Last case of the afternoon is US versus Figaro. May I please court my name is Ralph Jacobs. I represent the appellant Antonio Figaro and with the court's permission I'd like to reserve three minutes for Rebo. Can I say I am most interested in the sentence in issue. I wish you could give us some argument on that. I think that's where we would like to spend most of the time. I certainly intend to address that but I would also like to address the co-conspirator exception because I do think that's a significant issue as well and I'll try to divide my time appropriately. The co-conspirator issue arises in the context of a powerfully inculpatory statement attributed to officer Figaro's co-defendant Robert Bayer. It was not admissible under the co-conspirator exception to the hearsay rule. It was very prejudicial and for that reason alone I think that conviction ought to be reversed. Let me very briefly. It's not admissible under the co-conspirator. That's correct and clearly this is a co-conspirator exception case. It's not a contractions. Correct. I think this Court's opinion in Barrios which came after the trial in the State made it clear that under current Supreme Court jurisprudence this is a rule of evidence case but as the Court noted in footnote two in Barrios the results are often the same, the values that underpin the consultation clause are the same. Cross examination is crucial to the truth finding purpose. Rules of evidence are based on it but beyond that there may be constitutional implications that even if the rules of evidence would permissive this ability
. Some other reason of constitutional abortion may be clear. That's correct but what I'm saying is even as a matter of the rules of evidence. Yes, I understand that so I want to know why it doesn't fit under the exception. Under the co-conspirator exception. Let me take one minute and frame the issue. This was a prosecution of two officers who were patrol partners in Camden and the special operation squad. These are the guys who go out onto the streets of Camden and make arrests in high crime neighborhoods. This was the second wave of prosecution. Three officers had pled guilty. They claimed that their fellow officers, Figueroa and Baird were also involved. The defense theory of course was that Figueroa and Baird were not involved. They were merely at the scene of some of these arrests that the co-operators were lying. The issue is that one of the co-operators claims that Baird came to him after one of the arrests and said Figueroa wrote a report that was F-daw. To me, the kind of thing that seems like something that's in furtherance of the conspiracy to me, well I sure want, you know, I want these guys on board. I want them to know how to write a report and how not to. And if Figueroa is screwed around with a report, he better get it straight. That's in furtherance of the conspiracy
. That abstract argument, i.e. that somehow Figueroa's report in question was an outlier. It was not properly executing this conspiratorial scheme and that Figueroa needed some schooling to bring him back into the way this conspiracy ought to be operated. That abstract argument was the argument that the government made. The problem is it is unsupported by the evidence, indeed it is belied by the evidence. And most powerful evidence. What evidence? I mean, we're talking about a statement which a court must determine should be admitted or excluded. And that that ruling be pursuant to 801D2E. Now, what's the other evidence that ought to be considered? The evidence is the statement, the report itself. It's government exhibit 500. It appears at page 1844 of the appendix. And all of the reports for the incidents in question are in the appendix. If I can very briefly give you the flame. But I'm trying to figure out why a statement or why a report should somehow prompt a statement which is what is being sought to be admitted. Let me see if I can articulate my question. Please, Your Honor, because I do think there is a powerful issue here
. When Bayard, when Perry, the trial witness, says, Bayard came to me and said, Figaroa's report was effed up. Perry was referring to a particular report. It was clear from Perry's testimony because he talked about a particular address. And a particular date, he was referring to government exhibit 500. And I can provide further contact. There was no question at all that that's what he was referring to. If you look at government exhibit 500, that report is no different from any of the other reports authored by Bayard or Figaroa during the entire course of the conspiracy. So what? Isn't it the fact of the statement and the content of the statement that matters here? That's what the government seeks to have. For its import, for its possible effect on the hearer. I guess I may be I'm missing something, Your Honor. I know I am. I cannot make a connection whatsoever between this report and the statement which is what counts. And let me say one other thing in fairness because I'm not trying to tell you how to argue your case. If notwithstanding the fact that the panel told you we are unanimous in wanting to hear about the sentencing argument, you wanted to spend time on this. You got a little more than five minutes. And that I think was implicitly saying about this issue that Doug won't hunt. Maybe you got to go to the sentencing
. You Honor, I've been around long enough to know that I disregard that kind of helpful advice of my peril. I will take 60 more seconds in an effort to try and articulate what I think is a very powerful issue. The statement, the only thing that that that bared allegedly said was the reports effed up to me. And I believe based on the evidence, the only interpretation of that is this report contains lies. It is an accusation that figure over is doing something wrong. It is bared saying from a position of innocence, he's doing something wrong. It's not, there's nothing at all about this statement somehow needs to be written differently to preserve the conspiracy, because the statement is written in the same terms as all of the other statements. What I am saying is the only fair interpretation of this statement is bared is saying to a fellow officer, figure over, lied on his report, and that is bad. If bared had been quoted as saying those words, bared being the co-defendant sitting right next to him, clearly it would be inadmissible. What I'm saying is in context, that is exactly what bared is saying. Bared is saying this report is a pack of lies. And the reason we know to step back a second, Judge Kugler says it's ambiguous. It could mean that the conspirators are trying to teach, figure out a right or a report in a different way, or it could mean that it's a pack of lies. I have tried to make the argument in this powerful terms as I can. I will move on, but I urge the court to give it some consideration. And it may become clear after your comments. On the sentencing issue, the real issue here is whether there is drug dealing, whether this is a drug transaction, and the key argument here is physically, the only transfer of drugs is from wherever they were found on the street to the Camden Police Department evidence room
