It's versus Thomas Edward Throckmore, Mr. Boas. Thank you. May the police record, I am Paul Boas, and I'm privileged to represent Thomas Throckmore in this case. I'd like to reserve two minutes for the bottle. Every question will be granted. Thank you. I'm going to begin by saying I've presented contrary to the teachings of Judge Alessert, five issues in this brief. And I think they're all strong issues. Clearly, I'm not going to be able to talk about all five of them, but I'm just reminding the court that if I don't get to some of them, that's no concession that they're not maritalist issues and have strength. Let me begin with the first issue. This is the lesser included offense issue. In this case, the defendants charge with possession with intent to distribute an excess of 100 kilograms of marijuana. And our defense of trial was really twofold. One, that the two accomplices, Robert and George Galey and Robert Galey, had transported all of this marijuana on multiple occasions from Arizona to Pittsburgh in a secret compartment that he had built in a truck that he had formerly owned, that was currently in the name of my clients company, that he was responsible for all of this. And he was just, he and his brother and he was just putting it on Thomas Throckmore. And alternatively, our second defense was throughout Morton, to the extent he may have been involved, possess with intent to distribute less than 100 kilograms. And when it came time to instruct the jury, and I made a request that the court instruct on the lesser included offense of possession with intent to distribute an unspecified amount of marijuana, and this circuit in the US versus Lacey has clearly held that that's a lesser included offense of possession with intent to distribute an excess of 100 kilograms. The judge debated the issue and the judge said, and it's another in the revenue, well, I can see the jury could find that. They couldn't fail to, this was a split deal that the Galey's had some of it. And in fact, all that would have taken was for them to have ten pounds on their own of this two hundred and thirty pound shipment for Throckmore to have less than 100 kilograms
. So the judge acknowledged that it could be that way, but he sent to the US attorney, I mean, in case we're watching a position, and he said, we want all or nothing, your honor. And it was clear to me, and it's clear from the record, that it was on that basis. Not that there was no possible way to find it. Throckmore was into it, but for less than a hundred kilos, but to court deny the instruction. I'm going to tell you one thing. I suppose you can clarify and refer to the evidence that you say is in the record that would support an inference that there was some agreement to split. Right. Yes. Well, not necessarily that there was an agreement to split, but there was a possibility of a split, and that's as far as... The government sought to introduce at least two prior deals where Robert Gagin, they said it was all part of the same scheme. It was all part of the same offense. That's what the government argued, and not only to court agree that on two prior occasions, months before, Gagin got Arizona and brought back two hundred pounds on one occasion, one hundred on another occasion. In each of those, Gagin admits to selling himself large quantities of it. Ten pounds, he took the Boston, twenty pounds, he sold to some friends. Now, on the cross, he said, well, I did it for Throckmore, but that was clearly challenged. So we see a pattern of each time he brings drugs back, he is selling some on his own. We had testimony that George Gagin, surely before this, was selling drugs on his own, although he denied it. Well, okay, well, okay
. To draw an inference that on this occasion, there was some anticipation that were agreement that would split between the two. Okay, I don't necessarily think I have to put all of those back proof that there was an agreement. All I have to prove is that a jury could possibly find that Robert Gagin may have planned to take ten pounds of it for himself. And what we have is done on two. Well, wait a minute, though. The crime here is not, is possession with intent to distribute. To distribute. And if at the time, at some time, when it was charged in the indictment, Throckmoreton had possession of the whole thing with intent to distribute, it doesn't matter that there might be some possibility later on that they would split it up or whatever it is. That's correct. The question is whether there's evidence that would support that he didn't have possession of all of this at some point in time within the scope of the indictment. Well, one, he never had possession of a period. He never had actual possession. What happened was he didn't, he accept delivery of the truck. The truck was parked in his driveway. There was never a time during this entire case where on the record, he's told the quantity. There's even a meeting that's wired where Robert and George are there talking to Throckmoreton and they never mention the quantity. All that happens is Robert Gagin called Throckmore and says the truck's broken down and Throckmore says, well, drop it off at my house and conveniently the government loses that tape. But in any event, the truck is dropped off at Throckmoreton's driveway. Throckmoreton's in work. He leaves work
