will begin by hearing argument in united states versus williams we will then take a brief break where we will then be joined by judge newman who will and judge lavelle will leave us and judge newman judge len chin i will hear the following set of tandem cases as sensually the unions versus the state of new york is how ourselves when we're asking questions but there will be no particular form to that so counsel proceed thank your honor may please the court i'm lucas anderson here for the a want to begin by addressing count thirteen of the indictment which charged williams with participating in a robbery of the chase bank in flushing on february two thousand now the witnesses including the chase bank employees testified that there was an attempted robbery range in january two thousand and that a different bank garden was robbed on february th two thousand and this is something that unfortunately neither i nor trial count though or the district court seem to have noticed before but from the record know whether the jury's verdict was based on one or both of those charged predicate and that's one of the problems with duplicitous charges in general without special interests or easy sometimes can't be sure whether there's a permissible basis for the jury's verdict with and that the language that this court took from the advisory committee know and so there has to be presented to the district court some actual error and an error that is so significant that it would almost certainly result in re man and if you look at the discretion granting that motion i also want to be miss anderson this is judge lynch may i go back to what you said a moment ago about the duplicity issue and the conspiracy to rob the counts being potential participation in a specific robbery it doesn't say thing about an overarching conspiracy the jury by checking that box doesn't that say he used or carried a firearm in connection what you have to find before you type guilty on each of these and with respect to all five of those the jury was told by the district court you can track guilty if you find that he committed a conspiracy and that he didn't abetted the carrying a firearm but on the other yes judge the final here the government argued the government's argument was based on what judge lynch was just summarizing and i must say when i read the government's arguments on this on this issue i did not find it very persuasive because if you think about if you reconstruct if you if you hypothetically reconstruct the process that julie would go through the jury would consider each and twenty four dollars c counts in accordance with the judge's instructions and it would then decide guilty or not guilty and whether that decision was made based on the on the conspiracy the overall seventy five  seven conspiracy involving numerous banks or on the particular bank that was wrong and then the jury would in the end when it reached its wrote it down all the different accounts which go to fill out the boxes found the defendant guilty on the basis of the overall conspiracy of this nine hundred and twenty dollars fourth's the captain it would simply check that box and it would not say wait a minute is this jury for is this form that we're supposed to fill out countermanding the instructions that the court gave us on each of these counts i did not find the government's argument persuasive at all in suggesting that the jury must have base conclusion on those counts on the individual robberies rather the conspiracy just because the form is filled out in a way that identifies each of the counts in the ongoing manner that it could identify them two to distinguish one from the other i think that's correct and i think the assumption that st of all that it's allowable to go into the jury room and try and figure out what they did rather than what they might have done is an armless error in the fact that if you look at the relevant documents here the jury charge is describing for the jury what the verdict form said and what you can put on the verdict form and so by telling the groups you have one more minute thank you very much if they're not for the question that i want to briefly address  argument relating to the trial evidence that i'm charged grimes because the government was allowed to introduce testimony from four cooperating witnesses that williams and other people tried to run through and jewelry stores and those attempts were not charge in the indictment there is no indication on the record one i should emphasize nobody's claimed that these robberies were a mistake or an accident that was never just the additional trial and so even if there had been some legitimate evidentiary purpose i think the probative value that evidence in the context of all the other evidence regarding each of these  testified that the exact opposite was true that in fact it was the other bank that was robbed on february rd two thousand and ten and there was an attempted robbery of the chase bank in flushing in january of two thousand and ten so it review and it's also something that i unfortunately don't notice until preparing for oral arguments i'm not sure if the government ever noticed it or district court or trial accountable but either way count thirteen as it was charged document and under the count seven  a couple of things are you saying that the that the that the form of the verdict sheet told the jury to disregard the judge's instructions and a further part of the question couldn't the jury have found that the that with respect to the date that the issue was whether the defendant was involved in the carrying her using of the gun on a particular date in connection with the overall conspiracy to to rob banks because your honor the jury have the indictment and the indictment if you look at the charge of the  conspiracy charges a range of dates for example it said between i think november of two thousand and nine in march of two thousand and ten that that was it a range of time for the respect of the robbery with respect to the don't believe