. Well, they were held back at some point, weren't they? To use in other situations or planted or reserved in a tree or something? Stetser says that he had drugs planted in a tree. Figueroa was not involved in that. Stetser tells this as the list of- No, it's not. It's a conspiracy. But in terms of sentencing, it's not Figueroa's conduct. Where Figueroa comes on the scene, Stetser gets the drugs from the tree, places it somewhere, Figueroa, either Figueroa or Stetser, one or the other. But the only thing that Figueroa uses drugs are given to the Camden evidence room. The remaining drugs are all found on the street somewhere. They may be misattributed to a defendant, but the only physical transfer is from the point of seizure to the police department evidence room. The difficulty is that the way the guidelines are written so broadly, and the concept of distribution includes transfer, I need to have a theory or principle, and it's not a trendy, it's not a alien, it's not any of these cases. But I need to have a principle that says sentencing judge can't do this, cannot do this. Because you can't, for sentencing purposes, consider something drug distribution, which is not under the law drug distribution. But if it fits in the definition of distribution- Where if it fits under plain text? But when a citizen finds drugs on the street and turns it in, they are not distributing drugs. Well, I know that's, I mean, that is close to the position that was taken by Judge Turella in his separate opinion in Kuthez-Kaban. And I am not with that sympathy to that position. I mean, I just have to believe that this is not the kind of situation that the drafters of the guideline had in mind when they were talking about drug distribution. Or in the case of Kuthez-Kaban, it is an actual prosecution, it wasn't a sentencing issue
. But we still have to start with the text, and as Judge Rindell's question has suggested, to me is, how do we avoid that? Because it talks about the offense conduct. And this talk- The distribution includes transfer, didn't we have transfer? But they talk about offense conduct. That's the criminal offense. And so it is implicit that we are talking about criminal activity. If a citizen finds drugs on the street and gives it to the Camden Police Department, they are not guilty of an offense. And so by using, by the guidelines, using the phrase, there is an exception for them. Isn't there an explicit exception that accepts out a police officer who is transferring or somehow moving drugs in the course of lawful activity? But what he was doing, I mean, we provide for that, looking at the drugs, not about the false report. What he did with respect to the drugs, the physical transfer of the drugs, was lawful, he was taking them from where they were and turning them in. But it was not in the course of lawful activities because he was disobeying the law as part- This was part and parcel. Not the drug distribution law. No, I know that. Thank you. All right, thank you. We'll hear from you on the phone. House, sir. How can Judge Kugler come up with such a very, very, very long sentence for this one defendant where the others got off with less than four years? Okay, well, let me go through all four of them. I think when you look it off for it all, it'll make more sense
. Did I had no prior history? Yeah, this was actually what went below. This was a one month downward variance for the part, wasn't part of a one month variance below the guideline level. His guideline level was one point one to whatever the top of the range is. It was based on the drug distribution guideline, as I'm sure you're aware. But let me talk about the disparity with the other three. Stetzer was the other person who received the next license. He received, I believe, 48 months. If you look at his, he had the exact same guideline range minus the three points. If you take the three points off, he's down to an 87 at the bottom of the range. He got approximately one third off for cooperation. He testified at trial. That's perfectly understandable. Perry also started with the same guideline range bottom of which was 87. He did significantly better. He was the 20 month. And the reason he did was because he was the first police officer who came in. He made the case
. The other one who got the eight month sentence was Morris. The difference there was he was not in fact sentenced under the drug guideline. He was not involved in any of the drug distribution. He was done in for a shorter period of time in the conspiracy. He was the one who was injured early on in one of the incidents and he retired from the force. So he was in a different category altogether. When you look at them, they're actually, I mean Judge Kuhler sat in on the trial. He saw them all testify and he knew what their roles in the offense were. I mean, the underlying offense is here. There's a fact falsification of police reports that as a guideline range is testifying falsely, the curtail has guideline range. Where does this drug distribution come from? Well, your honor. I mean, clearly drugs were used as an instrumentality of this crime. And there is some poetic justice here in the sense that what the officer was trying to do was he was trying to guild the lily and send these people to jail for more time than they were otherwise entitled to in particular instances by attributing more drugs to them. So it sort of came around back at him in that respect. So rather than some of them obviously did go to jail and went to jail for significant amounts of time before they were overturned and the study of candidate obviously. Can the concept of poetic justice be written into an opinion in any way I'm wondering anything? Well, I think the point that Judge Randell was making is, is there anything in the guidelines that prohibits this? I mean, I think Judge Kuhler had a range of options here. And I'm not convinced that every judge would have applied the drug guideline here
. My strong suspicion is not everyone would have. But the question is, what's it within his discretion? Well, the fact is the opinion is the separate opinion of Judge Rowan Corteska-Lon makes much of there ain't any other cases like this out there. Yeah, and that finds that a particular weight, frankly. I don't know that I would give it as much weight, but it is something that's worthy of note. And they were involved with a prosecution as opposed to a sentencing. And you do, in a sentencing context, you have to look for analogies and you have to make some value choices about what the best analogy is here. But when you're using drugs as an instrumentality of the crime as they were here in order to make a case, make a case stronger to take, in some instances, people who weren't associated with the drug at all and essentially planted on them. But what about the textual? Isn't that your strongest argument here? Yes, since this certainly is not the standard paradigm one thinks about. When he or she is thinking about drug disc. Yeah, I mean, we're urging you to follow the reasoning of the first circuit in Corteska-Bahn and they rely on the plain language of the statute. They rely on the plain language of what it means to distribute. And here we have a distribution. We have a transfer from this was behind the tree. And in fact, Figueroa was involved in it. Now, Figueroa didn't stash them behind the tree. He's right to say that Stetsr had stashed them. But Figueroa wrote this particular report
