our first case for today is united states versus water hill number fourteen four four one t oh by all means please articulated with the defendant himself and now the council simply kind of rushes over without knowledge of how this was going to work saying he was not in no objection and i would and my response to your honor's question would be i believe that that is not an issue that counsel can we entirely without an on the record discussion or a  the defendant so that the defendant understands what the procedure is and what that will look like are going to turn right on that that's just an argument for an effect to the system and i can see that that may be something that would need to be repetitive examples where district court justice curtis gomez should have recused himself and i think that recently the u s supreme court in williams versus pennsylvania issue in regards to the the relationship of the witness however and that's the judge gomez didn't have any involvement in the prosecution he didn't but he was not involved in the prosecution however he is involved in the issue of the wiretap and what were he is the authority that issues the wiretap or it's so you want to you want a black letter law rule that when a judge issues a repro order that and then he works then offensively worse of him as as judge gomez was then a prosecutor and the main witness against my client was a police officer so they not only knew each other in high school but then there was a relationship a professional relationship so then you know or high school and then they know somebody knows i mean that so this is your time you can use it as you wish but if i had eight minutes i don't think we're close enough when we do this twelve days later i don't think when it turns eight eight the use of a communication facility in a particular call i would liken what your question is to a an argument regarding a it's somebody is charged with a and assault on a child and the child can't remember specific dates and so they give a length of time because a witness might not be to angelo's testimony that he made a phone call to hill on may seventeenth telling him what top the request of there was no objection to that call all so what i would suggest however is that the indictment there's a reason why you name a date and so we can say on or about but in terms of presenting a defense you're presenting a defense as to that particular that particular time it's not like the time the government here wasn't aware of what these these calls were of the forger they were if counsel for hill thought all that was an issue was a call on the fifth of may surely counsel would have objected to evidence regarding a call twelve years later conduct involving drug trafficking isn't it however it's as to my client it's one specific transaction and that's the issue is that my client was not count as to that crime but there was there are various contacts related to that prince including the contact on the seventeenth of the as to my client while he was charged with conspiracy the evidence offered by the commonwealth excuse  says on may fifth in the may seventeenth call can't serve as a basis to convict or cause but the indictment says on or about me for this so then don't we have to decide whether may seventeenth is on or about or about and i think that is something for your honour's to consider meaning if the government didn't have is specific set of evidence they they wanted to move in and wanted to base their conviction on for that charge then they could have said on are about now a twenty thirteen but they specified that date because they looked at that call log and and that was the evidence that they were focusing then it's not admit it so then they have to shift their argument the oh no no it's not may fifth it's actually may seventeenth and then i think that's where the issue goes is because that it's trial by surprise do i i i cannot like i said explain the sequencing of the attorney's objection when i read the transcript as it's clear to me that there may have been some confusion as to when the objections when he was making his objections whether or not he was making it specifically towards an eighth ne seventeenth or making it towards me to naif the may fifth day what about their what about the rule in motion talk to us about that because that that's does the rule twenty nine motion about sufficiency of the evidence have bearing here and if it does how does it have bearing because it's not very that that it is not clearly articulated on the on the record as argued in front of the honorable chris gomez i think the i believe when i read the transcript that the rule twenty nine of the sion went to excluding bit when the argument was based on the fact that the testimony by angelo hill regarding may seventeenth is not does not is not enough is not sufficient for that count to then go forward that was really my reading of that so trying to get your position is is that is that the or is the argument being made here look we preserve this because there was a rule twenty nine and that's good enough because that is the issue more or are we under some kind of plan their review or what's going on i think it's a fairly narrow view so your knowledge and there was no objection i i'm not clear i've i'm really i'm not clear on the record on that record what what was being argued in some sense it appears that the law it is i would just admit it to the per procedure only the way that it should work is that they should have not just submit it the weight of the drugs to trigger the mandatory that they should also have submit agree that it would be better to do it the other way the supreme court of the united states is that it's ok to do it the way the government did it here and there i don't i agree with you that that's what that precedent stands for however what i would submit is that in this particular case there was there were issues as to whether or not that felony