to exceed thirty minutes will be shared by the defendants and thirty minutes for the plaintiff so mr brown will start when ready for the   here this afternoon here this morning in this oral argument we have all talked and agreed that there are some common issues amongst all the defendant so there can be certain of us that represent those that talk about those common issues and then time permitting they may be some discussion about individual issues or specifically about individual issues but specifically for me your honor in my i'm going to say one of my five minutes for rebuttal i'm going to talk about the rico issues with respect to all of the  katie back there will have four she traded off one of her minutes to mr paulson so so you are to thank you for the opportunity to advocate on behalf of mr antonio johnson in this case as this court is aware mr johnson was convicted under the rico statute and is serving a four hundred twenty month sentence in federal prison  while i will make no such concessions here it is our belief that in this case this is not a rico matter this is simply what the government proved was a little bit not a little bit just a number of small conspiracies and the reason that is is because as the court is aware as a supreme court made clear in one thousand nine hundred one target decision i hope i'm pronouncing that correctly that the government is required in a rico case to prove not only a pattern a racket tyrian activity that they're required to prove a criminal enterprise separate and apart from that criminal activity in this case the government has alleged an association  in fact enterprise which as you're aware doesn't require anything formal it can be a loose organization of people but the association in fact enterprise does have three specific requirements it has to have a purpose a relationship amongst the parties and long jeopardy in order to establish or does set to satisfy those purposes and in this case the reason the defendants assert that there is no rico case is there is no purpose shown in the facts on this case now is i read the government brief correctly what they are contending the purpose is is that they seem to apply that  the purpose was to promote and respect to promote themselves as the baddest motorcycle gang in the land and do it with fear and intimidation but when you look at the  purpose it can be a purpose of fish your honor if in fact the facts support that but in this case what we have is we have a number of individual members of the phantom's outlaw motorcycle club essentially doing just whatever they want to do there's no common purpose amongst that in other words it's not organized for the purpose of committing criminal acts like robbery extortion and murder of that they have by laws interested me in terms of coordinated action and i think that you know the bible also i understand the court's concern with the bylaws and the fact that it does in fact look like it may be an organization but if you just go by by  client was the national president and given a lot of orders to people which is based acapella they were doing their best to carry out yes but they yes i understand that your honor but if you also look well virtually all of those things were a criminal act if you look at some of those things your honor for example one of the things that they used to convict my client on was conspiracy to commit murder but if you look at the facts of that particular matter there's absolutely no proof that there was any specific instructions given to anyone in the phantom's outlaw motorcycle club to go murder anyone that day and if you look at the other things that happened in this case like for example if you look at the testimony one of the things the governments of emphasizes these guys deal motorcycles with these guys are still motorcycles for their own use a benefit in fact one of the defendants testified that he was making twenty two thousand and twenty five hundred dollars a pop off steal a motorcycle he heard all that name me to determination based on those facts and we now have to view those facts in the light most favorable to the government so that's a tough road to climb i will concede it's a tough road to climb your honor but they did hear the facts about the racketeering activity and where this rico claim fails i don't think on the facts they showed an absolute purpose a purpose that this was set up for this specific reason i see my time is up so i'll yield the floor to the rest of the water clinic at the university of cincinnati and i'm arguing on behalf of mr sherman i will also take one of the joint issues first though i'd like to talk about the terrible injustice that happened to  brown as he was mixed in with this a panel plea of all of so many people and so many things going on individual can get lost in the mix in fact when mr sherman brown moved for acquittal the trial court got confused and denied his motion by discussing a codefendant reynard brown and what he had done the government's brief likewise talks about reynard brown quite a bit even though he's not part of the appeal and often are first of all  as merely brown this court should correct the trial court's error and not confuse the evidence against mr sherman brown with the rest of the case he is he's only been charged with the conspiracy count and there was no evidence that he was part of that conspiracy there was a there was conflicting evidence about whether he was at one of the big meeting where people talked about retribution but there was no testimony that he said anything at that meeting and being just merely being present at a meeting is not enough you could be sitting there thinking well it i mean i'm i'm wondering if it isn't a meeting of all these perpetrators you know he's it's there's a point  about meeting and who else attended and that he fit in and apparently he was voluntarily attending so so if you look at it this way we have a motorcycle club that's been doing the things that motorcycle clubs do and then there's this murder they have a meeting everybody comes to the meeting to talk about it a few people say let's go let's go hurt some