good morning may it please the court my name is chris pickett i represent the appellant james smith in the consolidated appeal that we are going before you today i hope to present argument on three three points two from the consolidated appeal one from mr smith's individual appeal the first is that the district court erred by denying the appellant's motions for judgment of acquittal because the government presented insufficient evidence that the predicate acts constituted a pattern as required by the rico statu as set out fully in the brief and has been the law for some period of time the supreme court in h j inc has set out that predicate acts or more or pattern is more than just the number of the acts they have to be related and they have to be related to each other that is horizontal and vertically that is up to the enterprise and if they are not related then it is not a pattern and the reason is in this dates back to one thousand nine hundred eight united states v d as in the fifth circuit and cases since then that rico was not meant to cover groups of individuals committing isolated for sporadic criminal acts the purpose of rico was to stop organized crime or some form of organized crime committing a pattern of criminal acts and here it is clear that the predicate acts that the government complained of alleged in the indictment and for which the evidence was  were isolated and they were spontaneous isolated separate from others happening just once happening in different places sporadic is happening often but not regularly and that is what happened here in this case beginning in may of two thousand and nine with mr petite and continuing through march of two thousand and eleven the incidents that the government complained of were isolated and sporadic they did not have the same participants they did not have the same victims and they did not have the same reason for the commission of those offenses in fact many of them were investigated by state authorities and they were investigated by state authorities because that's what they were they were individual state crimes they were crimes that occurred at a bennigan's in gary indiana because mr petite was upset personally at robert taylor for the if the informant was able to say that the wheels of that all of these members were with the wheels of soul that certainly is true but being a part of a group does not automatically make them related to the enterprise  much of what he knew so as a relates to mr patel situation in may of two thousand and nine a lot of that was hearsay in august of two thousand and nine the incident that occurred here in the city of st louis he had more direct information because he was in the city of st louis he knew what happened as it relates to january second two thousand and eleven in chicago again it was hearsay he heard from mr robinson he heard from other people what he believed to have occurred and so the informant the informant tried to tie it all together certainly for the government but the but the informant failed because the the evidence failed frankly because the government didn't tie it together they didn't show that what mr petite did was because of a related to the wheels of soul they didn't show that mr robinson conduct on january second two thousand and eleven was related to the wheels a soul and we the january second example is a good one that there's an argument about whether mr urban can wear a vest with a rocker on it a state the state rocker robinson was told by mr allen hunter another government witness who testified significantly throughout this trial it's not to do anything and mr irvin started the gun fight this was spontaneous and mr hunter testified to that fact this was a spontaneous event the march two thousand and eleven spontaneous event these were not related and they were not they were clearly not related in fact mr hunter testified that these acts unrelated he testified that they were spontaneous and frankly mr hunter was in the best position to know as the regional president the second issue that i want to discuss briefly with the court court's abuse of discretion and not utilizing a special verdict director and this was raised in the joint brief and it was also raised in mr smith's individual brief the defendant requested what was what was for the record  smith smith proposed a and smith proposed b and a and b would have required the jury to effectively determine which predicate acts to which predicate acts the defendants agreed would be would be committed the court ultimately used a general verdict director indicating that the defendants the jury had to find the defendants knew and intended that a coconspirator would commit a predicate to predicate acts we asked for the verdict director because this was a complex case with hundreds of witnesses hours and hours of testimony hours and hours of tapes and ultimately that underlying point that for mr smith specifically but certainly for mr elkins mr fry and some of the other defendants that element and that issue was very real the instruction number twenty six specifically said the jury had to find that the defendants knew and intended that a coconspirator either themselves or another would commit to predicate acts in this verdict or actor would have been proper in this case and we the parlance understand that the laws says that it's abuse of discretion and that there is no bright line rule and there is no bright line rule but that does not mean that this court cannot reverse and cannot require use of a special verdict director in the facts and circumstances of this case and that dovetails into the third point and that is that the district