. He hasn't been here. He has a sandwich. He drives home. He parks at his house and is getting out of his car. He's arrested. He's never accepted delivery. He's never acknowledged the quantity. He's never seen the marijuana. It's in this hidden compartment. Now that led me to argue, you should find the managelier of everything. But the secondary argument is there's no evidence that he knew exactly what the quantity was. And in each one of these other deals, Gagin was out there selling marijuana. And the fact that Gagin said, yeah, that's true. I was selling large quantities. But I was doing it for Throckmore. The jury is free to agree with some or none of the witnesses testimony. And all they had to do was say, we see a pattern here. We see that every time Gagin goes to Arizona and brings back marijuana, he's out there selling some. And we choose to believe not to be selling it for Throckmore. We believe that he wasn't got it
. We believe that he was selling some. He couldn't even do it on his own. The fact that there's no discussion of the quantity. The fact that Throckmoreton is arrested prematurely. The fact that George Gagin despite his denials is also selling marijuana. All of these things suggest the fact that it was Gagin who had to do testimony that on the loan immediately prior to this, the Gagin is unmarried with Throckmoreton being there. Now, I'm not suggesting the evidence that just taken to the silver robbing isn't. But the law is that if there's any evidence, no matter how weak from which a rational jury could acquit of the greater and convicted of the lesser, even if the standard is abusive discretion, and it really isn't, it would be plenary because the judge agreed that there was evidence that it's a pointless. He just said I'm not going to give it because the government wants over nothing. Mr. Goh, does anybody help you on the test? Why don't you address the confrontation issue, the cross-examination issue, as your time is beginning to run out? I think the first issue was... All right, why don't you move to the confrontation issue? You're right, a confrontation issue. George Gagin, I rob a gangly get something test right now. At the time Robert Gagin had not been indicted, he had not been charged according to him, no form of deal had been made. But this was a large quantity of marijuana that carried a five-year mandatory. I'm cross-examination, Mr. Gagin. He in another case had snitched out his uncle and not gone to jail
. And I'm saying you know about being an informant, about cooperating with the government. And he's dodging all the questions, but I can't question him about a plan agreement because there is a lot. And under the third-cherå£ case, the one time when there's some discretion in not letting me ask about what he's facing as a mandatory is when there's a plan agreement in place that I can talk about, but there isn't anything here. So I'm saying isn't it true that you know you're facing five years? And the government of Jackson says that bars is just trying to get the jury to be aware of what's wrong with his facing. Well that's not true. This circuit in Chandler has said, even though it's not necessarily a great thing for the jury to know what a defendant is facing, there is rights under Van Arstel to cross-examine, give him the right to ask about this even if the jury can confirm. And Chandler, and Chandler, we said that the evidence that the district court kept out had to have a make a significant, had to leave the jury with a significantly different impression of the witness's credibility. And of course that would be the truth. How would that have left a significantly different impression? And the fact that he testified that he had no agreement. Because he testified that in a prior case he got off from under and got probation by testifying against his uncle. He testified that he was told he was going to be indicted here and he was planning to go to jail. He admitted hundreds of pounds of prior deals and related deals of marijuana. And it's for the jury to know that this guy who knows how to get off from under by cooperating is facing five years as a mandatory minimum and can avoid that by testifying. But whatever he's facing, he's testified he has no deal. He's hopeful that his testimony is going to help his brother, but he has no deal. So whatever he faces, the jury's going to know is it's likely that that's what he's going to get. Well, that's not exactly true, Your Honor, because all of the government witnesses said this is a total lie. There was never a deal that his brother wouldn't be helped. That was never part of the deal. And he didn't win
. The fact is this guy is a liar and he's not a real good person and he's clearly indicating that he's in the past, figured out ways to help himself. And to say that because he denies a deal, that suggests that this wasn't an area that would cause the jury to have a different fear of him. I look at it exactly in the opposite transcriptions. Here's the guy who I can't say is it true that you have a deal in place where you're going to 5K? All I get to say is you know that this quantity carries a five-year mandatory and you're aware that cooperating can get you out from under that. And the jury, of course, would have a different view of him if they learned, oh I see what this guy's up to now. I see why he's pretty gone throught more. He's trying to avoid 5 years. He's lying about trying to help his brother. Three of the witnesses said there was never a deal. Nothing's ever said about helping his brother. So the jury sees the guy's lying about when he climbs his motivation. We know in the past he snitched his way out of jail time. And here's the guy who's not only facing the possibility of some time, he's facing the mandatory 5 years. And I'm not allowed to ask about it because if he or I'm his conclusion that the jury could figure out that that's what you're out of more in facing. That's not what the court said and Jenner said the opposite. And with all due respect, I think the lack of a bully bargain and we discuss this in the right, in the brief, is exactly why this is a deal. In case I'm like no sir, whether it might be some other avenue across examination, simply to say you're hoping to do better for yourself. You're hoping that this helps a little. Doesn't do it. The jury isn't entitled to know how much time this guy's looking at
