Legal Case Summary

The next case we'll hear today is United States versus Marfo and Mr. McPherson when you're ready, you can proceed. Good morning, Catholic Pearson here with this Gregory Gardner. On behalf of Mr. Marfo, may I please support? In the government's response brief on page 24, the government says, and I quote, on October 14, 2011, in the face of a continuing federal investigation, Davis met with attorney Murphy for the purpose of obtained legal advice about possible federal fraud and murder charges. That is a concession that as of at least that day, that Mr. Davis had a motive to say to fabricate a story. In this instance, we contend that that motive actually started several months earlier back in June and July when he got a call from you. You're arguing that he visited the lawyer, not from an exposure to liability, but in order to stage some testimony that he was going to give under rule 801, and that he knew in advance that he needed to have buttressing evidence that would later be used in a court of law under 801? Yes. I don't think most laws do understand that. Well, actually, I don't think most anyone else would be that conniving. But as I think, acknowledgeable, that you need about ten steps of knowledge to know that first of all, you're going to testify, you're going to cooperate, you're going to use the attorney, you're going to waive your attorney client privilege, you're going to testify trial, and you're going to want to buttress that with the statements you made to your attorney earlier under rule 801, D1B. Well, I didn't know all of that to make it meaningful. Well, he needs to know some of that. The first thing all he needs to know from visiting attorney Catherine Flynn in June or July 2011, or one of the other attorneys he visited before he went to attorney Murphy, all he had to know at that point was that since I am at the top of the heap, or it appears that I'm at the top of the heap, I have to have something to trade. Now, that thing to trade would be Morphel. Problem is, I know that I'm not going to be very convincing because all of the direct evidence, and frankly, the circumstances are more evidence. You say it's going to make all these considerations? This man, yes, he already demonstrated a propensity to use lawyers, Larry Feldman, for something other than legal services. He had demonstrated himself as someone who could envision what would happen in the future and how he could use people to manipulate those events in the future. So when he goes to attorney Murphy, all he needs to know at that juncture is that I need to have someone to trade and I have to be believable

. So when he goes to see attorney Murphy, all he has to do is say Marthos involved. Then, three weeks later, when he's arrested and he is flipped, he has to prove that he's someone worthwhile to be flipped, someone who can be believed in court. He has innumerable things he can be impeached with and he is all the direct evidence leads to him. So he has to have someone to say, I've been saying this all along. Now, if he had never gone to Catherine Flynn, if he had never gone to any other attorneys, if he had never demonstrated an ability to use a lawyer for something other than legal services, if he was someone of less cunning, then your question to me, Judge, would be an easy answer. But in the brief, I must say that I consider myself to have a little bit of knowledge about here's say and buttress in and pre-trial consistent statements and that type of thing. I would never figure that out or anticipate that. I mean, it's so remote, all the possibilities and contingencies and all the testimonies. It's pretty, you make a, you give him a lot of credit. I'm not the only one. And trial council perceived the same. Good, probably put one of those in his book. Well, let me tell you, yes, yes, it is fascinating, it's enlightening, but in application of the role, all you do is look, when did the motive exist? And the government has conceded that it existed at the time Davis went to Murphy. For you to say, I think that that's far fetched, perhaps, but that doesn't change the application of the role. So we do have a situation where the trial judge permitted into evidence, the test, these prior consistent statements that should not have been entered into evidence. Then you're going to look at what's the harm. Well, really, you have from May 22nd, 2011 to November 9, 2011, you have Davis being recorded hundreds of hours by Mr. Copeland, never says anything about Marfell. Let me ask you this

. Then I'm not sure this was sufficiently preserved, given what the district court did. It structures a district court gave with reference to that. And even if it was error, tell me how it survives plain error analysis under the fourth prong of a line. And the second question is, didn't it offend it, invite this, and such the error was invited by the defendant? May I do them in reverse? Sure. It was not invited. Mr. Davis was cross-examined about his failure to ever mention Marfell during hundreds of hours of tapes to Mr. Copeland. He was also cross-examined about the fact that bird, that Marfell had never met bird, that Marfell had only met Callaway once in Copeland. He was cross-examined on a lot of things, but I guess the relevant one is, he was cross-examined about his failure to mention Marfell previously. So that opens, that does not open the door to bringing someone in just to repeat what he said at trial. That's pure cooperation. It can only come in if he didn't have a motive. I'm just kind of lost track of what I was going to say a few moments ago. In terms of plain error, it does affect the appellant substantial rights. It is incredibly prejudicial. As I started to say, Joe, you had the testimony of Davis, didn't you? Pardon me? You had the direct testimony of Davis in court. That's complicated, him. All this did was to corroborate what he had said to his attorney out of court, but you still have the direct testimony that the jury apparently believed, and it was explained that he would lose the benefits of his deal if he didn't testify truthfully

. Well, they made that judgment. Well, they made that judgment with the benefit of Murphy, who was a Navy veteran who's an ex-US prosecutor, who was vouching for the integrity of the prosecutor, saying that we were back at the question that Judge Hamilton raised with respect to the 801D. He said that why should we notice the error? How is the prejudice? And I'm just following up on that and saying it was nothing more than corroborative of testimony that was before the jury, and the jury was apparently believing Davis. Well, but from a fact-specific standpoint, Davis has no independent credibility at all. There was no forensic, there was sent aside that here. We're in a pellet court, the jury made that decision. Then it becomes an easy question. Is Davis more likely to be believed by the jury when what he says is is cooperated by attorney Murphy, who was unassailable in his credibility? And the answer to that is resoundingly yes. This was not just a witness from a street who saw a murder and who's brought in and may have a little credibility issue because he was having a couple beers that night. This man Davis was the mastermind of the large fraud, and then he conceived, he hired, he arranged for the murder, he gets rid of the murder weapon. He was the one who he conceded all that. He conceded all that. He did. And so the question is, is he a believable person? And what did the government have to show that he's a believable person? Nothing except Murphy, and that's why it is a way to be an air. Unbelievable. When he is told, tell the truth, you'll get 35 years, and he then goes in detail and implicates all his himself in exactly how you described it. It was quite remarkable how detailed and clear his testimony about his own involvement was. He's already recorded as saying he was involved. It's nothing for him