. They were brought out. This was one of the things that Stetsr that Figueroa participated in. So he's implicated in this particular transfer that goes from behind the tree to, I guess, there's no indication that they were actually planted on the individual, but brought to the evidence room and then attributed to the individual here. Who makes the decision to push a certain guideline range? I guess was this in the PSR? It was in the PSR, Your Honor. I believe it did originate from our office, though. That's my understanding just from the side conversation. But in the record, the PSR has this. They produced that little chart that I put in my brief that showed. And again, the guidelines says you look at what the underlying offenses are. And they did a calculation for each underlying offense. And for this one, and as you say, the indictment charged planting drugs as one that was clearly charged in the indictment. And as Judge Gugher said, this was an important part of the case. The application note says, any conduct established by the offense of conviction that constitutes an offense under federal state or local law. I guess the question is, what was established by the offense of conviction here? Well clearly under Cortes Caban, if this court follows that, the majority opinion there, that the act of planting drugs by police officers is distribution. And frankly, even Judge Torella in his separate dissent didn't really take issue with that. Well, but Cortes Caban involved a charge precisely of drug distribution. Oh, sorry. And the issue was sufficient. It's a efficiency of the evidence. But we didn't, I mean here we didn't charge perjury. We didn't charge any of the underlying offenses. This is civil rights. You didn't. You clearly charge one. You can count one conspiracy to pry the others of civil rights. It was what? A three count was a three count? It was actually a six. But what would you do? You do as an object to the conspiracy in your indictment. Go on to list planning of evidence using property, risk of drugs, adding drugs, stealing drugs. Yeah, I mean, the guidelines clear. I don't think there's any dispute here that what you're supposed to do at sentencing is to figure out what the underlying conduct, what it would be as an offense. It could be a state offense. It could be a federal offense. And that's where the judgment is implicated. That's where Judge Cooper has to say, what is it that was proven here? And he concluded that one of the things that was proven was drug distribution under under the first circuits reasoning
. And the issue was sufficient. It's a efficiency of the evidence. But we didn't, I mean here we didn't charge perjury. We didn't charge any of the underlying offenses. This is civil rights. You didn't. You clearly charge one. You can count one conspiracy to pry the others of civil rights. It was what? A three count was a three count? It was actually a six. But what would you do? You do as an object to the conspiracy in your indictment. Go on to list planning of evidence using property, risk of drugs, adding drugs, stealing drugs. Yeah, I mean, the guidelines clear. I don't think there's any dispute here that what you're supposed to do at sentencing is to figure out what the underlying conduct, what it would be as an offense. It could be a state offense. It could be a federal offense. And that's where the judgment is implicated. That's where Judge Cooper has to say, what is it that was proven here? And he concluded that one of the things that was proven was drug distribution under under the first circuits reasoning. Now it would be a different case if drug distribution had a higher statutory maximum than the civil rights violation itself. Would it not under a trendy? Would it not have been problematic? Oh, well, we couldn't have sentenced him beyond the statutory maximum here, which was 10 years plus two. There's no, we wouldn't have sought that and we'd never contended with that. But that's again, they weren't convicted of that crime. That's what the judge used by analogy in order to get to the proper guideline. I did have a conspiracy of violence. Yes. That's, I'll say that that's our position. There's nothing impermissible in the guidelines that says he can't exercise his discretion in this manner. We think the first circuit decision was in fact well reasoned and we think even the descent here isn't really keyed into it was keyed into the possession with intent to distribute, but not distribution, which is just the problem that we're relying on here. So it's not really even got into an act of serious versus intent dichotomy, if I recall, you're trying to get the dissent to the same opinion. Yeah. Yeah. Would you address the statement issue that was raised by you? Sure. You're on a judge's Google made a factual finding. He found by upon us the evidence that this statement wasn't further into the conspiracy. Basically, there were two choices, but before him, there was the choice that the defendant put forward, which was, I'm sorry, can I use you said he made a factual determination? What was he found by a preponderant? Did you say where or what? What was that factual determination? The finding was by preponderance of the evidence that the statement made by the defendant, which he's complaining about the report being screwed up, was in furtherance of the conspiracy
. Now it would be a different case if drug distribution had a higher statutory maximum than the civil rights violation itself. Would it not under a trendy? Would it not have been problematic? Oh, well, we couldn't have sentenced him beyond the statutory maximum here, which was 10 years plus two. There's no, we wouldn't have sought that and we'd never contended with that. But that's again, they weren't convicted of that crime. That's what the judge used by analogy in order to get to the proper guideline. I did have a conspiracy of violence. Yes. That's, I'll say that that's our position. There's nothing impermissible in the guidelines that says he can't exercise his discretion in this manner. We think the first circuit decision was in fact well reasoned and we think even the descent here isn't really keyed into it was keyed into the possession with intent to distribute, but not distribution, which is just the problem that we're relying on here. So it's not really even got into an act of serious versus intent dichotomy, if I recall, you're trying to get the dissent to the same opinion. Yeah. Yeah. Would you address the statement issue that was raised by you? Sure. You're on a judge's Google made a factual finding. He found by upon us the evidence that this statement wasn't further into the conspiracy. Basically, there were two choices, but before him, there was the choice that the defendant put forward, which was, I'm sorry, can I use you said he made a factual determination? What was he found by a preponderant? Did you say where or what? What was that factual determination? The finding was by preponderance of the evidence that the statement made by the defendant, which he's complaining about the report being screwed up, was in furtherance of the conspiracy. It was made by a conspiracy during the course of the conspiracy in furtherance of the conspiracy. He had really two choices. I mean that did he make that at the time? At the time that the evidence was moved? Well, he was made subsequently. It's clear in the record it was clarified at the end. The way it actually came out was... You'd agree when you should, the better practice would be for a trial judge to make that determination on the spot when the evidence is moved or when someone seeks admission. Absolutely. He did not do that. Absolutely. The way it came about was there was a pre-trial hearing, but he did telegraph what he was looking for. He said, look, I haven't seen the evidence yet, but if the evidence comes in in this way, then I'm going to find it's admissible. When the time came, the original objection actually was from Council for Bayard. But it is preserved Council, Mr. Jacobs did preserve it. He said for the reasons we previously argued, and the judges said denied
