issues on appeal here that we believe calls for a review end of the of the senate and also of the conviction but i want to start with the issue of whether the ten year mandatory minimum sentence should've been applied by the court here is our position that the court should never apply the minatory minimum ten year sentence because the grand jury never indicted james ford or individually manufacture hundred or more marijuana plants the indictment at the very least is unclear as to what individual dru quantity mr ford was responsible for and after the elaine decision the court's well aware that aggravated amount that triggers a mandatory minimum must be is an element of the fans and must be alleged in the indictment and mr ford went to trial five months after the alleged case and the united states attorney's office was well aware of the lane and what it required as far as pleading and that's why i cited on page twenty two of my brief the case of mountain french which is  he was being held personally responsible for more than one hundred plans yes absolutely but the conviction the verdict was not ambiguous and it's the jury was probably instructed that they had to find him personally responsible from one hundred they're then clearly convicted of and it is your position that it's an automatic vacating a reversal or to do a prejudice analysis to see if the ambiguity caused any harm it's an on to the point and here there is that ambiguity so if one hundred it says one hundred or more why isn't one hundred or more anything above a hundred which then each of them could be the or more that i find seemingly removes the ambiguity is anything above a hundred which could be a thousand but if i may i mean i mean so that if this is the or mourner thousand plants if you look on page twenty two of the brief where comparison united side by side in the malcolm french case they the government alleged three co defendants under the same language that they used here but then under the individual  he's not on notice of the mandatory ten years would apply because it's not alleging individually against him one hundred plants which was required after after the elaine decision so he's not on notice there and i know the government's argument that we were on notice before trial that the government was pursuing this angle which we were aware of because a few days before trial the father question the jury instruction for the jury to decide issue which we promptly objected to and it gets back to the fact that if i'm confused about how you're using the lane i thought elaine referred to simply said that in order to be sentenced for something you have to have been convicted of by a jury i agree that wayne says i but i would have said now we're talking about a separate and he was convicted of knowingly manufacturing one hundred plants we're off to a separate issue in how he's allaying addressed the separate issue of what to do the indictment is ambiguous as opposed conspiracy or i would do that first as the court knows the standard of review for coconspirator hearsay statements is really very limited it is a question of clear error and the question of whether this further the conspiracy goes like this the defendant james t ford was integral to the conspiracy because he was one of the four workers so his participation in the conspiracy was critical the quick the conspiracy w critical to him because that was his only source of income its girlfriend was threatening to come between that she was pregnant she wanted to know whether he was going to be able to support her so he is convincing her that he was able to support her by virtue of the massive marijuana conspiracy to show her further the conspiracy because it kept him from the conspiracy and kept the conspiracy alive but another question about that question asked right now since you've taken me there defend it appears to have altered somewhat he is coconspirator hearsay objection when you read the judge's ruling on coconspirator hearsay it pertains only to the witness's testimony that they that james t swore her to secrecy the defendant's reply brief appears to cover everything that spencer testified you want you to reply brief notes and i think cites to the truth were in the friend senate trial just actually you can't make no name because it talks about everyone else is wrong one of when i was in the family did with conspiracies from friends is saying that's my objection and i understand that and perhaps judge woodcock was too limited in saying i thought i understood you just to object to this one second but let me answer all of that a lot of what spencer testified was not hearsay all but wasn't wasn't it was bragging who's his pregnant girlfriend and he was and he elicited that in his he said in his opening statement that they would hear evidence that james t took spencer to the house he showed her the marijuana cultivation operation and he bragged about it so he opened the door to that testimony by making reference to it in his in his opening statement but you open the door in  conversation that had nothing you drugs or drug business you open the door when you're my girlfriend you're pregnant i want you stay my girlfriend and i don't say anything about that for you to stay in my girlfriend means i'm going to stay in this conspiracy and for cultivating marijuana the defendant testified that he decided to can cultivate marijuana by himself that he was so be responsible right on for money with the facts so we should you should circle back now to the arguments you want to start all right let me go back to the ilene era as i understand the precedent the court has identified two kinds of only one error the most recently in the poseidon oks one is the instructional error where the element that triggers the statutory maximum is not submitted to the jury for their verdict the second is sentencing error where the judge makes it on a day