please the court counsel gregory nick i didn't get a fair trial he didn't get a fair trial because the government proceeded on a theory of liability that does not exist in the law federal criminal law in the context of this case and of which the defendant had no notice he didn't get a fair trial because the got some day he got a week's notice  well actually he didn't even get a weeks he was on notice when the government offered its proposed jury instruction to the trial court quite honestly i don't remember exactly when that was i know it was not earlier than a week before the trial and weekend when one of the problems with what the government did here is that  could have been alleged as objects of the conspiracy the government kind of threw them all up there but then there was doubt in this case for example about what the objects were when was the agreement the so called agreement made what was the scope of the agreement what was the duration of the conspiracy and could there been a withdrawal all of that that's true but the if a conspiracy had been charged the preparation of the case would have been different the there would have been a focus on whether there was an agreement between the defendants there would have been a focus on whether gregory in the car i was part of that agreement for example the government events started jimmy admitted on cross examination that that he had never he had not said that before he was impeached on that point so that was a key point in the case if a conspiracy theory had been in the works from the beginning then that's certainly something that would have been a focus from the beginning whether there had been a conspiracy that great greenock i was a part of well if we if we follow at least with some of the other circuits a conspiracy is just inherent in any indictment any indicted charges like although there are other circuits that have said that let me suggest that this court should not follow those circuits here's the problem with those cases there is nothing in the criminal code in the federal criminal code analogous to section eighteen u s c section two that creates a general theory of liability section two clearly says that aiding and is if congress had meant for conspiracy to be a similar theory of general application it would have said so somewhere and it is not fraud wire fraud scheme pinkerton type liability under the scheme offenses interprets the mail fraud statute section thirteen forty one and the wire fraud statute section thirteen forty three the fifth circuit he s case jacobs if you look at that canister interpret in texas law and you'll see that texas does tab a statute that's analogous to the even if the i'm going in france it's only a misdemeanor to conspire to commit a misdemeanor and be a felony so the conspiracy is not like simple aiding and abetting that kind of argument might be helpful well i have to confess judge i don't i mean i'm not sure exactly where you're going to ask me why is it that we should not say that you can convict somebody for conspiracy if you don't plead it or let you because there has to be something that that congress has to have intended that a person in my client's situation could have been convicted based on a theory that coconspirators or co schemers committed acts for which he was responsible even though he did not intend them it comes case all they have to show is that there was an agreement and that the substance of the founts was foreseeable in the course of the conspiracy to the conspirator now congress did say that aid and abet can be a theory under individual statute what the the implication of the government's argument here is that when congress enacted say section eleven eleven the homicide statute congress intended that a person could be liable under that statute eight pinkerton vicarious liability theory that's the right that that if they pled and charged conspiracy that then as a corollary of section three seventy one of the statute of the conspiracy statute crime and along the way when you're committing if you commit a second crime and there's thing i think well even know they may not be able to straight i did the second crime they five thirty us two fifty five the supreme court talks about when the common law is imported into the federal criminal code as a matter of interpretation what carter says is that the common law helps define terms that are not otherwise defined in the coat that when congress uses the common law term that is not it does not otherwise define it imports the cluster of ideas that surrounds that term that applies perfectly to what we have here because section three seventy one does not outline the elements of conspiracy it uses the word conspire and if conspiracy or conspire under the common law meant that you could have vicarious liability for the acts of coconspirators then under three seventy one  powerful and he didn't just conspire he pulled the trigger on one of the defense and one of them proceedings and he actually pulled the trigger he was there he was doing it i mean he was aiding and abetting in spain  conspiracy no conspiracy no deal suppose that arguments mean what your answer my answer is as to the shooting itself there the government could not show beyond a reasonable doubt even if you assume that my client shot fired shots at the point that he did they were not able to prove that that person was still alive at that time it's not a jury it's not a very palatable defense for a jury but it was that a defense that was clearly viable and that was argued by us in fact on a rule twenty nine motion because what it happened was that mr or singer the codefendant had been beating this victim mercilessly as these people drove correct the lead car in which the beating was taken place contained johnny or singer and jimmy so as to that specific point judge three hundred is the evidence there were there was clearly a theory under everything that you mean a cause and the statements of gregory nakai that were excluded by the trial court you could have the following theory that gregory up the mountain because and the reason i say that judge when imminent and you're trying to tell me why why there's not harmless error sure in terms of  instructions i don't think you should be talking about evidence that was excluded to prove that ok one of the the bottom line is that the the facts as they were presented to the jury would have supported by theory that mr in a car i was near merely present that he was so intoxicated that he could not have formed specific intent to commit those crimes that required specific intent and that the one act that the evidence does show fairly definitely he did commit was not a homicide