court erred wouldn't deny mr smith's individual motion for judgment of acquittal because he did not have the requisite knowledge that a coconspirator would commit to predicate acts instruction twenty six made it clear what the government was required to prove that mr smith knew and intended that a coconspirator coconspirator or would commit to predicate acts here in this case in the government's brief that's this out beautifully he didn't know they know he had no advance knowledge they concede that point the government's argument is he should have know he would have known he could have known he undoubtedly knew he likely authorized that is not evidence sufficient enough to sustain a conviction for a violation of the rico conspiracy statute what about what about his edict he seems like he's the leader when the group gets together and is expressing the goals of the organization could a jury infer from that given the directives that he gave the other folks that he knew some of these predicate acts would be taking place i would i would suggest that the answer to that question is no and the reason why is that there were no actions taken as a result mr hunter testified that even if you believe there was a war there was no war there was no action taken there was nothing done and united states first posada rios a fifth circuit case out of from one thousand nine hundred eight says that even if we agree to do something if nothing happens there's no conspiracy and that's what that's what occurred here is a related to mr smith to the exam he spoke into the exam to the extent he made edicts those edicts resulted in no action and therefore cannot be used as a basis to sustain the conviction so it's your position that his directives did not result in any of the actions that were alleged in the indictment and ultimately proved up the trial that's absolutely right and that that works with the with the argument made previously these were spontaneous events these were not people that were listening to mr smith and in fact the evidence was clear that many times and the testimony was that they did not listen to mr smith they mr hunter did what he wanted when he wanted how he wanted so his defense is he's an ineffectual leader they're not they're not doing what he tells them to do that that might be the defense but i said i believe that in that circumstance that does not make him criminally liable for violation of the rico conspiracy is that you that's all the time that i have thank you please the court and ronald jenkins on behalf of the jury elkins and i will be addressing the court with respect to the territorial jurisdiction of the wiretap issue on behalf of the appellant's the government in its brief at page one sixty seven sets forth this particular issue in a very narrow form and it is the proper issue before the court does the district court have the authority to issue a wiretap order on a telephone outside its jurisdiction simply because of the quote listening post rule that's the government's quote listening post rule this court and i'm sure you have could look at title three twenty five ten etc you can look at the legislative history you could look at the federal rules forty one or any other rule and you could look at the order in this case which is a den  one through five and in particular a denim page five of the our joint appendix you will not see listening post rule in any of those contacts actually judge mescal in the rodriguez case quoted by everyone and his dissent says sooner or later we're going to reach a point where the crime is in new york the is in new york and the government is going to choose to put the listening post in gnome alaska then we're going to have to justify why the government can choose jurisdiction in normal aska for something that happened in new york judge mass calls opinion actually was not a dissent as i recall it was a concurrence in the judgment and he said he disagreed with the majority's view but he would hold that the evidence in that case was admissible because the government reasonably relied on the order it was a good faith exception little why even if you all of what you say is correct why wouldn't the evidence come in here on the same basis that judge mescal suggested in that case i would suggest to you that glover must be considered and judge silberman in the gover opinion which was just published is and is in our brief finds that twenty five eighteen ten a requires there's no judicial discretion it requires the words shall be suppressed and i believe even though the sober and judge one refers to a bug and a vehicle i knowledge zach but it's the same law a j or parenthesis little iraq the verbiage cited is that it shall be suppressed and that's our position the judge i'd take a little time if i may what little i have left a couple of these cases that are cited for the quote listening post rules each of these situations are bordering jurisdictions in other words let's take f miracle the fellow lived in wisconsin he sells dope in st paul minnesota and he took his cell phone back and forth from his house to st paul minnesota and he used the cell phone in both wisconsin and st paul minnesota as he conducted his business the phone was directly tied to the criminal activity and the  of this order say if that target telephone is transferred outside the jurisdiction of this court judge artery then the interception shall continue that infers or implies that the that the telephone was at some point in the eastern district of missouri and that is not true and you can find that it docket six four eight pages seventy nine to eighty five the phone was always in chicago mr