. I know, but he explained the details and made it rational and the fact that he said the same thing to his lawyer when he first saw him. To one of his lawyers, by the way, that's one of the issues. He waived the attorney client with respect to Murphy. There's the issue of subject matter, waver. The court should not have allowed Murphy to testify on this waver without first deciding whether or not Murphy, whether or not Davis had waived his privilege with respect to the other lawyers. This is hard to do. As you sit here and ask. As always, to argue it in your brief. No, no, but I think it's a subset of the argument, if you will. When Judge Neemire says, well, can't we- You argue it in the district court? No, it was not argued by trial counsel. This is the first time. Well, actually, trial counsel brought it up. In Judge Garbis said, I'm not going to make a determination now whether or not it's been waived by the others. And then, the counsel didn't bring it up again. But Judge Neemire, with all due respect, you were operating from the premise that Murphy had not already received the information from attorney Flynn and others that would allow him to conceive that very conniving plan, to lay out all those events that you describe as being doubtful, as being- whereas government says, fanciful. But that's because we don't know what he learned from Flynn. But we know that when Davis went to Flynn, he went to her because homicide detects his one to talk to her. So we have the motive to lie back in July of 2011. The government concedes it existed before he went to Davis

. So what happens is, as you said in U.S. versus hedge path, you have to follow Tommy. And if it's not the very same statement for completeness, then there's no other purpose it can be used. You have to rely on rule 801-B. And when the government concedes, then we get down to playing air as Judge Hamilton asked me, what is that? Well, this was a weak case. Davis recorded Marfo for hours, and Marfo said nothing except, aha, which as I point out, footnote and a brief can mean, yes, I agree with you or can mean, yeah, I'm listening to you. He was convicted on an aha and Davis, but trust by attorney Murphy. All right, thank you. Thank you. Mr. McPherson. Mr. Purcell. I thought that might go a bit longer. Good morning, Your Honors. My name is John Purcell. I was the prosecutor in this case. First, a couple of factual corrections

. There were not hundreds of hours of tapes between Mr. Copeland and Mr. Davis. You move a little closer to the mic. I'm sorry, I heard about 20 hours of recordings between Mr. Copeland and Davis. And to add to the, and by the way, in all of those conversations, from the very beginning, the first occurred on May 22nd, just about a month after the murder itself of this young man. From the very beginning, when Davis was talking to Copeland, and remember that Copeland came to the government, explained he was part of the fraud. We became a federal witness in a day, the first day he came in, and his statement, by the way, that he wasn't involved in the murder was never contradicted by anyone. Including Davis, this conniving Davis, who would have had every opportunity and motive to implicate Copeland or further implicate Marfo, never did that. But in all of those early conversations between Copeland and Davis, Davis was continually implicating Marfo, who we call, that was the references to Money Order Boy. The focus of all those conversations and the purpose of the long investigation was to identify, finally, identify the trigger man, who tried to be bird. And that occurred coincidentally, or maybe not coincidentally, on October 14th, which was exactly the same day that Davis told Copeland to the morning, I'm going to go off and see this lawyer this afternoon, and then went to that lawyer's meeting that was with Mr. Murphy. He took Marfo with him incidentally, thinking they would both be able to speak with this attorney. But Mr. Murphy testified a trial that he wouldn't allow that. So Marfo, who identified in court, sat in the anti-room. And then later, after that meeting, after the meeting with Mr

. Murphy, Davis came back to Copeland that same afternoon, October 14th, and had another recorded conversation. And that is the sort of infamous in the case, Schmuck of the Year, where he clearly, and this is how we knew to even approach Murphy in the first place, because it was very clear from this recorded conversation that he had told Murphy everything. He told him his role, he told him Marfo's role, he told him bird's role. And later in that conversation, he actually gave us identifying characteristics that allowed us to identify bird, arrest Davis a few weeks later, and then arrest bird that same day. The point is having a motive to go to a lawyer is not the same thing to have a motive to fabricate. And the cases that, for instance, in Hedgepeth, the defendant there, a young woman wanted to get in her post-arrest self-serving statement to an FBI agent in her case. Wasn't committed to do so because after her arrest, she had a motive to fabricate. In this case, the facts and circumstances showed that the court did not abuse his discretion, much less commit plain error in allowing the testimony here under 801-D1-B. I would maybe say something differently if Davis had an incriminated himself more than he incriminated anybody else, both at trial and in talking to Mr. Murphy. We know this because Mr. Murphy told us that. And he actually, as was argued at the trial and argued to the jury, Davis actually incriminated himself far more than he incriminated Murphy. I'm sorry, Marfo. And he could have gone in there if he was that conniving. I think he would have gone in there and implicated everybody but himself if he was setting up some sort of future witness. It was going to testify for him. And beyond just that sort of not being able to be that conniving, as nobody could be, he would have had to actually know that as Davis, when he went to Murphy, would have had to know that Copeland was recording him all this time, and that he would have had to conform his statement made at that time without knowing that Copeland was cooperating and recording all of the statements, he would have had to made a statement that conform with all those tapes, which he didn't know were being made, which is impossible. So this is a person who went to an attorney why, for the reason people go to their attorneys

. You know, the alternative reason that we thought this was admissible, and the judge, I think because of the optics of the thing, it sort of sounds odd to put a lawyer in the position of being a person who is a witness to a declarant statement under 801-D2-E, but one of our first theories, and we follow the memo before this, none of this was a surprise, the defense had an opportunity to interview councils, Mr. Murphy as well, the judge knew this was coming, but we actually proposed admissibility under 801-D1-B and 801-D2-E because I could not think of, to me, this is the epitome of a co-conspirator statement. It doesn't make the lawyer a co-conspirator, and of course, he's privileged, but that's why there is an attorney privilege. That's why those sorts of statements to a lawyer are privileged because otherwise they would be co-conspirator statements. Why else did he go to Murphy? He went to Murphy to find out how he survives the situation he's put himself into. There's, in my view, the epitome of an infurtherance of the conspiracy statement. The court rejected that and just wouldn't go there because of thinking about the privilege. We don't trigger who waves the witness triggered it here, and that is after we asked him to do so. And we knew to go to Murphy, of course, because we had a tape between Davis and Murphy of that conversation that day. We knew. You asked Davis to wave the attorney client? We confronted Davis. Davis did not come forward and say, oh, by the way, you can go check my lawyer. I was about to say why? We knew, the investigators knew, that Davis had implicated himself to his attorney because he told our informant about 10 minutes after you got back from that meeting that he told him everything and learned what the circumstances were. So we knew that he had done this. When we asked him, he said, yeah, I told him the same thing I just told you, or I've been telling you, and that you have a my tapes that I've now know about. And we went to Mr. Murphy who is, as you would hope, completely unwilling to walk rape, but he did what he had to do and the what his client told him. There's no evidence anywhere in the record, by the way, of any communication between the prior attorney, Ms. Flynn and Mr

. Murphy. And beyond that, I might point out that we asked, and it's on the record, we asked Mr. Davis what did he tell Ms. Flynn? And he told her the same thing. And there was a point where Mr. Report was cross examining Mr. Mr. Davis. And he said, well, what about Ms. Flynn? Because he'd said he'd given a waiver and his direct he mentioned, yes, I gave a waiver to my lawyer who will be probably testifying later. And Mr. Report brought out, as he should have. Well, you want to see Ms. Flynn too, do you have a waiver for her? And he said, I'll be happy. He was prepared for that question. He said, yes, I'll be happy to sign a waiver for her. And he would have done so. But Mr. Murphy, Mr