people some people say sure people like my client don't say a thing probably thinking what the heck this isn't what we usually do when then brown was recorded talking about the mass murder plot so mr raynor brown was recorded saying lots of horrible things about the mass murder and organizing it and getting guns my client there is one conversation that he was recorded on and that's what the whole case about him boils down to where it's it's reprinted on pages twelve and they're talking about this complicated plan and my client says they're talking about this hypothetical and then they talk about martians and then my client says if we did it he says we going to need some martians pretty what that refers to if we did i'd be getting in for real i mean i just don't even think about like thinking about it this person here and then he says hit him in jail hit him hard as hell if you read the transcript you'll see the mr brown was either referring to a hypothetical by going to jail about the martians if you listen to the tape you'll hear he's incapacitated so the murder the murder conspiracy presented by the government was kill one or two people wait till everybody shows up and then come in an ambush and kill the rest of them if you read the transcript i urge you to my client head there is no there's no indication he understood that that was the plan or that he agreed with the plan and mr miller's discussion of it actually said that he didn't he wasn't advocating to sit back and meticulously wait which was the plan as he just said well let's have a brawl like we always have brawls so i'd like to move on very quickly oh my goodness so this court has a recent decision united states be carter on the sentencing issue just six six two federal clinics three forty two which which gives his middle person there change the guidelines the comments of the guidelines and i think if you apply that case it needs to remain and so the court can look at that again and then i'd like to address the veneer argument real quick twenty fourteen committee notes are very i think this court should decide when defendants need to move to challenge their veneer based on that which is which the community don't say it's when jeopardy attaches there are there are hit him hard as hell and you're saying he's a neighbor it wasn't that in front of the jury that was in front of the jury yes and they made a determination and made it germination that the combination of him being at the meeting the phone call and him hard to tell was  sufficient what phone call your honor are there recording i'm sorry ok yeah there was the there was there was being at the meeting and not saying anything and then there was him hard to tell which was interpreted by the government witness as not being what the conspirators were talking about at t meeting and so i would and i and so i think really the argument is if there is a being present isn't enough you have to indicate yes i'm going along with the plan to be part of the conspiracy you can't just be in in the gang he wasn't on the rico count so just to finish up the government just file a twenty letter talking about hoffa it was a published case and it does talk about anymore because right now we've moved these things to the chief judge near challenges are complicated expert laden affairs and they're not going to interfere with the trial because they're not they're not part of the trial anymore essentially because we right good morning your honor yes i'm margaret rebin i represent appellate marvin nicholson i will be speaking about the joint issue involving raemer versus united states in the trial courts dealing with a juror who claimed that he was followed home from court on one of the trial days this court can rely on the trial court's assessment of the jurors ability to be fair only if the scope of the trial court's questioning was thorough in this case the defense attorneys knew exactly what the critical question needed to be it was do you think these defendants had anything to do with the incident reported by the juror the trial court refused to ask this question and thereby d i'm suspecting the court asked a question in the same vein well i think the court thinks it ask a question in the same vein what the court asked in various minor word changes was do you you don't think these defendants had anything to do with this do you it was a leading question specifically phrase to get the answer of no and to not the licit any other thoughts of the jurors i think that the trial court was focusing on getting to the next set of questions for the jurors which was do you think you can be fair i think that that's an appropriate inquiry but i think in order to get there at the trial court should have should have accepted the wording of the question that the defense attorneys post i understand the trial may not have wanted six six or eight trial attorneys asking jurors questions but i think there is a marked difference between asking do you think and you don't think do i thought there if they understood that the defendants weren't involved and whether it would make them be fair whether they would be fair and unbiased and one said i would approach be a little more cautious and the judge excuse that juror is that correct one of the jurors yes one of the jurors did make some response that indicated she thought she could no longer be fair and that i thought she said she would be more cautious well whatever she said the trial court accepted that being equivocal at least to the trial court questions got answers and the trial court specifically said the defendants were not involved in this well the trial court made in the now and smith that doesn't address what jurors particularly think about whether the defendants were involved the juror who was followed home was the only black juror in the board in the jury on this and the government stressed how violent this case was right out of the start by asking that the jurors remain semi anonymous there had been ten days i'm sorry my time is up and you can you wrap up very quickly yes i will there had been ten days of continuous testimony about violence and violence