. It isn't it, Mr. Boehers, a fair characterization of the record that you were able to impeach his credibility because he had a self-interested motive as a cooperating witness. But you simply weren't allowed to reference the 5 years. Isn't that a fair characterization? It's fair that I was able to say you're involved in this case and you hope you're going to get something out of it. But he kept trying to dodge the problem. His lies made that area of cross examination ineffective and it became necessary. But what's so magic about the 5 years, if you're able to go through the entire line of questioning that we see typically with a cooperating witness. And you can ask all of those questions except make reference to the mandatory minimum. What makes that such a linchpin? Well, what makes a linchpin is that if you analyze it that way, then general would have no meaning because you can never ask it. You can always say, aren't you hoping for a 5K? Aren't you hoping for a bad deal? For the jury to know that substantial assistance not only means a break, but it means coming off of a statutorily required minimum sentence of 5 years is extremely significant. The jury doesn't know that it starts out that high and there is no way you know, despite the US Supreme Court's decisions on guidelines, nothing affects mandatory except coming off of it with the 5K or the Rule 35. And it's extremely significant. The difference between five years and potentially probation or significantly less can only be driven home by the jury knowing how significant and how firmly entrenched this mandatory is. And the one and only way out because this guy doesn't need to say develop his plenty of priors is the 5K. And to simply say, you're hoping to do a little bit better, doesn't let them know what he starts out with. Nords that let him know what he ends with. Can I say something about the second issue, the accomplice issue? There is no doubt that George Galey was an accomplice in this crime. None whatsoever. I point out all of the different bases for it. He unloaded 200 pounds
. He shied my to his brother on this particular deal. He was president of the wire meeting. He was meeting with the guy who's the source of marijuana. There's no doubt that he was an accomplice both in the overall three deals and this particular deal. And the terrible prejudice in my time you see when I requested an accomplice charge on both accomplices and got it only on one. The jury said, well Robert Galey is an accomplice and we have to look at him with caution. But George Galey isn't. So when George Galey says Robert Galey is telling the truth and essence of courtship promoter of credibility has been placed on him because the court says, and accomplices the guy who does this, Robert Galey is the accomplice looking at him with caution and then he doesn't say about George Galey. And while the court, I'm not conceding this, but while the court may have been able to get away with not giving an accomplice charge on either of these two guys and just letting me argue, once he gives it on one and doesn't give it on the other, the prejudice is evident. No matter what the government says, the fact is that the jury has heard that Robert's an accomplice and George isn't. All right, I think we understand your question. Thank you very much. I'll be back on your bottle. Mr. Robert Galey. Good morning, May I please the court, Robert Everett, the United States Attorney for the United States, as Apple Lee in this case, I will restrict myself to the issues that have been argued by Mr. Moas and like came I rely on my brief on the other issues. Why don't you start in reverse order? Why wasn't the, what Mr. Boa says about the absence of the accomplice charge? Why doesn't that give George Galey extra credibility? Well, I think the reality of the record is that the court defined accomplice page 940A of the appendix. The accomplice definition is given to the jury
. In reality, Mr. Boa was not inhibited in any way. In fact, he very actively argued that George Galey wasn't accomplice for an informant and he was a corrupt source that appears at page 1011 and 1012 of the appendix. I think the reality is that George Galey's being a somewhat tainted witness in the view of the defense was very strongly presented to the jury. And the reality is, as the district court judge found, George Galey's participation in this current transaction of these almost 250 pounds of marijuana is not established. Anything more than he was a clerk who worked in Mr. Thark Warden's office and he handled paperwork. And there's nothing to indicate that he was either a participant in the purchase of the marijuana out in Arizona or that he did anything in particular with regard to unloading this particular shipment of marijuana. So in this particular episode of Purchase of marijuana, George Galey is very, very tangentially involved and not essentially is with the district court determined that his involvement is so minor, there's no establishment that he was an accomplice. I think Mr. Boas suggests quite a bit when he says neither one of these individuals could be argued to be an accomplice possibly. But I think very clearly the district court did not abuse its discretion in seeing the difference between George Galey as a clerk in Mr. Thark Warden's office and Mr. Robert Galey, who actively went out to Arizona and drove the truck, brought the marijuana back, parked it in the driveway. Don't throw more than it's here. Nothing like that is attributable to George Galey. So the difference between the two is very clear. But the district court did not prohibit Mr. Boas from arguing that George Galey was an accomplice and if not an accomplice and an informant who was a tainted source, a corrupt source. I think all that is clearly stated on the record
