to include these four witnesses which was not if the the indictment did not give us a description of the facts to enable defended to prepare interferes for the government with these witnesses disclosed to the defense prior to trial not not not even before trial i believe that one of them was disclosed about a week before trial in the disclosed during  there was never in the opportunity they were never given the opportunity to argue  they the government by offering evidence that was different from what was in the indictment  created such of areas that  not part of the indictment the government argues that norway's money laundering part of the jury instructions the jury instructions very clearly referred to th indictments allegations of conspiracy to manufacture industry cocaine i'm sorry there was nothing in the jury instructions that would have guided the jury to rely on any money laundering charge but their worst d paragraph they said that all of the coconspirators were ages of one another time the jury may have decided that my clients were guilty for money laundering even though d it's not in the indictment because the government put for evidence that millions of dollars was mind you are you aware of any case where we have found a constructive amendment where the jury instructions did not instruct the jury on how to find the separate crime occurred are you aware of any constructive amendment case where the jury instructions when it was not were the jury instruction did not include instructions about the other it says in determining whether a conspiracy existed and whether either or both defendants were members you may consider the action statements of any other member of the alleged kids conspiracy done or may do in the course in furtherance of the conspiracy is evidence against each defendant whom you have to be a member of the conspiracy so is in not mentioned in the indictment and  charged indictment and what was proved at trial and the prejudice you're claiming is a lack of notice because the indictment was less specific than it could have been about the people in the place and that's the notice and then the government call the witnesses and the claim is that the defendant was surprise and the defense was hobbled by the identity of the actual people who came in the place is the addition of honduras as a source place right yet so deep can you point us to the record where in the district court there was any objection or requests for more time or any any evidence of the surprise the lack of notice any any place where that was raised at a point where the district court might have done something to cure it or where is that not a requirement no i can't however ok thank you thank you good morning your honor as in the name please the court michael rucker from the department of justice on behalf of the united states after three points that i'd like to just make in response to my opposing counsel st the judge millette in response to your question about disclosure the government did make disclosure of the four with this is that my point was discussing there was a court order that was entered in december of two thousand and fifteen and that's part of the record that allowed the government to meet rolling disclosure of the of these witnesses because there were safety and security concerns and the government complied with that order so the names were known and they were disclosed consistent with judge color catelli this order i think it's december th two thousand and fifteen i don't have the docket number but that's how much advance notice did they have i believe the judge said that we had to meet disclosure on th ursday of the week before the witness was scheduled to testify so thursday for me monday to sign if you could have been but again and in response to that related question that the court has asked about their worse there's nothing in the record to indicate that these defendants were caught by surprise they didn't request a continuance there were no protestations there was no claim that they couldn't adequately cross examine there's no plea and they didn't have any adequate opportunity so you know i think that they're the record sort of like the dog that didn't bark i think now it's a little late to be coming in and saying there's no surprise when there was no effort to remedy that below the other point i'd like to make there is there was a post trial motion i'm sorry post trial motion when they looked that they did and when you say there was no effort from an answer during the trial there was no right there's no contemporaneous i'm sorry arguably one can't really assess whether there's been a variance and again until one looks at the at that entire trial record and and yes i think that's our standard of review whether whether nature some was too late by surprised the normal course is to express that to the district who are to ask for a continuance on the question of constructive amendment as well your orders again just a letter response to your question the government's not aware of any case from the circular or frankly you have the indictment charging you defended with conspiracy to commit murder but the evidence and the jury instructions went to the jury on the theory of substantive murder nobody caught it and so it went to the jury and therefore they were permitted to convict on a basis that was not charged we don't have that situation here these witnesses were testifying about misdeeds there were no jury instructions and unless the court is going to indulge an assumption that juries are not going to follow their instructions there's there's no basis for finding constructive and that's about the multiple conspiracies what does that  a reasonable jury have come to that conclusion if i think the case is phrase it somewhat differently but i think that's the gist of it is whether there is sufficient evidence that would allow the jury to find multiple conspiracies and then in applying that standard judge toler can tell the fall of this court's precedent tutti and those presidents which date back to tearing teano in the late eighty's and have been followed for decades ever since the sort of three factor test about common goal interdependence and overlap what judge color catelli did interdependence at here right you have the colombians who are supplying the process cocaine if you think conspiracy is still requires us some at least a recognition that there are other people yet in the chain because these were all geographically limited whether they haven't challenged sufficiency of the rights for the single conspiracy but but it seems to me a bit hard to say that no rational jury could have looked at these different location different time the government say nobody had concluded based on her firsthand familiarity with this case and she did it not once not twice not three times she actually did four separate time to her rulings found that the record evidence did not support a fine and i think it's because she didn't ever command that there implication when you're part of a chain it is understood that the success of the operation depends upon those above you and those below you but you don't have to have explicit knowledge of the identities of those individuals that that wasn't the chain that was here this wasn't  guatemala working with these people for a while and then when i'm working with other people find they were all in their fire suppliers they weren't other parts of the chain movements i'm just i think about it would have been withdraw or terminate their membership just as other people who are not part of the conspiracy can join it doesn't establish they're going to be aware that there's a larger conspiracy than them well there's there's never been any claim that they weren't i mean big for interdependence purposes of a chain conspiracy you even if your honour's disagree with the government and find that there were multiple conspiracies right you still have to the defense still bears the burden of proving that they were somehow prejudiced we have walked the court through i think the most recent decision is united states versus cross which is cited norm ree which talks about the types of prejudice that can occur there's just been no showing of prejudice so we think the better viennese here to defend against found each other would correct and there's no notice problem because the indictment laid out the time frame they were on notice that this was spanning up to two thousand and nine th really trying to sort of artificially cleaved this into the sort of the st half of the conspiracy and not look at the big picture but they had adequate if i may just finish my sentence that they had adequate notice there were as i said before in response to your honor there was no contemporaneous claim of surprise and again one other point to keep in mind even assuming the defense is correct that we proved multiple conspiracies they're all subsidiary within the larger conspiracy and there's no claim that they were members of those small  of proving prejudice to the government the government has the burden to show that it was you know he has that's right didn't he just do it i'm sorry even if that's why didn't he just statute of limitations argument they were they lost that argument that's part of my argument distinct from those in the st conspiracy there their work there is evidence and there was evidence presented that