america with the no in this case we're here today after over one hundred pages of briefing by myself in the government and a case that should have been straightforward ransportation counts concerning the two individuals or the conspiracy that would encompass his agreement to you but we are here today because rather than take the bird in hand the the slam dunk case the government which considered a remain and in a case where an individual got concurrent sentences but did suffer increased fines or penalties for special segment so that it's in current d but i am concerned about how the government pursued the case and that there is a viability that i think the court should take concern from and you know i can start with some of the theories such as aiding and abetting of the people who never even got into his car to show how far afield we are in this case from evidence that would be sufficient to support such a conviction and i ask you something about unanimity instruction agreed on a particular offense and so the fact that both sets of instructions were given six jurors eleven jurors could have agreed on one theory and one on the other side don't know that that  more specific unanimity instruction for that the conspiracy because they charge more for conspiracy yeah argument that there are you simply can't know if the jury unanimously determine one crime or the other i don't think that generally and then the instruction early on i so do you who bears the burden to show that there reza a substantial miscarriage of justice that would be to the defense your honor or the balance here i was i was not trial counsel there was not an objection made and frankly that that is a weakness in that argument what i do think is more problematic though is the government a transportation count case into transporting and harboring individuals three of the people who never even got into mister merrill's car they attempt to justify that he somehow aided  harboring of those people and the other individuals car they don't suggest that he had any idea that anyone was doing anything in that other car to harbor them i think if we step back even one more step there's problems with the circuits case  car and that the harboring and transportation counts can't be sustained under the the aiding and abetting theory that the government has proposed for these people who mister romero and the record doesn't even court were to affirm the convictions on that on that theory in particular i think we have to look at what the test is pinkerton liability is supposed to be a broad range it's more  cast a wider net than aiding and abetting but it does have a limitation on the st limitation is an important one in this case what was the scope of the conspirators the government has suggested that mister romero should be held liable  with felony conviction because of the actions of another driver in another car with another time may have done to help people in their car to duck their heads or to move seats in the car that's their theory of our bring i'm simply the transportation in this case they want to hold this council let me ask you don't jump and meet at about eleven o'clock at night in a parking lot there are two cars on the defendant admits later that he drives u ndocumented immigrants i it isn't just an area one pretty obvious that the defendant understands there are other people involved and what they're all doing well it would be significant if the understood there were other people involved or if this part of the scope of his agreement he did something to assist his coconspirators in furthering the entry or the harboring or the concealing of these other people what's problematic in this case is that that doesn't exist if we look at the scope of the agreement mr merrill had whether we look at the indictment or the evidence in the case he simply agreed that he would meet at a location and that he would transport individuals and if you would get aid to do it the government says interestingly that in the cases the government cites to say that that's sufficient for four anchored in liability i  i can't recall exactly whether mister mero acknowledged that in his statement simply for the government i think just clouds the picture and there was a central theory at trial that he was paying to have people you know brought to him i think the ultimate evidence was that he said he was getting paid to pick up these people i think which is the primary reason why we're not challenging his transport conviction but if i'm missing ends and he would benefit you know concretely practically by the the special assessment the other sentencing issue concerns the upward adjustment by the court for  obstruction of justice i've argued that any belief that mr merrill had that these people were his cousins or any effort to testify that they were knowing that they weren't or any effort to get people that that's the they were is immaterial  a challenge was based on the indictment and only after the government pointed that out that it was waived the defendant then trying back doored in his reply brief but even if this court were to review it under arriola as well as savage this court would review it under johnson this is it is the defendant's burden to show that there would be a plausible basis to believe that a different result would happen if there were if an error free retrial occurred and the felon cannot show that here and i think evidence of that defendants talking about remedies in connection with a challenge to the indictment no expressed challenge to the jury instructions was made or defendant expressly states that they unanimity instructions should have been provided with respect to the attempting to feed defens but even even if it wasn't waived the argument fail under the plain error of the rd and th progs because defendant cannot show that an error free retrial would result in a more favorable outcome under johnson as well as other cases like kobe  here you have a defendant who doesn't even challenge the sufficiency on two counts of all three counts but you relevant for this argument counts two and three with respect to transporting you one documented individuals and as to the other eight counts that are related to this  challenge the defendant also can overcome the burden because here there was some stansell evidence to show that that under multiple theories that defendant would be liable for these charges and i'd like to with that turn advance all these different theories in order to gain a conviction just like this was pretty good straight out of transportation case you could just nail it