number one six one five zero seven number one six one five seven number one six one five nine six number one six one nine eight four and number one seven one six six zero united states versus victor rodriguez reported good morning your honor may it please the court and counsel and my colleagues and yours and this case were instructed that they did not need to find the existence of an actual enterprise only that one would exist or that you find it actually associated with the enterprise only that you would the evil contemplated by the rico conspiracy statute is a shared common purpose that a crime be committed by a member of the conspiracy who is capable of committing it but there is no evil if there is no existing enterprise and no actual association and that is why i binding precedent from this circuit and the u s supreme court have repeatedly instructed that the government government must prove oh i knew existed and that it did so in a way that would fit the definition of a criminal enterprise but that alone doesn't give rise to rico conspiracy of my ability there still of course is the harm and the defendant associated with the participate in its conduct at this point the government's evidence as it relates to my specific client was almost exclusively bank based on the testimony of  why i don't make a sufficiency argument and the reason is because the standard of review is different we are not viewing the evidence in the light most favorable to the government we're asking instead whether it's likely that the instruction impacted the outcome but this instruction that's correct so your proceeding under play never that's correct and so even if we were to find just as there are is still got to persuade us that it made a difference yes and here we have an instruction that misstated every element of the enterprise and going back to the existing if there are cases that say or a rico charge you need an enterprise of course but for a conspiracy to enter into a rico violation why do you need what what case do you say that says in that situation the enterprise has to be any more real than for example the fake cocaine isn't a conspiracy to distribute it i would rely on oil which reiterate everything of course has said consistently and some weakness and turk hat and respectfully i think that this is where the government's argument is wrong on salinas makes clear is that there is a significant difference between substantive rico and conspiracy in so far as the pattern of racketeering activity or what i call in my briefing the action element is concerned in substantive rico case the government does not need to prove that the defendant personally committed to predicate act but what those cases make clear is that they want the government may finish my thought but the government must prove the whole point there is the defendant's participation in the association was enough and of course here the jurors were instructed that they did not need to find that the and there was evidence sufficient that he distributed or conspired to distribute drugs so that and kinds and distribution of drugs was one of the core it is the core racketeering predicate in the case so this needed a good enough instruction and coherent instruction for it to distinguish what's the difference between being a conspirator distribute drugs in this case versus a conspirator for the overall rico crime that the government alleges happened here and it seems like the trial court's twenty one patients struction it seems to be geared for some kind of complicated and excuse me for some kind of holy in coate scenario where some criminal minded individuals in a smoky room conspired to bring a hypothetical rico enterprise into existence at some time in the future and that was completely unnecessary to try to build such a complicated instructions or cover that's an area where here the understand what it needs in order is determine if the government prove that mr sanchez mora knowingly and willfully conspired to further that rico enterprise and mr sanchez more of was a person in this case that was relatively others and the jury's attribution of drug weights to him were low it's hard to understand how the observation of drug use drug weights by the jury to mr sanchez more could be consistent with him being not just to conspire to do to distribute for all the actions of the rico and spirit of ours now and again that is the prejudice in this case is how is the jury supposed to tell from this one hundred page indecipherable instruction whether mr sanchez more is not only guilty of conspiring to distribute drugs conspiring to knowingly and willfully further the overall rico conspiracy which in gauging a lot of a porn practices and mr sanchez more there's no evidence he had anything to do with my time is up thank you strong evidence of other acts that could have been predicate apps that this mistake we should just ignore so it comes down to how overwhelming was the evidence that you claim committed other i'd like to reserve one minute for a final four out of four i represent right now to rodriguez martinez as to him there is insufficient evidence and the jury verdict jury rendered its verdict which is that my done to them page seven they didn't say they they convicted could found and i suggest it's because of the instructions that allowed meet my client is not there they get goes where both my client is not there it is the last they all know when they need to go out that might consisting of questioning whether there was in fact prejudice concerning the existing enterprise