consolidates this morning i will speak for all three appellants on the issues presented in the consolidated briefing but i plan to pursue issues number one and two and i'm prepared to of course answer questions for issue three i'm going to do my best by the way my colleagues mr mays or miss fuller to mr byers have seated me their time i'm going to go for twenty minutes on the first two issues i miss fullerton's going to argue the obstruction issue with the five minutes i leave for i will do my best to save two i watch my clock and i asked my colleagues or your honour's to tell me to sit down if i get to the twenty minute mark ok thank you the homicides in shootings with anybody not once the record in the affidavit by detective oh let's be reflects that on the day of the second shooting that's to cyprus park loco shooting a witness at the shooting was a the police of the shooting she called the cost zero that was the one conversation he had which was the day of the shooting he basically says i bet it was joey got to go meaning joey ortiz who was the shooter that is the sum total of evidence that these three gentlemen used having difficulty understanding arguing a brief so maybe this is help me are you arguing that there was was no probable cause to think that a wiretap would produce evidence or are you arguing that at the time that the order was issued the evidence was stale i thought it was the second now you seem to be arguing the first we argued both but the distilled argument i'm going to present today which i think is the better of the two i think it still but i don't think that's dispositive nearly as much  the problem caused question detective it was be targeted ten telephones in may of two thousand and eleven and the question presented to district court and presented again here is what evidence existed to support a strong suspicion that these target telephones would be used to discuss the completed acts of the december shootings what do you do with the march for call which by itself is not is not terribly incompetent or a but it means that mr t s is finally now making phone calls back to the united states i don't think that's a means that i think we deal with it what we deal with is that's the sole phone call in the five months which is exculpatory and involves a telephone used by robert aguado which is tell target telephone number ten so he had the phone call with puts and on the phone he says i had nothing to do with it i'm on the lam because of a warrant and then after that there would be no further reason to believe that he's going to say anything but if we go back to the two the two especially  there's nine other target telephones and there's absolute zero evidence that any of those people on those telephones use them use these devices to talk about the completed acts and what the government's burden is is to show there's a strong likelihood that these people in may are going to pick up the phone and start talking about a six month old shootings when you say the completed act tell me why that quire matter title three well is it isn't enough if they talk about the crime  the crime the past tense crime and the affidavit and the order the only authorised he three crimes they can investigate with a december eighteenth shootings and december twenty two shootings three people died in the twenty second no one else died in other stealings but that's it so there you have to have probable cause to believe that they're going to talk about that event or those events past tense which separates this case from if they were investigating let's say the gang was distributing drugs on a regular basis it's an ongoing continuing enterprise committing crimes over the act over the telephone lines then eighty three could identify as predicate acts of drug dealing and say we have probably cause to believe we'll continue to talk about drug dealing but we're the issue was present and was the attempted one of the seven and the one of the seven and importantly the finance opals b when you look at page fourteen sixty one of the yars when he lays out the unstimulated and stimulated phases he gives six goals of the unstimulated phase and none of those goals is to obtain information about the homicides and attempted homicide rather he then says on fourteen sixty two continuing to fourteen sixty three the evidence of discussing the homicides attempted homicides will come later two weeks after the wiretap is up and wants excuse me we stimulate these conversations by approaching targets and confronting them with evidence about the shootings and so statement is in fact a in my perspective a confession that at the time the tap goes up of these ten separate telephone lines there's not probable cause to believe that any of these people are going to talk about this sue a sponsor and that's the showing they have to make this moment the line comes up there has to be probably cause to believe that interception of those lines will obtain inculpatory is there some difference between the various lines some of them are family  conversations the mother says a couple of times my boys on the loan he's not on the run he's not coming back to this his name is cleared and i think i think the government has a good job you look at their brief pages nineteen and twenty they identify all the phone calls they think are connected to this to the shooting and poorly none of these appellants and you're right i think the district court's role was job was to one assess each target telephone line and describe this problem because if there was probable cause for an individual lines she could uphold the tap and she would have to suppress the lines that didn't meet the showing if she did that this judge will stand then at that point there would be a fruit's analysis because there was further wiretaps down the line there was a federal wire tap and she'll do a foods analysis on the cast car and figure out what would come in and what would go out we've actually attacked it facially here because the only call that exists is the march call and since the march call is  exculpatory it's it's telling people i did you know tell people i didn't do it get them off my back i guess if i had people chasing me i would make