hunter was always in chicago the conversations a term occurred while he was in chicago it was never in the eastern district of missouri my time is up good morning judge i'm sitting here waiting for the clock to recycle but good morning it's good to be here in front of you all my name is david woods and i represent mr jerry pret ering activities in order to be convicted under eighteen u s c nine hundred sixty two d a pattern of racketeering activities is to says the statute to predicate convictions to proffer bribes there is ample evidence that he conspired to violate the evidence show that the sheriff committed to acts of racketeering when he accepted bribes and that salinas knew about and agreed to facilitate the scheme mr petite was only convicted of one predicate act attempted murder to be done to facilitate a record here an act activity he was not convicted of attempting to tamper with a scheme started with shooting robert taylor in gary indiana however that's not the testimony of allen hunter from volume nineteen page forty six it was a spontaneous incident that's not the testimony from shon jackson a never government witness volume two page one forty eight he received information after the shooting so what did mr potato petite actually do well i recite the incidents that the government talks about this all these various individual and sporadic incidents mr petite is not there i didn't try this lawsuit so i'm reading it fresh like you all are the cold sterile transcript and i keep looking for places where it says mr pretty did something well mr petite was there in gary indiana he's gone for maybe another year until he's told to leave a meeting in chicago and then he doesn't appear at all the alleged beating shooting is taking away people's patches he's just not there so he didn't and he didn't give any orders to anybody just cuz he's the president i used to be the president of my gideon's chapter and just goes i gave orders or had meetings as a president didn't mean people were doing what i told them to do and i don't think you can say just because mr petite was the president two weeks before may two weeks before gary indiana that he was an organizer mr what does the record reveal about the president of this well if you listen to kennedy petite now that's the brother of jerry talking about yes the president tells us to do things but i think kennedy said that doesn't mean we have to and apparently they're in the gary indiana chapter your honor there were only six five or seven men that were supposedly members and i think they had to have more than that to actually be a chapter see the government's evidence doesn't talk about a meeting was held on such and such a date a meeting was held on such and such date these people attended and this is what was said and jerry is not in any of these meetings i want to take twenty seconds to say that again there was no evidence that jerry conspired with anybody to promote the so called prestige of wheels of soul my time as a judge i appreciate you letting me speak in behalf of mr fifty today thank you your hon and i plan to discuss primarily by the time i have counts ten and fourteen which are the two murder counts of felony murder in count ten chicago in january of twenty eleven and the violation of eighteen u s c nine hundred fifty nine and that requires that the criminal underlying criminal act be done for the purpose of maintaining or increasing the defendant position in the enterprise now the district court gave an instruction with the language that the government is not required to prove that the defendant solar principle motive was maintaining or increasing his position so long as it proves maintaining or increasing his position was among his purposes now this is consistent with the united states versus fairchild in the circuit and is is consistent with the majority of the cases talking about the meaning of maintaining or increasing the government requested additional language they wanted the judge to put in the instruction the motive requirement is satisfied if the defendant committed his violent crime because he knew it was be expected of him by reason of his membership in the enterprise this actually dovetails into what mr pickett was talking about in terms of isolated incidents the only connection being that the individuals happened all belong to the wheels of soul the district court rejected that language said no in closing argument the government prosecutor argue that in the ada breck that that the language only requires this jury to find that these offenses the underlying crimes were committed by reason of the defendant's involvement in the enterprise in the enterprise directly contrary to the judge's instruction directly contrary in conflict with the united states versus fairchild is better but here's where really gets bad is the prosecutor only took i can only talk about that element for a couple of paragraphs in the transcript did not mention one defendant did not parse on any facts as each so isn't this a sufficiency question aren't you arguing insufficient evidence insufficient evidence yes ok well the closing argument doesn't have to recount all of the evidence  denying the judge said she did not misstate the law the judge just denied the motion without comment and what's exactly the misstatement of the law that that say that someone just his involvement in the enterprise and what he might think was expected of him because he was a member of the enterprise and that the same as maintaining his position in the enterprise to do what's expected of him why isn't that equivalent to maintaining his position in because from my reading of