. So I would suggest that under an abusive discretion standard, the district court did not abuse its discretion in finding a distinction between Robert Galey and George Galey, but allowed the defense to argue that there was no real difference. I understand your decision to address what has been addressed but help me a little bit because I'm more troubled by the O'Sheat problem than some other things that have been discussed. My understanding is that there was in evidence and exhibit of an O'Sheat that was taken from Mr. Thorn's premises. It was part of the start. And the court ruled that he could not be asked whether this exhibit, whether he knew what this exhibit was and say that based on his experience that it is O'Sheat used by people who were involved in the truck business to record debts, etc. Because he would be testifying as an expert and he had not provided a report prior to trial pursuant to the criminal rules. If that's the case, how can the judge allow the witness to say to be asked, do you know based on your experience what an O'Sheat is? He says, oh yes, and he describes the O'Sheat that is exactly by a description that exactly fits the exhibit that's in evidence. And he says, well do you know what this is? And he says, yeah, based on my experience, it's a sheet that's used by drug dealers in the course of their business to record their debts, objection overruled. Well, if the witness couldn't say this exhibit is something that's used based on my experience, specialized experience. It was something that used by drug dealers. How can he give an exact description of the exhibit and then express the opinion based on his specialized knowledge that it was used in drug dealing? It's an interesting record with regard to this issue and reviewing the record again last evening, it cut my eye. At the first time the term O'Sheat is used as used by Mr. Boas in his opening statement. And page 363a of the appendix, after the government has made its opening statement in which it did not refer to O'Sheat. Mr. Boas refers to an O'Sheat. And it kind of struck me because it was later in the trial in which the issue of whether or not the state trooper would be allowed to testify with regard to his experience as an investigator, which was the basis of the questions that were asked of him. And the judge permitted, despite having ruled that a rule violation, which the court enforced through prohibiting the government from asking the state trooper, is this exhibit at O'Sheat, the court prohibited that. But the court permitted the prosecutor to ask that witness, the trooper, in your experience as an investigator, is there such a thing as an O'Sheat and what does it look like. So I think, again, it's an abusive discretion issue, did the court abuses discretion in allowing the state trooper to testify in a limited fashion only as to what an O'Sheat is, having, in my view, heard about an O'Sheat in the opening statement of counsel for the defendant. And I think the trooper was only asked questions with regard to what an O'Sheat is. And there was never offered an evidence. Was it? There was no. I mean, it wasn't admitted in evidence. It was not admitted in evidence. It was offered, but not admitted. So the jury didn't have it. Right. Oh, I'm sorry. I gave you the wrong hypothetical. It was hypothetical. I gave you, I guess. I thought that I thought that I realized that he was not permitted to say this sheet was, was used in the drug deal. But you're saying that there was nothing, there was no document admitted in evidence from Mr. Trogmorton's. I believe it was, but it just took in from by anybody as an O'Sheat. So all the documents that were used from funny, funny, and there were, the document itself was offered and admitted. It wasn't the jury. When the doctor was called, however it was identified as an exhibit couple, whatever it was admitted to
. So I think, again, it's an abusive discretion issue, did the court abuses discretion in allowing the state trooper to testify in a limited fashion only as to what an O'Sheat is, having, in my view, heard about an O'Sheat in the opening statement of counsel for the defendant. And I think the trooper was only asked questions with regard to what an O'Sheat is. And there was never offered an evidence. Was it? There was no. I mean, it wasn't admitted in evidence. It was not admitted in evidence. It was offered, but not admitted. So the jury didn't have it. Right. Oh, I'm sorry. I gave you the wrong hypothetical. It was hypothetical. I gave you, I guess. I thought that I thought that I realized that he was not permitted to say this sheet was, was used in the drug deal. But you're saying that there was nothing, there was no document admitted in evidence from Mr. Trogmorton's. I believe it was, but it just took in from by anybody as an O'Sheat. So all the documents that were used from funny, funny, and there were, the document itself was offered and admitted. It wasn't the jury. When the doctor was called, however it was identified as an exhibit couple, whatever it was admitted to. And it was sought. What he had described, what the witness described as an O'Sheat. Right. No witness during the trial. You