determination that triggers the statutory act a minimum without it having been charged and pleaded this defendant is asking the court to create a third kind of area error and as you pointed out judge master on it there is no authority that stands for the proposition that this third kind of only an error occurs but even if it did we would circle back to judge k honest question about isn't th always subject to a prejudice analysis and i will get to that more thoroughly but this was not a case in which the defendant said ok there are one hundred marijuana plants in this basin and those ninety nine belong to that my son this one belongs to me the defendant took responsibility for everything in the basement he took responsibility for it when he spoke to the police you took responsibility for it when he testified at trial the testimony was that the agents seized at least two hundred eleven live marijuana plants and that goes to work question judge johnson anything over one hundred doesn't that trigger it and also the defendant  police that this was about to be his thirty eight harvest of marijuana and he was taking the marijuana to sell it in massachusetts for two thousand dollars a pound so even if this third category living error exists and we don't believe it does even if it exists and even if it should have been charged in the indictment that the defendant alone was responsible for one hundred or more plants we circle back to the me do you think the charging document is defective do you think the charging document is the do you think that the charge was not the problem you have any problem with it not at all because it charged the defendant and his way you slice it you come back to the fact that a the defendant never said i'm only responsible for one the defendant is responsible for the rest be that the defendant ed noted that he was responsible for them all see the number of plants that were seized and d his confession that this was the thirty eight about to be the thirty eight harvest so in the government's view there was no ambiguity in the indictment but had there been that ambiguity was harms the on any standard in light of the overwhelming evidence if the court has questions about anything i'm happy to answer them but the government would again urge the court to affirm thank you  oh no i'm sorry we have a question and that is the admission of the prior drug case in massachusetts yes all right can you speak briefly and to the point on why that was not more prejudicial than it was bice reminding the court that the substance of that evidence came in without objection when the recording of the defendant's confession was played for the jury in which the defendant said you know i already got popped in massachusetts i think the undercover informant was the person i was with constable for my conviction i was only able to keep the two houses because i was growing enough marijuana to pay all the bills but i wound up with a felony conviction all of that came in without objection from the defendant in terms of the evidence to which you are referring to testimony by officer bruce from massachusetts occupied a count of them up last and i think it's something like seventeen pages of the almost six hundred page transcript so it was not the focal point of of the evidence the my other answer to that is the standard freeview for the admission of four or four be evidence in which it is an abuse of discretion question and on the four zero three balancing test this court is especially loath to upset those balances because they are so uniquely the province of the trial judge does that help to answer the question well that's that's an answer does the court have other questions and i think i think i should bring it up this guy got ten years correct minimum mandatory for growing marijuana correct and i understand the technical legal arguments as to why the government says the memory is not a point but ten years correct you want to comment i certainly do want to comment this is a matter of the legislature's discretion it can always be changed at the moment it has you know not been changed but let me put you i hope a little bit on the equities of this case this is not a band who had two marijuana plants growing at his kitchen window which he chopped up in smoke with his neighbor this is a man who made five hundred eighty eight thousand dollars cultivating marijuana and he guarded the plants and the proceeds  automatic handguns so in the government's view this is this is not the case in which you should lose sleep right he had been convicted he knew it was illegal he did it again and he made five hundred eighty eight thousand indictment submitted to a jury and proven beyond a reasonable doubt and quote and it's that must be charged in the indictment that is lacking here and that's where the prejudice is is that he's being tried sentenced or tried and then sentenced on a charge it was not charged in the indictment and it goes back to the united states versus miller case which i cited as well in our brief and in that case the court the supreme court said that quote the elements of the offense necessary to effect must be should have been bound that ten year mandatory now we are just a trial by the end it would be in the end because he ended up with a ten year mandatory that the grand jury didn't indict him on the grand jury and never voted that he was responsible for one hundred more plants we should never been so lucky previously at trial how did your defense with the prosecution proceed with the evidence and to in any way different than it would have had leaving alleged one hundred or more marijuana plants and the court can find that they agree there is no mandatory minimum apply there even though we're dealing with a conspiracy and really aiding abetting says similar to a conspiracy in the sense that you can be held responsible for what others have done even though you don't do