that phone call to whether i did it or not but i think this is great respect your honor i think the why they thought he did it right no i think he just said do it i'm on the lam and because of a warrant apart from him that except tory thing i think the other government's evidence is these targets objects have advanced an understanding that they're under electronic surveillance so they're even less likely to use these phones in may to talk about six month old events but ultimate think i don't think it comes close to establish it specially for the appellants and i want to address it briefly if i may the leon argument the government says good faith applies and i want to give four reasons why it doesn't want what we didn't brief this but i was again reading the statute this morning and congress was plainly aware of the good faith exception as an idea when they passed title three and all you have to look is title three the section we're litigating is twenty five eighteen if you look at twenty five twenty it discusses the civil the ability to prosecute civil wiretap claims and twenty five twenty d gives a good faith defense for civil suit and twenty five eighteen does it so congress has to be it's clear they're aware they could have carved out a good faith exception but they didn't and i think this is why judge silverman and and glover and the sixth circuit and rice do a very clear analysis that the tax doesn't support a good faith exception that the legislative history demonstrates that sixteen years before leon that they don't include a good faith exception importantly when they have the remedy the statutory remedy they declared a non constitutional as a way as a prophylactic rule which is obviously much different congress has done the done the balancing itself and mandated suppression so those are my arguments on the issue one pivoting if i may to the constructive amendment or prejudicial variance question the grand jury indictment charged these three gentlemen with participating in the enterprise because you don't have much time can you cut to the chase i mean what should differently and i completely couldn't come up with with much of an answer ok i think it's two points i'll get right to it i think she should have answered the question no i think the answer she gave was a theoretical answer and in the abstract or answers correct w was she did reframe the question to support a category yes answer so that is i think heart of the prop she we framed the question by her own by her own admission i think the answer should have been as charged in this case to find these defendants guilty you must find they were members of the charge at the prize when she she does two things here she gives the theoretical answer that you that you reference and then she later comes back to the jury after adventure of questions is like i want to be clear  you know it's it's i gave a theoretical answer in this case you need to look at the instructions as i gave you in the indictment and make your decision whether or not and then whe i'm getting to is the instructions themselves are not something you objected to it's just that whatever the submits a jury instruction only and it's right there so if the judge says eventually look i don't want to confuse you but she's basically say in this case you've got to go back and look at the indictment and the instructions how were you har why they couldn't link it up to the indictment because the judge had given them a redacted indictment and if you look at the indictment that's an already ours at page your one one one nine you'll see that that indictment ok ok so now the charge that his membership in this is how they're going to participate in the enterprise the problem is i don't have the page set i'm looking at one one one so tell me where i have got fourteen  indictment so the jury didn't have paragraph fourteen the jury didn't have paragraphs fifteen sixteen seventeen eighteen seventeen eighteen is the one that talks about mr acosta nineteen or twenty or twenty one and so the jury didn't have the tools to do what judge asked them to do and the second period of my answer if i could is just a straight application of the supreme court's work in bold and back which this court recently decided we had a rule twenty eight j would cut steel mendez that says what she told the jury this is theoretical is improper there are no such thing as theoretical instructions when a jury has a question it's the responsibility of the jurors to answer it with a specific case to a jury in reaching its verdict i was a seven circuits view of it that's what we called them supplemental jury instructions the so just in your in your case you think there was not dagget when the defendants charged with bringing prostitutes interstate name to prostitutes only the case goes to trial they those evidence about that woman is entered evidence but other women has entered and they give a general instruction that you can just find he he generally move prostitutes in the end have to make specific findings this court howard found that's constructive amendment under ship c and store own is it more like that or is it more like adam where they charged the person with making false representations that he had done a computer upgrade on a company's computer system but then the trial theory conviction was over he did upgrade it but he misrepresented the means that how he did they said  to find my client's guilty of being members of this gang i mean i can see an objection from the defense to the kind of answer that you you have offered it would have been difficult on this record because they urged the answer cabinet like that but as charged a charge of participation through membership and mr campos my client he mr hammond ran the table he only went down on the conspiracy and the thrust the only part of his defense that was rejected was i'm not a member of c street and i was a big part of his defense and after closing arguments after instructions after all thirty happened that defense evaporated by this inaccurate answer and that's maybe what's more prejudicial vari he had known that this was a possible obstruction he might have defended the case differently he might have folks on the association