have explained the problem very well, but I still haven't found my answer here. How many, my argument on that is that the district court was making a decision based on enforcement of a discovery rule. There was a rule 16 violation. A rule 16 violation. And there was an argument from the prosecution that rule 16 is not affected by the fact that there was no expert opinion provided to counsel. And that the prosecutor argued, I didn't really violate rule 16 because under interpretations of rule 702, I do not have to give a report on this. This type of opinion, this experience opinion, and the district court ruled contrary to that. In fact, the district court analyzed what its remedies possibly could be and concluded that the appropriate remedy was to prohibit the giving of an expert opinion. I will really admit that prosecutor weaved his way through that problem and argued to the jury at least I should be permitted to ask this witness what an O'Sheat is. And I think it, to me, it's clear from the record that the word O'Sheat has been used. That document is going to be seen by the jury. But you've started out a long time to say what it is. I think you better move on. Well, with regard to the first issue, with regard to the lesser included offense, I would simply point out that there is nothing in the record about Mr. Galey, Robert Galey, going to get a split of this 233 pounds of marijuana. In fact, no matter how many times the defense points out page 909A record, 909A of the record reflects what I suggest and experience judges I think would agree with me on this
. And it was sought. What he had described, what the witness described as an O'Sheat. Right. No witness during the trial. You have explained the problem very well, but I still haven't found my answer here. How many, my argument on that is that the district court was making a decision based on enforcement of a discovery rule. There was a rule 16 violation. A rule 16 violation. And there was an argument from the prosecution that rule 16 is not affected by the fact that there was no expert opinion provided to counsel. And that the prosecutor argued, I didn't really violate rule 16 because under interpretations of rule 702, I do not have to give a report on this. This type of opinion, this experience opinion, and the district court ruled contrary to that. In fact, the district court analyzed what its remedies possibly could be and concluded that the appropriate remedy was to prohibit the giving of an expert opinion. I will really admit that prosecutor weaved his way through that problem and argued to the jury at least I should be permitted to ask this witness what an O'Sheat is. And I think it, to me, it's clear from the record that the word O'Sheat has been used. That document is going to be seen by the jury. But you've started out a long time to say what it is. I think you better move on. Well, with regard to the first issue, with regard to the lesser included offense, I would simply point out that there is nothing in the record about Mr. Galey, Robert Galey, going to get a split of this 233 pounds of marijuana. In fact, no matter how many times the defense points out page 909A record, 909A of the record reflects what I suggest and experience judges I think would agree with me on this. This court judge was saying to the prosecutor was, be careful, the jury is going to be unreasonable. And they've heard this witness. In fact, I think I would agree with Mr. Boaz. Robert Galey was a difficult witness for both the prosecution and the defense. You can see the chip on his shoulder and you can see that he was difficult to get evidence and testimony from in the trial. But that being said, there's nothing that Robert Galey said or any other witness said in this trial that would suggest there was going to be a split of the 233 pounds of marijuana. In fact, all the prior occasions of purchases of marijuana is financed by fraud. He is the banker, he is the one who pays the source. He gets all of the marijuana and what Robert Galey testified to is that on one prior occasion he had to pay Throck Morton, I think was 1350 pounds for the marijuana he was going to sell. And if he sold it for more than that, he got to keep the profit. So it's clear from this record of even the prior occasions that this is Throck Morton's marijuana and he is going to sell possibly to Robert Galey and then Robert Galey would then possibly sell. So even the inference that Mr. Bowes would like to draw, or like to have the jury draw, the only rational inference is that possibly Throck Morton is going to sell some of this to Robert Galey at cost and that Robert Galey can try to sell it at a profit. But it still remains Throck Morton's 233 pounds of marijuana. But no rational jury, I would suggest, would conclude that there is a split. There's nothing in the record that says there's going to be any kind of a split of this marijuana. It's all from Morton's marijuana and maybe by inference Robert Galey might get a chance to sell some of this marijuana as long. Assuming just assuming for the purpose of argument that the court should conclude that there was error in limiting the cross examination regarding exposure to punishment and the O-sheet incident. Was it harmless error? I think it was absolutely harmless error to the greatest extent and I say that because one, the question was asked, this is not a question of whether or not this question could be asked
