Legal Case Summary

Thank you, Your Honor. Your Honor, I'm Mary Jude Darrow and I was appointed to represent Mr. Eric Fields after he was convicted in the Eastern District of North Carolina. Your Honor, I see two main issues that I wish to address on this of the three. The sentencing is something that I'm not going to go into unless you prefer because the first issues are the conviction. And in all fairness, in this case, the timing of it when I received it and read that the transcript was impressive. What I would, in light of Bartco, it came to me right about the time that Bartco came out. I would not argue that this is as egregious as Bartco, but the result is egregious in this matter. What we have here is a case obviously, and I think both sides have agreed to this where we had some complications among the attorneys because it was the second time the case was tried. But the law is and the rule is that the evidence presented to jury is that which comes from the witness to it, and is presented either as physical or testimonial evidence. The fact is that Mr. Fields was at a residence for only a few moments. We don't know if he entered or not, but it was obviously a residence that he had some connection to because personal items were located inside. But what was the crux of this is that the law enforcement officers had no knowledge of him. They see him, they approach, he throws something, and all of a sudden he said, trial. This is a matter where the government, and I'm not saying just the prosecutors, your owners, but it was a poorly investigated, poorly prepared and presented case. Was Mr. Fields, did he have knowledge, proofs that they had knowledge of this conspiracy or of the narcotics involved in conspiracy? And it is absolutely lacking. The government hangs on the fact that when- Absolutely we're talking about the conspiracy. Very lacking on the conspiracy, not of course, possession, but which I guess you want to dress next. But conspiracy is really the one you hone in on now. That's a larger one, but you're right. I would also argue that it's lacking on the possession. Big with a conspiracy right now. Okay, I shall do that. Very well. The evidence presented at trial was that the- and even in the briefs, is it one, two, three, four, five different people were well tied into a conspiracy. That is they get the lowest denominator who's by small amounts of crack and they go up the chain, going to his source, the next source, the next source. Very simple, very straightforward for narcotics offense or conspiracy case. And most of those individuals made statements whether by recordings, undercover recordings or in debriefs, acknowledging their role, not one of them mentioned Mr. Fields, not one included him in the conspiracy

. During the trial, they called one witness, Mr. Ballard, who talked about how he brought narcotics, the approximately two kilograms of cocaine to Bailey's house. But even he would not and did not say how Mr. Fields came to the house, why he came to the house, what his purpose was in going to the house. And so to show the knowledge, the record is bereft, there was no evidence properly admitted that tied Mr. Fields into the drug conspiracy. Obviously, if his personal items are located in Bailey's house, that's one thing. But because two people are using a house or one lives there and one is storing things there or periodically visits does not mean they have knowledge of the conspiracy that there has been an agreement. I know on narcotics cases it doesn't have to be an agreement, but knowledge in some form of consent to that conspiracy. It is completely lacking. The critical evidence in the first trial is you have evidence that Lewis is cousin. That does not come out in the second trial. Does not come out except- You don't connect them up relationship wise with anyone, nobody really knows him. Right. For purposes of the trial wherein he was convicted, all you have truthfully and ballerde's testimony can in some way be disregarded, which what the evidence was was police officers are going to go over and do a search of Bailey's residence. They see my client pull up in his car, go toward the door, which they could not- I mean they admitted they couldn't tell whether he went in or not. And as he comes out all of a sudden a group of men in swat closed with big guns come at him, his eyes pop and he throws something. And the- Well he turns around, walk back to a fence and he throws something. Then he turns around, clearly as though what can I do for you gentlemen? Well I'm not sure if it was cavalierly. Well that's not true, my. That's sort of it reads. In the middle of the night, late night walking toward a bunch of men's swat out his, I'm not sure how cavalier anybody could- Turn around pretty calmly, way back to him. And so he went to, he didn't run, which typically the instruction would be, well that's evidence of guilt, he'd not run, he broached them. And into that, and this is what ties into the possession charge, is that he threw something at, no point in time, nowhere in the record is there anything that addresses what it was he threw, he threw something. But the negative, the things that would show that those packages which they retrieved were the only things in that backyard. It was near little garbage can. No fingerprints, no testimony about what else might have been out in that backyard. Even if they had managed to bring in to evidence the fact that there were no other packages on the ground, so by inference or looking at the totality of circumstances had to be that cocaine. It's just, we went and we picked up two packages, it's his. That goes to the weight of the evidence, doesn't it? It does, sure

. But now, and now haven't been convicted, what's our review of that now? All infrases and favor of whom? The state, excuse me, the government, in the light most favorable. What are you doing? That goes to the weight. How do you get around that? How do we see someone throw something that looks dark over a fence? Police officer goes there directly after that and finds drugs. That's not a reasonable inference that in terms of the fact that what he threw was drugs. If it turns to our review now? It may be your honor, but I think it also goes to the sufficiency. And I think it ties into how we get to the additional evidence about his cousin being involved in the narcotics trafficking. If it was sufficient enough, then there is no need to discuss a manual Lewis. There is no need to argue about a manual Lewis. If this evidence from the officers was sufficient, he threw, we went out there and we picked something up from a fairly large backyard. And that's sufficient, then a manual Lewis didn't have to come in. But lacking proper, as I always put it, crossing of teas and dotting of eyes to tie those packages in to the defendant. There's that extra step that was made by the government. And that extra step was, oh, well, please have to tie it to the conspiracy somehow. They can't just tie it to the defendant. The government has to then connect your client to the conspiracy somehow. Exactly. And they couldn't. They were unable to do that. What about the similarities in the packaging of the drugs they found in those marks that are used by the conspirators to mock their drug? That's an issue, your honor. And I have to conceive. That's an issue. That's a fact. Yes. That's an issue against my client. The similarity in the fact. And also one about the nature of the personal items of his found. How many people leave their uncashed payroll checks and somewhere else is garage? In a, I believe in a garbage bag, your honor? Right. Well, sometimes when people are in transit, they store personal items and somebody else. Oh, so you think it means he actually lived there then? I did. That seemed stronger