and violence and violence and that's the background in which this incident involving the juror occurs so telling the jurors the defendants are implying that the jurors to the jurors that the defendants were not involved did not ask them do you think they are involved because that was the critical question and that's why these defendants were deprived of their ability to really get into the question of bias standard of review for that the question you you pose is what i'm sorry i didn't hear you under preview i'm sorry well the argument is they're denied a fair trial that would be a dyno of a review ok to review the the handling of the matter by the district court the hand i've been head of the law yes i think the standard of review judge to instruct the jury as a relates to subjective intent ok we asked that the we ask the subject of intent language be added to the instruction t zero the reason that's important is because this is a conspiracy considering the judge the judge properly instructed on michigan conspiracy law prong two of mission conspiracy losses that the defendant must specifically intend to commit a crime specific intent is the mental state you then go to pattern jury instruction to point a way to determine how does one ascertain what is the mental state two point zero eight as instruct as read to the jury give a reasonable man standard which is that odd which is with a specific intent instruction of michigan conspiracy law this substantially affected are threats are these statements to be viewed through the reasonable man standard are we are or are we to look at the statements through the eyes and subjective intent of brian jackson the failure to give that instruction created a confusion for the jury which made which substantially affected and i was a trial attorney to argue on behalf of mr jackson the particular facts which affected mr jackson mr jackson within the record it was clear he had a drinking problem he was known he was given to hyperbole you have no context because the evidence came from the audiotapes is mr jackson smiling is he laughing is he intoxicated i cannot see the significantly argue these factors without the instruction that the jury has to look at this through the eyes the subjective intent of mr jackson not a reasonable man standard the government and its a pin addressing the government's arguments the government said you know we were we were lied to and we sided aloneness and so did the this case because this case still with conspiracy while the conspiracy is based upon for if you drill down a little deeper this conspiracy is based upon threatening statements allegedly some members of the conspiracy said we're going to do this to a rival gang and we're going to do that we're going to kill him we're going to get him mr jackson allegedly made some other comments which are there arguing are threats which amounted to an agreement with the other members of the conspiracy so we're all talking about threatening statements alone is that a threatening statement cannot be viewed by using a reasonable person standard got to be viewed using a subjective intent standard and that's what we try to get also i believe the government is going to argue that  well the instruction the instructions that were given significantly covered the in the salient point i don't believe that's the case because they the government did instruct  under conspiracy as a way to to as a relates to the specific intent requirement but the specific intent were quire mint is defined or should be defined the mental state requirement should be defined under two or it is defined in correctly say you're saying just so i understand it while a specific intent was defined in the instructions it was not in to a way which is where the jury looked and that caused the let them know not let me be clear it's a mentioned that it had its mentioned under the conspiracy instructions but the definition of mental state specific instruction specific intent is a mental state mental state is the find how to infer mental state under appropriately how to define mental state how interpret mental state is six circuit pattern jury instruction two point zero eight it is not consistent with the lowne well mr jackson was given a mitigating role reduction three point three b one point two b we believe it should have been a minimal participant a four point reduction under three three b one point two a in light of the fact within the transcript all mr jackson did is he still has only charged in the by car count he's not charged in any other count he was present at some meetings  allegedly drove off in a stolen bicycle any the assertion that he was involved in the shooting is not supported by the church is not supported by the transcript i think in my time zone judge i can you know under three b one point two a as opposed to two point reduction under three b one point two b which he was granted i think the transcript supports i think it was clear error the assertions made by the government i think are not supported by the transcript which is that an interpretive reading that you need of the well i think it's i think it's plain on the face of the transcript that he was not involved they're saying vague la he was involved in the shooting he was not involved in the shooting he arrives after this event occurs like away rides a bicycle away where he can he yes he does drive will this a different context he does drive  a stolen motorcycle i think he's a minimal participant he's i think the least couple of all the people i think should've gotten a four point reduction  issue there was one brady issue that was raised on appeal before the district court and then another that surfaced august about two years after the after the trial so i guess the court to be my full of that as well however i do want to address a few of the court's concerns just cook you indicated that there fandoms have bylaws but it's clear from the record that those bylaws were not followed in any form or fashion of by anyone in at times they were at times they weren't so those weren't foundational in terms of the but that is a sorry go ahead no go but but