. This court judge was saying to the prosecutor was, be careful, the jury is going to be unreasonable. And they've heard this witness. In fact, I think I would agree with Mr. Boaz. Robert Galey was a difficult witness for both the prosecution and the defense. You can see the chip on his shoulder and you can see that he was difficult to get evidence and testimony from in the trial. But that being said, there's nothing that Robert Galey said or any other witness said in this trial that would suggest there was going to be a split of the 233 pounds of marijuana. In fact, all the prior occasions of purchases of marijuana is financed by fraud. He is the banker, he is the one who pays the source. He gets all of the marijuana and what Robert Galey testified to is that on one prior occasion he had to pay Throck Morton, I think was 1350 pounds for the marijuana he was going to sell. And if he sold it for more than that, he got to keep the profit. So it's clear from this record of even the prior occasions that this is Throck Morton's marijuana and he is going to sell possibly to Robert Galey and then Robert Galey would then possibly sell. So even the inference that Mr. Bowes would like to draw, or like to have the jury draw, the only rational inference is that possibly Throck Morton is going to sell some of this to Robert Galey at cost and that Robert Galey can try to sell it at a profit. But it still remains Throck Morton's 233 pounds of marijuana. But no rational jury, I would suggest, would conclude that there is a split. There's nothing in the record that says there's going to be any kind of a split of this marijuana. It's all from Morton's marijuana and maybe by inference Robert Galey might get a chance to sell some of this marijuana as long. Assuming just assuming for the purpose of argument that the court should conclude that there was error in limiting the cross examination regarding exposure to punishment and the O-sheet incident. Was it harmless error? I think it was absolutely harmless error to the greatest extent and I say that because one, the question was asked, this is not a question of whether or not this question could be asked. The question was asked first of all. And secondly, I think if you read the record, there's a back and forth that suggests maybe even the jury heard that the sidebar arguments with regard to whether or not this should be heard or not. But the district court judge did not instruct the jury that they are the disregard of the question and answer. This particular question was asked and the jury heard an answer or a response and there was no attempt to grieve me in the jury heard a response. I know the question was asked. I believe that Galey did say something, whether he said no or whatever, I don't know, I don't recall. But I believe that he did respond. Whether or not he responded, the jury heard the question and the only thing the jury heard was a mandatory minimum sentence. I don't believe Chandler is inappropriate to examine in this particular instance to either conclude that there was no error whatsoever or that an error if there was one was harm. The question was, you understand sir, you've been told that the quantity of drugs you are hauling would cause you to be incarcerated for a mandatory minimum of five years. That's what you're saying the jury heard. That's what the jury heard. Without being told to ignore the question. Without being told whether the answer to that question was yes or no, they heard the question. Well, in and here whether or not Galey knew that there's a five-year man, I know that but they heard the question. The reason the inference I take it from that would be the jury knows that there's a five-year mandatory minimum for somebody in this court. I thought I asked you to assume that the court concluded that there was error there as well as error in the O-sheet episode. And I asked you whether it was harmless error assuming it was error and it was clear to me from your response that you thought it was harmless error. But I didn't understand why you had you held that belief. And I thought it would be a good idea for you to tell us so that he could respond when he gets your friend across the way he could respond when he gets up
. The question was asked first of all. And secondly, I think if you read the record, there's a back and forth that suggests maybe even the jury heard that the sidebar arguments with regard to whether or not this should be heard or not. But the district court judge did not instruct the jury that they are the disregard of the question and answer. This particular question was asked and the jury heard an answer or a response and there was no attempt to grieve me in the jury heard a response. I know the question was asked. I believe that Galey did say something, whether he said no or whatever, I don't know, I don't recall. But I believe that he did respond. Whether or not he responded, the jury heard the question and the only thing the jury heard was a mandatory minimum sentence. I don't believe Chandler is inappropriate to examine in this particular instance to either conclude that there was no error whatsoever or that an error if there was one was harm. The question was, you understand sir, you've been told that the quantity of drugs you are hauling would cause you to be incarcerated for a mandatory minimum of five years. That's what you're saying the jury heard. That's what the jury heard. Without being told to ignore the question. Without being told whether the answer to that question was yes or no, they heard the question. Well, in and here whether or not Galey knew that there's a five-year man, I know that but they heard the question. The reason the inference I take it from that would be the jury knows that there's a five-year mandatory minimum for somebody in this court. I thought I asked you to assume that the court concluded that there was error there as well as error in