. Report, walked away from that question and never went there again because he realized this is not going to get him anywhere. But the point is, this is a witness who under the analysis of the case law, this is the person who does not yet have a motive to fabricate. Every case where there is a motive to fabricate, there's been an arrest. The person is been confronted with, he's been confronted with the police, and he's making self-serving statements. Here's say rules, understand that people make self-serving statements and the ideas prevent that sort of unreliable statement coming in. And I'm sure the court, all of you have read the Caracoppa case from the second circuit, which is exactly the same thing, except we have the benefit of knowing that everything he told this lawyer is the same because A, the witness admitted himself, he incriminated himself, and we have lots of tapes that he didn't know that we had that proved that he said all these very same things before. So they were sent bird pled guilty for trial to what counts one and four? He pled, I don't actually remember what they were, they were two. Probably the 1950, the murder for higher count. And I think the murder of a witness count, yes. Well count one was the conspiracy to use interstate communication facility. And within the two elm spurs, yes. Count four was charged murder of a witness resulting in the death of... of Galloway. Yes. Both of mandatory life counts. And you know, he didn't pick the 35-year sentence. That was, that's on his business. That's what determined to be court could have rejected it. So in this particular case, the court, and this instruction we, there was some mention about, I wanted to mention the instruction of the court, the court didn't give a limiting instruction. It gave a cautionary instruction. And it gave it, actually, I thought the instruction, if you read the part of the transcript just before Mr. Murphy takes a stand, we approach and the court asked me again, there had been an emotional eliminate, letting this all out. But the court said, now what's again your theory for putting this witness on Mr. Murphy? And I mentioned 801D2E, which he sort of know. And then he said, well, I'll give the jury an instruction telling them that it's up to them. And the last thing he says is to them. So when you listen to what Mr. Murphy says, bear this in mind. That is the whole argument about a motive to fabricate, that is, did it precede or was it after a motive to fabricate. And you, the jury will decide whether or not it supports Mr. Davis's testimony before you or it doesn't. And I wanted to bring that out because there's been an argument in the defense brief that the court didn't tell the jury had to consider this. Well, the court doesn't ever tell the jury had to consider things. It may limit their consideration. It may give them caution about informants or in this case, the particular situation. He actually, the court, we cited the defense theory to the jury at this point

. That's what determined to be court could have rejected it. So in this particular case, the court, and this instruction we, there was some mention about, I wanted to mention the instruction of the court, the court didn't give a limiting instruction. It gave a cautionary instruction. And it gave it, actually, I thought the instruction, if you read the part of the transcript just before Mr. Murphy takes a stand, we approach and the court asked me again, there had been an emotional eliminate, letting this all out. But the court said, now what's again your theory for putting this witness on Mr. Murphy? And I mentioned 801D2E, which he sort of know. And then he said, well, I'll give the jury an instruction telling them that it's up to them. And the last thing he says is to them. So when you listen to what Mr. Murphy says, bear this in mind. That is the whole argument about a motive to fabricate, that is, did it precede or was it after a motive to fabricate. And you, the jury will decide whether or not it supports Mr. Davis's testimony before you or it doesn't. And I wanted to bring that out because there's been an argument in the defense brief that the court didn't tell the jury had to consider this. Well, the court doesn't ever tell the jury had to consider things. It may limit their consideration. It may give them caution about informants or in this case, the particular situation. He actually, the court, we cited the defense theory to the jury at this point. I thought it was going to do it later, and he did it right at that point. So the jury was well aware of the issue and what the concern should be about accepting this testimony. One further point is that it's argued here today that Davis was the whole government's case. Well, certainly against Marfo, and that certainly isn't the case. There's Marfo against Marfo. Marfo offering to kill Mr. Copeland in addition to having decided at one point during the preparation of this idea. He had killed the person when he was arrested with a guy named Styron earlier in the conspiracy. There's his taped meeting where he acknowledges he was at this meeting with Davis and and bird before the before the murder. There was also Copeland. Copeland who Davis could have but did not exonerate. Now, if they can explain that the defense could explain why a person would incriminate himself and then target Marfo as the person if they were to the bus, not to give the government even more, but through Copeland under there as well, and it's the same argument made to the jury, then we all should be listening to that. But that is not what happened. Copeland and I'm sorry, Davis had the indiscia of a person telling the truth. And in the Colvin case, when the court was considering this court was considering 801D1B, and whether or not to accept it, it gave some considerable weight to the fact that this person, this previous consistent statement was a statement in which the defendant did not exonerate himself or excipal paid himself, but incriminate himself. And that makes it more reliable even today. And that's certainly what Davis did. Incriminate himself from the get-go as the most important player in all of this. I'm not hearing any questions and I don't know if I should go any further, but I point to the court, I think it's clear from my brief, is that this motive to go to a lawyer is not the same thing as a motive to fabricate

. I thought it was going to do it later, and he did it right at that point. So the jury was well aware of the issue and what the concern should be about accepting this testimony. One further point is that it's argued here today that Davis was the whole government's case. Well, certainly against Marfo, and that certainly isn't the case. There's Marfo against Marfo. Marfo offering to kill Mr. Copeland in addition to having decided at one point during the preparation of this idea. He had killed the person when he was arrested with a guy named Styron earlier in the conspiracy. There's his taped meeting where he acknowledges he was at this meeting with Davis and and bird before the before the murder. There was also Copeland. Copeland who Davis could have but did not exonerate. Now, if they can explain that the defense could explain why a person would incriminate himself and then target Marfo as the person if they were to the bus, not to give the government even more, but through Copeland under there as well, and it's the same argument made to the jury, then we all should be listening to that. But that is not what happened. Copeland and I'm sorry, Davis had the indiscia of a person telling the truth. And in the Colvin case, when the court was considering this court was considering 801D1B, and whether or not to accept it, it gave some considerable weight to the fact that this person, this previous consistent statement was a statement in which the defendant did not exonerate himself or excipal paid himself, but incriminate himself. And that makes it more reliable even today. And that's certainly what Davis did. Incriminate himself from the get-go as the most important player in all of this. I'm not hearing any questions and I don't know if I should go any further, but I point to the court, I think it's clear from my brief, is that this motive to go to a lawyer is not the same thing as a motive to fabricate. And there's fabrication typically means a self-serving statement. And we're not seeing here self-serving statements. This was the first in seeking a lawyer advice, got it, and the government was able to exploit it. A rare thing, certainly, but something we're able to do in this case. Any members have any questions? Thank you. Thank you. First, I'll miss Jim McPherson. Yes, you're right. Remember, it's the defense theory of when and why the declaring is fabricating that is your focus point. And that focus point is before he goes to Murphy. If Murphy wasn't an attorney, we would still be in the same position. But because Murphy is an attorney and a very reputable one, through the government elicited his entire career background, that goes to Judge Hamilton's question about the error. The error is because Murphy gives credibility to Davis like no one else can. They're at the opposite ends of the credibility spectrum. And without Murphy, Davis is virtually worthless. And so the question is- What about Copeland? Well, everything that the council just told you that Copeland testified to is Copeland repeating what he was told by Davis. Have they shown you anywhere in the record where Copeland said, I heard this from the horse's mouth? No. He only met- You have evidence that Davis knew he was being recorded when he talked to Copeland? No, there is not. But it was a five-month period