that is evidence from which a jury could conclude that there was a purpose which was the point of the discussion correct whether they were followed or not was probably presented to the jury and the jury could make a determination yes but the bylaws never indicated the purpose was to commit crime and so when you say is the purpose that purpose was never well one of the things that the government showed it trower it seemed to show was that look there were as your co counsel just said there was plenty of violence involved and that one of the whether came out of the bylaws or elsewhere was this idea that you stand by your brother essentially and that if someone gets in a fight you're in it too and so why wouldn't all of that together support the purpose well because they were arguing that the purpose was violence it was stealing cars that was not the purpose of the phantoms of phantoms for a social organization in terms of they were riding bikes they took two incidents your honor and basically blew it up they took september ni incident and september twenty third incident and then try to say that some local guys who are having some brazen brawls they turn into a federal fiasco that is not what the purpose of i understand your beef but why isn't that up to  jury ultimately if they put those facts in front of the jury why isn't that a jury call that's what i did not following well because if you look at those individual crimes you still need to get beyond the fact of what the purpose is because there are other criteria that's necessary in terms of establishing and apprised of what the enterprise do for when you look at whether or not if the enterprise if you say that it is then how does it affect interstate commerce that's a big factor and you look at the individual crimes that were noted you have robbery which there no robbery in terms of a legal definition and that's the distinction you're under here because you have things that were done but they didn't meet the legal standard in terms of the jury as you would know that was responsible for applying the facts what the facts have to be applied to the law and the law as it related to ohio kentucky and michigan it didn't fit in terms of for romney are you contesting that the rico instruction was inaccurate incorrect no i'm not i'm saying that th evidence was insufficient as it relates to robbery which there was never a tent to permanently deprive they were just taken rags they were taken this there was this was not what michigan and ohio kentucky do define a robbery as is the to permanently deprive that's an element if you only have two elements and you don't have a third then you don't have a sufficient basis for robbery and or an extent i'm sorry i'm lost so they were taking their rags in vast and hang them on the wall today and tend to return the almost in almost all of the instances those wrecks war return and those were cited in my brief but the jury knew all of that and made a determination that's what that's where i'm struggling in other words they were correctly instruct on the law they were so if there was facts from which they could conclude that they were depriving others intentionally of property in the jury made that call they made that call but asked us to make the court that it was the correct call you know that wasn't sufficient legally did you have a number of individuals who are grouped into one category such as what we've done the day you know which doesn't result in any type of fairness as a representative of what the current justice system is supposed to be about looking at each individual but i specifically when i'm running out of time want to talk about mere presence that's related to brian's a rail with a conspiracy to murder none of the witnesses even testified that there was a conspiracy to go and commit an assault with a dangerous weapon they said that there was a  dent to go and take rags and so you know there is a lot that we were inferring because there are a number of people that are involved in a number of things that are going on but if you look at what each individual was doing this is sufficient as it relates to the government's position in terms of what was presented at trial and a lot of  today i'm going to be addressed seen some individual issues as it relates to mr monti in this case we've heard a lot talked about this is generally this generally comes down to a grouping of individuals mr shulman today is not like the other defendants in this case that's the distinction that i want to make to this panel he was not part of the detroit chapter he was part of the pontiac chapter and significantly particularly as it comes down to his sentencing issues the court combined him with the other members that were doing all of these terrible things going out and murdering people going out and stealing motorcycles shooting would like this panel to consider is that the trial court erred in doing that first of all the trial court clearly erred when it concluded that mr sherman was involved in the interstate sale of stolen motorcycles now the government says that there is sufficient evidence to link mr today to the sale of these stolen motorcycles the interstate sale these stolen more cycles because of the testimony of at trial now to respond today at the testimony there was that apparently mr a was selling stolen parts on e bay that's what mr ball these said there's no other outside evidence that was offered to support those claims there were no receipts of sale from e bay parts in fact mr shaw mat take it that you cross examine that witness who said he was selling well i did not say i was not trial counsel but doesn't work here right understand what he did yes somebody did in and it would be cross examination had to be fruitful somehow you somehow counsel was able to conveyed to the jury that this gentleman was from a much more peaceful right tribe that's correct ok and the jury have a bad yes all right so what what what can th do so this course insufficiency yet well i'm to guess so i'm dealing specifically with the sentencing issue actually on the yes the sentencing issue so i would ask at this panel would find