trial over time we had jack shit in every instance about countless crime a specific incidence other of bennett's they refer to them as many robberies there was even testimony about more than played in this particular crime the the government's position was similar to the district court that it showed the development crime they've ever committed their entire life together without any analysis without any a four zero three analysis they committed crimes together and according to government that shows the relationship this case in each of the prior ones though there was almost none there was no analysis conducted by the district court regarding your orders point it at that if the government had down drug dealers by use of a well known puerto rico police officers but almost none of the crimes had anything to do with that situation so i'm afraid i don't quite understand how it's not relevant i mean it's seems to me it's relevant in the same way that the government might have shown that they were all childhood friends and grew up together on the same block that sort of thing it seems to me that this is a entire case rested on cooperating witnesses and even their evidence was contradicted by the pathologist about the cause of death of the victim so it's because the evidence was not overwhelming that these constant form formed for three errors were so enormously prejudicial to the defendant in this case thank you very much found by the jury and that's not what happened in this case the the the convictions under count five and six the issue about death was treated as a special question special iraq atory not an element of the crime the question said if you find the then the guilty then make the finding about death so that was not is an element of the crime and i think that what justice souter point out that having death be such a significant increase in punishment obvious that i mean life in prison excuse me should be treated as an element of a crime not as a special verdict and i think the courts have since jones have a much discussion about the difference between elements of the crime and special in iraq the tories the sentencing factors etc and i think this is just another example of statutes that really this court needs to address the crime but it's not structural error i take it i don't know which in my structure it it's a fundamental way i think that i think that's what jones is all about that has to be something with a kind that has a possibility of a life sentence should be treated as an element of the crime and i don't sure enough saying if we accept that under caught nevertheless if the evidence was overwhelming there's no relief granted i sentence this is the three seventy one conspiracy the the elements again were not set out in count one but i guess what it does that even matter it's seventy one conspiracy has a five year maximum said in the sentence it does i'm having it's a much lower sentence but in terms of the process itself corrective in terms of the process itself because i when i was reading this last night occurred to me that in fact really what happened here i think was more of a because they were allowed to vote for the credibility of their cooperating witnesses and i see only because there wasn't any fingerprint evidence tying this  testified could not have been testified accurately or his his actual testimony was it was extremely likely that these that these cooperation witnesses were testifying inaccurately the first thing that the court would trial in this case there were four defendants during the government's rebuttal while the government was was vouching for its witnesses one of the attorneys objected three times three times and the district court ignored that happened that objection occurred three times without any action by what that says to me that the with three other things that the prosecutor said that at least one defense counsel directed to and you're appealing from none of those but then the prosecutor sort of thing which is understand no defense counsel objected to that with and that's the thing you are not contemporaneously your honor but there was an objection on the basis of vouching immediately after which which is it seems to me pretty flagrant was the subject of the objection and then on the on the multiple versus single objection was there any discussion with the coeur defense counsel on whether one would speak for all or not i started the record i didn't find anything like that so how's that i mean suppose one of you wants to object to something the other doesn't want to counsel do you mind if i test the premise of you or the merits of your arguments for just briefly so if the claim is made that the witnesses told different stories certainly the government could comment on the evidence and say if if they if the if the if the government's and i'm sorry i want to use the word government if the theory of the prosecution were acts you would expect them to come in with the same story you know they're telling the truth because they came in with different stories that commentary would be ok wouldn't it absolutely are ok so in this case what we have is we have an accusation that the government got greedy by bringing in two people with different stories where the government is accused like that why can't the prosecutors say if the government were being greedy and then go on and comment on the evidence and i don't understand can say the government didn't do anything wrong as to the other clients don't don't take the word government just just comment on the evidence it just doesn't sound realistic to me i just said it and that's not what i'm suggesting bad ass at the court consider that exact controversial comment and it was they could have all been put all the cooperators in a room and say let's get the story straight we didn't do that that's that's an implication that clear that the prosecutors limit the comments in this area when the prosecutor addressed the cooperators truthfulness ranch with the news was interact response to every defense attorney's remarks clear that the prosecutor was not intending to put the government or the prosecutor's integrity behind them behind the croppers if you read the rebuttal argument hole it's clear the prosecutors was using that as an