conspiracy was proven at trial to actually be two separate conspiracies or whether the defendant mr munoz participation was so minor or so slight as to establish dual conspiracies  multiple conspiracies therefore the fatal variance depriving him of a fair trial and can i ask you just a quick question officer that where is that from the face of the indictment that you get the idea that the government charged a single conspiracy  the cover page names twenty defendants the instructions of the court and the introductions to the jury talk to a conspiracy instruction aren't there counts one there's a conspiracy involving showed that mr munoz participation or his involvement really was as to one day your honors i get to get back to what judge newsome was asking you in most of these cases at least the way i've seen them generally play out a claim post conviction is usually that an indictment charged one conspiracy but the evidence at trial showed two or three conspiracies and therefore there was a fatal variance that requires reversal this case i think you are you seem to be making the completely opposite argument which doesn't mean it's wrong but the argument is indictment charged to conspiracies but there was really one is that the argument you're making that the government charged too but proved one navi the good of the position of thousand and fifteen the very last days of the prosecutor defense let me point out something that i've just shown mr alexander this morning and it's very instructive and illustrate of the point it's a case that was rendered on october st of two thousand nineteen u s versus anthony our sleeve of course apply that to your honor's what that case stood for was a broad conspiracy involving multiple individuals over the course of multiple months but what the evidence shows the defenders participation is of one instance one act one transaction which resulted in a fatal variance and prejudice to the defendant essentially the core argument of mr munoz in the case is that whether it be one broad conspiracy or whether it be two conspiracy as charged in separate counts his participation was shown to be so small one incident one day one attempt at either delivery or possession or possession of the child distributed to kilo quantity of of heroin that the fatal variance was shown by the prove the trial that was the prejudiced to him now the government takes a position mr murray here you're in correct it's not one broad conspiracy because it's alleged in two cops well experience tells us that a single conspiracy is often broken down by overt acts it's often broken down by individuals charged with single acts or substantive offenses i think that's essentially what we have here in the way the the jury was instructed in the way the structures went to the jury for deliberation essentially the court talked to what is a conspiracy it takes  no individuals joining together in agreement to violate the law what else someone with someone with knowledge an intent joins in that criminal purpose and essentially that's what we have here  mr the juror the jury was shown by evidence that essentially somewhere in july of two thousand and fifteen there was an ample evidence day after day after day of meetings transactions discussions other people other than mr munoz on december rd mr munoz congress are you saying that he that the evidence was insufficient because of his alleged participation on one day with one transaction i'm saying that we don't make the argument that the evidence was insufficient to convict what i am saying is that the evidence showed that his participation was so slight incidental as to one date that this resulted in a fatal variance because he was tried in this conspiracy that would allegedly took place over the course of something like two years the evidence was  anthony case points out and as the cases i've tried to cite to the court to assist your honour's is that his participation was one day and i'd be remiss if i didn't bring out an argument to a senior leader we've take you a little bit over your time but you your into your rebuttal time if you want to continue you can well i'll reserve that your honors ok and i'll thank you very much thank you thank you reserve your full time as for me i thank  and also with regards to the fact that the the government did not prove up down one hundred grams or more of heroin mr pitts involvement the rise and he's basically only connected there's eleven people page forty seven dollars talks about that this investigation began with several affidavits and applications for wiretaps and neither one of those was mr pitts ever mention now there was a jeffrey pit now there are there's a confusion between a jeffrey pitts and jethro pitts as a matter of fact the vehicle the pontiac vehicle in play and that's captured because not only was there the phone taps the pen register but there also also a pole pole camera and there was also surveillance camera at the apartment that mr watkins mother reside in that that's the apartment where atlanta to get it to get heroin you're talking about amounts now none of that has to do with with mr pitts now what happens is that mr at least according to the government calls and in that message there is no one picked picking up but the voice mail the voice recording identifies himself as my name is jeff pitts and jeff pitts is the vehicle that is followed because the take the stank away it's only testified as to his interpretation of the phone calls was there or was there any testimony about jethro alleged involvement aside from the phone calls did mr watkins testify about your client being personally involved mr watkins did testify that he was personally involved with with mr mr pit the deaver miami dade police weaver i'm sorry w e v e r testified that he could not identify who was in that vehicle and that vehicle is tied into