. I said that he, no, yes, you did. With all due respect, no, I said he's storing things there. As in, when sometimes people move around, they, they, they, so they once lived there, right? For me? They once lived there, you're saying they move around? No, what I'm, what I'm saying, your honor is that in, sometimes people don't have a place to live. They take their personal items, they store them in somebody else's garage. Was there evidence of that? No, there's no evidence as to how it was there. Nothing in the room. Some say, but this is no magic thing you're bringing in. And is there be all the whole cloth now at this point, wouldn't it? Wouldn't it? I, I, I don't know you're doing the job for your client, but, but, I understand your, but I, I don't think so. People store things in other people's homes when, when, you know, relatives or friends. That is true. People do store. But, but, but, they do. But, uncashed payroll checks. Uncashed payroll checks. In a bag. Yeah, and account of, it all is against being nomadic because you have so much money you don't even cash to checks that you already do. It's been written to you. And I cannot explain why my client had those there, but perhaps he didn't need that money. He may have, in a number, but I'm just saying that you do have to look at the nature of the personal items. It wasn't like, yes. Just, I mean, like, you know, a ring was there, maybe I dropped it, it was something like that. Yes. But, personal clothing hanging in a closet. That wasn't there. Deodorant, razors, toothbrushes, all of those things. Bills were not there that were in the mail. What about the lawyer himself argued that, well, just because you related to somebody that didn't mean that you have an relation with this, his argument, his lawyer argued that? I believe he did, your honor. And yes, I absolutely agree. The relationship. In that waiver, even if it was wrong for the government to introduce it in that waiver, when you take it up the mantle yourself and say, yeah, well, just because you related somebody that didn't mean you had a conspiracy with them, he's conceded that any way that? I think once it was argued and the cat was out of the bag that counsel for the defendant did the very best he could to try to minimize the damage

. Is there a motion for mistrust? There was no motion for trial. That's not the best you can do that. There is no objection, your honor. That's not necessarily the best you could do on those circumstances when he came in, errantly, by the government. Correct? Is that right? I would have to concede that your honor, your absolutely correct. All right, go ahead. But... Problem there is, in the first trial, there was evidence of a relationship. The second trial, nothing was introduced. There was no evidence. Regardless of who argued it, there was no evidence he was related to this individual. Correct. So even in determined and sufficientcy, the evidence is not there. It may be an argument, but not an evidence. Correct. And that's the bigger issue. That's the point. Part of it. We talked about the conspiracy, which is one promise, but now it's a possession deal. I mean, we've had... I know there's an unpublished case we've had here. What is it? Maybe I'll pronounce it wrong. Cicero was a case we had in which the defendant was jumping over a fence or something like that. And then they found a bag later on. And they tied him.

.. We tied him to him and said, he's guilty of possession. Your guy goes and several witnesses sees him throw a package. Some say one, two, I don't know what they find two, whatever, but they throw something. And he turns around. How can we distinguish... If we... And I know unpublished is not presidential, but it's guidance and it's all cool. How can we distinguish that case? One thing. My client... One thing. My client did not flee your honor. He turned around and then approached the officers, put his hands up, obeyed all orders to... Or from the officers. But he didn't just come out of the house and hold his hands up. No. He turned around. He may not have run. He walked away from... He saw him

. He walked away from him intentionally. Then once he had discarded whatever he did, then he turns around. But that's a little different. There's no need to run if you don't have anything in your hand. Or something else to the tie you to it. So maybe he made that determination. That's probably pretty smart. I mean, you got a bunch of SWAT team members out there. It's not a good idea to run. He's been in the neighborhood a little bit. A great honor, but it was night. It was from a distance. They don't know how much he saw of them. It is clear the witnesses saw him throw something over that fence. And it is clear that cocaine was found on the other side of that fence in a package. And I'm just saying that the distinguish that from the severe case is difficult. Because in that case, the defendant was climbing over a fence. He left from there. Then they found his package. They didn't know and said they saw him throw anything. It was just there. And he was found guilty of that on the peel. Perhaps so. I'm a possession. Councilor, you want to respond to deadware? Your time has gone, but you can just... What about this? If, in fact, the evidence is sufficient for the possession. And you're correct that the evidence was not sufficient for the conspiracy. Is it harmless? Because in terms of sinnesty, didn't he get the same thing? And it was just grand concurrently? It would be harmless

. Because he get the same sinnesty on possession that he got for the conspiracy. Only if the possession stated the quantity and I'm drawing a blank right now, I would assume that it did state quantity of narcotics involved to set the mandatory minimum. And if that were the case, that is true. If I may, I'm out of time at this moment. Yes, thank you. Thank you so much. Mr. Rogers. Good morning. May it please the court. My name is Joshua Rogers, and I represent the United States. At the outset, we do want to make something clear. There is no question that it was inappropriate for the special AUSA in this case to argue facts that were not in the record. The United States attorney takes this very seriously, and we are not here to defend that aspect of the prosecution. That fact that was not in the record was that the defendant and Emmanuel Lewis were cousins. We do think it is appropriate, however, to defend the validity of the jury's verdict. And we're confident in doing that because when those comments made by the prosecutor are viewed within the totality of the record, there is no question that the defendant was fairly tried. I do think it is important to note at the beginning that even if this court were to vacate the conspiracy conviction, it is accurate that the sentence would in fact remain the same because the district court only held the defendant accountable for the amount he personally handled on the night he was arrested. And the district court said that this sentence is only for the amount you held in possession. I guess I'm trying to understand the homel aspect that if a court has two convictions, it's going to give a sentence. But if you don't have one, and you can get that same sentence for that one, it is harmless. In this case, it would be because at the request of defense counsel, the court responded by lowering the defendant to levels after he only held the defendant liable for the amount that was thrown over the fence. So that was the amount he personally distributed. I do think it's important to first begin by addressing the sufficiency of the evidence because it provides a backdrop for judging the impact of the prosecutor's statements during closing on the which charge with regard to the conspiracy charge. I think it's a really hard sell that defendant did not distribute. So I'll move on to conspiracy because that seems to be where the crux of some of these issues are. There are three central players here. First of all, we have Bailey, then we have Ballard, then we have Defendant. Bailey? Not of the rest of them, no Defendant. We don't have that in the record