. And there's fabrication typically means a self-serving statement. And we're not seeing here self-serving statements. This was the first in seeking a lawyer advice, got it, and the government was able to exploit it. A rare thing, certainly, but something we're able to do in this case. Any members have any questions? Thank you. Thank you. First, I'll miss Jim McPherson. Yes, you're right. Remember, it's the defense theory of when and why the declaring is fabricating that is your focus point. And that focus point is before he goes to Murphy. If Murphy wasn't an attorney, we would still be in the same position. But because Murphy is an attorney and a very reputable one, through the government elicited his entire career background, that goes to Judge Hamilton's question about the error. The error is because Murphy gives credibility to Davis like no one else can. They're at the opposite ends of the credibility spectrum. And without Murphy, Davis is virtually worthless. And so the question is- What about Copeland? Well, everything that the council just told you that Copeland testified to is Copeland repeating what he was told by Davis. Have they shown you anywhere in the record where Copeland said, I heard this from the horse's mouth? No. He only met- You have evidence that Davis knew he was being recorded when he talked to Copeland? No, there is not. But it was a five-month period. These two were thickest and they are thieves. And it is not inconceivable that Copeland made it known at some other time he wasn't wired or in some other way. But remember, this guy, Davis, he used Feldman to get confidential information, to keep his underling silent, not for legal services. So it's not unthinkable that he would also see Murphy the same way. But it doesn't matter whether or not it was Murphy or the next-door neighbor. But Murphy gives credibility that no one else can. He elevates Davis up to where the jury can be willing to purchase because there's no forensic. There was no eyewitness. There was no confession. There wasn't even circumstantial evidence. Well, sure there was. I mean, he first of all wanted to do the killing himself based on Davis and assisted on that. And there wasn't there a tape that recording him? No. How about his presence at the at the discussions with Bird? Okay. Good question. That was disputed and remember when Copeland testified. I'm sure everything went disputed. Right. But when Copeland testified, he was asked three times who was with him at that meeting

. These two were thickest and they are thieves. And it is not inconceivable that Copeland made it known at some other time he wasn't wired or in some other way. But remember, this guy, Davis, he used Feldman to get confidential information, to keep his underling silent, not for legal services. So it's not unthinkable that he would also see Murphy the same way. But it doesn't matter whether or not it was Murphy or the next-door neighbor. But Murphy gives credibility that no one else can. He elevates Davis up to where the jury can be willing to purchase because there's no forensic. There was no eyewitness. There was no confession. There wasn't even circumstantial evidence. Well, sure there was. I mean, he first of all wanted to do the killing himself based on Davis and assisted on that. And there wasn't there a tape that recording him? No. How about his presence at the at the discussions with Bird? Okay. Good question. That was disputed and remember when Copeland testified. I'm sure everything went disputed. Right. But when Copeland testified, he was asked three times who was with him at that meeting. He didn't say Morphel. It took counsel four questions to get Copeland to add Morphel into that meeting. Four questions. So that's good. But he wasn't just describing what he saw and heard. Everything Copeland said came from Davis. Everything Murphy said came from Davis. Everything everyone said came from Davis and the only time. And I guess you made all these arguments to the jury that the Davis was conniving and uncredible and that you should not convict on his basis. Trial court did not put the emphasis on it like I would have. Well, I understand, but the jury, that's, you're describing the epitome of a jury function. These arguments are jury arguments that who's credible and who's not credible and what the jury relied on and who was the most truthful. Of course. And think how those arguments would have been if Murphy had not been allowed to testify to this. What would the government have argued as to why they should believe Davis? Because he said he was more culpable. It doesn't matter. He's got a plea deal. He can say. He sure he knew that

. He didn't say Morphel. It took counsel four questions to get Copeland to add Morphel into that meeting. Four questions. So that's good. But he wasn't just describing what he saw and heard. Everything Copeland said came from Davis. Everything Murphy said came from Davis. Everything everyone said came from Davis and the only time. And I guess you made all these arguments to the jury that the Davis was conniving and uncredible and that you should not convict on his basis. Trial court did not put the emphasis on it like I would have. Well, I understand, but the jury, that's, you're describing the epitome of a jury function. These arguments are jury arguments that who's credible and who's not credible and what the jury relied on and who was the most truthful. Of course. And think how those arguments would have been if Murphy had not been allowed to testify to this. What would the government have argued as to why they should believe Davis? Because he said he was more culpable. It doesn't matter. He's got a plea deal. He can say. He sure he knew that. Right. And this is the way criminal cases are prosecuted. The, I know, in fact, this is a particularly exemplary case where had every one of these guys gotten together and agreed to be quiet, probably nothing would have happened. But they broke down a different Copeland and they all, you know, when the law starts coming, they start running and cut their deals. But that's the way the process works. But you're perfect. With all to respect, you're making the assumption that they believed Davis because of what Davis said. They could have only believed Davis. A question credibility is a very, very subtle thing and a fact finder. And I was a district judge for a little while. And I know that what happens in the courtroom is something that doesn't show on the record. But the juries make these decisions. They watch everything. Sure. But in the absence of an eyewitness of forensic, of confession, of, of something from somewhere other than Davis himself, then it becomes critical that Davis's testimony only be evaluated for credibility by admissible evidence. Were you not a cancer blow? No. Well, what in Davis very aggressively cross-examined on his testimony? He was. That was he was. Unfortunately, I don't think the closing matched up with the cross-examined, but it was a very thorough cross-examined