. It was made by a conspiracy during the course of the conspiracy in furtherance of the conspiracy. He had really two choices. I mean that did he make that at the time? At the time that the evidence was moved? Well, he was made subsequently. It's clear in the record it was clarified at the end. The way it actually came out was... You'd agree when you should, the better practice would be for a trial judge to make that determination on the spot when the evidence is moved or when someone seeks admission. Absolutely. He did not do that. Absolutely. The way it came about was there was a pre-trial hearing, but he did telegraph what he was looking for. He said, look, I haven't seen the evidence yet, but if the evidence comes in in this way, then I'm going to find it's admissible. When the time came, the original objection actually was from Council for Bayard. But it is preserved Council, Mr. Jacobs did preserve it. He said for the reasons we previously argued, and the judges said denied. And then he clarified at the end that what he had pre-saged at the beginning was in fact the basis for his holding. So there are certainly plenty of facts in the record that would support the investigation that he gave it. Mark O'Connor just assumed for argument purposes that the appellant that Mr. Jacobs argument on the evidentiary question is correct, that it was erroneously... What about Hormel's area? Well, you're on or on this particular count. The evidence actually was quite strong. What the jury seemed... and the jury did not find for us at all, Council. The jury seemed to be looking for was corroboration. And on this one, you had officer Gallyaazzi, who was not implicated in any wrongdoing at all. And he came before the court. Let me just say what the report said that ended up being the falsehood. Basically according to Officer Figueroa, what happened was they engaged in a high-speed chase
. And then he clarified at the end that what he had pre-saged at the beginning was in fact the basis for his holding. So there are certainly plenty of facts in the record that would support the investigation that he gave it. Mark O'Connor just assumed for argument purposes that the appellant that Mr. Jacobs argument on the evidentiary question is correct, that it was erroneously... What about Hormel's area? Well, you're on or on this particular count. The evidence actually was quite strong. What the jury seemed... and the jury did not find for us at all, Council. The jury seemed to be looking for was corroboration. And on this one, you had officer Gallyaazzi, who was not implicated in any wrongdoing at all. And he came before the court. Let me just say what the report said that ended up being the falsehood. Basically according to Officer Figueroa, what happened was they engaged in a high-speed chase. They went to the residence. And in plain view, they crossed the threshold into the house and plain view he found the gun. Officer Gallyaazzi said two things. He said there was no high-speed chase. I would have heard about that on the radio. That just didn't happen. But more importantly, Gallyaazzi said, I found the gun. It was in the upstairs bedroom. Now that obviously was corroborated by the three cooperators we had. The cooperators had some problems. The jury didn't accept it. Based on everything they said. But for the two Council of Conviction, there was corroboration from officers who were not implicated in any wrongdoing. In that respect, there were phone calls. There were phone records that verified this. What the cooperator said was that after this they had seized some money as well. When they got off their shift at two o'clock, they were supposed to split it up
. They went to the residence. And in plain view, they crossed the threshold into the house and plain view he found the gun. Officer Gallyaazzi said two things. He said there was no high-speed chase. I would have heard about that on the radio. That just didn't happen. But more importantly, Gallyaazzi said, I found the gun. It was in the upstairs bedroom. Now that obviously was corroborated by the three cooperators we had. The cooperators had some problems. The jury didn't accept it. Based on everything they said. But for the two Council of Conviction, there was corroboration from officers who were not implicated in any wrongdoing. In that respect, there were phone calls. There were phone records that verified this. What the cooperator said was that after this they had seized some money as well. When they got off their shift at two o'clock, they were supposed to split it up. I was waiting for Figueroa to get the money. I called him eight or ten times between two o'clock or five o'clock. The telephone records showed that in fact phone calls were made on a regular basis between two and five. The phone they never got through. But there was at least corroboration here that the jury found very powerful. Certainly the testimony of the young biased officers corroborated all three other cooperators that said as well. That was a strong one. Interestingly, the argument is that that was something that was going on because that was Bayard was acquitted on that while Figueroa was convicted. In fact, our witness, Galeazi, for better or worse said that Bayard didn't say was involved. He said he was in the car the whole time. When they came to the house and he did the search, Bayard wasn't there. It actually gave the jury a good reason to separate the contact between the two. Something quite different from this report, which Judge Kubler said really wasn't a big deal in this case and wasn't referred to in closing arguments. I don't think that there's much there. If there are no further questions from the court, I'm happy to link with you to the rest of my time. Thank you, Your Honour. Thank you
. I was waiting for Figueroa to get the money. I called him eight or ten times between two o'clock or five o'clock. The telephone records showed that in fact phone calls were made on a regular basis between two and five. The phone they never got through. But there was at least corroboration here that the jury found very powerful. Certainly the testimony of the young biased officers corroborated all three other cooperators that said as well. That was a strong one. Interestingly, the argument is that that was something that was going on because that was Bayard was acquitted on that while Figueroa was convicted. In fact, our witness, Galeazi, for better or worse said that Bayard didn't say was involved. He said he was in the car the whole time. When they came to the house and he did the search, Bayard wasn't there. It actually gave the jury a good reason to separate the contact between the two. Something quite different from this report, which Judge Kubler said really wasn't a big deal in this case and wasn't referred to in closing arguments. I don't think that there's much there. If there are no further questions from the court, I'm happy to link with you to the rest of my time. Thank you, Your Honour. Thank you. Cortez Caban is distinguishable because the conduct at issue constituted a criminal offense. It's distinguishable in the crucial factual way because in Cortez Caban, the defendants, according