that the trial court judge clearly erred in saying that mr a should get points essentially for being involved in the sale of the stolen motorcycles and it's important also to note that mister a was attributed with stealing between seventy thousand and one hundred twenty thousand dollars worth of stolen motorcycles when he was sentenced by the trial court the only thing that we know is that he helped some other members boat and allegedly stolen motorcycle onto a truck and then he drove it across state lines ok so what we have is that he is driving this truck and allegedly helped him load a motorcycle there's no indication that he knew that this motorcycle stolen there's no indication that he was involved in this in the theft of this motorcycle and also what we do know is that from trial testimony mr tate didn't even possess a stolen motorcycle himself he drove his own legal motorcycle he was not one of these individuals that was routinely involved like some of the others were in this theft of stolen motorcycles moving on and as it relates to the firearm that he had supplied to mr frazier previously legally the trial court erred by not having a specific finding as to whether it was reasonably forseeable that this firearm at some point in the future that was legally given to mr frazier would be used in an assault i would argue that he mr a had done this not as it relates to the phantom motorcycle club he had given it to mr transcript i'll finish up with this was that mr shaw was a phantom mr frazier was a phantom i'm going to leave that in this is specific proof that mr a has been lump morning your honor of march asking for the united states there's been a lot of issues briefed and presented to the court in the briefing and today so i want to make sure i get to whatever the court finds most interesting or has trouble with but if you can answer give me some direction where you'd like me to start i will start with me i don't care when you address this but at some point during your argument i would like you to address mr brown's  arguments mr brown's arguments with respect he raises several so there one in particular i'd like me to make sure we get to because i'll start with that that says to mr brown the sufficiency of the evidence as to mr brown well i think with each defendant we should probably bear in mind what the evidence showed in the case in terms of their involvement in the phantom's and their activities so what the jury heard with respect to mr brown who was also called tank is that he was involved when went to cleveland from michigan in two thousand and nine to surround the zulus clubhouse with firearms and essentially extort a concession to allow the phantoms to expand into cleveland he was present when the phantoms raided the hell lovers party called the bridge the gap party in january two thousand and thirteen and then beat up our isolated a satan's sidekick member beat him up and stole the rags he was in kentucky during the the fight  with hell lovers during the national meeting a national call out of the phantom's it which were beaten and robbed of their rags he was present for the planning meeting prior to leon mcgee's being  attempted robbery and shooting he went to the scene with others and so he was a full participant in that you'd look like he left before the actual salt happened and as for the murder conspiracy which with that he was specifically charged he was present at the meeting which i think and i apologize but i think some of our all of you have mentioned this meeting that happened right after or shortly after stephen called well known issue boots was killed at that meeting phantom named her told everybody present if you're not down with the murder game put your rags on the table and get out very clearly at the outset of this meeting that this meeting was going to be about how to conspire to commit murder mr brown was present at that meeting and there isn't conflicting testimony as counsel said in fact the record states that mr brown was there and i don't believe he's point conflicting testimony showing otherwise and even if there were the jury could find credit that he was there and that is consistent with his later conversation with marvin nicholson and carl miller which was record during that conversation mr nicholson karl miller and mr brown talk about the ongoing murder plot and antonio johnson's plot to kill  ongoing effort to find those responsible for the murder of stephen caldwell and what they're doing about it now i just want a council has said that it's clear that mr brown is in the brit or drunk that's there's nothing in the record for that he's asking the this court to substitute its judgment for the jury which heard that recording and come to its own conclusion that mr brown was in the abbreviated would mention or walk through the argument that there was by the district court confusion between the browns there it is true that the district court used the wrong name in its ruling but of course that's not really relevant to this court in that this court makes its own to no review of the record when pertinent it's not because again this court makes its own determination of the of events and as we've laid out in our brief and i know counsel appears to be confused by the brief but i think that if you actually read the brief it's very clear in the context who the government is talking about when it says brown you know sentence to sentence and paragraph to paragraph which brown is which in any event it's easily resolved by referring to the page cites in the record that cite in our brief about which brown was being that his view is that they should hit them hard as hell and now this is another instance in which counsel has asked this court to put its own interpretation on the facts rather than giving deference to the jury's finding which is required to do oral miller said when he was explaining what are his interpretation of what sherman brown was saying there was that he meant to go at them full club meaning no holding back go for one hundred percent phantoms first as the hell lovers mr paulson asked this court to interpret that to mean that sherman