element of the rico conspiracy charge we set out in our brief why we don't think the appellant's have met their heavy burden of meeting court they did so in their briefs it was uncontested below and the evidence was overwhelming that this was a full fledged enterprise it was charged that way and prove it so there was no prejudice the suggestion that as to mr b he pointed that there was not enough evidence that he was associated with rico enterprise is also incorrect he was the second in command of the enterprise he was an owner of multiple drug points he was unarmed in force or he participated in numerous murders including the list a serious murder for which he was convicted as to sanchez mara the question there again is how is my client associated with the rico enterprise the court gave separate instructions for the drug conspiracy and the rico conspiracy made absolutely clear that those receptor questions in fact is a multiple conspiracies instruction so the jury was clearly instructed that it had to make separate findings as to guerrero castro's arguments he focuses primarily on cop show and the firearm predicate issue this case is not another hans tooth in this case unlike in majority culture no we have made very strong explicit third and fourth prong arguments and those arguments are no prejudice to possible prejudice because the government argued unproved two specific predicates that are valid predicates drug trafficking and murder only asked the jury to find those and the evidence there are again was overwhelming that how was there no prejudice from that given that the only other predicate act that you charge them of it was acquitted on it so you're left with pointing to some other act that perhaps you could have the point that i'm trying to make your honor is that under rico conspiracy there does not have to be proof that the defendant himself committed one of the predicate acts that he does not even have to undersell enos he does not even have to have agreed to be the one  it was committed specifically in furtherance of the rico enterprise so well yes i think what you're saying is you could have just charged him with the rico conspiracy the judge could have said no need to find any other predicate acts but if the question is not what the question is whether he knowingly joined the conspiracy and there's no dispute that he knowingly joined this rico conspiracy so what the question is would a properly constructed jury have found that this organization not mr kerik but this organization conducted its affairs through drug trafficking and murder and we're saying the evidence is overwhelming undisputed that this organization conducted its affairs in that manner and that he knowingly joined that conspiracy he does not have to have agreed to personally commit murder or drug trafficking he does not have to have done done those things himself all that is required is that he knowingly joined a conspiracy that conducted its affairs in that ma of this organization he was in fact and armed in force or in this organization so and protecting of course as a drug as a drug point owner a multiple drug point on her he relied on the violence of that crew of his crew to protect those drug points in fact that was how they got some of the drug points was murdering people and taking over the housing project so murder was essential business of this of this enterprise that he knowingly join did except the exact same thing as is the situation here this person facilitated the acts of a conspiracy that operated through drug trafficking and murder and drug trafficking and murder the evidence of that was overwhelming he knew of that that because the indictment charged certain statutory drug levels and the actual verdict came in with lower amounts that somehow the jury did not find  martinez guilty of the drug conspiracy that's incorrect a drug conspiracy is based on persuasion in any amount of controlled substances the higher amounts go to higher statutory minimum and of course the jury has to make a finding to expose a defendant to a higher stash remember them but the requirement for health is participation in any amount of drugs and that's what the jury found here  conspiracy through drug trafficking and whether it was a drug point at one housing project or another that's not an element of the crime so yes your honor finally has to dora's whether there was sufficient evidence of premeditation because mr restore is drove the car that had three other men armed with automatic weapons and chased and followed over a course of hours the target of their mission of killing as the district court found it seems to me hardly worth mentioning the  in the car it was scary when kerry was getting that instruction so obviously mr rodriguez torres knew what was going down and his purpose in being there was to advance those murders have committed but the jury found that my guy was right demons did not commit and aggregated them to make a marijuana equivalency therefore saying that there was one hundred grand one hundred kilograms of change its view and proceeded with the sentence and there is no indication that it was a proper sentencing based on powerful amounts of a trial lawyer didn't just agreed with everything the judge  or the prosecutors said and there was no adversary challenge if i could just say judge you asked whether it's true that the coconspirator should be liable for all amounts people on what they are quoted of and i asked the court to review this defendant differently uniquely from the other defendants in this case thank you