. There's no evidence that any of them knew anything about them. We don't just them on it from any of the Koch conspirators that they had any knowledge of an agreement to conspiracy. So none of those other witnesses tie him in. They don't. We do not have the evidence that he is the cousin of one of those other ones because you didn't do that the second time around. So what you got is a defendant who's in the front yard. He comes out, goes up the house. You don't know if he goes in or not. And he sees this what he turns around walks back through something. Everybody says he's threw something. And he turns around and says, okay, what is it? Or something that effect? And you say that's a constriction. We don't say that that's a conspiracy. What we need to do is to look at this. What other evidence do you have beyond that to show conspiracy? It's important to start with Bailey and ask who is Bailey. He is at the top of a drug distribution chain. Nobody's arguing that. And he resides in a stash house. We know it's a stash house because officers had information from at least 18 months that he had large quantities of drugs in that garage. He also has other conditions including firearm, ammo, cell phones. But most importantly, he has a food vacuum ceiling appliance that's used to mask the scent of drugs. And he has food saver bags that have a diamond-like pattern on them. It's very unique. Then that leaves us. You can only get them. You can't get these certain bags in just any grocery store. What makes it unique in this case is that everybody seems to be able to recognize that's the bag. Whether or not you can't get it in a grocery store, that's not in the record. What do you mean that's the bag? When people were asked, do you recognize this bag? The officer said that appears to be the same bag that we saw at Valertouse. When Valert's asked, do you recognize this bag? He says, this looks like the same bag I used. How different to say that appears to be the bag we saw there as a seeing that's the bag

. Well, I'm sorry, Your Honor. The more accurate interpretation of what they were saying was, these appear to be the same type of plastic that are being used. The exact as question. So we have these food saver bags that look particular and that leaves Valert and Defendant. And if we want to figure out how their role ties in, we have to look at the events of August 20th through 22nd. What happens on August 20th? Valert goes to Hartley Bailey's house. He walks out with three kilos of cocaine. It's vacuum sealed in this particular wrapping. He carries it as instructed by Bailey at his midsection. And the intent is for him to deliver two kilos and then sell one. But he brings it back to Bailey because he's unable to locate the person that he was supposed to deliver it to. And he also discovers that when he tries to cook it, it's low quality. What happens the very next day? Defendant shows up. He goes to this stash house. He walks away from the stash house with 1.6 kilos of cocaine that's vacuum sealed in this same patterned plastic. He carries it at his midsection. The same way that Valert said he was instructed to carry it. I'm not sure how else you would carry that. I mean, does somebody have to instruct you that you would conceal it in that manner? I certainly would conceal it if I was carrying that. What we know from Valert is that Bailey did give instructions. He was in a position to tell him where you ought to... And Valert was part of the conspiracy. Yes, sure. And never testified. Nobody testified that Mr. Fields was part of the conspiracy. He did not testify that he was part of the conspiracy, but he did provide evidence that indicated that he was

. And there was evidence and other indisha of drug dealing in Mr. Bailey's house and you listed it. One thing you left out was that there was a tally sheet for the drug deals in Mr. Bailey's house. And of course, Valert's name was on it because he was part of the conspiracy. Was Mr. Fields' name on it? It was not on there. What we do know, though, as he goes outside, he looks. Officers begin repeatedly. All of them are saying, stand down and giving him verbal challenges. And what does defendant do? He turns around and bristly walks to the corner of the house, reaches for his midsection. And some dark object flies over the privacy fence. And when officers look, they find 1.6 kilos of cocaine that's in a rectangular shape. And what do you know? It fits perfectly in a shoebox top in Bailey's home. Well, when you get down traditionally, the legal definition of conspiracy, the ultimately something, the sure and agreement or something, within the drug world, as you know, we've done a lot to weave meaning the whole system to make it really very, not so difficult to prove those things, but this is really bare bones. You start it out by candidly, and I give you credit for that, sort of acknowledging this is not exactly something that's on all fours here. And it just sort of fits. You really have to string a lot of stuff to get to where we are in this case. The possession charge, I mean, we've got this unpublished case, I'm not sure what that means. I mean, you throw something over a fence. It really is tenuous, but there's the timing of it. There's the coming out of the house. There's some other inferences. It seems to take on a different posture. So it seems to me, if you're telling me that possession is going to get the same sentence, what would you lose by simply saying, okay, possession, go for it. Let's go for that and y'all know conspiracy. I know that takes a lot to say that, but in and of the day, it sounds like the same result happens. He's going to stay in the jail for the same amount of time. If this homeless error possibility, even we send it back, the likelihood is going to get the same sentence. If possession is there. Well, the reason why we are not making that argument is because it doesn't comport with the standard of review, and that is viewed in the light most favorable to the United States, was there substantial evidence to support the verdict? You have a substantial emphasis, and the evidence itself is lacking in many respects in terms of the agreement. Yeah, what you have is something that looks bad, and if someone wanted to find it, even a jury the first time around couldn't reach a verdict on it. So then you go back. For some reason, you don't tie in a manual Lewis. I grant you. If you put manual Lewis's cousin, you might would have a strong case on that, but you didn't do that. That had to be a fatal error, at least a critical error, not to tie him in in that manner. Other than to say, he walks out of the house, he's got something that looks like it's cocaine. Nobody knows him, never heard of him. No one testifies that he knows him, and he's got a package that looks like the package in there. Therefore comes fear of sin. Well, again, as we walked through, this is not just he walked out and he happens to have a package. He's doing something very similar to Ballard the day after. There are connections between these two exports of the drug from the home, and again, this court has stated, it's not he's not required to be related to anybody. He's not even required to know these people will. The court has stated that there has to be a tacit agreement or a mutual understanding. There needs to be a slight connection between the defendant and the conspiracy. He can only have a, if he only has a minor role, that's enough. Very uncomfortable when we get into this slight connection stuff. I mean, we don't do this in any other kinds of cases. I mean, this conspiracy thing is, there's a limit. It has to be a limit in terms of where you go with that. I would think what we're, I would think what would make the court more comfortable is when we look at the evidence that demonstrates a relationship between the defendant and Bailey that predates the arrest. And that is, again, there's a blank personal check in Bailey's bathroom. There are two five month old uncast checks that are worth $1,000 in the garage where the drugs are kept. And there's trust here. You don't just walk away with 8,000 dose adunites of cocaine, which can be turned into 16,000 crack rocks without having some relationship of trust. This isn't somebody who just randomly walked up and said, I would like to be a drug entrepreneur. I think I'm going to walk away with this much