meant just a fistfight around ball but that's of course this interpretation of it and not one that the jury would have to find or make he also says that miller's interpretation is inconsistent with the plot and i'm really struggling with that argument because it's failed i fail to see how an interpretation that the fandom should go one hundred percent against the hell lovers is inconsistent with a plot to completely wipe out the helo verse by luring them to michigan first by murder of three of them and then hitting them at the funeral it just doesn't even make sense that argument much less is it one that that this jury that the jury was required to make  so as far as the sufficiency of the evidence for sherman brown i think that the evidence is overwhelming that he was an active participant in the phantom's that he had repeatedly shown up and  present for collective actions in violence that the phantom's had done over the years and so when he is present at a meeting to plot the murder in which johnson says this is what we're going to do and then subsequently discusses that meeting and the plot with his fellow phantoms the jury could reasonably find that he had agreed to the murder conspiracy raised to the pre sentence investigation report in the district court and the two the two main things that we've heard about are that he was involved in motorcycle are still in motorcycle trafficking and the district court conclusion that it was forseeable that he would use the fire or that mr frazier would use the firearm that mr monti provided so let's turn to the motorcycle trafficking question as counsel concedes today mr valdez testified that he saw mr engaging in selling stolen motorcycles that's in the record she also concedes that he was involved with other phantoms in transporting a motorcycle to kentucky she said it's not clear it was stolen but in the in the transcript in the record in fact it was clear that it was a stolen motorcycle that they were transporting to kentucky the district court could certainly find by a preponderance of evidence that mr monti was knowing participant in the phantom's trafficking in stolen motorcycles as far as the firearm there was abundant testimony that mr shaw monti was actively providing in fact he admitted this to agent marsh after his house was searched that he was providing firearms to his fellow phantoms and although he often wasn't paid for them he received credit sort of as being a good guy and a good phantom member for providing those guns many of those guns had obliterated serial numbers which you would only do if you would only he obliterated the serial number you would only do that if you know you're giving it to somebody either who cannot possess it legally a felon or that is likely to be used in crime because  the serial number is an attempt to prevent it from being traced after the fact he as i said he knew that he was giving evidence show that he knew he was giving firearms to phantom's who were not permitted to have them felons that he knew were felons his background with the the phantom's would show that he couldn't could reasonably for see that his guns that he was providing would be used in violent acts for example he was present at the bridge the gap party in two thousand and thirteen in fact took a picture selfie i guess with the stolen rags the evidence showed that many of the phantom's had firearms at that party and that's in fact how they prevented the attendees of the party from getting to the room where they were beating up the satan's sidekick and taking his his firearms he was president  the the assault on the robbery in kentucky so he would know that the phantoms use violence and mass ways then all of this shows that mr sherman too given that he's providing illegal guns to people who cannot legally possess them to members of a club that he knows commits violent and often uses firearms in its was made it reasonable for the district court to conclude that he would reasonably forsee that this farm would be used so if i could turn to mister well this i just briefly like to to address mr brown's argument with respect to the enterprise in his claim an argument that the government showed was a series of small conspiracies and i think the courts or members of the court hit on this pretty clearly that mr johnson in fact ordered almost all of the violent acts that the jury heard about in this case the surrounding of the zoo if he ordered it and he was president he ordered the omen hunt in two thousand and ten when he was disrespected where members of the  and found the leadership of the omens and robbed them of their rags at gunpoint he ordered the black bottoms club shut down he ordered the raid on the bridge the cap that party he ordered the hunt for side resulted in leon mcgee being shot in two thousand and thirteen and he's the one who instigated the murder conspiracy in advance of himself this was an overarching all of these acts were connected to the enterprise that m johnson was the national leader of there's simply no way that anybody could reasonably say that it was it was not rational for the jury to find that there was a purpose of the  these were connected to that these acts were connected to the enterprise turning to i'd like to just briefly address the the reliance by mr brown on the two thousand and fourteen committee notes as to the timing when a challenge to the jury one year one near the near brit needs to be brought scuse me the committee notes specifically say that they did not change any of the prior timelines for when motions need to be brought in addition to the  rules that were being applied by this court in the hof a case in one thousand nine hundred sixty five also said before trial so the representation to this court that they were very different isn't really i think sustainable by actually looking at the rules they clearly say th hundred four rules which were in effect in one thousand nine hundred sixty five said that those motions needed to be brought before trial so there really really wasn't a difference why when we treat trial the same for jeopardy purposes and other purposes because the rule