the research your honor that is not the law certainly not in this circuit and in those cases that talk about what is expected of the defendant every one of those cases deal with the kingpin of a cartel or a mafia boss or somebody else who is a leader and has to do is expected to perform to protect the leadership that's where that comes if i may turn a particular well he was called the sergeant at arms mainly that it required him to only make sure people didn't have guns and there was there was at the meetings that and that there was order in the in the meetings the government called them in force or ok that title however in the w soul related to when they were on motorcycles that was a particular position that was not him all right and getting to your question with a few minutes i have left your honor is that on january second the only evidence the only evidence of robbery came from irving tony amaze andrea smith charles davis all testified that they heard no threats and saw no guns until urban polled his they've was a friend of her he said he saw no guns and heard no threats now the government in their brief say that to davis testif and organizations or motorcycle groups well in this case the person was part of the now the motorcycle club in ohio these people were not members of any other or other motorcycle club the best we don't the best thing is that that was heard was that they were members of a street gang so it was and there were there was no competition there so that was not true for march but it's true for january it's that this guy is from another motorcycle club but what is important here is no one ever said they're going to take his vest davis testified that they said take off your vest and in our brief we explain why that's important and it goes back to a prior confrontation between urban and allen hunter right so you have no one so what is urban say about taking his best urban testified in cross examination that he didn't hear anyone say that they were going to take the vest away from him there's no evidence now insufficient there's no evidence of robbery none and that is what is required in order to have a felony murder conviction there was no evidence the government says now urban went on to talk about that defendant and call having guns where he's the only one that testified to that and the government says hey you have to believe him you can't parcel out who's credible who isn't well that's simply not true that is not the law under crenshaw in addition the forensic evidence and we take of talk about this in the brief shows that what urban testified to wasn't fact impossible all the shells that were related to what he was talking about were it by the front door way across the clubhouse from the bar so could not have gone down like he said in addition he said title group in chicago he was as i indicated he was called the sergeant of arms for a while but interestingly enough that was taken away from him after the january incident so when march came wrong number he did not have a title in the organization i see my time is up march sixth the government failed to prove beyond a reasonable doubt that he was not acting in self defense for yourself the record i certainly will your honor my name is arena miller whistler i'm privileged today to represent the united states of america in this appeal by appellants dunn l dominic henley and others related to the government's prosecution of them for racketeering conspiracy and other charges myself and my colleague mr del wirth represented the government at all stages of the investigation and prosecution in this matter including serving as trial counsel for continuity sake i would like to address the issues in the order addressed by the appellants and in which they appear in the government's brief beginning with mr pickett's argument relative to the pattern of racketeering element of the conspiracy your honour's it's abundantly clear that the parties are in agreement that based on h j ink and other cases the government was obligated to prove as part of the record here in conspiracy that the appellant conspired to conduct the affairs of a racketeering enterprise through the pattern of rac activity the government's position as it set forth in our brief is that the government presented more than sufficient evidence with respect to that element of the offense the government was obligated to prove by way of the pattern of racketeering activity that the charge racketeering acts were related to each other horizontally and vertically it's important to note however that a number of circuits have previously held as has the supreme court that the government can prove horizontal and vertical relatedness by way of the same evidence in other words if the government is able to prove that each of the predicate acts is related to the affairs of the enterprise itself those acts are both horizontally and vertically related it's the government's position that the evidence at trial demonstrated unequivocally that the acts charged in the indictment and as proven  trial were all related to the enterprise that was charged in the indictment what about your own witnesses who say that nobody planned that that just happened your honor i think the appellants are reading into the racketeering statute in the case law interpreting it an element that simply does not exist and that is an element of premeditation there simply is no case in any circuit or in the supreme court that suggests that any of these acts need to be planned in advance to the extent that these acts occurred spontaneously the government doesn't dispute that that was the case however the government was not