to the first circuit, intended to introduce the drugs into society's illicit channels. In fact, at 6.91 F-3rd at 23, note 26, the court says that the defendants in Cortez Caban transferred the drugs to known drug leaders and dealers. That is criminal conduct. Who though charged with it? I mean, isn't that really the point? They were charged with drug misjudging. But if a person finds drugs on the streets of Camden and turns it in to the Camden Police evidence room, they cannot be charged with a criminal offense. That is not a criminal offense. And they're using drugs as an instrumentality of crime and what they are doing with it fits within the definition of, you know, trans in the course of non-lawful conduct, which is what you'd have to find for these police officers. How does that not fit? Figurowa didn't plant drugs. He didn't take drugs from the trees and put them in somebody's pocket. What he did is he took drugs found in a particular place and turned them in. That is not an instrumentality of the crime. But we look at the total conspiracy also. You know, it's not we're not just confined to what he did. Are we? The offense conduct should apply to the particular defendant. In a conspiracy? Conduct chargeable by one
. Cortez Caban is distinguishable because the conduct at issue constituted a criminal offense. It's distinguishable in the crucial factual way because in Cortez Caban, the defendants, according to the first circuit, intended to introduce the drugs into society's illicit channels. In fact, at 6.91 F-3rd at 23, note 26, the court says that the defendants in Cortez Caban transferred the drugs to known drug leaders and dealers. That is criminal conduct. Who though charged with it? I mean, isn't that really the point? They were charged with drug misjudging. But if a person finds drugs on the streets of Camden and turns it in to the Camden Police evidence room, they cannot be charged with a criminal offense. That is not a criminal offense. And they're using drugs as an instrumentality of crime and what they are doing with it fits within the definition of, you know, trans in the course of non-lawful conduct, which is what you'd have to find for these police officers. How does that not fit? Figurowa didn't plant drugs. He didn't take drugs from the trees and put them in somebody's pocket. What he did is he took drugs found in a particular place and turned them in. That is not an instrumentality of the crime. But we look at the total conspiracy also. You know, it's not we're not just confined to what he did. Are we? The offense conduct should apply to the particular defendant. In a conspiracy? Conduct chargeable by one. I think it's not the same as the scope of criminal liability is. And narrower, I think, the court's cases on that are clear. That is my distinction for Cajabon. I will take my last one minute to the risk of... And it is a risk. Go ahead. We're at your time. You have a minute. 45 seconds, 44. How about hearing on the harmless, sir? You just speak to that. Figurowa was convicted and bailed was acquitted. But the co-conspirator, I'm sorry, the cooperator evidence was clearly disbelieved. The other part, the other witnesses were clearly disbelieved with respect to bail. The case was almost identical. There are a few minor differences
. I think it's not the same as the scope of criminal liability is. And narrower, I think, the court's cases on that are clear. That is my distinction for Cajabon. I will take my last one minute to the risk of... And it is a risk. Go ahead. We're at your time. You have a minute. 45 seconds, 44. How about hearing on the harmless, sir? You just speak to that. Figurowa was convicted and bailed was acquitted. But the co-conspirator, I'm sorry, the cooperator evidence was clearly disbelieved. The other part, the other witnesses were clearly disbelieved with respect to bail. The case was almost identical. There are a few minor differences. But other than that, almost identical with respect to the two. The only difference is this dramatic finger pointing by his patrol partner saying, you wrote a false report. That's not anything which furthered the conspiracy. But when you look at all of the reports, this report was not an outlier to the scheme. The only interpretation that the jury could give to this report is it was an accusation that was not processed. Thank you. Thank you. The case was well argued. We'll take it under advisement.
Last case of the afternoon is US versus Figaro. May I please court my name is Ralph Jacobs. I represent the appellant Antonio Figaro and with the court's permission I'd like to reserve three minutes for Rebo. Can I say I am most interested in the sentence in issue. I wish you could give us some argument on that. I think that's where we would like to spend most of the time. I certainly intend to address that but I would also like to address the co-conspirator exception because I do think that's a significant issue as well and I'll try to divide my time appropriately. The co-conspirator issue arises in the context of a powerfully inculpatory statement attributed to officer Figaro's co-defendant Robert Bayer. It was not admissible under the co-conspirator exception to the hearsay rule. It was very prejudicial and for that reason alone I think that conviction ought to be reversed. Let me very briefly. It's not admissible under the co-conspirator. That's correct and clearly this is a co-conspirator exception case. It's not a contractions. Correct. I think this Court's opinion in Barrios which came after the trial in the State made it clear that under current Supreme Court jurisprudence this is a rule of evidence case but as the Court noted in footnote two in Barrios the results are often the same, the values that underpin the consultation clause are the same. Cross examination is crucial to the truth finding purpose. Rules of evidence are based on it but beyond that there may be constitutional implications that even if the rules of evidence would permissive this ability. Some other reason of constitutional abortion may be clear. That's correct but what I'm saying is even as a matter of the rules of evidence. Yes, I understand that so I want to know why it doesn't fit under the exception. Under the co-conspirator exception. Let me take one minute and frame the issue. This was a prosecution of two officers who were patrol partners in Camden and the special operation squad. These are the guys who go out onto the streets of Camden and make arrests in high crime neighborhoods. This was the second wave of prosecution. Three officers had pled guilty. They claimed that their fellow officers, Figueroa and Baird were also involved. The defense theory of course was that Figueroa and Baird were not involved. They were merely at the scene of some of these arrests that the co-operators were lying. The issue is that one of the co-operators claims that Baird came to him after one of the arrests and said Figueroa wrote a report that was F-daw. To me, the kind of thing that seems like something that's in furtherance of the conspiracy to me, well I sure want, you know, I want these guys on board. I want them to know how to write a report and how not to. And if Figueroa is screwed around with a report, he better get it straight. That's in furtherance of the conspiracy. That abstract argument, i.e. that somehow Figueroa's report in question was an outlier. It was not properly executing this conspiratorial scheme and that Figueroa needed some