conspiracy that the conspiracy to possess and distribute methamphetamine through the mail from california to florida and in presenting their case at trial however the evidence that was presented did not establish just one conspiracy essentially an opposition as at least three separate conspiracies and they were labeled at the time that this case was presented as the quote the last or conspiracy the battle conspiracy and the rollers and conspiracy now as the record reflects shipping and distributing and that's not something that i can disagree with the court about however there are a lot more that the government is required to prove there is a supposed to be an overarching a link between these individuals that makes that one conspiracy and that's where it's lacking there is no proof that they acted in concert with one another with one another in order to further those goals regardless of the underlying methods that were used d the jury was provided with additional facts that would argument is that it would have prevented them from finding that because of the fact that there was no interdependence amongst them for example mr battle there was no testimony that mr battle relied on mr laster in order to distribute these to distribute the methamphetamine the only main person that was overlapping was mr felt's and he has testimony was that a lot of them didn't even know that he was working with the other individuals the pre sentence investigation or for characterize the conspiracy as a parallel conspiracies literally meaning side by side these three conspiracies were working side by side not together and that is why the evidence did not that they were one overall conspiracy and stabbed were actually three separate ones if i agree with you on that isn't it the case that the government only had to prove conspiracy between these three that certainly encompassed by the indictment and as long as the jury found that one conspiracy then it doesn't matter if there was a separate conspiracy separate battle conspiracy and separate conspiracy the evidence that was present is the the president of the chorus is a savage is that if the indictment charges one conspiracy and then multiple conspiracies are presented at trial that kind of creates a material variance and if they are going to say i was prejudiced that there is a substantial likelihood that the jury would have relied on proof of one conspiracy and ultimately finding the defendants guilty because of that that's where the issue becomes not exactly what we have in this case but what m was overwhelming the government's case started with mr battle in california it and it was mr battle when he provided the tracking numbers to his attorney who then provided them to law enforcement and he's mixed in all the incidents in between he's the person who was threatening the government's main witness the government was able to rely on his his actions even though he never testified and those actions that's our position is what resulted in these three co defendants being found guilty and the prejudice that the jury would have transferred proof of mr bottles conspiracy or mr roller since conspiracy onto these three defendants is significant and that can't be something that the court can overlook and as a result it's our position that either mr lasser's motion for judgment of acquittal or his motion for a new trial should have been granted as these arguments were made by mr laster both during trial and after trial and his motion for a new trial the nd argument that was raised in mr is essentially to the district court did not allow mr laster to present a witness that would have established his entire defense and specifically mr laster wanted to present the testimony of agent kreuk for the sole purpose of asking a simple question whether or not he was aware that mr battle's wife battle had made a statement to him during an investigation that mr battle had sent it's our position that there is an exception under the the rules and that was and that was what was argued is that under eight o four b three this is something that could have been admitted because the witness that would be able to provide that testimony mrs battle w not an available witness at the time but this didn't implicate her implicated somebody else i mean it's not a statement against people interested unless it implicates the speaker right yes your honor and i would respectfully only because of the fact that mrs battle was charged as a coconspirator that came out of that exact investigation so her comments resulted in her and in her indictment as well as her husband indictment as well as the other attorney mr burch that was brought up a lot during this case so her statements were against her cane wondrous and ultimately were used against her in charging her and ultimately her pleading guilty in her own federal case do you consider her overall statements in that analysis or the particular hearsay statement that i think it's the latter i believe it is a lot of your honor however our position that because of her the federal indictment that she had pending that that statement for his argument was that the spousal privilege would be transferred because if she testified in this case and she would have waived any spousal privilege in their own case if they went to trial she be forced testify against him as well because she had already waived that priv dollars fine to add insult to injury since he's was sentenced to a life sentence it's our position your honour's that in this particular case as it relates to mr browder that the government failed to prove beyond a reasonable doubt that mr browder had the specific intent to end with who possess either methamphetamine or tibet possessed with the intent to distribute methamphetamine in this particular case our position was is that the really the only evidence against mr brough to in this case was from his daughter and that his daughter had been asked by mr broady to go pick up a package we had also objected to the fact that mr brough to you was sentence was enhanced by two levels based upon a firearm it's our position that the court abused its discretion in granting the two level enhanced ms as it relates to mr brough to certainly in most drug cases there may or may not be firearms involved but in this case