. Right. And this is the way criminal cases are prosecuted. The, I know, in fact, this is a particularly exemplary case where had every one of these guys gotten together and agreed to be quiet, probably nothing would have happened. But they broke down a different Copeland and they all, you know, when the law starts coming, they start running and cut their deals. But that's the way the process works. But you're perfect. With all to respect, you're making the assumption that they believed Davis because of what Davis said. They could have only believed Davis. A question credibility is a very, very subtle thing and a fact finder. And I was a district judge for a little while. And I know that what happens in the courtroom is something that doesn't show on the record. But the juries make these decisions. They watch everything. Sure. But in the absence of an eyewitness of forensic, of confession, of, of something from somewhere other than Davis himself, then it becomes critical that Davis's testimony only be evaluated for credibility by admissible evidence. Were you not a cancer blow? No. Well, what in Davis very aggressively cross-examined on his testimony? He was. That was he was. Unfortunately, I don't think the closing matched up with the cross-examined, but it was a very thorough cross-examined. That's why they needed Murphy. Without Murphy, there's nothing for Davis. And like- Tell me how Murphy's testimony was preserved by the attorney for Murphy. Reserve for. For the. Error analysis. It wasn't preserved. It's a war on plain air. But I'm sorry. Did I mean it survived plain error analysis? My question is how was the testimony preserved for plain error analysis? Yeah. There was no objection. There was no preservation. There was no preservation. And that's why- Well, don't it in right there? No. No. That's why we look at whether or not the the air was clear. It was clear because the government agrees that the pre-mode have existed. Then we look at substantial effect- Wait, you can't be right. Some error occurs doing this proceeding

. That's why they needed Murphy. Without Murphy, there's nothing for Davis. And like- Tell me how Murphy's testimony was preserved by the attorney for Murphy. Reserve for. For the. Error analysis. It wasn't preserved. It's a war on plain air. But I'm sorry. Did I mean it survived plain error analysis? My question is how was the testimony preserved for plain error analysis? Yeah. There was no objection. There was no preservation. There was no preservation. And that's why- Well, don't it in right there? No. No. That's why we look at whether or not the the air was clear. It was clear because the government agrees that the pre-mode have existed. Then we look at substantial effect- Wait, you can't be right. Some error occurs doing this proceeding. And the defendant doesn't raise any objections to it. That it's preserved for plain error analysis. Yeah. What? Yeah. And what's- Yes, I said. Under what theory is that? It wasn't- He waived it. If he's not preserved for plain error analysis, he waived it. I- plain error. You look at it. If it wasn't preserved to determine whether or not it was a clear error that's substantially effect- What you're writing us to do is to go back and review all of this to see if there was plain error. And if there was an error that was repeated, or if it was invited. And it wasn't harmless because since everything goes back to Davis, there's a reasonable probability that the verdict would have been different. Once you take- We want us to make those objections for what should have happened in the trial count- Well, the trial counts are below. Tell me how we can do that. You look at the record as a whole as you just said to see whether or not that error is clear. All right. Thank you. All right. Thank you, Mr

. And the defendant doesn't raise any objections to it. That it's preserved for plain error analysis. Yeah. What? Yeah. And what's- Yes, I said. Under what theory is that? It wasn't- He waived it. If he's not preserved for plain error analysis, he waived it. I- plain error. You look at it. If it wasn't preserved to determine whether or not it was a clear error that's substantially effect- What you're writing us to do is to go back and review all of this to see if there was plain error. And if there was an error that was repeated, or if it was invited. And it wasn't harmless because since everything goes back to Davis, there's a reasonable probability that the verdict would have been different. Once you take- We want us to make those objections for what should have happened in the trial count- Well, the trial counts are below. Tell me how we can do that. You look at the record as a whole as you just said to see whether or not that error is clear. All right. Thank you. All right. Thank you, Mr. McPherson. I know you were court appointed. Yes, may I- Am I over? Yeah, I'm sorry. Yeah. The light turned off. Okay. You were court appointed, were you? Yes, I want to recognize that service and you're a forceful argument. Mr. Gardner, was he a part of your- Yes, I- You brought him on to help. Yes. Thank you, Mr. Gardner. We'll come down and greet Council after a journey for the day. This Honor report stands during the summer morning and I'm 30. You guys have been at the bloodstates in this honorable court.