schooling to bring him back into the way this conspiracy ought to be operated. That abstract argument was the argument that the government made. The problem is it is unsupported by the evidence, indeed it is belied by the evidence. And most powerful evidence. What evidence? I mean, we're talking about a statement which a court must determine should be admitted or excluded. And that that ruling be pursuant to 801D2E. Now, what's the other evidence that ought to be considered? The evidence is the statement, the report itself. It's government exhibit 500. It appears at page 1844 of the appendix. And all of the reports for the incidents in question are in the appendix. If I can very briefly give you the flame. But I'm trying to figure out why a statement or why a report should somehow prompt a statement which is what is being sought to be admitted. Let me see if I can articulate my question. Please, Your Honor, because I do think there is a powerful issue here. When Bayard, when Perry, the trial witness, says, Bayard came to me and said, Figaroa's report was effed up. Perry was referring to a particular report. It was clear from Perry's testimony because he talked about a particular address. And a particular date, he was referring to government exhibit 500. And I can provide further contact. There was no question at all that that's what he was referring to. If you look at government exhibit 500, that report is no different from any of the other reports authored by Bayard or Figaroa during the entire course of the conspiracy. So what? Isn't it the fact of the statement and the content of the statement that matters here? That's what the government seeks to have. For its import, for its possible effect on the hearer. I guess I may be I'm missing something, Your Honor. I know I am. I cannot make a connection whatsoever between this report and the statement which is what counts. And let me say one other thing in fairness because I'm not trying to tell you how to argue your case. If notwithstanding the fact that the panel told you we are unanimous in wanting to hear about the sentencing argument, you wanted to spend time on this. You got a little more than five minutes. And that I think was implicitly saying about this issue that Doug won't hunt. Maybe you got to go to the sentencing. You Honor, I've been around long enough to know that I disregard that kind of helpful advice of my peril. I will take 60 more seconds in an effort to try and articulate what I think is a very powerful issue. The statement, the only thing that that that bared allegedly said was the reports effed up to me. And I believe based on the evidence, the only interpretation of that is this report contains lies. It is an accusation that figure over is doing something wrong. It is bared saying from a position of innocence, he's doing something wrong. It's not, there's nothing at all about this statement somehow needs to be written differently to preserve the conspiracy, because the statement is written in the same terms as all of the other statements. What I am saying is the only fair interpretation of this statement is bared is saying to a fellow officer, figure over, lied on his report, and that is bad. If bared had been quoted as saying those words, bared being the co-defendant sitting right next to him, clearly it would be inadmissible. What I'm saying is in context, that is exactly what bared is saying. Bared is saying this report is a pack of lies. And the reason we know to step back a second, Judge Kugler says it's ambiguous. It could mean that the conspirators are trying to teach, figure out a right or a report in a different way, or it could mean that it's a pack of lies. I have tried to make the argument in this powerful terms as I can. I will move on, but I urge the court to give it some consideration. And it may become clear after your comments. On the sentencing issue, the real issue here is whether there is drug dealing, whether this is a drug transaction, and the key argument here is physically, the only transfer of drugs is from wherever they were found on the street to the Camden Police Department evidence room. Well, they were held back at some point, weren't they? To use in other situations or planted or reserved in a tree or something? Stetser says that he had drugs planted in a tree. Figueroa was not involved in that. Stetser tells this as the list of- No, it's not. It's a conspiracy. But in terms of sentencing, it's not Figueroa's conduct. Where Figueroa comes on the scene, Stetser gets the drugs from the tree, places it somewhere, Figueroa, either Figueroa or Stetser, one or the other. But the only thing that Figueroa uses drugs are given to the Camden evidence room. The remaining drugs are all found on the street somewhere. They may be misattributed to a defendant, but the only physical transfer is from the point of seizure to the police department evidence room. The difficulty is that the way the guidelines are written so broadly, and the concept of distribution includes transfer, I need to have a theory or principle, and it's not a trendy, it's not a alien, it's not any of these cases. But I need to have a principle that says sentencing judge can't do this, cannot do this. Because you can't, for sentencing purposes, consider something drug distribution, which is not under the law drug distribution. But if it fits in the definition of distribution- Where if it fits under plain text? But when a citizen finds drugs on the street and turns it in, they are not distributing drugs. Well, I know that's, I mean, that is close to the position that was taken by Judge Turella in his separate opinion in Kuthez-Kaban. And I am not with that sympathy to that position. I mean, I just have to believe that this is not the kind of situation that the drafters of the guideline had in mind when they were talking about drug distribution. Or in the case of Kuthez-Kaban, it is an actual prosecution, it wasn't a sentencing issue. But we still have to start with the text, and as Judge Rindell's question has suggested, to me is, how do we avoid that? Because it talks about the offense conduct. And this talk- The distribution includes transfer, didn't we have transfer? But they talk about offense conduct. That's the criminal offense. And so it is implicit that we are talking about criminal activity. If a citizen finds drugs on the street and gives it to the Camden Police Department, they are not guilty of an offense. And so by using, by the guidelines, using the phrase, there is an exception for them. Isn't there an explicit exception that accepts out a police officer who is transferring or somehow moving drugs in the course of lawful activity? But what he was doing, I mean, we provide for that, looking at the drugs, not about the false report. What he did with respect to the drugs, the physical transfer of the drugs, was lawful, he was taking them from where they were and turning them in. But it was not in the course of lawful activities because he was disobeying the law as part- This was part and parcel. Not the drug distribution law. No, I know that. Thank you. All right, thank you. We'll hear from you on the phone. House, sir. How can Judge Kugler come up with such a very, very, very long sentence for this one defendant where the others got off with less than four years? Okay, well, let me go through all four of them. I think when you look it off for it all, it'll make more sense. Did I had no prior history? Yeah, this was actually what