just says before trial and we've treated the start of trials when we impanel and swear the jury that's historically been when we've done it especially for jeopardy purposes why wouldn't that be consistent well that's that's true for some motions is not true for all the rule says if the district court sets a deadline but they didn't hear right they actually did and this is something that did not come out in the briefing there was a docket entry on july twenty ninth of two thousand and fourteen in which judge borman extended the preexisting motion notes they got that in what december eighteenth two thousand and fourteen this specific draw that is true but the motion actually should be brought based on the jury we'll that's drawn by the district court and the clerk of way in which the entire group of eligible jurors for a given time period is the late that's correct and they had that available to them by the deadline in july they  believe all that publicly information publicly available information was available then in the event they certainly made no showing that they attempted to go to the clerk's office and could not obtain that information about the jury we'll master wheel  qualified wheel from which there veneer would be drawn and i would know the just bar and actually didn't force this motion cut off during that your best argument and it probably is your honor and i apologise that we didn't didn't raise it but he did have a motion cut but i recognize that this was not raised before response to this court's question because the rule provides in the alternative correct it does rule twelve and of course this court can affirm on any basis that supported by the record and i'd be happy to give the  record cite where judge bormann in fact enforced the motion caught himself in when mr nicholson attempted to file a motion to suppress the day before jury selection was about to begin he's citing that july thirtieth motion cutoff date he denied that motion solely on the grounds that it was on timely that's record number three ninety eight page id one eight one five  turning to the rubber hearing judge the part you had it right when you asked is redmon whether george foreman actually asked what she said yes she said he asked you didn't think the defendant had anything to do with this do you or you don't think that that's not what he asked what he asked is what what you said and that is he instructed them do you understand the defendant's don't have anything to do with this and the defense and the defense want to say that that's not sufficient that you know i think it was pretty clear from his questioning of juror number eleven this came after he questioned juror number eleven that this was really a nonevent i mean juror eleven had been followed from the court he thought to this gas station but there were no gestures towards him nothing was said to him when he left that gas station went across to another shopping center that car also left the gas ation but then i continue to follow him and i think what judge borman was saying look we've looked at this and this is really nothing but he's going to do what romber says given that juror eleven had mentioned this to his fellow jurors so he's going to make sure that they understand that there are the defendants had anything to do with this and you know we trust jurors to follow the district court's instructions and that's what he's doing here i would submit that asking them do you think would suggest to them that it's possible and sort of give the but i was curious i mean obviously he didn't go out and you know investigative for he had paid question juror eleven investigated it within the confines of the courtroom and determined that it really and he that's reflected in his late hour or two where he says there was no contact that's really the did that you're someone they've been in or around court there's nothing that suggests that it was somebody that he recognized as being around the courthouse and of course the ultimate question is one the judge foreman did ask and that is whether the jurors having learned of this information from juror number eleven could be fair and impartial in every single one of them said they could except the one who said she might have some concerns and she was excused from the jury judge  credibility determination after questioning each juror in person and his credibility determination is entitled to difference from this court credibility with respect to can you be fair right ok the on the aloneness issue again i think this is really in the district court and here was sort of a much much ado about nothing because mr pitts is right i am going to point out that in fact the instructions did tell the jury ultimately exactly what they wanted the jury to be told other than they weren't told anything about free speech or the invocation of first amendment the jury was told that michigan conspiracy law  required that the jurors that they see to be the defendants had the specific intent to commit the crime or help or help commit the crime that they were conspiring to and that's essentially what they're asking or we're asking the district court is to tell the jury that they had to have the subjective intent to commit the crime but any of that as we point out in our brief evidence of statements made to show the existence of a conspiracy are not are not  subject to first amendment protections the case law is very clear on that this court's decisions and on maui in jeter say that and alone is didn't change that in any way along this didn't even relate to conspiracy case unpublished opinion by this court talking about an amendment that was made to the guidelines on the mitigating role question and in carter the court found that the those amendments were retroactive and because they had been issued before or after sentencing for the defendant and after the appellate briefs had been filed that he says he should be allowed to present that to the district court to reconsider on henri man in carter the defendant had sought a mitigating role reduction that is very different from mr brown who never sought one from the district court in the