that you could read you could not i don't believe say that the jury went to the jury room and decided that the spending time with about all that they could do with the receipt and not something i probably i think it doesn't it that date if he was carrying the gun in further inside of a can overrule conspiracy to rob banks but the only gun that anyone testified to being used on that date was used in connection with  specific bank robbery it's a little difficult to follow how it as you put it would make sense for the defendant to be kept using carrying the gun which i think in most of these cases  there was not specific evidence of him carrying it at all but it was sort of an aiding and abetting theory and the person who carried the gun physically went into the bank with it and robbed the bank  having trouble getting my head around the it was only in connection with the conspiracy and not in connection with the actual bank that you know where the jury had to find beyond a reasonable doubt that the used generally in the overall conspiracy because mr williams granting these robberies he's telling them we're going to use guns in furtherance of the robbery but he's also charged with sending those people into the bank on the actual date using guns and that's what this is dr paul why isn't an equally plausible d that the jury said well we don't really need to figure that out because one of the other and because the judge told us we only had to find one of the other and  because i don't believe that that's a rational review of the evidence presented at trial if you read the jury instruction in connection with the verdict sheet i don't you know and we're not asking anyone to disregard the judge construction in fact the contrary run quote consecutive to all counts close quote but there appears to be no sentences or at least no sentences of imprisonment on any of the other ten counts so what are the ninety tw taking those offenses into account but i'm i don't understand what the judge has the judgment reads there simply is nothing in the judgment imposing any sentence at all on the other  i think that the robbery where it where how could they be how could they be consecutive because the arithmetic as judge lynch was pointing out the arithmetic is satisfied entirely by the consecutive nine   is there any indication or do you know whether anyone was aware of the pendency of this reform in congress in october well what i can say is that  but in situations where the sentencing commission has passed a change in the guidelines that's favorable to defendants it's quite conventional but hasn't gone to effect yet because it's waiting for november to see if congress is going to do anything it's quite conventional for district courts to postpone sentencing until after the effective date of the change and of course that's distinguishable because there we know for a fact that this  change has been adopted and unless something relatively unusual happens and congress vetoes it it's going to go into effect here we had a rather contingent set of reforms and i don't know what the political pundit just wondering if as you point out had been a long time that the sentence was was pending and i guess it would be a matter for a twenty to fifty five someone want to do if mr williams wanted to suggest that his lawyer was ineffective and not asking for a further adjournment and what you're telling me is maybe part of the government's response would be you would have gotten that because it was past time to do the sentence but that's all for some other development that's not something we' stated how the verdict form was written and i frankly think that your argument with respect to the verdict form is not persuasive at all speaking for myself alone  from the other hand there's no reason to think that the jury would have regarded that as modifying or countermanding what the judge instructed but i'm wondering whether your argument could be stated solely based on the court's instructions to the jury without any reference to what was written on the verdict form the answer is yes i believe that the judge an instructi alone would fight because even all the evidence at the trial and the judge instructions i think the jury i think it's clear they follow good instruction but i and i don't know yet and that's because the instruction lawful for the jury to say that that that throughout the throughout the period of the conspiracy throughout the experience of the multi bank robbery conspiracy the defendant  who was a planner and a major force in the in the creation of the most of these robberies he on any day throughout that period would have been using using using guns because he was constantly involved in the plotting of robberies that would involve the use of guns so that that any day could have been different including the tapes that were the web but that was not a given this is not just the duplicity argument anymore is it i mean i think the defense is making this as an argument that the verdict was legally insufficient because it could rest on a conspiracy count so that's not something that is waived in the same way by not raising it in advance if it's just a question of we don't know what they decided because there were two different crime stretched here that would be one thing but instead it's it's an argument that one of the things that they could have decided is is the evidence is constitutionally insufficient whe jury could have convicted mr williams on the substantive robbery counts solely on the ground that they were foreseeable crimes in further in some of the overall conspiracy is that not correct that ok is that colleagues any further questions nothing further for the government terms of timing for a further briefing is two weeks work for you or is that we're about to turn to mr anderson or if you are right yes i am a thank you i just want to be clear that with respect to the one hundred and twenty four c count i am not saying that we should try and look into what the jurors probably could have would