we understand you're on your i'm running out and i'll sit down i'll reserve my two and a half and i thank you a morning linda fullerton and i'm representing mr acosta and i'm going to be talking about the obstruction counts twenty and twenty one and i think the issue to both of those comes down to the fact that there is no nexus between the acts that were taken and a specific crime and there was no proof that mr a cast the had the specific intent obstruct the specific crime or you can use a specific intent you agree that the cases say he doesn't have to have the intent to obstruct a specific proceeding state as opposed to federal right it does have to be state as opposed to federal he doesn't need to know that it's federal nature i do believe the kates the state that he has to be directed towards a specific preceded is that right so let's assume i'm a really dumb  i don't know how the criminal system works but i know if there's evidence it will hurt me and so i destroy it i think then there's no obstruction because i have a name that is specific well i think the jury instruction has to be case the jury instructions were kind of void of what the intent had to be and we they were that's what's missing from them is that they didn't talk about the fact that you have to have the specific intent to do this action to in fact obstruct a particular youth and you think i'm just i'm just trying to get your position clear you think the specific intent has to be to obstruct a proceeding as opposed to a specific intent to destroy evidence that in this case as to mr acosta i think that's actually true so it would not be enough in your view if i said i better destroy this evidence because it will come back to haunt me if i don't have the specific intent to obstruct to proceed well in this case mr acosta was charged with the destruction of evidence and was found not guilty that he was found guilty obstructing proceedings and so i suspect looking behind the verdict that that they did not feel that it was any actual destruction of property that got him into that position but that it was the i think that you needed the jury instructions to lay out that connection and they did not do it and i don't think the evidence shows that that was necessarily beyond a reasonable doubt what mr costs this intent was there was a further investigation going on of the time here by the i think the last phone call up until then no there was not when there are permanent federal investigation and merged state one that was that was occurring before before even the wired before even phone calls there were there was a federal there were federal investigations into various  c street five hundred block these group of young man there was nothing federal going on at the top the records not terrific on this but it looks to me like two groups of people were investigating mr ortiz and they didn't realize until they came together  t they were investigating the same thing that mistake i think that's a mistake i don't think mr t s was big federally investigated tell after the shootings and if i might just have a moment i it's not critical so if i don't know if i am quite sure that he was not but i cannot say that with absolute certainty my understanding was that the federal investigation came and later so you your answer george because he's question was the federal investigation had begun that is my understanding that the federal investigation had not begun on c street five hundred block i know that there was federal investigations going into various  show what the make of it if this if there's no for the investigation going on but one might be worried that there would be correct i think so that's probably  enough correct and if you look at the facts of this case there would be there's no facts that were brought forward that would lead someone to believe a tell actually the arrest started that there was that a federal investigation the wiretap was a state wiretap the possibility that you know the state people might get you on the fence might get you i think there are certain certainly if you are an active group of people doing heavy crime i think that is something that one would expect looking over your shoulder is not exactly shoplifting well up until this happened this is area of said material was like shoplifting there weren't killings there were not crimes of violence i think there were one or two shootings in decades in that area but we're i'm having trouble with your argument judge because of his question raised i focus for me is that you must be arguing that there was no reason to dissipate any proceedings right because if there was a reason to suppose state proceedings i don't know how i mean i don't know how thing which is problematic as far as the specific intent goes they're not saying you have to find that they had the specific intent so the jury was left to just five is there this behavior or is there not this behavior that could be construed as obstruction and they don't have to because it wasn't instructed and it wasn't objected to i will admit they didn't have to look at what the intent of mr acosta was so that's step one step two is that most of what mr costin did was right at the very beginning and that behavior was all state police were around state police well county police which would be from the state court system where around everybody that was big question was being questioned by county police or sheriff's departments and local local police departments and there was no indication that anything except the local was going on the set up to your question i think so i'm i'm i'm i'm just i'm mystified by the statute in general but i mean the notion that that a street gang member ought to be saying to my anticipating federal proceedings or state proceedings as a as an element of the crime strikes me as problematic well i think it is a just a you have to obstruct any proceeding i think that you have to be if i am reading the cases correctly a specific proceed to get but you don't have to now for example you have to be obstructing a grand jury but you don't have to know that that would be federal in nature i don't think you can say that good morning please the court i'm douglas wilson