obligated to prove that these element that these activities were planned in advance or that they were at all premeditated so the government suggests that the note the notion of spontaneity is simply something that doesn't exist  law with respect to the sporadic nature that's been alleged that the government could not disagree more with the appellants characterization of the government's evidence it seems pretty clear based upon the evidence at trial which of course took some six weeks and encompassed about forty seven hundred pages of trial testimony that these acts began in may of two thousand and nine with the shooting in gary indiana that's been previously discussed and didn't end until march sick of two thousand and eleven and those acts occurred on a regular basis during the entire course of that period of time what's important to note your honour's is that a number of the originally charged defendants in this matter entered guilty pleas so obviously the government did not present all of its evidence at trial rather it presented evidence only as the eight defendants who proceeded to trial but the testimony at trial included things like drug dealing that was in that occurred between other co defendants and the government's informant in this case now obviously those acts are not directly attributable to the however the jury was free to consider those acts as part of the pattern of racketeering activity based on that evidence would you ever be able to beat this case it would certainly have been much more challenging your honor however given the number of former members of the wheels of soul that testified at trial and the number of recorded conversations that were played both judicially authorized wiretap conversations and consensually recorded conversations it's the government's position that this case could have been proven beyond a reasonable doubt without the informant it certainly would have been much more challenging but i don't believe it would have been impossible particularly in light of the weird for the former we got the wiretap authorization after we had the informant and in fact the informant provided the the consensually recorded calls that ultimately resulted in us acquiring the judicial authorization for the wiretap mr pickett suggests on behalf of appellant james smith and others that the government failed to prove that these activities were related to each other and alleges that the evidence failed to show that they had the same or similar participants or victims and points to the fact that these in many in many cases these events were investigated by state authorities once again the government could not disagree more with that characterization of the evidence first of all it's important to note that the case law suggests that they have to have the same or similar participants obvious all of these acts occurred in situations in which one or more members of well more than one of these members of wills of soul and this enterprise work together none of these incidents occurred when any one of these people was alone all of the incidents occurred when these people were present together in groups and more importantly occurred when they were present together in groups and wearing the vests that identified them as members of the wheels of soul these were not isolated incidents of domestic violence or road rage or any sort of property crime that occurred when any one of these appellants was alone to the contrary they occurred only when appellants were together in groups of two or more and i think that's a critical fact that the court should consider with respect to the similarity of victims obviously these offenses can't have the same victims because to the extent that some of them were murders someone can only be victimized once but court has pointed out and i believe it was judge kelly who asked the question with regard to the victims and whether or not they were related to each other in terms of membership in organisations with the exception of the victim in the marion ohio incident in march sixth of two thousand and eleven all of these victims were members of either motorcycle clubs or social clubs that were similar in the sense that they all wore insignia or vests that identify themselves as members of the government i believe has set forth the evidence and it's brief with regard to the similarity of the participant statements were admitted at trial as non hearsay and came in as substantive evidence so to suggest that that evidence was hearsay is simply not true moreover mr hunter was physically present during a number of these incidents in clued in the incident in st louis and also the incident in marion ohio in addition to that your honors there was a number of there were a number of occasions in which mr hunter was able to make recorded conversations in which these appellant themselves discussed those incident st louis your honor this case was charged in st louis because the investigation began after the armed robbery well the investigation was ongoing at the time of the armed robbery that occurred in st louis on august tenth of two thousand and nine that was the armed robbery in which mr hanley and his codefendant mr ball were involved in which they robbed two members of the s t l writers of their vast that incident is really what sort of generated the federal government the investigation was ongoing prior to that in some in some respects but  we actually learned about the gary indiana incident after it occurred by way of the recorded conversation that was made by the government's informant that was the meeting at which the informant was present when mr headley talked about