our next case for argument is united states versus davi  not so we've now removed the negatives and davis and so now we have our defendant amy lee davis charged together with and with others known as i am not so isn't and it's this huge window and my client in this state has pled guilty to two additional drug conspiracies and timeframe and that's what really concerns me here also we know that the government's conspiracy allegation was narrower date of the traffic stop count for has to do with using a telephone or communication to facilitate the drug conspiracy and that occurred on november th when misstate was called her sister cindy  these separate events that somehow the conspiracy is count must be restricted to the individuals involved in those events or and it somehow restricts the very and going way way back where there's a broad conspiracy alleged killer narrower conspiracies or criminal trial i think that would be the authority to look here but here the conduct of the government i guess i was speaking more i shouldn't say from the  well here we have to determine what what conspiracy was charged and this is really troubling misstatements was charged in four separate drug conspiracy cases all occurring in the same timeframe with different of those cases w same artes that included other parties other people that she conspired with or sold drugs to that right we don't know that your honor that's especially problematic the government now cast for the mr french was harvested and we look at the indictments in those to see whether they're the same people aren't they other people that are charged in the other indictments with sure there's other people in those other indictments or what just what's to say that there aren't we have to be concerned with the cases because all the date ranges are the same and that's the the big problem here we're hearing about drug conspiracy conduct occurring in the same date range as count one was  occur so we end up with this problem it's a very big problem or misstate us may likely have been convicted of some conspiracy that was not barely included in count one and if we look to that evidence case that's what that case was about so you're you're arguing here that she was without notice of what she was being charged with if we're talking about prejudicial variance yes your honor that's one of the components there was  guest cindy davis she severed out she testifies a trial apparently that was part of a diversion agreement and by the time she was done testifying the government agrees during world twenty nine dollars argument that cindy davis is no longer coconspirator so two additional witnesses were presented to trial cabello in french and they're the governor for those people as quote insiders now for the st time on appeal they're being referred to as quote unindicted coconspirators as the government's effort to save the conspiracy rich so in terms of those people being cast as  going back to the jury instructions are specially problematic here those jury instructions spelled explain the mistake of us it'll only be convicted of a drug conspiracy specifically alleged in count one and not some other conspiracy she may have participated in or in same time for the district court failed to give that multiple conspiracy instruction that's contained a pattern pattern instruction two point two and that that instruction would have informed the jury among other things that should have also been included alerting the jury that multiple conspiracies were and the mistake was can only be convicted of that specific conspiracy count one surrounding the nov th traffic system how did the j well they should have been made aware of other conspirators as well so that we didn't have this this problem or this issue in iranian's determination the conviction for conspiracy  to the jury that case fell apart so now it's just this one woman crime spree amy lee davis conspired with others known and unknown over the year da barely weren't included in that and they were cast as i have noted there is a double jeopardy claim here i mean that's really where you're headed you're saying well there's a lot of the same thing going on here and she's pled same thing and being convicted of the same thing is there a double jeopardy problem there could be your honor i don't know what that jury convicted misstate us of that's that's the problem here we mentioned double jeopardy in  court counsel joel and mccormick on behalf of the united states the district court properly determined there was one conspiracy there was no variance at trial there was one defendant before the jury to determine whether or not she was guilty of the charges beyond a reasonable doubt all of the evidence presented was in relation to the appellants participation in a vertical conspiracy in which she supplied met then threatening to others it relied on them to redistribute it for that reason the court was also proper in its determination that a multiple conspiracy instruction was not appropriate in this case based on the evidence the jury had before it substantial evidence of a single conspiracy where the appellant conspired with a source of supply in oklahoma city who was unknown and at least two known and mr french who both testified before the jury the substantial evidence before this jury included direct testimony before both known conspirators starting with mr the jury heard evidence that he was supplied methamphetamine by miss davis multiple times a month he described locations where he met miss davis he also referenced that  testified that he bought methamphetamine from the appellant on an almost daily basis the testimony even goes further from mr