went below. This was a one month downward variance for the part, wasn't part of a one month variance below the guideline level. His guideline level was one point one to whatever the top of the range is. It was based on the drug distribution guideline, as I'm sure you're aware. But let me talk about the disparity with the other three. Stetzer was the other person who received the next license. He received, I believe, 48 months. If you look at his, he had the exact same guideline range minus the three points. If you take the three points off, he's down to an 87 at the bottom of the range. He got approximately one third off for cooperation. He testified at trial. That's perfectly understandable. Perry also started with the same guideline range bottom of which was 87. He did significantly better. He was the 20 month. And the reason he did was because he was the first police officer who came in. He made the case. The other one who got the eight month sentence was Morris. The difference there was he was not in fact sentenced under the drug guideline. He was not involved in any of the drug distribution. He was done in for a shorter period of time in the conspiracy. He was the one who was injured early on in one of the incidents and he retired from the force. So he was in a different category altogether. When you look at them, they're actually, I mean Judge Kuhler sat in on the trial. He saw them all testify and he knew what their roles in the offense were. I mean, the underlying offense is here. There's a fact falsification of police reports that as a guideline range is testifying falsely, the curtail has guideline range. Where does this drug distribution come from? Well, your honor. I mean, clearly drugs were used as an instrumentality of this crime. And there is some poetic justice here in the sense that what the officer was trying to do was he was trying to guild the lily and send these people to jail for more time than they were otherwise entitled to in particular instances by attributing more drugs to them. So it sort of came around back at him in that respect. So rather than some of them obviously did go to jail and went to jail for significant amounts of time before they were overturned and the study of candidate obviously. Can the concept of poetic justice be written into an opinion in any way I'm wondering anything? Well, I think the point that Judge Randell was making is, is there anything in the guidelines that prohibits this? I mean, I think Judge Kuhler had a range of options here. And I'm not convinced that every judge would have applied the drug guideline here. My strong suspicion is not everyone would have. But the question is, what's it within his discretion? Well, the fact is the opinion is the separate opinion of Judge Rowan Corteska-Lon makes much of there ain't any other cases like this out there. Yeah, and that finds that a particular weight, frankly. I don't know that I would give it as much weight, but it is something that's worthy of note. And they were involved with a prosecution as opposed to a sentencing. And you do, in a sentencing context, you have to look for analogies and you have to make some value choices about what the best analogy is here. But when you're using drugs as an instrumentality of the crime as they were here in order to make a case, make a case stronger to take, in some instances, people who weren't associated with the drug at all and essentially planted on them. But what about the textual? Isn't that your strongest argument here? Yes, since this certainly is not the standard paradigm one thinks about. When he or she is thinking about drug disc. Yeah, I mean, we're urging you to follow the reasoning of the first circuit in Corteska-Bahn and they rely on the plain language of the statute. They rely on the plain language of what it means to distribute. And here we have a distribution. We have a transfer from this was behind the tree. And in fact, Figueroa was involved in it. Now, Figueroa didn't stash them behind the tree. He's right to say that Stetsr had stashed them. But Figueroa wrote this particular report. They were brought out. This was one of the things that Stetsr that Figueroa participated in. So he's implicated in this particular transfer that goes from behind the tree to, I guess, there's no indication that they were actually planted on the individual, but brought to the evidence room and then attributed to the individual here. Who makes the decision to push a certain guideline range? I guess was this in the PSR? It was in the PSR, Your Honor. I believe it did originate from our office, though. That's my understanding just from the side conversation. But in the record, the PSR has this. They produced that little chart that I put in my brief that showed. And again, the guidelines says you look at what the underlying offenses are. And they did a calculation for each underlying offense. And for this one, and as you say, the indictment charged planting drugs as one that was clearly charged in the indictment. And as Judge Gugher said, this was an important part of the case. The application note says, any conduct established by the offense of conviction that constitutes an offense under federal state or local law. I guess the question is, what was established by the offense of conviction here? Well clearly under Cortes Caban, if this court follows that, the majority opinion there, that the act of planting drugs by police officers is distribution. And frankly, even Judge Torella in his separate dissent didn't really take issue with that. Well, but Cortes Caban involved a charge precisely of drug distribution. Oh, sorry. And the issue was sufficient. It's a efficiency of the evidence. But we didn't, I mean here we didn't charge perjury. We didn't charge any of the underlying offenses. This is civil rights. You didn't. You clearly charge one. You can count one conspiracy to pry the others of civil rights. It was what? A three count was a three count? It was actually a six. But what would you do? You do as an object to the conspiracy in your indictment. Go on to list planning of evidence using property, risk of drugs, adding drugs, stealing drugs. Yeah, I mean, the guidelines clear. I don't think there's any dispute here that what you're supposed to do at sentencing is to figure out what the underlying conduct, what it would be as an offense. It could be a state offense. It could be a federal offense. And that's where the judgment is implicated. That's where Judge Cooper has to say, what is it that was proven here? And he concluded that one of the things that was proven was drug distribution under under the first circuits reasoning. Now it would be a different case if drug distribution had a higher statutory maximum than the civil rights violation itself. Would it not under a trendy? Would it not have been problematic? Oh, well, we couldn't have sentenced him beyond the statutory maximum here, which was 10 years plus two. There's no, we wouldn't have sought that and we'd never contended with that. But that's again, they weren't convicted of that crime. That's what the judge used by analogy in order to get to the proper guideline. I did have a conspiracy of violence. Yes. That's, I'll say that that's our position. There's nothing impermissible in the guidelines that says he can't exercise his discretion in this manner. We think the first circuit decision was in fact well reasoned and we think even the descent here isn't really keyed into it was keyed into