jeffrey pitts not jethro is my time is up all right necessarily apply here there's at least that leads me to a question an issue that wasn't raised here but i'm just interested in finding out the answer why were these two conspiracies tried together because shawn walk ins was the the critical element t the individuals there your honor and my and my response would be so so you're asking a jury to figure out because of the involvement of one overlapping participant conspiracies involving how many players twenty something great and to keep those two things separate and to figure out the evidence against one that mr watkins testifies to and the evidence about the maybe not in this case but i mean i would have understood if mr watkins had been on trial right because then you've got one participant in each of the overlapping conspiracies there so you've got conspiracy one watkins and when you know as conspiracy to watkins and pits but here these two gentlemen had nothing to do with each other that's really nothing except except for the that they both dealt with mr watkins at some point that doesn't seem like the sort of case that should be tried together no one made a i presume no one made a motion to sever the trials right well your honor in this particular case there's a significant overlap of what the evidence in terms of the witnesses that would be called the if there were two separate trials and it made sense to be able to any and convenience doesn't make for an appropriate trial the evidence was different it's true but because these into place you would have charged two separate conspiracies well the reason for jordan juice up a conspiracy is because the we have a supply chain and a distribution chain the connection was shown walk and so to understand the the flow of the heroin it had to involve this in one indictment one trial so the jury has an understanding as to how the heroin transfer was transported from mexico to atlanta and ultimately to miami the distribution chain where general pace was involved and the supply chain which mr  munoz was involved they're on opposite opposite sides of the spectrum but the reality is the evidence was very distinct each individual so there's no question that the evidence against mr pitts were not affected the evidence against mr munoz in the same in the other direction you know that's my whole point right so i think there in this particular case to separate cases within one not is not necessarily wrong because again that there was a distribution conspiracy that was separate from the other one there is a distribution conspiracy count charge in countering corrector and that is separate from the supply chain but the individual in question shawn watkin's his testimony ties everything together in terms of how this came about provides this story go back on as to how he became involved which would have just been really essentially regurgitated at a nd trial so for this purpose are on or trying the same case it doesn't affect either defendant in terms of them being able to represent themselves and essentially attacking the evidence that was presented against them a trial so in this proceeding when we look at the st mystery when you this contention that this was a variance argument or the argument that there were various rows that didn't happen here there was no bear is mr munoz involvement was not just confined to one day which was december  involved is significantly more involved in this conspiracy because if we were to accept the characterization presented by mr me to mr munoz involvement the court would have to disregard eight thousand and eighty five percent of the evidence presented at trial there was no mention by mr hate me hate me about the phone call the telephone that mr munoz possessed i was using exclusively to make long distance phone calls to joel diaz fernandez and based upon that phone there were approximately four hundred and thirty seven phone contacts munoz's role as noted in government exhibit six dash fifty three dollars a is to be the runner he was the one who is taking the drug proceeds and bring it into mexico and he was sneak across the border in order to do that this was disclosed by nephew who is in the same level as joel diaz fernandez nephew discloses information to shawn want kids in a record call in order to encourage watkins to make a rd trip to mexico munoz's involvement was very significant and also we got from the testimon that they actually met in mexico in april of two thousand and fifteen to discuss heroin or at least watkins was there to discuss with the individual identified only as no pictures the law to renegotiate the price of the heroin was present there so to say that he was only involved in that one specific day on december rd is just just wrong as it pertains to the argument by counsel for judge roll pits the evidence was sufficient there was numerous recorded phone calls showing the communication between shawn watkins and jethro pitts the identification of the vehicle utilized by registered to geoffrey pitts is just the fact that jethro pitts was utilizing his son's vehicle and as noted in the testimony of a special agent stank who is available so using his phone number he was using eight yes your honor he was using the phone number identified there as well but the voice identification on each of these calls was associated with just drop it that's that's the whole point of this of a focusing on general in the beginning law enforcement during a course of a long investigation they're going to identify individuals based on limited information but through the use  watch the wiretaps they're able to firm up the evidence and realize that although initially jeffrey pitts was identified in the affidavit the evidence pointed directly to jethro jethro was the heart of that focus jeffrey wasn't involved and that's the whole point of