The next case we'll hear today is United States versus Marfo and Mr. McPherson when you're ready, you can proceed. Good morning, Catholic Pearson here with this Gregory Gardner. On behalf of Mr. Marfo, may I please support? In the government's response brief on page 24, the government says, and I quote, on October 14, 2011, in the face of a continuing federal investigation, Davis met with attorney Murphy for the purpose of obtained legal advice about possible federal fraud and murder charges. That is a concession that as of at least that day, that Mr. Davis had a motive to say to fabricate a story. In this instance, we contend that that motive actually started several months earlier back in June and July when he got a call from you. You're arguing that he visited the lawyer, not from an exposure to liability, but in order to stage some testimony that he was going to give under rule 801, and that he knew in advance that he needed to have buttressing evidence that would later be used in a court of law under 801? Yes. I don't think most laws do understand that. Well, actually, I don't think most anyone else would be that conniving. But as I think, acknowledgeable, that you need about ten steps of knowledge to know that first of all, you're going to testify, you're going to cooperate, you're going to use the attorney, you're going to waive your attorney client privilege, you're going to testify trial, and you're going to want to buttress that with the statements you made to your attorney earlier under rule 801, D1B. Well, I didn't know all of that to make it meaningful. Well, he needs to know some of that. The first thing all he needs to know from visiting attorney Catherine Flynn in June or July 2011, or one of the other attorneys he visited before he went to attorney Murphy, all he had to know at that point was that since I am at the top of the heap, or it appears that I'm at the top of the heap, I have to have something to trade. Now, that thing to trade would be Morphel. Problem is, I know that I'm not going to be very convincing because all of the direct evidence, and frankly, the circumstances are more evidence. You say it's going to make all these considerations? This man, yes, he already demonstrated a propensity to use lawyers, Larry Feldman, for something other than legal services. He had demonstrated himself as someone who could envision what would happen in the future and how he could use people to manipulate those events in the future. So when he goes to attorney Murphy, all he needs to know at that juncture is that I need to have someone to trade and I have to be believable. So when he goes to see attorney Murphy, all he has to do is say Marthos involved. Then, three weeks later, when he's arrested and he is flipped, he has to prove that he's someone worthwhile to be flipped, someone who can be believed in court. He has innumerable things he can be impeached with and he is all the direct evidence leads to him. So he has to have someone to say, I've been saying this all along. Now, if he had never gone to Catherine Flynn, if he had never gone to any other attorneys, if he had never demonstrated an ability to use a lawyer for something other than legal services, if he was someone of less cunning, then your question to me, Judge, would be an easy answer. But in the brief, I must say that I consider myself to have a little bit of knowledge about here's say and buttress in and pre-trial consistent statements and that type of thing. I would never figure that out or anticipate that. I mean, it's so remote, all the possibilities and contingencies and all the testimonies. It's pretty, you make a, you give him a lot of credit. I'm not the only one. And trial council perceived the same. Good, probably put one of those in his book. Well, let me tell you, yes, yes, it is fascinating, it's enlightening, but in application of the role, all you do is look, when did the motive exist? And the government has conceded that it existed at the time Davis went to Murphy. For you to say, I think that that's far fetched, perhaps, but that doesn't change the application of the role. So we do have a situation where the trial judge permitted into evidence, the test, these prior consistent statements that should not have been entered into evidence. Then you're going to look at what's the harm. Well, really, you have from May 22nd, 2011 to November 9, 2011, you have Davis being recorded hundreds of hours by Mr. Copeland, never says anything about Marfell. Let me ask you this. Then I'm not sure this was sufficiently preserved, given what the district court did. It structures a district court gave with reference to that. And even if it was error, tell me how it survives plain error analysis under the fourth prong of a line. And the second question is, didn't it offend it, invite this, and such the error was invited by the defendant? May I do them in reverse? Sure. It was not invited. Mr. Davis was cross-examined about his failure to ever mention Marfell during hundreds of hours of tapes to Mr. Copeland. He was also cross-examined about the fact that bird, that Marfell had never met bird, that Marfell had only met Callaway once in Copeland. He was cross-examined on a lot of things, but I guess the relevant one is, he was cross-examined about his failure to mention Marfell previously. So that opens, that does not open the door to bringing someone in just to repeat what he said at trial. That's pure cooperation. It can only come in if he didn't have a motive. I'm just kind of lost track of what I was going to say a few moments ago. In terms of plain error, it does affect the appellant substantial rights. It is incredibly prejudicial. As I started to say, Joe, you had the testimony of Davis, didn't you? Pardon me? You had the direct testimony of Davis in court. That's complicated, him. All this did was to corroborate what he had said to his attorney out of court, but you still have the direct testimony that the jury apparently believed, and it was explained that he would lose the benefits of his deal if he didn't testify truthfully. Well, they made that judgment. Well, they made that judgment with the benefit of Murphy, who was a Navy veteran who's an ex-US prosecutor, who was vouching for the integrity of the prosecutor, saying that we were back at the question that Judge Hamilton raised with respect to the 801D. He said that why should we notice the error? How is the prejudice? And I'm just following up on that and saying it was nothing more than corroborative of testimony that was before the jury, and the jury was apparently believing Davis. Well, but from a fact-specific standpoint, Davis has no independent credibility at all. There was no forensic, there was sent aside that here. We're in a pellet court, the jury made that decision. Then it becomes an easy question. Is Davis more likely to be believed by the jury when what he says is is cooperated by attorney Murphy, who was unassailable in his credibility? And the answer to that is resoundingly yes. This was not just a witness from a street who saw a murder and who's brought in and may have a little credibility issue because he was having a couple beers that night. This man Davis was the mastermind of the large fraud, and then he conceived, he hired, he arranged for the murder, he gets rid of the murder weapon. He was the one who he conceded all that. He conceded all that. He did. And so the question is, is he a believable person? And what did the government have to show that he's a believable person? Nothing except Murphy, and that's why it is a way to be an air. Unbelievable. When he is told, tell the truth, you'll get 35 years, and he then goes in detail and implicates all his himself in exactly how you described it. It was quite remarkable how detailed and clear his testimony about his own involvement was. He's already recorded as saying he was involved. It's nothing for him. I know, but he explained the details and made it rational and the fact that he said the same thing to his lawyer when he first saw him. To one of his lawyers, by the way, that's one of the issues. He waived the attorney client with respect to Murphy. There's the issue of subject matter, waver. The court should not have allowed Murphy to testify on this waver without first deciding whether or not Murphy, whether or not Davis had waived his privilege with respect to the other lawyers. This is hard to do. As you sit here and ask. As always, to argue it in your brief. No, no, but I think it's a subset of the argument, if you will. When Judge Neemire says, well, can't we- You argue it in the district court? No, it was not argued by trial counsel. This is the first time. Well, actually, trial counsel brought it up. In Judge Garbis said, I'm not going to make a determination now whether or not it's been waived by the others. And then, the counsel didn't bring it up again. But Judge Neemire, with all due respect, you were operating from the premise that Murphy had not already received the information from attorney Flynn and others that would allow him to conceive that very conniving plan, to lay out all those events that you describe as being doubtful, as being- whereas government says, fanciful. But that's because we don't know what he learned from Flynn. But we know that when Davis went to Flynn, he went to her because homicide detects his one to talk to her. So we have the motive to lie back in July of 2011. The government concedes it existed before he went to Davis. So what happens is, as you said in U.S. versus hedge path, you have to follow Tommy. And if it's not the very same statement for completeness, then there's no other purpose it can be used. You have to rely on rule 801-B. And when the government concedes, then we get down to