without without going through all this what was it what was essential about with your some doubt about his role or something because you have all these theories that you're advocating here it just complicates the case your honor there is no doubt whatsoever here the defendant was liable related to the the two individuals who got into his car defended attempted to transport and harbor them that was the argument below he and it's unchallenged that he attempted to transport them he also attempted to harbor them he after they got into that parking lot in his car he was going to take them to either his house or his boss's house to shield them their from from further detection that is attempted harboring and although defendant says that testimony doesn't exist in his reply brief it does and it's up to age t seventy seven dollars at the bottom of the record with respect to pinkerton the government that was the government's main theory of liability with respect to the other three undocumented individuals in aiding and abetting was frankly it it was just an alternative theory to let the jury know that there was multiple ways that this could be found that the finding could be found guilty but the government focused on congress in liability and that was the main argument we put forward in our closing argument and under pinkerton with respect to sco i think the defendant is trying to twist around individuals and what i'd like to in response is that with respect to the unanimity instruction here with attempts st completed the government provided separate instructions for completed in attempts and they and the government made clear in their closing argument watch theory applied and defendants cannot satisfy the th pronk relating to showing a grave error that results in a miscarriage of justice so the area you're describing river in my view relates to the rd prong about whether defendant substantial rights were affected to attempting to transport he'd turn the bridge the brake lights went on he was about to pull out of the parking lot in his about to drive these people away with respect to complete harboring he harboring occurred in the car as well as you have a computer like you said you have completed  under the th pronk the court reserves reversals for grave errors that result in a miscarriage of justice that the purpose of that process is to avoid wasteful reversals it's it goes towards ensuring that if the court is going to reverse the retrial is going to is most likely going to result in a different outcome here the fan and can't show that he can't establish his burden of showing a plausible basis to believe a different result is going to occur if there's a  addresses this exact issue where you had a conspiracy to commit transporting harboring and the defendant challenge only the special assessment because you receive concurrent sentences like here the court said because this wasn't a singular criminal act because it related to unique extremely distinguishable and doesn't apply and these facts in our case respectfully is more like the wall and also distinguished defendants case the paula that case is completely off point because there you have multiplicity of multiplies that is convictions arising out of two counts relating to charging the same firearm so that the collateral can't consequences there that are just cussed are in connection with multiplicities convictions relating to getting two separate counts convicted on here you don't have that type of you don't have that type of multiplicity conviction under the pinkerton liability under the completed offense and attempts of transporting and heart and harboring like we've talked about the these are all the government her vented its case including laid out its closing argument to the jury combined with the fact that we had the distinct jury instructions four attempts and four completed offenses together with the general unanimity instruction terms of making clear verse of the times st completed the closing argument around page five say around page i apologize i don't know the ins inside off the top of my head but in the closing argument i go through and i was the one who gave the closing argument i went through five undocumented individuals and explained how the jury can convict as to each st the st two that got into his car and then ice and then i then set up separate into explaining that how they could be convicted for the three that did not get into his car and in doing so i was very clear with respect to transporting and harboring for the two that got into his car the theory of liability was he's attempting to transport them and attempting to bring them to or his house and then i shift to the other three and documents and individuals to the jury in the closing and i explain how there is and i focus st on pinkerton liability because that was our main theory of liability and i explained to the jury  exactly this with how based on together with the expert testimony here showing the type of broad based conspiracy how this works and how and how these these these type of conspiracies involves transporting groups of undocumented individuals and then transferring them among multiple drivers together with defendant's actions and statements and when you look at the fact he thought his son was going to be there he thought you know his prior experience smuggling other undocumented individuals into the country for javier has lost and and so and i apologize for the long winded answer but it was i walk the jury through in that order to explain exactly how the theory applied to each undocumented individual and then in the jury instructions you combine that with the fact that we have the separate attempts and the separate completed instructions which the defendant did not object to out at trial below and i see that my time has run so unless the court has any further questions i would submit with that ok thank you your honor and obviously i'm biased towards my client but the long winded answer didn't create clarity for me as to what the result would be but i think the court can look right at the government answering briefs on pages twenty nine through thirty to see what the clear answer is they couldn't even tell the court whether he personally harbored or attempted to harbor those individuals quote he quote personally harvard or attempted to harbor fact that they would have multiple but the winds are really more of a sentence is that go to the grave error miscarriage of justice on one way or the other or is there a curse to me that one thing that might matter and that is which i think the government's