first place in any case both mr brown and mr jackson's briefs in this court were filed well after the amendments went into effect in the member two thousand and fifteen that simply show no reason no good cause for their  this issue before today at oral argument but you're saying it's waived i think it's waived this court has repeatedly said that argument not made in an opening brief or waived that arguments not made  of apply brief or waived and arguments raised for the first time an oral argument are waived they've waived it  i just wanted to clarify was something to that mrs miss burton said the both of that one of her brady issues was raised in the district court i think she was referring to a claim that medical bills that were submitted by the government  in support of a restitution claim that in fact was never raised in the district court either either neither of her brady claims has been previously raised she has filed now a motion for a new trial in the district court and it's from her motion for remained from this court but i don't think either one of those motions need to be issues need to be dealt with by this court now before the district court but in any event as we point out in our brief certainly the medical bill issue is a really meritless issue there's just no chance that that evidence would convinced a jury not to convict mr sewell of shooting leon mcgee when he said multiple times on a recording that he shot  i'm just going to just briefly kind of wrap this up and address one of the one of the issues the government has just and just brought up is that mr johnson ordered almost all of the violent acts and he outlined some of them for you but there is a lot of things going on this case that antonio johnson did not order and did not have knowledge of and if you're the national president of this organization then you don't let members steal motorcycles for their own benefit and profit the money and you don't lump traffic in firearms and profit for them for their own but use and benefit rico is designed to target organized crime if you look at the facts of this case these guys are anything but organized and so that's why i'm going to asked to remember what t instructs us simple conspiracies do not qualify as a rico case and that's why i ask you to reverse all defendants convictions and my client antonio johnson as well thank you for the opportunity to be here  the rest of the time that he just left on the table i've got a lot to cover very quickly though as to the conspiracy for mr sherman brown the timing is important the government and i mean alleged conspiracy from september twenty seventh talked over twenty third twenty thirteen that's when the conspiracy happened you can't these other of these other events are really relevant this court's decision in united states the page says that mere knowledge of a conspiracy to murder is not enough you have to you have to do something you have to give a cent and that the statement that if you don't like murder get out of here no rational person would leave at that point that that's you know that's saying no i'm going to go to the cops you know you can shoot me on the way out they can't be the rule and as to the as to what the conspiracy was i invite you to read in the transcript for four one page eighty two eight seven four seven seven and then there at six five seven page eighty eight four zero four they talk about what the conspiracy was it was to kill one or two people get the club together and then go in and kill them all mr miller i didn't you again to read his discussion of that he says no no sherman brown wasn't talking about rights and he too can read it to you he's not talking about if you're not talking about this this is setting up an ambush he says hit the lovers hard instead of sitting back and meticulously waiting for one or two which is what had been proposed at the meeting so mr miller decisively says he's not going along with the conspiracy he says let's just go you can read that as you will but i think mr miller's pretty clear that mr brown is not part of the conspiracy as to the veneer issue first this cut off date i did look at this when we were doing the initial briefing and i was pretty sure it didn't apply to this kind of motion which is why i didn't talk about it nobody talked about it i don't remember why i didn't think it was or why i thought it was irrelevant but i'd be happy to file something if the court would like it on this cutoff date one hundred forty four rules are very different if you look at twelve b three from the forty four rules they're very different the he's talking about the statement that we didn't change the rules that's in the twenty four change i'm pretty sure that the change from the forty four to the new rules happened before twenty fourteen and then finally to invite you to look at gomez gomez which says we have to look at the constitutional right at issue when we're determining when trial starts and i and i think i guess i should probably move on the last issue is carter they say that we waived it it came out after our opening brief it came out  it's really straightforward your honour's can can read it and apply it as you as you see it thank you very much  if i understand the government's raemer response correctly they're conceding that judge foreman had already decided that what the juror had reported was nothing and that the judge proceeded then as though no juror would be concerned about what this particular juror had already told everyone had happened that might explain the way judged foreman actually phrase the inquiry to the jurors because he had already decided there was nothing to this so that means the defendant's got the appearance of a rumor hearing but not the reality and if that's the way the government thinks this played out in this court agrees in this case should be reversed thank you well we appreciate very much the defense attorney's accepting appointment in this case  just very grateful to you for accepting the appointment as hooters ellis and effective advocacy on behalf of your clients to all of you will consider the case carefully and thank you for your