, they were more efficiently eliciting testimony or clarifying. And I don't think that there was anything about the court statements saying that suggesting that it knew the answer. It was curious and it was asking questions and clarifying matters that were important to him and that he thought would be important to the jury. If the court has no further questions, we would rest on our brief and we agree that this was not a perfect trial, but it was a fair trial and we're asking that you affirm the convictions. To be clear, I'm concerned greatly about the closing argument statements and the testimony of U-Banks. I'm also concerned about the whole procedure, the way that Mr. Johnson was treated and whether or not a start to finish read of this transcript shows that Justice was done that a fair trial was had by this defendant. I'm concerned about U-Banks because it's from his portion of the trial that we have the confrontation issue, the 801-D1B issue, the Exhibits issue, the 404-B issue, I mean the government used U-Banks to do a lot of things. And the review on the 801-D1-B issue is for harmless air defense counsel, who I actually believe it was his first federal trial. He did everything he could to stop all this stuff from coming in. I believe he made nine objections over the course of three pages. He objected to the confrontation, he's objection overruled, objection overruled, and I believe that the court can take from that that he was opposed to trying to keep all these statements from coming in. I do believe it is harmless air there. Part of the problem with the both-stream with the 801-D1B and with the closing arguments in U-Banks is that you have U-Banks throughout his description of the prior consistent statements, giving his comments as to the truthfulness of the witnesses also

. And I would point the court to one of the cases that we cited in our brief United States v. Smith. In that case, the court applied a plain air standard to the defendant's argument that they were denied a fair trial, because the district court improperly intervened with prosecution friendly questions and interruptions. And United States v. Goodwin, which is cited in Smith, was the first time that this court resolved in a published opinion that a plain air standard applies. Furthermore, to the extent that there's a claim of bias, this defendant never sought to have this judge recused. Never brought to the court's attention, it's concerned that it was biased. That too is subject to plain air. I would urge the court in looking at the questions asked by the district court, they did not suggest favoritism to one side or another. Generally, they were more efficiently eliciting testimony or clarifying. And I don't think that there was anything about the court statements saying that suggesting that it knew the answer. It was curious and it was asking questions and clarifying matters that were important to him and that he thought would be important to the jury. If the court has no further questions, we would rest on our brief and we agree that this was not a perfect trial, but it was a fair trial and we're asking that you affirm the convictions. To be clear, I'm concerned greatly about the closing argument statements and the testimony of U-Banks. I'm also concerned about the whole procedure, the way that Mr. Johnson was treated and whether or not a start to finish read of this transcript shows that Justice was done that a fair trial was had by this defendant. I'm concerned about U-Banks because it's from his portion of the trial that we have the confrontation issue, the 801-D1B issue, the Exhibits issue, the 404-B issue, I mean the government used U-Banks to do a lot of things. And the review on the 801-D1-B issue is for harmless air defense counsel, who I actually believe it was his first federal trial. He did everything he could to stop all this stuff from coming in. I believe he made nine objections over the course of three pages. He objected to the confrontation, he's objection overruled, objection overruled, and I believe that the court can take from that that he was opposed to trying to keep all these statements from coming in. I do believe it is harmless air there. Part of the problem with the both-stream with the 801-D1B and with the closing arguments in U-Banks is that you have U-Banks throughout his description of the prior consistent statements, giving his comments as to the truthfulness of the witnesses also. So at one point he says, originally games didn't put himself there, but then he became truthful and told us what really happened. And the same with Davis, you have U-Banks saying, well at first he didn't tell us everything, but then he told us he came, you know, he then told us the truth and told us everything that was right. The problem also with the recitation of the out-of-court statements is that his claim that their consistent is actually kind of false because both Davis and Gaines first lied. Davis said he wasn't robbed of marijuana when he clearly was and he denied having ten pounds in his backyard. Gaines said that he wasn't a part of the Davis robbery. They both gave second statements to the police that were either to be fair to the special agent consistent with the trial testimony. But when U-Banks says everything they said on the stand is consistent with what they told me, it's not clear whether he's talking about what they told him the second time or what they told law enforcement the first time. So the problem both of it coming in at our 801-D1B and properly but also it just being false testimony. In addition to what I described is just garbled jury instructions that really do mess up 924-C that don't break out the difference between use and carry during in relation in a separate fence of possession and further itself. There is an error under 18 United States Code Section 30501 in Saul's which is where there's a confession there has to be an instruction to the jury about how to consider that. If there's a question about the volunteering of this the court did have what dear about that. Saul says that if the jury if the judge doesn't give that instruction on his own it's clear error and needs to go back. I've raised it in my opening brief the government choose not to discuss it but I think on that basis alone the court can conclude that there is an error with the instructions that warrants remained. As to the bias issue I've cited Medford in my brief and I believe where the claim is bias the court is to look at the entire transcript