and how this court's precedent required reversal for a new trial i would focus my time this argument on this particular issue unless directed otherwise by the court plating  was not made in the indictment and not found by the grand jury and after the grand juries returned its indictment only the granger itself can expand the terms of the indictment this is a so why isn't it that it seemed to me that the and thirteen recordings made it more probable that your client was a member of the quote cooking conspiracy when he was arrested two years her earlier and less probable that he was just a resident of this house on skyline drive he sometimes drove a car with drug paraphernalia and why isn't that right well your honor we would respectfully disagree with that classification in the we believe that the two thousand and thirteen heroin and he base that upon the quantities involved in the financial figures involved and he reached that conclusion that he believed that they were talking about here now the jury didn't hear that evidence the jury did not hear mr stephen or agen upon that this set of phone calls was talking about here when he basically said we believe that they're talking about drugs and drug dealing so this gets to the heart your honor of what we can complain about here that we believe that the evidence presented by the government constructively amended mr mcgowan's indictment because here the jury heard two thousand and thirteen evidence of some sort of drug activity for the government side taking the facts and that if the specific evidence is in this is piggybacking off of judge no priors questions the designers and the phone calls are in two categories category one is i had to take over after you were arrested because you're on an ankle monitor and they took you in and it it made it more problematic  so it made it more likely that the conspiracy existed category two is hey there was money that was taken from us from that house on october of two thousand and eleven and that was problematic is that a fair description of the two categories of phone calls is judge like but then why is it not sorry then i started up i'm going to let you respond but then why is it not as tragical prior said relevant evidence evidence that makes it more probable than not that the conspiracy existed oh yes or so we were talking about relevance of evidence in this in this fear we in our briefly talk about how constructive amendment can kind of come into ways that there can be an expansion of the two coral scope of the indictment and there can be an expansion of the substantive sc now these two concepts are interrelated and it's particularly clear in this case when we look at some of the cases that we've cited to talking about russell and interiority requirement of russell and the government cites to the case fail talking about what sort of time it's shown during the course of the trial for an offense to occur so all that to say that while an argument can be made by the government that this was some sort of ongoing conspiracy that m an essential element and that the controlled substance at issue is not an essential element is that true or not true in our case law can say yes and no i would agree that time is not necessarily central element but there are restrictions that this  when the defendant knew or had reason to believe it was going to be used to make simply methamphetamine now in standards was an eight hundred and forty one dollars conspiracy charge somewhat similar to the church here but in sanders it was a generic conspiracy charge that the defendants conspired to possess with the incent to distribute a controlled substance didn't we say and rather heard that the nature of the controlled substance neither constitutes an element of the eight hundred and forty one charge that was an issue in that case nor broadens the basis for conviction but is relevant only for sentencing purposes that is that is true and rather for it but i mean rather for it still has to be reconciled with both standards in iraq in our opinion that once we have the four corners of the indictment  jury didn't know what they were referring to they clearly didn't refer to cocaine hydrochloride which is the drug name specifically mr mcgowan's indictment which we contend under in this court's other precedent the court because that evidence was more broad it's analogous that situation in the presentation of that evidence is analogous to what happened in iraq where again there was a specific indictment dealing with methamphetamine and the jury asked the question well do we have to believe beyond reasonable doubt that this pseudoephedrine was going to become methamphetamine or that the defendant knew that this pseudoephedrine was going to be used in the manufacturing of methamphetamine comes as a matter of preservation  what do i do with the fact that and i did i don't have you tried the case so the trial counsel say that trial counsel when this issue came up the trial judge said okayed agent don't say heroin just  and counsel then said this record explicitly asked your client's counsel whether that proposal was fair and your client said it was fair and that's when ninety five of the the transcript for that day only in  does what preservation ask it gives it gave the district court the chance to rectify that air and to clear up that situation to grant how after the verdict is done how does it clear it up isn't the whole point for evidentiary issues like this to clean it up before together in the way that sanders explained it rog and xander talks about how when you have the specific indictment especially in the forty one dollars context the government has to proceed under that and these cases were constructive amendment dealing with the jury instruction so there is a little bit distinguishable but they still point the same direction they still command the same result because in sanders the court pointed out look there i'd had a specific indictment if i disagree with you and i'm not speaking for any of my panel members here but