we have the united states i'd like to start with the wiretap issue our position is that that after four months and thirteen days not six months us as counsel represented continued to exist for the murders that is when the when the state judge assigned the authorizations on may fourth the holocaust continued to exist for the december twenty second don't nobody contest that i take it with their contesting is whether there was probable cause to establish that evidence about the murder which would be found on these phone lines and we are answer to that question is yes but that's you know they're not contesting that there was probable cause to think that the murders to think that evidence about the murders would be found on these ten specific lines first of all that the murders and the shootings had been committed by a gang which is by definition a conspiracy so we believe that the conspiracy continued to exist the gangs continue to exist  the victim gangs continue to exist and there was there was probably cause that the that the gangs would continue to discuss this this these these incidents over the telephone secondly we showed that the the gangs use the telephone and text messages to discuss their their business the business of the gangs and it was it was reasonable for the state judges to infer that that they would discuss that the the the murders or th order or issues related to the murders they didn't have to discuss the specific you know i shot this person i shot that person they just had to discuss events related to the murders another factor is that the the main person warrants to search the the telephones could have found that the fact that the shooter was on the lam was a fact that that gave rise to the possibility that that he would use the telephone to call members of the gang his parents his in a problem cause can you address that simulated stimulated i'm sorry and i'm stimulated phases of the investigation do you agree that there had to be probable cause before any stimulation occurred yes you expect to get really good evidence is by stimulating well i think the office the question is is whether the the affidavit show probable cause prior to any stimulation and i think that beyond that the this court should not  limit the amount of the information that that state officers give to a magistrate judge a wiretap i mean this is a question where they didn't have to to to set forth their their strategy that basically surplusage but is there anything wrong with that is there is there any reason why the the the efi and shouldn't give a state judge his his strategy in addition that may focus the magistrate judge a little bit more on whether problem cause exists and therefore it's a good thing the the magistrate judge may look at that and say gee i don't think there's probable cause before that before a stimulation so i'm not going to sign this warrant and in this case the state judge did sign the warrant but one other point i'd like to make on probably cause is that only four months and thirteen days went by and the the officers to obtain a wiretap had to show necessity and i mention this in my brief but the officers ha would have been difficult to meet the necessity requirement in january if they they would have had to show that none of the none of the other investigative techniques would work at that point and yet they used investigative techniques they the affidavit reveals that they they relied on three confidential informants they relied on pen register they got tips from various people they interviewed members of the gang and people who may be involved in the shooting somebody asked a question a little bit differently if the let's assume the march called never taken place and you're the officers had done all the things they done exhausted other techniques could they obtained a wiretap and to march call yes your honor i believe i believe that probable cause continued to exist regardless so your position that there was probable cause to get the warrant in january but that there may not have been complete compliance with title three at that point that's well yes you're right it's the exhaustion requirement of the necessity requiring an exhaustion yes  is the probable cause requirement in title three coexistent with the fourth amendment or is it narrow or broader well i think it's been interpreted to be basically the same that is this  have said that the problem was necessary to to show a wiretap is the same as the probably cause under the fourth amendment so i believe the same on the on the question of constructive amendment this defendant did not challenge the initial instructions given by the court and then initial instructions the court told the jury among other things that a conspiracy had to be a conspiracy was separate from the the determination whether a person was a member of the enterprise and if if that is true if the defendant do not challenge that now i don't see how the court constructively amended the indictment by by telling the jury that it had to go back to the initial instructions can you help us out with the with what was redacted before it went to the jury were all references to these defendants being members of gangs taken that the jury got the instruction that objected to that you talk about and found that these defendants were guilty because they were so see it's the of the enterprise is not a variance from the  which said they were members of the inner know it well they didn't i mean specifically says they are members of the right but the jury didn't have that so given the instruction that the that the judge gave the jury forget the supplemental instructions for a moment given instruction to judge gave the jury i don't know whether it's plane air or not that's a separate issue was the jury able to convict them for merely be associates but that is that this conspiracy associates of the of the criminal enterprise alleged in this rico conspiracy i don't believe so your honor i believe that the government's evidence was that they were full fledge and that's what your evidence was i'm asking what the jury could have believed that they were members of the conspiracy even if they even if they only concluded they were associates that