. If possession is there. Well, the reason why we are not making that argument is because it doesn't comport with the standard of review, and that is viewed in the light most favorable to the United States, was there substantial evidence to support the verdict? You have a substantial emphasis, and the evidence itself is lacking in many respects in terms of the agreement. Yeah, what you have is something that looks bad, and if someone wanted to find it, even a jury the first time around couldn't reach a verdict on it. So then you go back. For some reason, you don't tie in a manual Lewis. I grant you. If you put manual Lewis's cousin, you might would have a strong case on that, but you didn't do that. That had to be a fatal error, at least a critical error, not to tie him in in that manner. Other than to say, he walks out of the house, he's got something that looks like it's cocaine. Nobody knows him, never heard of him. No one testifies that he knows him, and he's got a package that looks like the package in there. Therefore comes fear of sin. Well, again, as we walked through, this is not just he walked out and he happens to have a package. He's doing something very similar to Ballard the day after. There are connections between these two exports of the drug from the home, and again, this court has stated, it's not he's not required to be related to anybody. He's not even required to know these people will. The court has stated that there has to be a tacit agreement or a mutual understanding. There needs to be a slight connection between the defendant and the conspiracy. He can only have a, if he only has a minor role, that's enough. Very uncomfortable when we get into this slight connection stuff. I mean, we don't do this in any other kinds of cases. I mean, this conspiracy thing is, there's a limit. It has to be a limit in terms of where you go with that. I would think what we're, I would think what would make the court more comfortable is when we look at the evidence that demonstrates a relationship between the defendant and Bailey that predates the arrest. And that is, again, there's a blank personal check in Bailey's bathroom. There are two five month old uncast checks that are worth $1,000 in the garage where the drugs are kept. And there's trust here. You don't just walk away with 8,000 dose adunites of cocaine, which can be turned into 16,000 crack rocks without having some relationship of trust. This isn't somebody who just randomly walked up and said, I would like to be a drug entrepreneur. I think I'm going to walk away with this much. The estimate at, down crack cocaine as it was the other doesn't sound like he could have turned that to any crack. Either way, the estimate trial was that it was worth $100,000 to $150,000. Someone's not going to walk away if they don't have a longstanding relationship of trust. And in fact, we know from defendant's own brother that they had a prior relationship. So that's uncontested. And now, with regard to Ballard, these two do know each other. We look at the, that scene at the transport van. It's actually very critical to look at those facts. It tells us so lot. Defendant is in there with three other co-conspirators. And who does he direct his attention to? Ballard. He looks at Ballard, puts his fingers to his lips, and says, keep it hushed. He says, I was at Bailey's house. And then he shares his alibi. After saying, look, I realize it's essentially acknowledging it's risky because maybe I'm under surveillance, we may have video or audio, so be careful. What does it tell us? He knows and recognizes Ballard. He's comfortable talking to him about the crime that he's committed. He wants Ballard to keep quiet about something, and Ballard knows something that would contradict his alibi, so it's important for him to tell him. What, what we have here is when we take these three- We have to use post arrest evidence to show the existence of a possible agreement based upon indication that he knows the individual. Oftentimes, we use defendants' admissions in jail houses where they tell someone I was involved. This isn't exactly that, but what it is is this idea that... There is an inquiry crime. It's a different crime in some sort of a way. You've got to possession, but conspiracy sort of... There's a little more here than using jailhouse testimony to say you committed a murder or you did something else. Well, the idea that defendant has no connection to Ballard, that this is just some new relationship and that we don't know anything about it, it just doesn't comport what happens in that van