the shooting in gary indiana and it's important to note that during that same conversation he talked about the fact that the situation had created issues between the sin city disciples and of wheels of soul and in fact he testified in response to that incident that he had been instructed by national leadership to start stealing patches from members of the of the sin city disciples so the church case was charged in st louis primarily your honor because we had the investigative resources and quite frankly a task force officer who investigated the case probably better than anybody else could have done it and so it was really because of the informants location the incident that occurred on august tenth and then the shooting incident that occurred on august fifteenth that the federal government made a the defendant correct that the government's position is that this wiretap order could have been obtained anywhere that the government set up a listening post yes your honor and i did and i know restriction on that you could have chosen long as either the device or the listening post is located in the jurisdiction in which the district judge is located that district judge enjoys jurisdiction to authorize that wiretap that is based on a statutory interpretation of the appropriate wiretap statute and it's based on the definition of intercept which is defined as the oral or other acquisition of the contents of any wire or electronic or oral communication and the cases that have the government have cited in his brief from a number of circuits indicate that based upon that language the interception can be acquired in more than one location it's either acquired at the location of the handset or it's acquired when it's first overheard by the monitoring personnel which in this instance would be in st louis so yes it's the government's position that that that the wiretap could have been authorized by any district judge in any jurisdiction in which the listening post was located i want to take that moment only this situation here there was no connection to st louis with the  there is no practical difference here between alaska and st louis is that right or do you say that there are some factual oh no i think there's some factual distinction there and i think it's worth it if it can factual distinction and that is that the government certainly demonstrated that during the course of this wiretap hunter alan hunter who's telephone we were monitoring was making telephone calls from chicago to st louis and i want to specifically mention the incident that occurred relative to the conspiracy to commit murder in east st louis that incident was largely captured over the title three wiretap but the phone was never in st louis the phone the government did not abuse any evidence that the physical device was ever located in the eastern district of missouri during the course of the period of authorization while we're on the subject of the  it is not certain that the phone in issue was transferred outside the western district of wisconsin it may never have been there but we do not read the order as limited to the case in which the phone was at some time in the district so judge posner in the  suggests very strongly that wouldn't have mattered whether the phone was ever in the district or not a number of the cases that were that were cited by the appellants include instances as mr jenkins noted in which the phone and the listening post were located in contiguous districts or there were some factual there's an attempt made to make a factual distinction between the cases that the government has cited and others however none of those cases turn on those facts in other words none of the cases ever say the only reason that we're holding that this wiretap authorization was valid was because the phone in the listening posts were located in contiguous districts so those factual distinctions are really irrelevant to the analysis the fact of the matter is that all of the circuit courts of appeals to have decided th issue have decided in the government's favor and the appellants have not provided this court with any case from any jurisdiction in which a listening post for in the vernacular authorization was found to be insufficient while we're on this subject i want to address the glover argument as the court is well aware the glover case was decided just recently by the d c circuit and to the extent that the appellant's rely on the glover case for their listening post argument it's the government's view that their reliance is completely mis highways and i think really that the argument comes down to a relatively simplistic one and that is that if one reads the glover for its actual facts and for its actual holding what the glover court says is that the issue and glover relates to the authorization for a think it's important to note glover is limited to its facts which are relative to a covert trespasser entry on to private property which we simply don't have here the other interesting thing about glover is that the d c circuit itself refers to the government citation the listening post cases and in fact this week the circuit court actually sort of seems perplexed by the citation to those cases and it actually says none of the cases cited by the government relative to the listening post addressed the issue the jurisdiction of the issu court to authorize law enforcement officers to covertly place a listening device on private property basically they're saying we don't know why the the government citing listening post cases because this isn't a title three listening post case and the court goes on to say to cite ramirez and several other