was one defendants one defendants defense was i'm not a member of the again i'm just i'm a hanger on he may have been wrong you know but in life that was his defense and the judge said to the judge didn't say to the jury you have to find them to be members and they didn't have the indictment in front of them that said they were supposed to be members so why isn't it we said that defendant prejudiced by this  not sure i follow the court's question i mean the the government's evidence was consistent with the indictment whether redacted or not no i'm not your your evidence is fine there's plenty of evidence nobody's attacking this efficiency the evidence and discount  what i'm worried about is this we have at least one defendant whose defense was essentially you know i drove the car but i wasn't a member of the gang and i didn't know what they were going to do and you put in plenty of evidence he was a member of the gang  said to the jury the judge didn't tell the jury had to be a member they get the judge just said to the jury you can be a member of the conspiracy and defined it probably correctly and that is that is what they were charged right it's like why why why isn't that a v terms of the two gangs but so the instructions were consistent with the indictment and and so was the the the court's answer to the single question so in so did just get back to my question and you are you think  only an associate of of the game but up but conspired that would be sufficient that you think that's ok that would be ok under the indictment and the jury instructions honor yes but that that was not the point now i know you say it was not the case because that's what your evidence showed but i'm asking overwhelming that did that jury was instructed however that it could find him guilty if you were merely an associate correct direct answer to a question what is this beating around the bush about i don't believe there was any beating around the bush well you said yourself they couldn't the found i mean they asked the question and answer the question was no no what's wrong with giving a direct answer that relates to the facts of this case because if you just said well but you've got to look at the indictment well you look at the but the defense are challenging the initial instructions given to the jury and the initial instruction so that the defendants are not challenging the initial instructions on conspiracy given to the jury well and i was  person be a member of a conspiracy and not the enterprise and because the instructions to them did not make that clear and so they have asked well can you be we've heard lots of testimony about members we want to know whether or not you can be  not be consistent with the the law as we had no idea he was and that's a courageous judge kozinski question wasn't that the correct answer we don't we're not here to talk about theory in this case you have to be a member in order to be convicted well the  a fairly sophisticated question it was not in this case it was it was can they met a person be a member of a conspiracy and not what was in anybody's book surely they were they weren't asking because they want to go home and discuss conspiracy law with their families after this case is over never did they're deliberating and they want to know whether or not somebody can be a member can be part of a conspiracy if they're not a member of the enterprise but the it's aimed at this case and the answer in this case is no threat to the point i'm trying to make your honor is that the jury did not specifically reference this case and so that the court who could not answer i was i was i was with east saying that but of course the jury didn't reference this case what could what do you would you think they were asking a question about says concerning the you know this case we have a question now i don't know out of the court the point i'm trying to make is that the jury asked a basically a theoretical question and the court gave an answer that was legally correct but let's say we don't accept your premise that this was a zero question but everybody thought it was a theoretical question i understand that but now you're fighting the question i'm sorry i didn't know you are fighting the question charged with a conspiracy and they did jury it was properly instructed and in the initial instructions on the conspiracy that is they consider that they had to find that the defense conspired to be part of the enterprise that's the crime they were charged with and that there was this membership allegation but it was in the indictment and that is the theory of arc of the government's case so i'm not backing away from the that fent that the government tried to show that these these defendants were members but i had i am backing i am asserting that there was no error in the district court's telling the jury a correct statement of the law to them have some difficulties it let me ask a question he gets that let's assume the jury came back and said we've concluded that one or more of these defendants were not members but we have concluded that they did what the instruction showed conspired with others said here what should the judge have said she may we convict that defendant which of the judges said in response to that i think the answer would be yes and because the it's not really an excuse but the reason that i think the court gave this instruction is that there were sixteen people to charge in this count only four went to trial and the court may have been thinking of other people the parties may have been thinking of other people that  were not before the court during this period during this trial foreseeable or there is it doesn't have to be foreseeable that there is a federal grand jury that is a state grand jury that there's any grand jury the question is whether it is foreseeable that a diff defendant's actions would have violated or w state proceeding they do have justice and state courts yes your honor the the statute specifically says however that the defendant does not have to be does not have that the government does not have to prove a state of mind with respect to whether the state or federal proceeding so that's what the question i was asking your