. The estimate at, down crack cocaine as it was the other doesn't sound like he could have turned that to any crack. Either way, the estimate trial was that it was worth $100,000 to $150,000. Someone's not going to walk away if they don't have a longstanding relationship of trust. And in fact, we know from defendant's own brother that they had a prior relationship. So that's uncontested. And now, with regard to Ballard, these two do know each other. We look at the, that scene at the transport van. It's actually very critical to look at those facts. It tells us so lot. Defendant is in there with three other co-conspirators. And who does he direct his attention to? Ballard. He looks at Ballard, puts his fingers to his lips, and says, keep it hushed. He says, I was at Bailey's house. And then he shares his alibi. After saying, look, I realize it's essentially acknowledging it's risky because maybe I'm under surveillance, we may have video or audio, so be careful. What does it tell us? He knows and recognizes Ballard. He's comfortable talking to him about the crime that he's committed. He wants Ballard to keep quiet about something, and Ballard knows something that would contradict his alibi, so it's important for him to tell him. What, what we have here is when we take these three- We have to use post arrest evidence to show the existence of a possible agreement based upon indication that he knows the individual. Oftentimes, we use defendants' admissions in jail houses where they tell someone I was involved. This isn't exactly that, but what it is is this idea that... There is an inquiry crime. It's a different crime in some sort of a way. You've got to possession, but conspiracy sort of... There's a little more here than using jailhouse testimony to say you committed a murder or you did something else. Well, the idea that defendant has no connection to Ballard, that this is just some new relationship and that we don't know anything about it, it just doesn't comport what happens in that van. Where's the J.A.? What's the joint opinion excitement of what you were just reading? I will look that up for the court, and I will have it to you before this argument is over. When we take these three relationships and consider the events of August 22-22, we can't help but conclude that the evidence was sufficient to establish the defendant had much more than the slight connection that's required. If the court could give me just one moment, I will actually... This was at J.A. 133 and 34, and actually ends at 35. I do want to note something. In my recitation of the facts of why the United States evidence was sufficient, there was no mention of a manual Lewis. I didn't need to mention a manual Lewis. We could establish our case without him, and it underscores the fact that when the special AUSA did that during closing argument, yes it was inappropriate, but it was not even necessary and it didn't rob the defendant of a fair trial. Now, with regard to the two-part test, first of all, the comments have to be improper. We've stated they were improper, there's no excuse for them. Second of all, though, it has to so prejudice-definite substantial rights that it denies him of fair trial, and based on the six factors that are considered under that, that just didn't happen here. The third factor is the strength of the evidence, absent the remarks. We basically just walked through that, and we do believe that the evidence could stand alone without the remarks. But you must have missed miserogies. It's somewhat thin, isn't it? You have evidence, but it's then as to the conspiracy to some degree, because one, you can't establish that we have false-circuit impressive about this, and Judge Wynn is correct. When it comes to conspiracy and drugs, the fourth circuit is made that the burden is not as hard for the government as you would think it might be, but you can't show in this evidence that he got the drugs on credit. You don't know they pay for them or not, because you don't know what he had with him when he came to the house. He could have had the street value, the going price of the drugs with him. It's a lot of times that the four circuits say, well, if you are taking getting drugs on credit, then that's evidence of a conspiracy, but here you can't establish that. You agree, correct? You don't know they paid cash money for those drugs and not do you? A lot of the context is missing, yes, Your Honor. Yeah, you don't know that. So therefore, what you've shown is that it best is that he possessed those drugs, and he purchased them from a stash house, and it would be consistent to have markings on it like that stash house, because that's what he bought it from. That doesn't prove conspiracy, it just means that you know, you go to a store and the store's name is on what you purchased because that's the store. He went to that store, so that's not consistent with conspiracy, that's the item

. Where's the J.A.? What's the joint opinion excitement of what you were just reading? I will look that up for the court, and I will have it to you before this argument is over. When we take these three relationships and consider the events of August 22-22, we can't help but conclude that the evidence was sufficient to establish the defendant had much more than the slight connection that's required. If the court could give me just one moment, I will actually... This was at J.A. 133 and 34, and actually ends at 35. I do want to note something. In my recitation of the facts of why the United States evidence was sufficient, there was no mention of a manual Lewis. I didn't need to mention a manual Lewis. We could establish our case without him, and it underscores the fact that when the special AUSA did that during closing argument, yes it was inappropriate, but it was not even necessary and it didn't rob the defendant of a fair trial. Now, with regard to the two-part test, first of all, the comments have to be improper. We've stated they were improper, there's no excuse for them. Second of all, though, it has to so prejudice-definite substantial rights that it denies him of fair trial, and based on the six factors that are considered under that, that just didn't happen here. The third factor is the strength of the evidence, absent the remarks. We basically just walked through that, and we do believe that the evidence could stand alone without the remarks. But you must have missed miserogies. It's somewhat thin, isn't it? You have evidence, but it's then as to the conspiracy to some degree, because one, you can't establish that we have false-circuit impressive about this, and Judge Wynn is correct. When it comes to conspiracy and drugs, the fourth circuit is made that the burden is not as hard for the government as you would think it might be, but you can't show in this evidence that he got the drugs on credit. You don't know they pay for them or not, because you don't know what he had with him when he came to the house. He could have had the street value, the going price of the drugs with him. It's a lot of times that the four circuits say, well, if you are taking getting drugs on credit, then that's evidence of a conspiracy, but here you can't establish that. You agree, correct? You don't know they paid cash money for those drugs and not do you? A lot of the context is missing, yes, Your Honor. Yeah, you don't know that. So therefore, what you've shown is that it best is that he possessed those drugs, and he purchased them from a stash house, and it would be consistent to have markings on it like that stash house, because that's what he bought it from. That doesn't prove conspiracy, it just means that you know, you go to a store and the store's name is on what you purchased because that's the store. He went to that store, so that's not consistent with conspiracy, that's the item. So that's what I'm saying. What did you have? And your main witness didn't tie him. So I'm going back to now that the whole idea, you have to admit it's still thin as the conspiracy aspect of it. And then when you throw in three times mentioning, well, you know, it was Louis's cousin. Oh, did I mention that? That's his cousin. Oh, I think I forgot. That is his cousin. Three times. It was very deliberate and very strategic in a thin case like this, and we can't just, that's a stubborn fact that just didn't go away because you wanted to go away. It's pretty serious, don't you think? I do believe that if you take facts from this case and view them in isolation, because you know, this was not the perfect prosecution. We certainly could have provided more context. When you isolate them and look at them in vacuum, you don't have to isolate very many facts to go, wow, this isn't the best case ever. However, viewed in the totality, the jury was able to look at this and say, we see enough overlap between a stash house and what happened on August 20th, 21st and 22nd, and not only that, the conversation between Ballard and the relationship that was obvious between defendant and Bailey, the one who was residing in the stash house, that there was something more here, and it was enough for them to determine that there was at least more than a slight connection between defendant and this conspiracy. And your evidence to establish that it was a stash house, didn't you tell the jury that you saw people doing that period of observation, buying drugs from there? Have you had a location? I know that we established that with Ballard. What you just said was a stash house, all warehouse, no retail? What we did have evidence of was that for at least 18 months, there have been large amounts of drugs stored in the garage that we did know, and we know from Ballard and defendant that those drugs are being exported from there for sale. This Court has stated in Fisher that intent to distribute can be inferred from possession of a quantity of drugs larger than needed for personal use. Nobody's arguing that he didn't intend to take 8,000 dose of units of cocaine and do something other than use them himself. That itself does not use conspiracy make, though. It's certain they'll find its own enterprise, for example. Yeah, I bought enough for me to sell to somebody else, but that didn't make it as conspiracy, does it? No, it doesn't. That alone doesn't. Again, we don't view these things in a vacuum. That's why we do the helicopter view over all of this, and we have to ask ourselves, did the jury have enough there that with substantial evidence viewed in the light most favorable to the United States to support that verdict? In light of that standard, we would say that they did, and with regard to those comments being brought up, it is worth noting that defense counsel did not jump out of his seat any one of these three times. If this was so earth shattering, we would think that he would have thought mine. Goodness, this didn't come in in this trial. This would have been a gold mine for him. But instead, he stays quiet. And so nobody objects, and no curative instruction is given. However, the court and the special AUSA strongly admonished the jury. You should not consider these statements as fact, and unless the court wants to assume the jury disregarded that admonition, then we have to believe that it effectively operated as a curative instruction for those facts that did come in