the O-sheet episode. And I asked you whether it was harmless error assuming it was error and it was clear to me from your response that you thought it was harmless error. But I didn't understand why you had you held that belief. And I thought it would be a good idea for you to tell us so that he could respond when he gets your friend across the way he could respond when he gets up. Okay. With regard to this question, I think it's clearly in the context that it is harmless error. And the chamber requirements of allowing Mr. Boas full range of cross-examination but for that one area, Mr. Galey was thoroughly cross-examined with regard to his knowledge of drugs and drug laws and his own jeopardy. Clearly there had not been a plea bargain entered into with Mr. Galey at that point. And so his jeopardy was for the jury to assess on the basis that anything could happen to Mr. Galey in this case. With regard to the O-sheet issue whether that's harmless error, I would suggest that the O-sheet on its face is something that jury could have inferred. And this was a record of sales of marijuana. I think if you look at the document itself, the exhibit itself, I don't think you needed the trooper to say anything about it. But I think it was something that was maybe unnecessarily added to the evidence. But I think in the context of it's being introduced, the fact that Mr. Boas had referred to it in his opening statement, I think it is harmless error in this record. Thank you. Thank you Mr. Robert. Thank you. Mr
. Okay. With regard to this question, I think it's clearly in the context that it is harmless error. And the chamber requirements of allowing Mr. Boas full range of cross-examination but for that one area, Mr. Galey was thoroughly cross-examined with regard to his knowledge of drugs and drug laws and his own jeopardy. Clearly there had not been a plea bargain entered into with Mr. Galey at that point. And so his jeopardy was for the jury to assess on the basis that anything could happen to Mr. Galey in this case. With regard to the O-sheet issue whether that's harmless error, I would suggest that the O-sheet on its face is something that jury could have inferred. And this was a record of sales of marijuana. I think if you look at the document itself, the exhibit itself, I don't think you needed the trooper to say anything about it. But I think it was something that was maybe unnecessarily added to the evidence. But I think in the context of it's being introduced, the fact that Mr. Boas had referred to it in his opening statement, I think it is harmless error in this record. Thank you. Thank you Mr. Robert. Thank you. Mr. Boas. May it please the court. First of all, getting to the O-sheet, among the reasons it was so unsettling to me, is that after the court ruled that you can't get into it because you didn't give an expert report. The US attorney said, well, Galey mentioned that he sold 10 pounds to his girlfriend, Kelly, in Boston. And we found a piece of paper in Throckmorn's files that had the name Kelly on it. So we don't want to get it in for O-sheet purposes, but it shows he knows somebody named Kelly. And I argue, wait, he has a guy who works for a named Kelly. And the judge says, well, maybe it's the same Kelly. I'm going to let it in. So the guys are bringing up this document to show he knows somebody named Kelly. First, he asked the officer to testify what's on the O-sheet or what's on the paper. And at this point, he says, it says, Kelly, it says, he mentioned four or five names. It has numbers after their names. First names only the numbers. And then on the next page, he says, what's an O-sheet? And I object to no value. He says, well, that's when they have first names only and then numbers. And it goes out of the jury. Now, we'll be interrupt. I'm sorry. Which exhibit is the O-sheet? Which number is it? Yes
. Boas. May it please the court. First of all, getting to the O-sheet, among the reasons it was so unsettling to me, is that after the court ruled that you can't get into it because you didn't give an expert report. The US attorney said, well, Galey mentioned that he sold 10 pounds to his girlfriend, Kelly, in Boston. And we found a piece of paper in Throckmorn's files that had the name Kelly on it. So we don't want to get it in for O-sheet purposes, but it shows he knows somebody named Kelly. And I argue, wait, he has a guy who works for a named Kelly. And the judge says, well, maybe it's the same Kelly. I'm going to let it in. So the guys are bringing up this document to show he knows somebody named Kelly. First, he asked the officer to testify what's on the O-sheet or what's on the paper. And at this point, he says, it says, Kelly, it says, he mentioned four or five names. It has numbers after their names. First names only the numbers. And then on the next page, he says, what's an O-sheet? And I object to no value. He says, well, that's when they have first names only and then numbers. And it goes out of the jury. Now, we'll be interrupt. I'm sorry. Which exhibit is the O-sheet? Which number is it? Yes. Or can you describe it for me? I'm looking at the list of exhibits. And it's not clear to which one is the O-sheet. It's, let's see if I can rapidly come up with the number. The list of exhibits is at 122 and 123 of the appendix. It says Kelly. I mean, I'm a little confused by the exhibit list because it appears that the courtroom deputy checked the admitted box on everything listed herein. But then, added parentheticals saying that several of these would not go out with the jury. Which tells me that they, in fact, ultimately were not admitted in evidence. 1222. And the ones that didn't go out were the ones other than the ones that said Kelly on it. There was a number of pieces of paper that were the ones that declared initially he sustained the ejection to the Kelly to all of the O-sheets. That's when Mr. Burke said, wait a minute, I will want this Kelly page in as an O-sheet, although that was belied by what he did a few minutes later. I wanted in to show, he knows somebody named Kelly. Because Robert Gayley said I was selling 10 pounds to Kelly. And he knew that I was arguing that Gayley was selling stuff on his own. So, this shows that Dr. Moore knows a person named Kelly made a jury will think Gayley selling it V-S-I-B Dr. Moore. And then he gets into this thing about describing it in detail with other first names, figures afterwards