it in fact that goes against jett role because he was utilizing his son's information to essentially distance himself from culpability the problem is with all these recorded phone calls we're seeing is general pace's involvement and he was the one who was moving multiple packs of heroin on a daily basis when we're looking at the quantity itself we're looking at quantities of two packs a day to five packs over the course of two dollars to three dollars days and when we do the math we go over the one hundred gram threshold so even if we look at defense counsel's argument that his client was involved for twenty three days was a government doesn't agree with but even if you were to use that number of twenty three dollars an average of two packs a day each pack insisting  dollars capsule that's every one hundred capsule has three to four grams so that's probably six grams of heroin in a two pack so six grams of heroin over the course of twenty three dollars days pushes over the one hundred gram threshold it was testimony that the transactions were happening every day there was testimony from shawn walk ins your honor that the transaction that the he was providing general pits two packs a day this is no in documentary for forty three page thirty nine or five packs over the course of two to three days and that occurred documentary for forty three page sixty one dollars so if it were the course of what time from spring two thousand and fifteen until the end of august now spring obviously isn't the most specific starting point but it's but when we look at august and compared to the time span of the conspiracy it you're looking at around april and may for looking at the spring mark so it's a multiple over the course of multiple months to recordings themselves began from the course the wiretap on th through the end of august so we have those record calls associated with jethro pitts and not only with that in terms of general peers there were statements from him regarding his use of a subordinate to essentially move pax on he's on his behalf so this wasn't a case where pace was oblivious to what was going on in fact in one conversation geoffrey pitts attempted to purchase an ounce of heroin for two thousand dollars when shawn walk ins testify that he typically sold an ounce for two thousand two hundred dollars so what we're seeing here i favor the government satisfied that as well he calls two conspiracies to make one change conspiracy as prosecuted is watkins who from two thousand and fifteen midyear and ought to aug twenty seven  involved in this low level district level distribution conspiracy with pits at august twenty seven walk and becomes a confidential informant he exits the conspiracy he's no longer a conspirator the characterization of my client's involvement mr munoz was there in mexico in two thousand and fourteen at some conversation between d s fernandez and watkins he's not a participant he doesn't join in anything there's no evidence of that there's circumstantial i'm not sure that that's the only way to read that evidence given that the jury verdict was in favor of a conviction the jury verdict was guilty of one kilo or more or more the jury was instructed you may find any amount in order to convict the defendant of conspiracy to distribute heroin but the point i make is that this was that this was essentially a single conspiracy prosecution the justification for try these two together had to be because watkins was the bridge between two conspiracies and a chain conspiracy but the evidence didn't show that the evidence showed that mr munoz was only involved on december rd and yes they have circumstantial evidence of there is a telephone his possession with number of phone calls between that telephone and the telephone to mr diaz fernando's but if i give my cousin and my brother who is in the construction business my phone to make a phone call he's not involved in four hundred or six hundred legal phone calls in there for a lawyer that's speculative that's remote and i don't believe the jury found that if they had or if a court believed that comes back to the quantity issue we could at sentencing to the question of whether or not mr munoz was rightly attributed with two kilos or more i submit that he was only involved in two and i want taken him or the court's time and i appreciate your attention very much thank you very that in and mine up looking at the actual evidence besides mr walk ins testimony because neither detective devers nor agent stank which could testify to any is off on a trip to with his girlfriend amsterdam on vacation subsequent subsequent to him returning is when he goes off to atlanta mr pitts my client is supposed to be transacted in which sheldon ate in well there's never any even though there's a pole camera there's only one on one occasion during that timeframe that a vehicle that and jethro pitts mr watkins testified that it wasn't as the government argues that that he gave mr pitts rugs on a on a daily jand but basically he says that every two days or so or two days he would give them something now all of this is only tied into these ten or eleven  days of transactions because the pen registers back up our contention and that is that there was no contact between any phone number attributed to mr pitts jethro the evidence showed that whatever communication was had between shon watkins and jethro pitts was by way of phone mr watkins testified there were not any secret meetings where m just show up no it was all by way of phone calls in the pen registers do not have him in communication movements or walk ins and the recorded calls that do if you know believing that that is him on the other line are talking about ten transactions it's clearly less than one hundred grams of hair my time is up thank you very much was rooms i was thank you thank you all very much we appreciate it