the possession with intent to distribute, but not distribution, which is just the problem that we're relying on here. So it's not really even got into an act of serious versus intent dichotomy, if I recall, you're trying to get the dissent to the same opinion. Yeah. Yeah. Would you address the statement issue that was raised by you? Sure. You're on a judge's Google made a factual finding. He found by upon us the evidence that this statement wasn't further into the conspiracy. Basically, there were two choices, but before him, there was the choice that the defendant put forward, which was, I'm sorry, can I use you said he made a factual determination? What was he found by a preponderant? Did you say where or what? What was that factual determination? The finding was by preponderance of the evidence that the statement made by the defendant, which he's complaining about the report being screwed up, was in furtherance of the conspiracy. It was made by a conspiracy during the course of the conspiracy in furtherance of the conspiracy. He had really two choices. I mean that did he make that at the time? At the time that the evidence was moved? Well, he was made subsequently. It's clear in the record it was clarified at the end. The way it actually came out was... You'd agree when you should, the better practice would be for a trial judge to make that determination on the spot when the evidence is moved or when someone seeks admission. Absolutely. He did not do that. Absolutely. The way it came about was there was a pre-trial hearing, but he did telegraph what he was looking for. He said, look, I haven't seen the evidence yet, but if the evidence comes in in this way, then I'm going to find it's admissible. When the time came, the original objection actually was from Council for Bayard. But it is preserved Council, Mr. Jacobs did preserve it. He said for the reasons we previously argued, and the judges said denied. And then he clarified at the end that what he had pre-saged at the beginning was in fact the basis for his holding. So there are certainly plenty of facts in the record that would support the investigation that he gave it. Mark O'Connor just assumed for argument purposes that the appellant that Mr. Jacobs argument on the evidentiary question is correct, that it was erroneously... What about Hormel's area? Well, you're on or on this particular count. The evidence actually was quite strong. What the jury seemed... and the jury did not find for us at all, Council. The jury seemed to be looking for was corroboration. And on this one, you had officer Gallyaazzi, who was not implicated in any wrongdoing at all. And he came before the court. Let me just say what the report said that ended up being the falsehood. Basically according to Officer Figueroa, what happened was they engaged in a high-speed chase. They went to the residence. And in plain view, they crossed the threshold into the house and plain view he found the gun. Officer Gallyaazzi said two things. He said there was no high-speed chase. I would have heard about that on the radio. That just didn't happen. But more importantly, Gallyaazzi said, I found the gun. It was in the upstairs bedroom. Now that obviously was corroborated by the three cooperators we had. The cooperators had some problems. The jury didn't accept it. Based on everything they said. But for the two Council of Conviction, there was corroboration from officers who were not implicated in any wrongdoing. In that respect, there were phone calls. There were phone records that verified this. What the cooperator said was that after this they had seized some money as well. When they got off their shift at two o'clock, they were supposed to split it up. I was waiting for Figueroa to get the money. I called him eight or ten times between two o'clock or five o'clock. The telephone records showed that in fact phone calls were made on a regular basis between two and five. The phone they never got through. But there was at least corroboration here that the jury found very powerful. Certainly the testimony of the young biased officers corroborated all three other cooperators that said as well. That was a strong one. Interestingly, the argument is that that was something that was going on because that was Bayard was acquitted on that while Figueroa was convicted. In fact, our witness, Galeazi, for better or worse said that Bayard didn't say was involved. He said he was in the car the whole time. When they came to the house and he did the search, Bayard wasn't there. It actually gave the jury a good reason to separate the contact between the two. Something quite different from this report, which Judge Kubler said really wasn't a big deal in this case and wasn't referred to in closing arguments. I don't think that there's much there. If there are no further questions from the court, I'm happy to link with you to the rest of my time. Thank you, Your Honour. Thank you. Cortez Caban is distinguishable because the conduct at issue constituted a criminal offense. It's distinguishable in the crucial factual way because in Cortez Caban, the defendants, according to the first circuit, intended to introduce the drugs into society's illicit channels. In fact, at 6.91 F-3rd at 23, note 26, the court says that the defendants in Cortez Caban transferred the drugs to known drug leaders and dealers. That is criminal conduct. Who though charged with it? I mean, isn't that really the point? They were charged with drug misjudging. But if a person finds drugs on the streets of Camden and turns it in to the Camden Police evidence room, they cannot be charged with a criminal offense. That is not a criminal offense. And they're using drugs as an instrumentality of crime and what they are doing with it fits within the definition of, you know, trans in the course of non-lawful conduct, which is what you'd have to find for these police officers. How does that not fit? Figurowa didn't plant drugs. He didn't take drugs from the trees and put them in somebody's pocket. What he did is he took drugs found in a particular place and turned them in. That is not an instrumentality of the crime. But we look at the total conspiracy also. You know, it's not we're not just confined to what he did. Are we? The offense conduct should apply to the particular defendant. In a conspiracy? Conduct chargeable by one. I think it's not the same as the scope of criminal liability is. And narrower, I think, the court's cases on that are clear. That is my distinction for Cajabon. I will take my last one minute to the risk of... And it is a risk. Go ahead. We're at your time. You have a minute. 45 seconds, 44. How about hearing on the harmless, sir? You just speak to that. Figurowa was convicted and bailed was acquitted. But the co-conspirator, I'm sorry, the cooperator evidence was clearly disbelieved. The other part, the other witnesses were clearly disbelieved with respect to bail. The case was almost identical. There are a few minor differences. But other than that, almost identical with respect to the two. The only difference is this dramatic finger pointing by his patrol partner saying, you wrote a false report. That's not anything which furthered the conspiracy. But when you look at all of the reports, this report was not an outlier to the scheme. The only interpretation that the jury could give to this report is it was an accusation that was not processed. Thank you. Thank you. The case was well argued. We'll take it under advisement