if i disagree with you about just where the charge hasn't changed but the evidence is expanded here we believe that this evidence expanded the charge and we again going to try to pull the panel back to the indictment itself in the four corners of what was actually charging as cocaine and thirteen was evidence that wasn't clearly at the very at the very best was not clearly cocaine hydrochloride now we contend that there was evidence of heroin and that there is a strong likelihood that the jury hearing all the evidence in this case heard this wiretap and thought well look all this other stuff from october two thousand and eleven that was the smoke these wiretaps of the far that's all we need here to convict mr mcgowan but they would be convicting upon evidence that  given counsel's argument i will also focus only on that part unless the court has other questions a constructive amendment occurs when the essential elements of the indictment are broader and the literally an artifact by the court or the government after the grand jury returns the indictment here we have a situation where the indictment charged from enter about august two thousand and eleven to on or about october th two thousand and eleven a cocaine hydro fathoming the jury instructions were given along that line in accordance with the indictment and the evidence the jury then came back and asked the court a question well do we have to find that it's methamphetamine or can we find any controlled substance the jury the court then gave the instruction that you just need to find intent to make any controlled substance that is what was found to be in error and narrow in this case fact there b the difference in how to charge various language yes sure honor and this case the jury instructions were given that the jury had to find a conspiracy to possess with intent to distribute and to distribute cocaine hydrochloride and the jury was given a special juror verdict form so not only once the jury found mr mcgowan guilty did they have to find him guilty but they case that would allow the jury to find or to convict mr mcgowan on a heroin conspiracy also here or reference the court may properly made an evidentiary ruling as your honour's have have pointed out the holes in question essentially deal with what was going on at the time for example the money that was lost or were in further inside the conspiracy therefore they were relevant therefore the judge properly admitted them and to advocates given this they say given this there was simply no constructive amendment to the indictment and the you your honor very briefly the government said this was a cocaine conspiracy as charged and i'd like to reiterate we're not saying that there was a separate conspiracy going on involving heroin and that's what we think he was convicted of were saying that the evidence in two thousand and thirteen does not clearly point to cocaine hydrochloride and conspiracy charges within the four corners of his indictment and that the the jury again could have very lot upon that evidence that is unclear at best for the government to convict on a specific drug and again we maintain that the specific language of the indictment limited the showing that the government but if the government was was limited by your objection by your trial counsel's objection to the reference of heroin in the two thousand and thirteen tapes and the government argued in its closing argument that those conversations exclusively dealt with cocaine what evidence could the jury possibly have had even assuming that it is an essential element of the controlled substance issue to have expanded the the indictment in this case just to be clear with the question are you are you ask look what what the jury would have been relying upon or what is what let me let me let me and i apologize for my lack of clarity what your opposing counsel just said was there was nothing for the jury to have found there was no evidence of anything to do with heroin and that was in part because of the great work the trial coun did to scrub from the tapes any reference to arrow and so what could the jury have found different than what i did ok i declare a conspiracy so effectively again we're arguing that this was a vague this was a vague phone call talking about drug dealing in general and it was drug dealing is some sort of controlled substance and this is why we've drawn the analogy to new rock is that again what the jury's question in iraq there we limited to finding only that it was methamphetamine and the court's instructions said no you just have to find beyond reasonable doubt that he knew or had reason to believe the pseudoephedrine would be used to make a controlled substance so that's the analogy there is that it did judge's instructions broaden the scope of the indictment past methamphetamine to any controlled substance and here the instructions were clear on cocaine the verdict form was clear and cocaine the arguments that the tourney made i read the entire closing argument of the only route dealt with cocaine what else was there that the jury could find different what we're saying is that evidence doesn't clearly point to cocaine and the evidence does not show that it is cocaine nobody there was a special verdict form and there you guys are have to i mean i go back to the question that i started with when you st argued which is isn't this evidence about from the two thousand and thirteen recordings the kind that would make it more probable that your client was a member of the two thousand and eleven cocaine conspiracy and was not just someone who happened to be living at the skyline drive house we don't necessarily agree with that your honor given the parameters of the indictment if the indictment had been if that the government  jury indicted in this narrow way two thousand and thirteen what happened in two thousand and thirteen had to be carefully examined with respect to the two thousand and eleven charge considering ok with that we respectfully request that this court reverse gallons conviction