and to look at the way that the defendant was treated and to gauge from that. If it appeared that the judge was putting the impromotor of article 3 on the scale in favor of one party or the other. While there is an assistive this efficiency of the evidence argument I would first say Judge Davis that where you make a rule 29 motion the court has to be satisfied as to all parts of it and identity as a part of the evidence. I think the specify the issue as to which there's insufficient evidence. You can't just stand up and make a motion with judgment of a quid and sit down. I mean you could do that but it wouldn't mean anything. I think that there are to have the I do think that it's properly preserved but I think the I think the rule 29 motion alerts the court that it needs to make sure that as to all the issues as to identity as the elements that those have been proved. I do believe that making that rule 29 motion puts us on to no vote review. What was the ground lied on in the rule 29 motion? There was no district that made no findings. No, I'm what did the lawyer say? I'm not concerned about the district court

. So at one point he says, originally games didn't put himself there, but then he became truthful and told us what really happened. And the same with Davis, you have U-Banks saying, well at first he didn't tell us everything, but then he told us he came, you know, he then told us the truth and told us everything that was right. The problem also with the recitation of the out-of-court statements is that his claim that their consistent is actually kind of false because both Davis and Gaines first lied. Davis said he wasn't robbed of marijuana when he clearly was and he denied having ten pounds in his backyard. Gaines said that he wasn't a part of the Davis robbery. They both gave second statements to the police that were either to be fair to the special agent consistent with the trial testimony. But when U-Banks says everything they said on the stand is consistent with what they told me, it's not clear whether he's talking about what they told him the second time or what they told law enforcement the first time. So the problem both of it coming in at our 801-D1B and properly but also it just being false testimony. In addition to what I described is just garbled jury instructions that really do mess up 924-C that don't break out the difference between use and carry during in relation in a separate fence of possession and further itself. There is an error under 18 United States Code Section 30501 in Saul's which is where there's a confession there has to be an instruction to the jury about how to consider that. If there's a question about the volunteering of this the court did have what dear about that. Saul says that if the jury if the judge doesn't give that instruction on his own it's clear error and needs to go back. I've raised it in my opening brief the government choose not to discuss it but I think on that basis alone the court can conclude that there is an error with the instructions that warrants remained. As to the bias issue I've cited Medford in my brief and I believe where the claim is bias the court is to look at the entire transcript and to look at the way that the defendant was treated and to gauge from that. If it appeared that the judge was putting the impromotor of article 3 on the scale in favor of one party or the other. While there is an assistive this efficiency of the evidence argument I would first say Judge Davis that where you make a rule 29 motion the court has to be satisfied as to all parts of it and identity as a part of the evidence. I think the specify the issue as to which there's insufficient evidence. You can't just stand up and make a motion with judgment of a quid and sit down. I mean you could do that but it wouldn't mean anything. I think that there are to have the I do think that it's properly preserved but I think the I think the rule 29 motion alerts the court that it needs to make sure that as to all the issues as to identity as the elements that those have been proved. I do believe that making that rule 29 motion puts us on to no vote review. What was the ground lied on in the rule 29 motion? There was no district that made no findings. No, I'm what did the lawyer say? I'm not concerned about the district court. What did the lawyer say? I believe he said I think there are problems with some of the count certainly these but maybe others. I'll tell the other wise you go ahead. I'll tell the court that the question of whether or not he's been identified in the video. The video is in the court record. It came up I believe from the district court exhibit 51. I don't believe anybody can identify the defendant that was sitting at the table as a person in that video based on that one little video clip. I asked the court of it considering that issue seriously to look at that video because it's true. They say we're charging Alan Johnson and they told the court this is Alan Johnson and the court were in open statements and every hand in the description of the case. Recharging Alan Johnson with crimes A B and C and then a agent puts on evidence that I arrested and spoke with Alan Johnson and he confessed. I don't believe so you're on a court you must identify the individual as in that courtroom is that same in sure that so I think if you think the person who committed the crime is Alan Johnson and you've got Alan Johnson and the court was any other or any other Alan Johnson involved in the case. Does anyone else refer to as LA? No. I think though that if I could just finish briefly your honor. I think the lack of sort of trial 101 issue you know to have anybody do that I think is indicative of the way this trial went. It is one of a number of cumulative errors that if even if some are harmless I've identified in the library. You know score of errors that cumulatively suggest that what Mr. Johnson got was not a fair trial and start to finish a read of this transcript doesn't really stand up and is not an example of how a federal jury trial should be conducted in our federal courts for those reasons. I'd ask the court to vacate the judgment as to counts two through nine I'd ask that it vacated for innocent the evidence but if not that to remain for a new trial as to those counts. I know that your court appointed we appreciate very much. You're undertaking representation of Mr. Johnson you've done a good job for it. Thank you. All right. We'll go down in Greek House will then go into our last case