it's our position at the firearm was to attenuated the events involving the firearms that occurred in another state occurred after mr broddi was allegedly involved approx me one month in this overall conspiracy and it's our position that  apply additionally as it relates to the conspiracy itself the testimony in this case involves co defendants through a majority of the case and really mr brough he is merely present there is a party that mr out he goes to visit mr felt's he goes to his residence he meets with mr felt's and throughout the course of this trial witnesses were asked whether they ever observed mr brough to be in possession of methamphetamine the answer was no whether there was any audio video of mr brough be in possession of methamphetamine the answer was no whether there was any recorded telephone calls regarding mr brough he's involved in this case again the answer was no doesn't that it's our that track packets picked up that you spoke about at th big it's our position it doesn't ignore that but we argued in our brief that the evidence that was presented by the government the reason the mr brought his daughter was was insufficient to find the mr broady  requisite specific intent to be involved in a conspiracy or that he joined in a conspiracy itself that was organized by prior counsel that there may have been multiple conspiracies as well even though that wasn't asked for the instruction but it's our position that that evidence in and of itself is insufficient the st trial ended a believe in a mistrial that jurors were not able to come to a decision as to that case and again we see my time is up but i would like to add that we also org that the court the district court abused its discretion in finding another enhancement in that mr broady somehow recruited his daughter because of compassion and love it was the daughter that testified that she was willing to the morning it was or i apologize landa miller on behalf of mr pettitte for your honour's we would of course and we have adopted a lot of the  arguments as relates to the abuse of discretion as a failure to grant a mistrial as it relates to testimony from a government witness that one of the co defendants had been incarcerated or was incarcerated utterance of the word jail prison arrest does not without regard to context or circumstances constitute reversible error person when the comment is brief and responsive and it's nothing to the government's case that the now of a mistrial is proper you know i understand the prior rulings our position is that mr pettifer should have at least been given an government they have please the court good morning your honors i'm sorry sweeney here on behalf of the united states i'll begin with the sufficiency argument and the united states position is that overwhelming evidence here supported the idea that there was one conspiracy regardless of whether it was overwhelming or not under this court's precedent a reasonable jury clearly could have found only one conspiracy here this court looks to whether the goal is the same whether the course of conduct is the same and how the participants overlap with each other and i submit that all three of those factors are clearly met by the evidence here and i would particularly rely on the richardson case from this court but i will go through the evidence in as to what exactly we are relying on so st of all mr laster directs mr felt's to create labels for the whole conspiracy mr laster is the only person who has contact with mr felt's but then these labels are used throughout the conspiracy by all three of the appellant's who are here clearly  in addition to that when mr laster st met st began working directly with mr felt's in approximately january of two thousand and fifteen mr felt's testified that he and mr battle had had a conversation right before then and mr battle told him that mr laster was going to bring him money to pay for his services mr laster then shows up with money and gives mr felt's one thousand five hundred dollars this is clear evidence that mr battle and mr lester are all in one conspiracy together they are paying for the same conduct all three of the defendants who are here today recruited deborah scott they all met with her and her home and she testified that while mr laster did most of the talking she was also shown methamphetamine by mr brough the during that meeting when she said she didn't know what it looked like in addition to that mr braddy recruits his own daughter as you've as you've already heard about and then after she was arrested while trying to deliver that methamphetamine she met with mr bradley and mr pett a far again you're saying times were all three of these defendants are certainly present together and over  over reaching it all is mr battle who has set all of this into motion you also have there was also evidence below that mr pett a farm recruited daunce amino and that she delivered methamphetamine that had been previously delivered to a fed ex facility in california in a rental car under his name and after she is arrested i'm sorry not after when she is calling him at the direction of the d h in a controlled call he tells her that his friends will be upset that she picked up the package after he directed her not to again they are all working in concert together and then ultimately as to mr rollers and he appears on the scene last  appears later but he is working with the same source the same package or who's using tin cans and the same shipper he's introduced to mr felt's by mr battle and he learns from his package used to deliver the drugs to shipping facilities in california and i believe there's at least two occasions that the government established that happened on a package that was delivered in california was from a car in his name at the same time that some of these controlled i'm sorry that some of these deliveries are happening there is a deposit i'm sorry i withdraw all of two thousand five hundred dollars from mr pena far as bank account in sacramento california which is where the source is located so given all of these things mr pett of far is just as involved as the others he simply seems to have somewhat of a different role mr laster seems to be primarily involved with mr felt's this is just based on the government's evidence this is