let me get to the statement questioning should have been prevented to the jury in a manner that was fair to the defendant the parts that were excluded from the one statement from the from the i shouldn't call it a statement from the description of the interrogation by agent purcell was mr nikolaj statement that he started drinking more after the card to interact the portion of th evidence and the government is not entitled to introduce part of it and not another part what they did i when i interrogated somebody i couldn't do interviews the parts where he admitted it is crime and then he didn't have say that the more the the exploited portions of the evidence were not in for a girl to the yes i had the drugs and i had the gun what was excluded was his statement about where he got the drugs and the gun and what he knew about some other things that were in a garage neither of which were explanatory  the second and seventh circuit that i've cited to the court the same rule exists in the first and the eighth and the d c circuit so that the judge in his discretion has to allow the evidence to admit it be discretion he has discretion to control the presentation of evidence so that the presentation is fair to the defendant that does not mean that and he and he statement on impeachment that was in addition to the part that the defendant wanted to meet the best case is you must allow the defendant series of events charged there were a finite number of players charged there was no objection prior to trial even though the government had set out its notice in the jury instructions of an intentional seat on a pinkerton theory there was no conspiracy in this particular case you know the conspiracy began the moment someone said someone said let's jack this car in the rest of the that was you know you say that from the it was over going on the facts the conspiracy was t know there were several objects to the conspiracy because once there was a murder at the end at the end of the day yes they had to because when they took the car when they took the car by force it had to end somewhere and it was if the answer to that is yes that's the end of the problem if the answer to that is no then we get on through good for a man this is question which is in this case did it make a difference but i think we resolve the question that's really presented by this case of whether we should allow going in described rather colorfully as an additional weapon for the prosecution to convict people on a conspiracy theory without hurting the conspiracy your honor i can only offer that other circuit certainly has looked at this matter and they have if there isn't as far as i know an opinion out there that has found not i guess you know i don't confine this case presented it nicely and neatly in this case because everything was there there was never an objection anything there was no evidence that came in that should have jury finds the conspiracy as instructed and finds the alternate theory of liability and was there i take it the theory is the person cannot be convicted of conspiracy because that was in charge correct and can't be convicted of can then simply say well he agreed that something could happen and this was then the reasonable this was reasonably foreseeable so he agreed that they did carjack and was reasonably forseeable that w all he agreed to his reasoning forseeable that they would then slaughter these people if that was reasonably foreseeable yes because that means that he had to have some awareness that there was going to be violence attached to this it was a matter of i'm going over and taking that car i'm going to steal that car will go for it there's nobody there and someone showed up and it was there was violence and post and may not be the case well gee i thought i'd see conspiracy charge that did things like that that said there's going to be violence and therefore without charging spirity you're responsible for the violence even though you didn't agree to it but there's still this but i still yes put it but in the in that that could occur yes that's right yes and you're saying that's what we should do without a conspiracy charge her i mean and i maybe i'm missing i'm missing the difference i think that with the nature of the charges that were part of this case they're going to be held liable for the acts of all the other conspirators that's what you kill them when you put it yes and here it's not there but under the law under the alternate theories pursued by the government correct and aiding and abetting jimmy testified that the defendant said the impeachment on on cross was that he that the witness had never said it was gregory before the statement was made by somebody then he retract believe i'm just one of the top my head that he stuck with the story that was gregory but i will say that well we can change that certainly but the evidence so shows is that the statement was made by somebody by somebody and in response the d what by the by the end of this i think it's pretty clear who did what by the by the time gregory got back into the blazer he was now he in the kidnapping if you wasn't in the kidnapping before you now put himself in the kid because of the decomposition in the burning of the body the medical examiner could not reach any conclusion about whether he would be alive or dead well that was rather relevant so it was that it was put to the jury and argued in the jury found murder all could've been avoided without trying to say but maybe you didn't do it but you can get  think it was appropriate under the circumstances of this case and very briefly as to the statements that were allegedly excluded under the defendant's theory every time the defendant says old by the way i didn't do it or i was drunk or i was mad you would government gives me to read the minds of the jurors to determine why they returned a verdict the way that they did they simply can't draw the conclusion that they without presuming to go to know why the jury returned a particular verdict and they simply don't know that the the test here is that the government has to show the error was harmless beyond a reasonable doubt not that there was enough evidence to support the verdict on another theory if you look at the impeachment of jimmy in a car i he was impeached not high participated in that at all his statement to the police did named other people it was only his testimony at trial that said that gregory had done that the testimony was th the when the car that he was riding in had been rocked the testimony that gregory helped take the victims out of the car was only jim in a car as testimony and that was thoroughly impeached and the testimony was that the victim was