playing air as Judge Hamilton asked me, what is that? Well, this was a weak case. Davis recorded Marfo for hours, and Marfo said nothing except, aha, which as I point out, footnote and a brief can mean, yes, I agree with you or can mean, yeah, I'm listening to you. He was convicted on an aha and Davis, but trust by attorney Murphy. All right, thank you. Thank you. Mr. McPherson. Mr. Purcell. I thought that might go a bit longer. Good morning, Your Honors. My name is John Purcell. I was the prosecutor in this case. First, a couple of factual corrections. There were not hundreds of hours of tapes between Mr. Copeland and Mr. Davis. You move a little closer to the mic. I'm sorry, I heard about 20 hours of recordings between Mr. Copeland and Davis. And to add to the, and by the way, in all of those conversations, from the very beginning, the first occurred on May 22nd, just about a month after the murder itself of this young man. From the very beginning, when Davis was talking to Copeland, and remember that Copeland came to the government, explained he was part of the fraud. We became a federal witness in a day, the first day he came in, and his statement, by the way, that he wasn't involved in the murder was never contradicted by anyone. Including Davis, this conniving Davis, who would have had every opportunity and motive to implicate Copeland or further implicate Marfo, never did that. But in all of those early conversations between Copeland and Davis, Davis was continually implicating Marfo, who we call, that was the references to Money Order Boy. The focus of all those conversations and the purpose of the long investigation was to identify, finally, identify the trigger man, who tried to be bird. And that occurred coincidentally, or maybe not coincidentally, on October 14th, which was exactly the same day that Davis told Copeland to the morning, I'm going to go off and see this lawyer this afternoon, and then went to that lawyer's meeting that was with Mr. Murphy. He took Marfo with him incidentally, thinking they would both be able to speak with this attorney. But Mr. Murphy testified a trial that he wouldn't allow that. So Marfo, who identified in court, sat in the anti-room. And then later, after that meeting, after the meeting with Mr. Murphy, Davis came back to Copeland that same afternoon, October 14th, and had another recorded conversation. And that is the sort of infamous in the case, Schmuck of the Year, where he clearly, and this is how we knew to even approach Murphy in the first place, because it was very clear from this recorded conversation that he had told Murphy everything. He told him his role, he told him Marfo's role, he told him bird's role. And later in that conversation, he actually gave us identifying characteristics that allowed us to identify bird, arrest Davis a few weeks later, and then arrest bird that same day. The point is having a motive to go to a lawyer is not the same thing to have a motive to fabricate. And the cases that, for instance, in Hedgepeth, the defendant there, a young woman wanted to get in her post-arrest self-serving statement to an FBI agent in her case. Wasn't committed to do so because after her arrest, she had a motive to fabricate. In this case, the facts and circumstances showed that the court did not abuse his discretion, much less commit plain error in allowing the testimony here under 801-D1-B. I would maybe say something differently if Davis had an incriminated himself more than he incriminated anybody else, both at trial and in talking to Mr. Murphy. We know this because Mr. Murphy told us that. And he actually, as was argued at the trial and argued to the jury, Davis actually incriminated himself far more than he incriminated Murphy. I'm sorry, Marfo. And he could have gone in there if he was that conniving. I think he would have gone in there and implicated everybody but himself if he was setting up some sort of future witness. It was going to testify for him. And beyond just that sort of not being able to be that conniving, as nobody could be, he would have had to actually know that as Davis, when he went to Murphy, would have had to know that Copeland was recording him all this time, and that he would have had to conform his statement made at that time without knowing that Copeland was cooperating and recording all of the statements, he would have had to made a statement that conform with all those tapes, which he didn't know were being made, which is impossible. So this is a person who went to an attorney why, for the reason people go to their attorneys. You know, the alternative reason that we thought this was admissible, and the judge, I think because of the optics of the thing, it sort of sounds odd to put a lawyer in the position of being a person who is a witness to a declarant statement under 801-D2-E, but one of our first theories, and we follow the memo before this, none of this was a surprise, the defense had an opportunity to interview councils, Mr. Murphy as well, the judge knew this was coming, but we actually proposed admissibility under 801-D1-B and 801-D2-E because I could not think of, to me, this is the epitome of a co-conspirator statement. It doesn't make the lawyer a co-conspirator, and of course, he's privileged, but that's why there is an attorney privilege. That's why those sorts of statements to a lawyer are privileged because otherwise they would be co-conspirator statements. Why else did he go to Murphy? He went to Murphy to find out how he survives the situation he's put himself into. There's, in my view, the epitome of an infurtherance of the conspiracy statement. The court rejected that and just wouldn't go there because of thinking about the privilege. We don't trigger who waves the witness triggered it here, and that is after we asked him to do so. And we knew to go to Murphy, of course, because we had a tape between Davis and Murphy of that conversation that day. We knew. You asked Davis to wave the attorney client? We confronted Davis. Davis did not come forward and say, oh, by the way, you can go check my lawyer. I was about to say why? We knew, the investigators knew, that Davis had implicated himself to his attorney because he told our informant about 10 minutes after you got back from that meeting that he told him everything and learned what the circumstances were. So we knew that he had done this. When we asked him, he said, yeah, I told him the same thing I just told you, or I've been telling you, and that you have a my tapes that I've now know about. And we went to Mr. Murphy who is, as you would hope, completely unwilling to walk rape, but he did what he had to do and the what his client told him. There's no evidence anywhere in the record, by the way, of any communication between the prior attorney, Ms. Flynn and Mr. Murphy. And beyond that, I might point out that we asked, and it's on the record, we asked Mr. Davis what did he tell Ms. Flynn? And he told her the same thing. And there was a point where Mr. Report was cross examining Mr. Mr. Davis. And he said, well, what about Ms. Flynn? Because he'd said he'd given a waiver and his direct he mentioned, yes, I gave a waiver to my lawyer who will be probably testifying later. And Mr. Report brought out, as he should have. Well, you want to see Ms. Flynn too, do you have a waiver for her? And he said, I'll be happy. He was prepared for that question. He said, yes, I'll be happy to sign a waiver for her. And he would have done so. But Mr. Murphy, Mr. Report, walked away from that question and never went there again because he realized this is not going to get him anywhere. But the point is, this is a witness who under the analysis of the case law, this is the person who does not yet have a motive to fabricate. Every case where there is a motive to fabricate, there's been an arrest. The person is been confronted with, he's been confronted with the police, and he's making self-serving statements. Here's say rules, understand that people make self-serving statements and the ideas prevent that sort of unreliable statement coming in. And I'm sure the court, all of you have read the Caracoppa case from the second circuit, which is exactly the same thing, except we have the benefit of knowing that everything he told this lawyer is the same because A, the witness admitted himself, he incriminated himself, and we have lots of tapes that he didn't know that we had that proved that he said all these very same things before. So they were sent bird pled guilty for trial to what counts one and four? He pled, I don't actually remember what they were, they were two. Probably the 1950, the murder for higher count. And I think the murder of a witness count, yes. Well count one was the conspiracy to use interstate communication facility. And within the two elm spurs, yes. Count four was charged murder of a witness resulting in the death of... of Galloway. Yes. Both of mandatory life counts. And you know, he didn't pick the 35-year sentence. That was, that's on his business. That's what determined to be court could have rejected it. So in this particular case, the court, and this instruction we, there was some mention about, I wanted to mention the instruction of the court, the court didn't give a limiting instruction. It gave a cautionary instruction. And it gave it, actually, I thought the instruction, if you read the part of the transcript just before Mr. Murphy takes a stand, we approach and the court asked me again, there had been an emotional eliminate, letting this all out. But the court said, now what's again your theory for putting this witness on Mr. Murphy? And I mentioned 801D2E, which he sort of know. And then he said, well, I'll give the jury an instruction telling them that it's up to