. Or can you describe it for me? I'm looking at the list of exhibits. And it's not clear to which one is the O-sheet. It's, let's see if I can rapidly come up with the number. The list of exhibits is at 122 and 123 of the appendix. It says Kelly. I mean, I'm a little confused by the exhibit list because it appears that the courtroom deputy checked the admitted box on everything listed herein. But then, added parentheticals saying that several of these would not go out with the jury. Which tells me that they, in fact, ultimately were not admitted in evidence. 1222. And the ones that didn't go out were the ones other than the ones that said Kelly on it. There was a number of pieces of paper that were the ones that declared initially he sustained the ejection to the Kelly to all of the O-sheets. That's when Mr. Burke said, wait a minute, I will want this Kelly page in as an O-sheet, although that was belied by what he did a few minutes later. I wanted in to show, he knows somebody named Kelly. Because Robert Gayley said I was selling 10 pounds to Kelly. And he knew that I was arguing that Gayley was selling stuff on his own. So, this shows that Dr. Moore knows a person named Kelly made a jury will think Gayley selling it V-S-I-B Dr. Moore. And then he gets into this thing about describing it in detail with other first names, figures afterwards. And then he says, what's an ocean? Okay, you're running out of time. I get the feeling that this is kind of like the elephant in the room. So, let me put it this way. This is not a case where a man is driving a truck filled with a hell of a lot of marijuana. The truck breaks down. He is found out. He is arrested. He agrees to cooperate. He calls Throck Morton. He says, I got you in marijuana on an inter-recorded phone call. I got you in marijuana. The truck broke down, but I'm going to get it to you. Where should I take it? And Throck Morton says, take it to my house, et cetera. We seem to be debating a lot of small points here, but why is this not a case where the evidence of guilt of what he was convicted of was overwhelming and we're picking on little things that couldn't have had any effect. Because he never says, I got you in marijuana. He never says anything about it. He says, hey, this damn truck is not worth anything. It keeps breaking down. That's why I'm late. It broke down and I had a way to hold it to get it fixed
. And then he says, what's an ocean? Okay, you're running out of time. I get the feeling that this is kind of like the elephant in the room. So, let me put it this way. This is not a case where a man is driving a truck filled with a hell of a lot of marijuana. The truck breaks down. He is found out. He is arrested. He agrees to cooperate. He calls Throck Morton. He says, I got you in marijuana on an inter-recorded phone call. I got you in marijuana. The truck broke down, but I'm going to get it to you. Where should I take it? And Throck Morton says, take it to my house, et cetera. We seem to be debating a lot of small points here, but why is this not a case where the evidence of guilt of what he was convicted of was overwhelming and we're picking on little things that couldn't have had any effect. Because he never says, I got you in marijuana. He never says anything about it. He says, hey, this damn truck is not worth anything. It keeps breaking down. That's why I'm late. It broke down and I had a way to hold it to get it fixed. Throck Morton says, we'll just drop it off in my house. The equally logical inference is I'll take a look at it. And when they have this wire meeting, he doesn't say anything about the quantity or even mention the term marijuana. And that's in the meeting, not on the phone, where you're not worried about a wire tap. The point is, you're on there wasn't overwhelming what it said. And after being out for hours and hours, the jury only convicted after they heard the tape again over my objection where the speakers were labeled because Robert Gayley tells the agent who's speaking and the judge said, I'm only letting in this transcript with the understanding that you're witness identified who the speakers were. And then he let it in. And the witness never identified who the speakers were. And all the jury had was this transcript where Gayley had put in the names of who said what. And I objected again, the court at that time, I'm only letting in. Didn't even give a cautionary instruction when I went out during deliberations. So it wasn't the class case. The only evidence of Throck Morton's involvement was Robert and George Gayley saying he sat down. That was the only evidence. There was no drugs on him. Thank you for watching this, Mr. Bowies. It was a very weak case, I believe. We are on cooperate to understand your fact. Thank you, position
. Thank you very much. And the case was very well argued by both sides and that we will take the matter under advisement. Thank you very much. Thank you