example to refract that if they were consistent then you can you jury should say that suspicious and that definitely affects their credibility that's the context of that argument if you take it for face value th yes you're going to lean towards what defense counsel say but if you look at the rebuttal argument in total you will get the true gist of of the where the comment was coming from governor believes that this this argument can easily be dismissed because the re the evidence we would have had them all come in and say the same thing because they didn't you know that we didn't do that i mean you can't you can't ordinarily do that again you're at best it's a poor choice of words but again and everyday if you look at the  supplements they filed on his own which were basically the same arguments he made the lower at lower court these civil rights statutes charge one offense to forty one which is  conspiracy in two forty two which is a substantial arson they each charge one offense and they each have enhanced means based on the type of harm that was caused in the case of both statute death resulting enhances the indictment as a whole gave this cologne clear notice that he was being charged with conduct what death result during plea to goshen is an issue that he brings trial the trial from opening statements on it was clear that he was being charged with participating in conduct where death resulted there was testimony that he was the person who not only ordered but both arise the killing of the victim and then the jury instructions which he did not object to made it clear that he was going to be considered for the enhancement based on his role in death resulting that need to be because it was a factor and it was an element of the crime but it was overwhelming evidence that this was a carjacking not a kidnapping that resulted in death the jury consider the factor the death resulting fac but it's not a fact that needed to be charged indictment that is our that is our argument that yes it had to be proved and it was and it was submitted to the jury and it was but it's not something that had to be charged in the indictment it's not fatal that overrules you don't jones are pretty no no we don't we respect no no we don't we believe that that that case it came out of this court is still good law governor was seeking to introduce with what he allowed to enter and it's hard to put percentage but if you look at his what the government requested and what he granted he granted maybe fifty percent of what the government wanted and on top of that the evidence that came before the jury is not as defense counsel saying it was it's it was in summary form it was in the sense of how many robberies had you committed with x five how many robbers that he committed with why five or six it wasn't now tell me in full detail each and every robbery the circumstances with every robbery the evidence that came before the jury was clearly within the court's ruling and the basis for the prosecution would not be entitled to put into evidence every prior crime between in which any subset of those defendants participated  your i can't because even if they know each other it's not enough people have different relationships with family friends just because you have a friend doesn't mean you're you have the ability to commit this type of crime that fred the only way you can put before the jury the context of the relationship is introducing these prior acts which a robbery of committing a criminal act together and how does the fact two of team and that's what's rather that's what's key in this case because you have to look at what this case was this wasn't two people going into a grocery store at gunpoint robbing the cashier in the running to the car leaving this was a well planned operation as  describe it where they planned to the t i mean by that is the father but you can put in the evidence of plant no one's debating that yes but with with with out your honor this prior for for be special rele evidence the jury would be left to wonder how was it possible that all these individuals could conduct such a factor work police operation does it make the jury would say does it make any sense that they were that three cars would stop one car conductor the special operation that we only see police officers doing it doesn't make any sense i don't believe the government is is because there's no way they could have acted as such a group or coronated organized team this is going to help the jury believe that you put in evidence of prior offenses that had nothing to do with stopping are using police uniforms and the like that is accurate your honor but the evidence showed the that they had worked together on multiple occasions that demonstrates their ability to work together that these are not just random individuals who got together for one incident and then went their separate ways is these individuals who all correlated together we're not just talk about two latitude in this area why is it necessary to state with the specific crimes were that they were robberies white why isn't it enough for purposes of relevance to make a more general successfully work as a team to commit a robbery doesn't mean that they'll be able to commit wire fraud or embezzle funds from a company they might not work well with that particular crime that's why it was extremely relevant to introduce that type of crime because that's what this crime wasn't the case the case was the government picked cries of robbery which worse similar to the ensign offense to show that when it comes to rod bring individuals these people can work well together because they have this formation of trust where they can work together and they can work as a team and that's why i was about it and even if the court would find that maybe the evidence went overboard it was overwhelming evidence of guilt in this case excuse me what you want i could say that it is department just policy to now include those factors indictment so going forward enhanced penalties based on drug quantity and that's different than being an element of the crime and they didn't discuss jones so i think again there's kind of a professional confusion between what is the sentencing factor and the government seems still called the sentencing