conviction was in fact a felony conviction or in fact was it a misdemeanor said it was issues of fact regarding that conviction not just the existence of the conviction and there would have been a question for a the jury to consider beyond a reasonable doubt it's not simply an agreement jury would have been the one defendant and that the issue that you know that i'm focusing on is mr hill's convection is whether or not the conviction that was in maryland that was submitted as a felony conviction was in fact actually processed as a misdemeanor it can't be the case though because his lawyer said that the mandatory minimum sentence is enhanced the only the premise for it being brief pretty much what the government's position is but i'll just go over it in light of what the facts are and myself review the record and i think i have an understanding of what the facts are with respect to that  did it as follows and then says may five twenty thirteen seventeen zero one call number fifty four sixty three it is as specific as it can get down to the minute honor that that's what count on states and i also in my brief pointed out that and i believe it was a series of calls that at some point the prosecutor was attempting to play during i do not know for certain but i am fairly confident that that hole because of the way it stated in the account was intercepted call and probably was one of those coal through mr grossman and those were subscriber and told logs those were different from the intercept call logs so what was referred to with the testimony of attorney grossman which was referred to by interning gola during his rule twenty one i'm hearing were subscriber toll logs and so those logs wouldn't have shown this call anyway it would not have at least as far as i can see from the record because those calls related to may seventeenth and i think that that is clear from the record that is what was argued by the parties including a two so the logs that were never admitted that were introduced the not admitted they dealt with may seventeenth they would have shown a may fifth call anyway and the and the government for reasons good and sufficient to itself we don't know why you're telling us decided not to introduce the the tape or any other evidence of the may fifth call is that right that's what i have learned from reviewing the record ok so help help me out if if the government decides not to put evidence not use it ok then why why are you insisting on holding on to this conviction i'm puzzled by that what how do you hold on to this conviction if there's no evidence for the use of a may fifth on may fifth of a communication device so you want to know what the what the appellant argued in her brief was sufficiency of the evidence related to what we're talking about here and in the government's view there was evidence of record to support the elements of the telephone count through as your honour's have mentioned during the examination of counsel for the phone call that a may seventh think on the seventeenth right it's a variance your honor it supports the elements it's not a different charge it is a telephone charge sure but it's a you've just noted it's a variance is that's not what was argue argument that's the only argument he made about the telephone calls when you can it can it fairly be said that those things are effectively one in the same that if you say hey judge there's no evidence here of this earlier that there is no evidence of it that's an insufficiency of his call that that's that's there's not a magic word he doesn't have to say variance is enough to say they just didn't put evidence into this i don't think that's what he was saying at all of your honor and i think that we know that by what he argued to the jury it during closing he argued his numbers were different then kelly lakes but he argued that there were five phone calls on may seventeenth between his client and angelo hill as testif to by grossman because even though the subscriber unlogged didn't get in the testimony done in that there were twelve calls on may seventeenth between angelo hill and walter hill and that was coupled with angelo hill's testimony that he made a phone call he placed that phone call in furtherance of the drug conspiracy i don't i don't even hear them arguing against that here on this count forty two issue i don't think i don't i don't maybe i'm wrong and can straighten me out but i don't hear them saying there wasn't evidence about calls on the seventeenth i hear i'm saying that this is this is this is unfair this is a variance this is a it's unlawful for them to charge a specific date in time put no evidence in of it and then get a conviction on that that's not allowed you can't do that and the the i here saying it's plain error go ahead and review it under plain error no judge should allow this to have happened what's your response to that i think under plain error then you have a question mark if you have if there was an objection below then there was a rule twenty nine but it wasn't the objection that's made here if so that's th assume with me that she's acknowledging there was no objection and we're on plain air review her surgeon is it is plain error you cannot allow somebody to be convicted of something for which there was no evidence and may fifth there's no evidence of a call and they specified to the minute when the call was to be made and they just didn't put evidence in that's plain air i need your response to that argument yes you know my response is that part of what i'm hearing is you say we have knowledge it's a variance but they didn't object and so it's waved on with saying they didn't object judge i think i'm saying that when you get to the variance argument i think the government's argument is that they weren't prejudiced by the  e and it's and it's one assertion is no prejudice how can it not be prejudiced to be convicted of something for which there is no evidence how can that not