have done i am saying the opposite i am saying that we should look at what the germans necessarily found or what they did not necessarily find on a supreme court's predicate for their relative decisions when you look at not what a juror could have found it's not a harmless you look at what the jury necessarily found the modify categorical approach and you look at the document and say is it necessarily so that the jury found this or that they necessarily could have found something else and in this case especially with respect to the c connection with that then we're looking to anything out and i respect the judge's judgment to the point about the judgments on page nine of the special appendix the district court imposition of with what else you'd like to say yeah well i just want to point out with respect to our th amendment challenge the constitution requirement proportional scenting requires an examination of contemporary and evolving standards  so the government argues that it's relevant and it was allowed by statute at the time and that we give deference to legislatures and that's true you get different legislatures and setting limits in certain fashion osment so the st step back here should be seen as a clear indicator of the contemporary standard of all the standard forbid that exact same way to congress decide that a particular sentence ought not to be required without simultaneously concluding that to require that sentence would be cruel and unusual that's correct it's just one of contemporary standards and evolve to the point whether that mean that how does how to have contemporary standards evolved in a way that would enable us to disregard hermel and it seems to me that the supreme court has said it is not cruel or unusual sentence someone to mandatory life without parole for possessing with intent to distribute a half kilogram of cocaine are you contending that multiple armed bank robberies in which guns are put against proportional and so if i'm going with the cited more recently it would be a much tougher question as to whether standards and all the extent that were slain but i think the district courts repeated statement that the senate was unconstitutional and congress recent action indicate that they're going to fall to the point of willing to conduct in this case should not have been under the th amendment punished by way of one hundred and five years in prison and just to clarify you don't really understand your argument you're not asking us to say that in fact it was unconstitutional you're suggesting that there is a sufficiently plausible argument that it was unconstitutional that judge that was wrong to  say or the government was wrong to suggest to him that his original sentence was a clear error akin to just not recognizing that there was such a thing as a consecutive sentence and so yes it's absolutely possible that those separate thing of robbery the jury found williams guilty for those just because the pinkerton charge and again once they find him guilty of an offense under the paper to standard there's nothing requiring  something from the government's argument that well the jury found that mr williams participated in the particular robberies which which makes the notion a bit hard to grapple with that he was only found guilty by reason of the conspiracy but on the other hand doesn't it also hurt you i mean why couldn't why why wouldn't it be sufficient under the pinkerton charge for the jury to have found that he  was guilty of the one hundred and twenty four dollars c counts on each individual occasion when a gun was carried because that was all foreseeable and further and so the overall conspiracy and so once they find that the gun was carried on that date in further in some of the overall conspiracy and they also find that the bank robbery he's guilty of the subs the bank robbery even if he wasn't there by reason of pinkerton and his involvement in the overall conspiracy doesn't the same thing follow for the one  that we do not know what the jury necessarily found and that's our main point with respect this is that we don't apply a regular harm with their analysis and attorney what it was that it was convicted of it's not like looking at an evidentiary error or  what a jury probably would have done if it hadn't been for that there are no but if we're if we're asking what did the jury necessarily find in reaching its various conclusions it's hard to me to see that they don't necessarily have to find enough things if they given what they actually did find given they actually did find him guilty of those robberies whether even if i reason of pinkerton and they did find that a gun was carried in further and of that robbery you put those things together and i'm having trouble seeing how again how we separate the findings that they made on the conspiracy charge on the substantive robberies and on the  and anything that they every it seems to me that everything they needed to find is there they found i think even if the district court had told the jury williams was guilty of the subject of robberies and gave him a paper chart and charged with respect they won twenty four dollars speed it's still the case that they were able to convict him of carrying the guns in connection with and security and there is nothing requiring them to then also consider whether he carried those with respect to the we presume for the sake of the target that he was guilty robberies and so with respect if he's guilty of the robberies he's either guilty of the robberies because he aided and abetted the robberies in which a gun was used or he's guilty of the robberies by virtue of pinkerton because the robberies were in further in some of the overall conspiracy and furthermore the jury by finding guilt on that day for the guns seem to be  clearly finding that the guns were used in further in some of those robberies because that's the only evidence there was of possession of the guns on that date so what if you left that they haven't found that would make him of the things