. So that's what I'm saying. What did you have? And your main witness didn't tie him. So I'm going back to now that the whole idea, you have to admit it's still thin as the conspiracy aspect of it. And then when you throw in three times mentioning, well, you know, it was Louis's cousin. Oh, did I mention that? That's his cousin. Oh, I think I forgot. That is his cousin. Three times. It was very deliberate and very strategic in a thin case like this, and we can't just, that's a stubborn fact that just didn't go away because you wanted to go away. It's pretty serious, don't you think? I do believe that if you take facts from this case and view them in isolation, because you know, this was not the perfect prosecution. We certainly could have provided more context. When you isolate them and look at them in vacuum, you don't have to isolate very many facts to go, wow, this isn't the best case ever. However, viewed in the totality, the jury was able to look at this and say, we see enough overlap between a stash house and what happened on August 20th, 21st and 22nd, and not only that, the conversation between Ballard and the relationship that was obvious between defendant and Bailey, the one who was residing in the stash house, that there was something more here, and it was enough for them to determine that there was at least more than a slight connection between defendant and this conspiracy. And your evidence to establish that it was a stash house, didn't you tell the jury that you saw people doing that period of observation, buying drugs from there? Have you had a location? I know that we established that with Ballard. What you just said was a stash house, all warehouse, no retail? What we did have evidence of was that for at least 18 months, there have been large amounts of drugs stored in the garage that we did know, and we know from Ballard and defendant that those drugs are being exported from there for sale. This Court has stated in Fisher that intent to distribute can be inferred from possession of a quantity of drugs larger than needed for personal use. Nobody's arguing that he didn't intend to take 8,000 dose of units of cocaine and do something other than use them himself. That itself does not use conspiracy make, though. It's certain they'll find its own enterprise, for example. Yeah, I bought enough for me to sell to somebody else, but that didn't make it as conspiracy, does it? No, it doesn't. That alone doesn't. Again, we don't view these things in a vacuum. That's why we do the helicopter view over all of this, and we have to ask ourselves, did the jury have enough there that with substantial evidence viewed in the light most favorable to the United States to support that verdict? In light of that standard, we would say that they did, and with regard to those comments being brought up, it is worth noting that defense counsel did not jump out of his seat any one of these three times. If this was so earth shattering, we would think that he would have thought mine. Goodness, this didn't come in in this trial. This would have been a gold mine for him. But instead, he stays quiet. And so nobody objects, and no curative instruction is given. However, the court and the special AUSA strongly admonished the jury. You should not consider these statements as fact, and unless the court wants to assume the jury disregarded that admonition, then we have to believe that it effectively operated as a curative instruction for those facts that did come in. And it wasn't an instruction requested to say, not only should you not consider this fact, in fact there was no evidence of any relationship at all to the defendant in that person. No one asked for that? No, your honor. Well, it's seen that they'll be curative instruction. It would, but our argument is that this would have effectively operated as a curative instruction. And with respect to the statement that the court had made that the statements were made strategically, we do believe it was deliberate, but we do not believe it was done in bad faith. We have had an opportunity to speak with the special AUSA. We asked for the explanation for what happened. Speaking kind of, you know, third person, and I need to be more specific, we do believe it was delivered. And the words, what we did was deliberate. That is to say this improper statement, this evidence, not in how many times? Three. Three different times. Yes, Your Honor. And you have to, if you're going to look at it in context, you did that in the first trial when it was an evidence and you got a mis, there was no verdict. Or if you count the argument at the rule 29 motion to the court. That's correct, but I do want to make something clear. There was a hung jury. It wasn't. We didn't get it. I mean, no verdict came from it. You had a hung jury with that evidence. Correct. In properly in. Now you don't have that evidence. And it's done three times in the context of what we discussed earlier, a very close case when we talk about the conspiracy of it. And here is used over and over again in a prosecutor's closing argument. And you say, we believe it was deliberate. It was deliberate, but not done in bad faith. I mean, you, there's only one conclusion to make. It's said three. If you want to count four times