be prejudice is it is the argument you ended up with the same sense anyway because there was a mandatory minimum what's the what's the arca reasoning that gets you to no prejudice if you're convicted of something for which there was no evidence because the standard is whether there is any there's no evidence well there's there's evidence by which jury could find beyond a reasonable doubt the elements of a violation of the telephone on may seventeenth now i feel like i'm caught in a circle it's not what was charged   on or about may seventeenth or on about may fifteen or on or about maybe even on or about you know maybe ten maybe that's ok but when you get to on or about may fifth and you specified the is that i think that if it is a variance which it was a theory is clearly then there has to be some prejudice and i think that if the defendant let's say had an alibi built around may fifth but it turns out that we proved they seventeen then you might be able to show prejudice and you shift in the burden of proof then it's almost as if you're saying yeah we can convict you with no evidence because you didn't show up with an alibi it's not it's not his responsibility to show up in court with an alibi it's your responsibility come forth evidence to convict beyond a reasonable doubt of the charge that's in the indictment the charge in the indictment which the government controlled was may fifth twenty thirteen seventeen zero one pm how can you with that specificity you say yeah it's a variance it's true it's a variance but no prejudiced he's got a conviction on that now that's like the classic version of it's a felony conviction that's forty two i would ask the court not to remain and i would ask the court to vacate that count they where there was a forty eight month sentence on that count there were two hundred forty months imposed on the other two  you know you say in your brief that they waive the variance argument but i'm i'm going back through the appellant's brief and i don't see them arguing for a variance they did you just sort of  sufficiency of the evidence argument and the argument is that the evidence isn't sufficient to convict on the use of a communication facility because there was no evidence put in to the record about this may fifth call and you can see that but there was no evidence put on that but your responses wait a minute the elements of the offense include use of the community you have to have obviously use of the ok and there was never am i correct in understanding the record that there was never any objection by trial counsel for the defendant along the lines of unfair surprise or irrelevancy or you know why are we your friend across the aisle about the possible waiver of the dual gerry's issue was in your brief i don't know what you want to comment about that or not or the recusal issue since you have a couple you have a minute to go i guess the codefendant rely on that if the court would allow me to but it was an issue of first impression in this circuit but there are other circuits who have like decided that issue and i cite all of those circuits and that brief and i think in this case you know the judge there was no objection to what they were in chambers they came out it was decided and that seemed to be like the way it went i know that if i may continue it seems to you haven't done that seem to be a waiver doesn't mean they said we've got no problem  thought that it was plain error because there was a you know there was no objection to it well it's more than that there was no objection right doesn't council get up and say i have no objection i mean there's not silence there's was reviewing the allegations of it and i see and the council's brief that there's a citation to what angelo hill testified to that there's nothing that reflects the raw city of what he says and or the facts that she alleges in her brief as to any relationship between him and judge gomez and that's the reason why this should have been brought below ok thank you counsel  a rule twenty nine challenge to sufficiency of the evidence at trial and on appeal correct and you're saying the evidence is insufficient because the elements of the offense were not satisfied correct as has been and what what might it what elements of the offense were not satisfied because in the indictment they specify as i don't know judge jordan pointed out focus carefully on my question what are the elements of the offense that a communication used to further a drug transaction are right in your brief you say that there was no evidence that a communication facility was used correct correct and that's not true with respect to then a different date on which if it was a wildly different date any very specific call that mr main goal would have i believe been looking for that particular evidence of that particular call for that charge even if the government wanted to prosecute him for the use of a communication facility on may seventeenth i believe in their burden to have stated that in their indictment and there was this w third superseding indictment because they continued to add charges i think added defendants and usually we call that kind of an argument an argument about a variance is there any reason why you didn't use the word variance that's what your brief is arguing you to the rule twenty nine motion correct ok but specifically i just in the minute that i have left wanted to address the government's response to the issue of recusal i wanted to first off you don't have a minute but recusal raised in front of the district court in front of specifically judge gomez and that needs to be clarified in line for seventy of the docket which is attached to a parliament appellant's brief at page eight docket socketed it line forty four seventy why the court never heard argument on that motion is beyond me and not in the docket anywhere mr my goal that anybody else come up and say he chose this motion is pending and we're really