a conspiracy so sometimes it's hard to tell precisely what individual people's roles are but what we can see is that mr laster is involve with mr felt's mr pena far is in california and i'd say the same thing about mr brough he is well back in november and december of two thousand and fourteen he had extensive hotel stays in california in sacramento one totaling about nine days and another totaling about two weeks and that's within the timeframe of the conspiracy as well so ultimately i think mr pett a far was an equal participant and of course the district court judge here found that he was a supervisor because he recruited misdemeanor i'd like to respond to just two things that my colleagues raised relation to this issue the st is that the idea that the p s r said there were parallel conspiracies the initial p s r did use that language but then it was not in the revised p s r and alternately at sentencing the district court heard argument and decided that that language would not be in so i don't think it's appropriate to rely on language that was an initial p s r that the district court chose to remove and then judge him go i wanted to address your question about jury instructions i would say not not only was it not requested i would say this is actually an issue of invited error because below each of the defendants submitted proposed jury instructions and in those proposed jury instructions they did not ask for a multiple conspiracy instruction nor did they do so at the time of the charge conference so because of that to the extent there were any error with respect to the jury instructions that would have been invited but again i would point to richardson which says that when there is not a basis to offer a multiple conspiracies jury instruction it's a not error to not give one  next i'd like to address the quote londa battle hearsay argument judge wilson you asked if the low counsel had argued that miss battle was unavailable and i actually think they did not i think they ultimately waived this argument i'm looking at a document five hundred and ten dollars which is one of the transcripts of the trial and counsel said  know what she's going to say and i consider her unavailable we went through that argument i'm not raising it at this time it's just i can't call her because i know she's going to come in and say i'm not going to testify so ultimately they did proponent of evidence has the the burden to show that a person is unavailable and they completely failed to do so here to the point of telling the district court that they really weren't even going to try what she had a vote  of and what the statement of and admissible at that point i still think no your honor because so they don't for has two parts the st part is on availability which would be demonstrated if a witness claimed the th amendment but the nd part of a go for is that it has to meet  one of several exceptions the only one that i think is a political here is a statement against penal interest that was really not discussed below at all because as i said the the parties never got there because appellant's didn't present this issue fully but even looking at a statement against penal interest i don't think the statement by miss battle was a statement against her penal interest it was against her husband's so there was nothing in the statement that her husband was framing mr laster that would have suggested any liability on her part and to the extent that the appellant seemed to rely on her own criminal charges that was h the battles herbert battle and poland a battle met with an attorney steven birch he asked them to ship heroin to various locations in sarasota county in florida to to help him with some legal issues that he was having all three of them were indicted in that conspiracy convicted of that conspiracy and sentenced on that it was an entirely separate conspiracy than the one mr battle had already been involved in relating to methamphetamine so these were two separate conspiracies i do also want to point out as well there's some argument in the brief about the statement that it's necessary for a defense or that it's otherwise reliable and what i'd like to point out to the court is that there is discussion in the previous trial about why this statement was unreliable now it's just a proffered by the government attorney because there was never miss miss battle i'm sorry keep saying this battle but agent the  that there were issues with miss battle statement one was that the united states believed she was working with mr lester and picking up packages for her that they had some degree of a relationship with each other and that mr battle and miss battle were actually in the process of getting a divorce at that time and so this statement was not on its own otherwise reliable and at least as far as the united states was concerned now of course there was never any evidence presented about any of this because it didn't get that far but i don't think the record i think the record shows that the united states did not feel that the statement was reliable  that statement had been inadmissible and her separate criminal proceedings i can imagine some basis of trying to show that the two conspiracies were perhaps one larger conspiracy the values or the two conspiracies or perhaps one larger conspiracy in this  between miss battle and her husband and and i'd say for that purpose it's very weak i mean they're married so there's obviously substantial evidence of their connection to each other and then in addition to that of of this is really straying into the other case  there was a recorded meeting between mr battle miss battle and mr burrage where they discussed this and that was alternately would have been presented at trial there was no trial in that case either because everyone pled but to the extent it was necessary to show a connection or to show miss battles involvement in this separate conspiracy this this evidence really wouldn't have borne very much weight because there was such substantial other evidence in that other conspiracy to the firearm enhanced meant and mr bradley's counsel argued that that shouldn't have been connected to him and that the attack with the firearm occurred only one month into mr brough does involvement and i do want to dispute that because