capello in his description that miss davis fronted methamphetamine to him mr belin describes that the appellant supplied him with vehicles to drive so that he had transportation to distribute the methamphetamine she supplied him with firearms for his protection and he too like mr french knew the source of supply was in oklahoma city your honour's this evidence was substantial evidence for the jury focuses on the term insiders but i think what's important it's far as what was presented to the jury was the evidence in the evidence was regarding that which supported the agreement between  mr french and mr cabella as well as are the source of supply and so again you you did not refer to them as coconspirators is that right i did not use that term your honor however the argument  referenced the evidence that was presented to the jury that supported it the jury's reasonable inference that there was an agreement between the appellant and these two gentlemen who testified or even read your opening seemed like maybe your position kind of changed him like your opening argument didn't reference as i recall these two individuals about one trench at all in your honor in opening statement i'm not i don't recall specifically whether regret but it was certainly not a surprise to the government that we it wasn't a last minute decision that we called them during the trial in this case and i want to clarify one thing for the record that i think is kind of lost that a grand jury took very specific steps to ensure that there were while there were multiple conspiracies that set out in multiple indictments but the case the matter before this  jury that was considered based on the evidence is not a spillover and i think that's important in reference to the inferences that are made that suggest that meant the appellant is charged in other cases with the two who testified in this case that is not true honour's i would further argue that based on the evidence that there was a single conspiracy the district court was also proper in its instruction to the jury of the record clearly refer reflects what the government would characterize as an affirmative waiver in that when the district court provided the proposed instructions to counsel for review trial counsel for appellate simply  asked the question to do the end is there a multiple conspiracy instruction included and the answer was in from from the court with no there was never a formal request submit it by the appellate for a multiple conspiracy instruction we returned the nd day after the exchange that i just described and still there was not a formal objection raised in reference to the  omission of a multiple conspiracy instruction and so the record is void in reference to a of an actual request for a multiple conspiracy instruction in this jury was instructed based on  something to the positive trial counsel the next morning it did not submit anything and he did make reference to an objection to their not being  a multiple conspiracy instruction your honor so he objected to the fact that there wasn't are you saying i don't understand that yes your hon consider the fact that all of the evidence presented to this jury was directly related to the appellant possession distribution and redistribution of methamphetamine there is no spillover effect or there was no precedent and so if the court is guided by its previous decisions in other cases we'd ask the court to look at carnegie that's a case where there actually was a very and by comparison i'd ask the court to consider the fact that in carnegie that case involved a multiple defendant jury trial there was clearly spillover in that there were three defendants who were before the jury for trial and part of the evidence before the jury was that there were there were times when the alleged coconspirators were actually competitors and so there was room for there to be a decision that there was  very however the court in that it's hermine that a jury would have been able to reasonably compartmentalize the evidence that was presented and therefore there was no president in this case we have a single was charged as as was found guilty and charged properly in count one with conspiring with others known and unknown that's exactly what the evidence showed and that the case has morphed into a case about mr scobell own fringe that says a whole other it's a different case now that we're defending against than it was a trial with respect to the instructional error i do want to discuss that for just a few moments in the brief i said that i believe that claim is subject to plain error review unfortunately that's what i think we're stuck with defense counsel did that request multiple conspiracy instruction he did request and he davis name be included in that instruction seventeen but he just didn't take that next step he didn't lodge a formal objection to the instructions as given oh there they're just they're everywhere we don't take any issue with mr davis doesn't take any issue with her being cast as a drug dealer for lack of a better term or or having those drugs  before the jury these other cases that's hard to say your honor i guess there was with respect to france he was charged as a conspiracy case too and he testified at length i say the history of conspiracy case included the strike conduct i record here and what was presented to the jury sure the jury heard about drug conduct with cabello in french it just wasn't included in the count in your honour's i respectfully request the court reversed with respect under me on to the district court with to conduct for the proceedings thank you thank you thank you for your arguments this morning the case i