them. And the last thing he says is to them. So when you listen to what Mr. Murphy says, bear this in mind. That is the whole argument about a motive to fabricate, that is, did it precede or was it after a motive to fabricate. And you, the jury will decide whether or not it supports Mr. Davis's testimony before you or it doesn't. And I wanted to bring that out because there's been an argument in the defense brief that the court didn't tell the jury had to consider this. Well, the court doesn't ever tell the jury had to consider things. It may limit their consideration. It may give them caution about informants or in this case, the particular situation. He actually, the court, we cited the defense theory to the jury at this point. I thought it was going to do it later, and he did it right at that point. So the jury was well aware of the issue and what the concern should be about accepting this testimony. One further point is that it's argued here today that Davis was the whole government's case. Well, certainly against Marfo, and that certainly isn't the case. There's Marfo against Marfo. Marfo offering to kill Mr. Copeland in addition to having decided at one point during the preparation of this idea. He had killed the person when he was arrested with a guy named Styron earlier in the conspiracy. There's his taped meeting where he acknowledges he was at this meeting with Davis and and bird before the before the murder. There was also Copeland. Copeland who Davis could have but did not exonerate. Now, if they can explain that the defense could explain why a person would incriminate himself and then target Marfo as the person if they were to the bus, not to give the government even more, but through Copeland under there as well, and it's the same argument made to the jury, then we all should be listening to that. But that is not what happened. Copeland and I'm sorry, Davis had the indiscia of a person telling the truth. And in the Colvin case, when the court was considering this court was considering 801D1B, and whether or not to accept it, it gave some considerable weight to the fact that this person, this previous consistent statement was a statement in which the defendant did not exonerate himself or excipal paid himself, but incriminate himself. And that makes it more reliable even today. And that's certainly what Davis did. Incriminate himself from the get-go as the most important player in all of this. I'm not hearing any questions and I don't know if I should go any further, but I point to the court, I think it's clear from my brief, is that this motive to go to a lawyer is not the same thing as a motive to fabricate. And there's fabrication typically means a self-serving statement. And we're not seeing here self-serving statements. This was the first in seeking a lawyer advice, got it, and the government was able to exploit it. A rare thing, certainly, but something we're able to do in this case. Any members have any questions? Thank you. Thank you. First, I'll miss Jim McPherson. Yes, you're right. Remember, it's the defense theory of when and why the declaring is fabricating that is your focus point. And that focus point is before he goes to Murphy. If Murphy wasn't an attorney, we would still be in the same position. But because Murphy is an attorney and a very reputable one, through the government elicited his entire career background, that goes to Judge Hamilton's question about the error. The error is because Murphy gives credibility to Davis like no one else can. They're at the opposite ends of the credibility spectrum. And without Murphy, Davis is virtually worthless. And so the question is- What about Copeland? Well, everything that the council just told you that Copeland testified to is Copeland repeating what he was told by Davis. Have they shown you anywhere in the record where Copeland said, I heard this from the horse's mouth? No. He only met- You have evidence that Davis knew he was being recorded when he talked to Copeland? No, there is not. But it was a five-month period. These two were thickest and they are thieves. And it is not inconceivable that Copeland made it known at some other time he wasn't wired or in some other way. But remember, this guy, Davis, he used Feldman to get confidential information, to keep his underling silent, not for legal services. So it's not unthinkable that he would also see Murphy the same way. But it doesn't matter whether or not it was Murphy or the next-door neighbor. But Murphy gives credibility that no one else can. He elevates Davis up to where the jury can be willing to purchase because there's no forensic. There was no eyewitness. There was no confession. There wasn't even circumstantial evidence. Well, sure there was. I mean, he first of all wanted to do the killing himself based on Davis and assisted on that. And there wasn't there a tape that recording him? No. How about his presence at the at the discussions with Bird? Okay. Good question. That was disputed and remember when Copeland testified. I'm sure everything went disputed. Right. But when Copeland testified, he was asked three times who was with him at that meeting. He didn't say Morphel. It took counsel four questions to get Copeland to add Morphel into that meeting. Four questions. So that's good. But he wasn't just describing what he saw and heard. Everything Copeland said came from Davis. Everything Murphy said came from Davis. Everything everyone said came from Davis and the only time. And I guess you made all these arguments to the jury that the Davis was conniving and uncredible and that you should not convict on his basis. Trial court did not put the emphasis on it like I would have. Well, I understand, but the jury, that's, you're describing the epitome of a jury function. These arguments are jury arguments that who's credible and who's not credible and what the jury relied on and who was the most truthful. Of course. And think how those arguments would have been if Murphy had not been allowed to testify to this. What would the government have argued as to why they should believe Davis? Because he said he was more culpable. It doesn't matter. He's got a plea deal. He can say. He sure he knew that. Right. And this is the way criminal cases are prosecuted. The, I know, in fact, this is a particularly exemplary case where had every one of these guys gotten together and agreed to be quiet, probably nothing would have happened. But they broke down a different Copeland and they all, you know, when the law starts coming, they start running and cut their deals. But that's the way the process works. But you're perfect. With all to respect, you're making the assumption that they believed Davis because of what Davis said. They could have only believed Davis. A question credibility is a very, very subtle thing and a fact finder. And I was a district judge for a little while. And I know that what happens in the courtroom is something that doesn't show on the record. But the juries make these decisions. They watch everything. Sure. But in the absence of an eyewitness of forensic, of confession, of, of something from somewhere other than Davis himself, then it becomes critical that Davis's testimony only be evaluated for credibility by admissible evidence. Were you not a cancer blow? No. Well, what in Davis very aggressively cross-examined on his testimony? He was. That was he was. Unfortunately, I don't think the closing matched up with the cross-examined, but it was a very thorough cross-examined. That's why they needed Murphy. Without Murphy, there's nothing for Davis. And like- Tell me how Murphy's testimony was preserved by the attorney for Murphy. Reserve for. For the. Error analysis. It wasn't preserved. It's a war on plain air. But I'm sorry. Did I mean it survived plain error analysis? My question is how was the testimony preserved for plain error analysis? Yeah. There was no objection. There was no preservation. There was no preservation. And that's why- Well, don't it in right there? No. No. That's why we look at whether or not the the air was clear. It was clear because the government agrees that the pre-mode have existed. Then we look at substantial effect- Wait, you can't be right. Some error occurs doing this proceeding. And the defendant doesn't raise any objections to it. That it's preserved for plain error analysis. Yeah. What? Yeah. And what's- Yes, I said. Under what theory is that? It wasn't- He waived it. If he's not preserved for plain error analysis, he waived it. I- plain error. You look at it. If it wasn't preserved to determine whether or not it was a clear error that's substantially effect- What you're writing us to do is to go back and review all of this to see if there was plain error. And if there was an error that was repeated, or if it was invited. And it wasn't harmless because since everything goes back to Davis, there's a reasonable probability that the verdict would have been different. Once you take- We want us to make those objections for what should have happened in the trial count- Well, the trial counts are below. Tell me how we can do that. You look at the record as a whole as you just said to see whether or not that error is clear. All right. Thank you. All right. Thank you, Mr. McPherson. I know you were court appointed. Yes, may I- Am I over? Yeah, I'm sorry. Yeah. The light turned off. Okay. You were court appointed, were you? Yes, I want to recognize that service and you're a forceful argument. Mr. Gardner, was he a part of your- Yes, I- You brought him on to help. Yes. Thank you, Mr. Gardner. We'll come down and greet Council after a journey for the day. This Honor report stands during the summer morning and I'm 30. You guys have been at the bloodstates in this honorable court