. And it wasn't an instruction requested to say, not only should you not consider this fact, in fact there was no evidence of any relationship at all to the defendant in that person. No one asked for that? No, your honor. Well, it's seen that they'll be curative instruction. It would, but our argument is that this would have effectively operated as a curative instruction. And with respect to the statement that the court had made that the statements were made strategically, we do believe it was deliberate, but we do not believe it was done in bad faith. We have had an opportunity to speak with the special AUSA. We asked for the explanation for what happened. Speaking kind of, you know, third person, and I need to be more specific, we do believe it was delivered. And the words, what we did was deliberate. That is to say this improper statement, this evidence, not in how many times? Three. Three different times. Yes, Your Honor. And you have to, if you're going to look at it in context, you did that in the first trial when it was an evidence and you got a mis, there was no verdict. Or if you count the argument at the rule 29 motion to the court. That's correct, but I do want to make something clear. There was a hung jury. It wasn't. We didn't get it. I mean, no verdict came from it. You had a hung jury with that evidence. Correct. In properly in. Now you don't have that evidence. And it's done three times in the context of what we discussed earlier, a very close case when we talk about the conspiracy of it. And here is used over and over again in a prosecutor's closing argument. And you say, we believe it was deliberate. It was deliberate, but not done in bad faith. I mean, you, there's only one conclusion to make. It's said three. If you want to count four times. I mean, we're not going to stand here and say that wasn't deliberate. And again, I do see my time is up. We're also not going to stand here and say it wasn't inappropriate. It wasn't appropriate. We apologize to the court for it. But at the same time, we do believe that if it got a fair trial. And if there are no further questions, I'll take my seat. Thank you, Mr. Rogers. Ms. Darrell, you have some time left. Thank you, Your Honours. One thing I must point out in regard to the conspiracy versus the charge of the possession and with intent to destroy possession of more than 500 grams. If you look back, there is a hung jury on both of those counts. The first time it went to trial. So to say, well, all right, the conspiracy is lacking adequate evidence. Or we can throw the conspiracy out. But regardless of everything else, the possession is still there. I don't think that can easily be argued in light of the statements may at the time of the rule 29. And more importantly, in front of the jury. The rule 29 is not the biggest issue except that you already had a judge with many years experiencing. This is mighty thin. And when that happens, that fits in and supports the jury initially saying, the first jury is saying, we can't come to a conclusion. When you take those statements, the argumentative, the arguments by the assistant, the US attorney, by the government, in closing. We can't hold them and attribute them only to the conspiracy charge. It's one package. We don't know how that fit in with how the jury deliberated in regard to the conspiracy and or the possession charge. It may be that the jury said, well, if he's guilty on one, he has to be guilty on the other. You need to cousin in order to establish the possession. I mean, the business of being related to Emmanuel Lewis

. I mean, we're not going to stand here and say that wasn't deliberate. And again, I do see my time is up. We're also not going to stand here and say it wasn't inappropriate. It wasn't appropriate. We apologize to the court for it. But at the same time, we do believe that if it got a fair trial. And if there are no further questions, I'll take my seat. Thank you, Mr. Rogers. Ms. Darrell, you have some time left. Thank you, Your Honours. One thing I must point out in regard to the conspiracy versus the charge of the possession and with intent to destroy possession of more than 500 grams. If you look back, there is a hung jury on both of those counts. The first time it went to trial. So to say, well, all right, the conspiracy is lacking adequate evidence. Or we can throw the conspiracy out. But regardless of everything else, the possession is still there. I don't think that can easily be argued in light of the statements may at the time of the rule 29. And more importantly, in front of the jury. The rule 29 is not the biggest issue except that you already had a judge with many years experiencing. This is mighty thin. And when that happens, that fits in and supports the jury initially saying, the first jury is saying, we can't come to a conclusion. When you take those statements, the argumentative, the arguments by the assistant, the US attorney, by the government, in closing. We can't hold them and attribute them only to the conspiracy charge. It's one package. We don't know how that fit in with how the jury deliberated in regard to the conspiracy and or the possession charge. It may be that the jury said, well, if he's guilty on one, he has to be guilty on the other. You need to cousin in order to establish the possession. I mean, the business of being related to Emmanuel Lewis. And the fact that it would establish the possession, you didn't need that, did you? I mean, seems to me, one fact that seems like to me has just not been hit on. Maybe I'm just thinking it would be. I thought all the witnesses he threw one package and they found two. Right. There was one throwing motion. Two packages are found. And as I did, it was one motion or one packet they saw. That's critical. I think the witnesses, depending on what the witnesses, I think they said he saw one packet. It's gross as dark outside, so I don't know. It's dark and the officers were across the street and down another house or so. And there's no evidence of them using night vision glasses or anything to that effect. And again, it's going back to the, you know, it could have been a joint. Where these packages found. Cuban cigars. These packages found next to each other. Well, where they found different spots. That's not in the record. They were found near a garbage can, but as to whether they were both signed by side or in different directions, it's not in the record. From a defendant's perspective, if someone says I, and all of them say we saw him throw one item, if you found two items out there, it would be somewhat material. If one is not near the other, I mean, would indicate somebody's been doing this otherwise. That is correct. But that's almost a defense piece of evidence that you want to bring out. I'm not trying to move this forward, but it seems like to me. I don't know what we, we pull from that, but okay, I think evidence was that one was black, a very dark. The other one was a clear color. It might explain now, but it was see the second one. Right. And I, and that's what causes the problem with the possession. And how much did he possess? Did he possess both of those or one of those? Did he possess 600 grams? Or did he possess, I think it was one that close to 1,000 grams at 900 plus grams in the other package that we do not know? And again, going back to what I said, there's just a lack of sufficient evidence