colleagues what sort of specific intent must surely defend it must have the specific intent to to do what he did as opposed to doing it negligent or by mistake correct that's correct your honor and the jury was instructed that the defendant acted corruptly with the intent to obstruct justice and we believe and the defendant obviously believed at that time but that is sufficient to well what if what if i'm really successful in obstructing justice and i destroy i only evidence of the crime i don't think that matters or i thought i'd believe that we could still charge a person with a structure of justice in their public cases that involve a simple instruction of justice i don't have them before me obstruct justice with l i believe six other people what is the is the is the conspiracy to commit the crime alleged and two and the conspiracy to commit is to commit the crime alleged in count twenty one ok so you so they're jail for the state proceeding and sought to influence people to to come up with alibi statements so i thought there was a cross that was a probation you no know he was for example in the in the seventh circuit case which i'm not johnson i believe the defendant could have been of struck in a state or federal proceeding but it was enough that the defense was trying to obstruct justice and that is enough in this case as well there was no such as a said there was no of state charge or notes of state prosecution pending so yes that is it is it enough that there is a theoretical federal prosecution as long as at the time that the defendant tensional he does these obstruct i stay present if he doesn't pepper the cases that you talk about are ones where there are pending state proceedings and somebody intends to interfere with that but if there isn't a pending state proceeding then every obstruction of justice just about is chargeable into the federal statu justice in connection with that they'd always be the possibility to be prosecuted for violating the civil rights of the victim that's that's correct and that would be a federal structure of justice if if if if the other elements of obstruction were present that is the defendant sufficient to show obstruction of justice in a federal proceeding no proceeding pending anywhere that's correct that's what happened here there was no proceeding pending and the defendant's obstruction is sufficient to show long as the defendant if those two percent if those two statutory provisions mean anything it means that the defendant doesn't have to obstruct justice in a in a project for a particular proceeding as long as there is a defended obstruct justice with but if the defendants are right and we should adopt petra wouldn't a government lose on the obstruction charge under that circumstance i don't believe so your honor that because and as there was a state proceeding pending and the defendant the court was quite clear that it was the defense obstructive efforts and that proceeding that were the obstruction of justice he never intended to obstruct justice outside of the state proceed or in other proceedings but here where there's no state or federal with federal structure of justice if there is no proceeding pending you on the wiretap issue i guess my i have three comments this case when mr wilson was a response what the problem causes the government continues to use very sort of vague terms events related to the murder they continue to discuss business it's a very clear issue under twenty five eighteen three did probable cause exist for each of the target telephones each one of them to believe that the users of those telephones we discussed the shootings from december the only predicate crimes that were under investigation and permitted under the wiretap at least one suspect to our clients the answer is absolutely not they've never identified that evidence that briefing when asked by the court they didn't identify today the record is clear there was a one off conversation on may fourth two thousand and eleven when robert hands a phone to joe or tease and he denies there's a to each other and we didn't get and and then they continued and there's continued conversations going on in march and and we think that's enough to show that they're likely to talk to each other about this crime is that enough i don't think so and then again it always hinges back to our clients they have to show they're going to talk about a past event and that's why this case is like grant and you think about it why would people under surveillance let's say they talk about their business i'm selling drugs i sell a gun i want to buy i got to put that aside what about a completed act of homicide why are they going to bring the subsumes sponte in may if they've never done it before and that's why it's speculative like grant where the son this is the father and now they say well he visited dad maybe he left the gun there maybe but this court was clear that it was a public cause and even i read with enjoyment judge kozinski separate opinion and a guy might be mispronounced that a couple of weeks ago what he was september requires facts in the casing that law enforcement officers will find what they're looking for in a place to be searched this is not a high stand but the government came nowhere close to meeting it here with regard to the ten phones maybe  closest and so maybe that shouldn't be suppressed on the statute but for the other nine they made no showing that in january february march or april they're using the phones to discuss the december shootings and the absence of that evidence they fall from fourteen to twenty but the judge left in paragraph twenty one which reads the defendants poor associates members and leaders of the five hundred six block c street gang i think individually and with each other and also with nonmember five hundred block c street gang associates in connection to the commission of the racketeering activities and other criminal conduct so what went to the jury actually miss and identified our clients  characterize them as potentially associates or leaders and not members and obviously that's a another variance they got misinformation so when the judge asked them to match it up to the indictment with out the membership