i think that that's not correct i think what he's referring to is vonte shift scott is arrested at the end of march beginning of april of two thousand and fifteen and then the  involvement started long before then as far back as november two thousand and fourteen in december two thousand and fourteen he was staying for a lengthy periods of time in sacramento california where the source of supply was located your honour's if you have no other questions for me i will rest on our breaths i do have something i wanted to ask you about and it had been talked about here but it's an in the papers and it deals with the eight hundred and fifty one follow mr pettifer yes your honor let me ask you just hypothetically st not related to mr pettifer  but if the government decided in a case that a defendant had attempted to intimidate a witness and said you know i wasn't going to file an eight fifty  attempted to intimidate a witness the government found that fifty one dollars that would be within the government's discretion i believe so your honor now we know from a pretty and by cleon book or in reading and all those cases that  fact it increases the maximum sentence has to either be admitted or proved to a jury beyond a reasonable doubt that is not ok for the judge who is after all a neutral to decide that fact but now we have a system where the prosecutor who is not a neutral decides the fact and not only decides the fact but doesn't even have to tell the defendant what the dispositive fact is doesn't give the defendant notice and an opportunity to be heard if it's unconstitutional for the judge to make the decision how can it be constitutional for the prosecutor to make the decision based on a secret fact that nobody even learns well just to take one step back i i know this isn't precisely what you're getting at but i have to disagree slightly with the premise of your question that for a prior conviction the jury did that is the one fact that a jury does not have to determine and of course that's exactly the kind of enhancement that an eight hundred and fifty one was at that time so it's no different between in terms of a burden of a jury having to find it it's no different here between the government and the absolutely right when you're talking about the dispositive fact that he has a prior qualifying conviction but i'm talking about what you told me hypothetically you agree with my hypothetical want to and i think it's right the government can decide that the reason i'm going to file it it is because the intent to do a determinate a witness and they don't even have to tell the defendant that's why i'm filing your honor my time is i assume you want me to answer your but i would love it and let me start off by saying i understand there's controlling circuit precedent on this and the circuit and i think every circuit but i don't think the supreme court's spoken to it and it seems to me hard for the court that decided the pretty in blakely and booker to decide that that system is ok you know i don't think it's a secret back here that led to this i think it was part of the plea bargaining process and and i think very rarely would it be secret to anyone why the government had chosen to file an eight  dollars if they had not done so just at the outset of the case as a matter of practice which is what i think occurs more frequently now under the the way that the policy is presently addressed for the department of justice but even using your example if someone had threatened a witness and that was the reason that the government decided to file the eight hundred and fifty one dollars i don't i can't think of a scenario in which that would be kept a secret from either the defendant or the court that you would if that but if the prosecutor said that's what i'm doing and the prosecutor did it nobody would take it to the judge or a jury to say used the prosecutor right the prosecutor would have decided the fact but it's not a fact your honor it's an it's an enhancement that is generally a poli and there's no contention here or even in your example that the enhanced man does not otherwise apply to not seek it would would essentially be an act of grace or an act of plea bargaining and i don't think that to seek it requires the same level of justification as what you're speaking of right thank you thank you thank your hon ok please the court said two brief points i would like to address the st is in regards to the parallel conspiracies language that was in the initial pre sentence investigation report that language was referred by mr laster as counsel  their motion for a new trial and what's important for the court to consider is in the final pre sentence investigation report all the language was removed the fact the facts section as it was laid out still categorized two separate conspiracies conspiracies and they were all charge under the same indictment the other issue i want to address is it's the government's position that mr battle was part of the same conspiracy but there are several points in the record where the and the case either refused to concede that point or argued otherwise and i'm referring specifically to documentary five o six which is some of the trial testimony at one point the district court asked the government if they could establish the conspiracy between billy felt the three defendants that are on trial and mr battle and in response and i'm referring to page sixty and sixty one the government replies that they could establish a connection never out right said that there was going to be a conspiracy later in the same docket entry on pages eighty three dollars to eighty six dollars another discussion as had where mr kaufman who was representing mr laster specifically asked the government's are you are you saying yes they're part of this conspiracy are not in the government did not answer and then again it was brought up another time where mr kaufman had objected on evidentiary basis but the argument was based on the classification of mr battle and mr last together and the government again said that they would rephrase the question because that's not the point they're trying to get across i said my time is respect has expired i would just ask the court and to review the record and find that there and then mr battle's conviction should