. And the fact that it would establish the possession, you didn't need that, did you? I mean, seems to me, one fact that seems like to me has just not been hit on. Maybe I'm just thinking it would be. I thought all the witnesses he threw one package and they found two. Right. There was one throwing motion. Two packages are found. And as I did, it was one motion or one packet they saw. That's critical. I think the witnesses, depending on what the witnesses, I think they said he saw one packet. It's gross as dark outside, so I don't know. It's dark and the officers were across the street and down another house or so. And there's no evidence of them using night vision glasses or anything to that effect. And again, it's going back to the, you know, it could have been a joint. Where these packages found. Cuban cigars. These packages found next to each other. Well, where they found different spots. That's not in the record. They were found near a garbage can, but as to whether they were both signed by side or in different directions, it's not in the record. From a defendant's perspective, if someone says I, and all of them say we saw him throw one item, if you found two items out there, it would be somewhat material. If one is not near the other, I mean, would indicate somebody's been doing this otherwise. That is correct. But that's almost a defense piece of evidence that you want to bring out. I'm not trying to move this forward, but it seems like to me. I don't know what we, we pull from that, but okay, I think evidence was that one was black, a very dark. The other one was a clear color. It might explain now, but it was see the second one. Right. And I, and that's what causes the problem with the possession. And how much did he possess? Did he possess both of those or one of those? Did he possess 600 grams? Or did he possess, I think it was one that close to 1,000 grams at 900 plus grams in the other package that we do not know? And again, going back to what I said, there's just a lack of sufficient evidence. And the taintain by virtue of the statement about the cousin is what helps put that all back on the defendant. It's, it's a carryover. And to say, well, that erroneous statement only applies to the conspiracy is, is, is not looking at the full brunt and, and argument of a trial and presentation of a trial. But it does unfortunately because we're looking at through the lens of sufficiency. If see the conspiracy would be, for example, if we did rule that would be that we find evidence lacking in sufficiency. But then we look at the possession distribution, we're looking at the lens of sufficiency. And you sort of mixing apples and oranges. Well, there's a tipping aspect because they apparently mentioned this. But for sufficiency, we really look at whether or not I was a sufficient evidence. And clearly, as an element, consenting with Lewis has nothing to do with possession or distribution. That is correct, your honors. And if we find, and if we find that the evidence was not sufficient on the conspiracy, but that it was sufficient on the possession with intent, what is your response to whether that was harmless or not? I don't say it was not harmless error because there was insufficient evidence even for the possession. You have one, but walking out of the house making it, I'm sorry. But if I'm assume we were to find there was sufficient evidence on the possession, but there is not on the conspiracy. Then what is your response as to whether it was harmless or not? You have to assume we find the conviction on the possession should stand. The sentence is the same. And then the question is, was the argument harmless or not? And my position would be it's still not. At what point in time can the government keep saying, well, it was an error and to say, well, it wasn't the perfect prosecution, but this had many flaws. And the largest one was the one wherein evidence outside the record was argued to support a conviction. And it was not used to support just the conspiracy. It was used to support both convictions. And once that happens, then both fail. But then that was those, suppose what we have is though, this is plain error reviewed. Yes. So how do we get the substantial right prong of plain error in terms of sense that evidence had nothing to do with the elements which were the base of the conviction for possession with intent to distribute? How do you meet that prong of a lano? Because it was not presented to the jury in that matter. It was in that manner or in that matter. It was all in globo. It was all presented as one package and the..

. And the taintain by virtue of the statement about the cousin is what helps put that all back on the defendant. It's, it's a carryover. And to say, well, that erroneous statement only applies to the conspiracy is, is, is not looking at the full brunt and, and argument of a trial and presentation of a trial. But it does unfortunately because we're looking at through the lens of sufficiency. If see the conspiracy would be, for example, if we did rule that would be that we find evidence lacking in sufficiency. But then we look at the possession distribution, we're looking at the lens of sufficiency. And you sort of mixing apples and oranges. Well, there's a tipping aspect because they apparently mentioned this. But for sufficiency, we really look at whether or not I was a sufficient evidence. And clearly, as an element, consenting with Lewis has nothing to do with possession or distribution. That is correct, your honors. And if we find, and if we find that the evidence was not sufficient on the conspiracy, but that it was sufficient on the possession with intent, what is your response to whether that was harmless or not? I don't say it was not harmless error because there was insufficient evidence even for the possession. You have one, but walking out of the house making it, I'm sorry. But if I'm assume we were to find there was sufficient evidence on the possession, but there is not on the conspiracy. Then what is your response as to whether it was harmless or not? You have to assume we find the conviction on the possession should stand. The sentence is the same. And then the question is, was the argument harmless or not? And my position would be it's still not. At what point in time can the government keep saying, well, it was an error and to say, well, it wasn't the perfect prosecution, but this had many flaws. And the largest one was the one wherein evidence outside the record was argued to support a conviction. And it was not used to support just the conspiracy. It was used to support both convictions. And once that happens, then both fail. But then that was those, suppose what we have is though, this is plain error reviewed. Yes. So how do we get the substantial right prong of plain error in terms of sense that evidence had nothing to do with the elements which were the base of the conviction for possession with intent to distribute? How do you meet that prong of a lano? Because it was not presented to the jury in that matter. It was in that manner or in that matter. It was all in globo. It was all presented as one package and the... Well, both counts were tried together, but I don't think you can say it's a conglomerate. They just tried two counts together. Evidence stands for itself and we look at sufficiency and it is demarcated for purposes of elements for each count. That's why we could look at it very carefully and say, no, it wasn't sufficient as a conspiracy, but it was perhaps as a possession. But that conglomerate does not leave us bereft to be able to extract them for elements. You still have to prove that a substantial right was involved for a lano. This is plain error in the sense. So, you know, you really don't really have a real clear, harmless error aspect there because no one objected to it. So it's plain error. I'm out of time, Your Honor. I know, but I'll let you... Maybe you don't want to respond to that, but if you would like to, you may, but if not, we thank you so much. I... All I've never misnapted on to respond. I thought that would be a case. But legally looking at it, I understand what you're saying, without the objection, it makes it harder. But when we look and know there was a prior trial and the jury had the same issue with both counts and said, we can't reach a resolution. When you look at the closing arguments and it's argued in total, then you can't parse it out. I think that would be an injustice and it would be plain error. And I thank you. Ms. Darrell, we note that you are caught opponent and we just want to make a special thank you for that because without your help in taking cases like this, our court could not do our job. And we really appreciate that. It's a great service to this court and to the people of the United States. And to Mr. Rogers, thank you for Abely representing the United States

. We'll come down to Greek Council. We want to break. Thank you, Your Honor. And we're going to take a recess, a brief recess, after we come down to Greek Council. Thank you. This honorable court will take a brief recess