cases related to the listening post and they say whatever the merits of those decisions they do not address the issue before us so the glover court itself limits its holding to its own set of facts which revolve a covert trespass re entry on to private property which we simply do not have in th substantive rico violation mr woods would have had a point mr woods would have been correct that the government would have been required to prove that mr petite himself actually purchased actually committed to predicate racketeering acts but that's not what we have here and as the line  points out the difference between racketeering conspiracy and substantive rico is that in a conspiracy the government is not required to prove that each appellant committed personally to acts of racketeering rather the government is only required to prove that the defendant or appellant agreed generally to conduct the affairs of that enterprise through the pattern of racketeering activity so it matters not whether mr petite himself conducted to racketeer committed to records hearing acts or whether he was simply in agreement that someone would commit two or more  and so mr woods's distinction with regard to the acquittal of the one substantive predicate act is not particularly pertinent moving on to mr rollers argument with regard to  mr robinson as the court has correctly noted mr robinson's got some pretty bad evidence mr robinson was of course convicted of multiple via her murders and the government presented evidence of actually was elevated to the rank of vice president of that chapter so he did have actually he actually occupied more than one role in the organization and there were a number of witnesses who also interchange the terms enforcer and sergeant at arms so whether you refer to him as a sergeant at arms or an enforcer he occupied all of those positions mr roller vehemently suggest that there was no evidence whatsoever that there was a robbery that was going to be committed on january the second in chicago at the clubhouse and once again the government has set forth what it believes to be a fair recitation of the facts as they were presented at trial obviously this court is obliged to view the light in the evidence most favorable to the jury's verdict in as much as this is a sufficiency of the soul brandish a knife at his friend charles urban that evidence and testimony is crucial because as the court is aware one of the deceased in this case was actually a member of the wheels of soul whose name was branca last he went by the nickname face and it was subsequently determined that predicate act that was presented at trial that the may twenty eighth two thousand and nine shooting in gary indiana they had been many of them had been members of another organization prior to that many of them had been members of an organization called the sin city disciples and that's important because when these appellants and others sort of en masse left the sin city disciples and joined the wheels of soul testimony a trial suggested that that created problems between those two organizations and it was very shortly after this sort of end mass migration from one organization to the other that mr pitts he shot a member of the sin city disciples who had refused to switch to the wheels of soul that was the gary indiana shooting so the evidence at trial was that this is a very old organization that's been around for a very long time and that all of these individuals had been members of the organization since before the predicate acts began and on that note i'm glad you're on to raise that issue one of the appellant's and i can't remember which one i apologize but cites to a case called american honda for the proposition that it's sort of a mere association case and the american honda case is is interesting but not helpful in the sense that in american honda which was actually a civil rico case the appellant in the american  way from the issue that we have from the case that we have here what we have here is a number of individuals who joined this organization before any of the predicate acts that were presented at trial had occurred and not only did they join that organization before the predicate act occurred but they maintained their membership during the entire time that the that the predicate acts were ongoing particularly with respect to mr smith i think that issue is important because while it's true that mr smith did not himself commit a specific predicate records hearing act it's also true that he was not charged with committing a predicate act nor was he charged with conspiring to commit a specific predicate act there's been a suggestion that the government's evidence as it pertained to mr smith must fail because the government didn't prove that he had advance knowledge that any of these specific predicate acts were going to occur but that's not the standard the standard isn't did mr smith know that this murder was going to happen on this date mr smith is not charged with conspiracy to commit any specific substantive predicate act if you were then certainly the government would have had to have proven that he had some managerial role or at least some advance knowledge or participation in that specific predicate act that wasn't what he was charged with but doesn't mr smith have to have a point in that it is sort of difficult to link up even in his his everyone but the testimony at trial was that on january second of two thousand and eleven mr robinson shot at a member of the street soldiers in an attempt to take his vest and that in that incident a member of the wheels of sole brank last was killed  was a member of the hawks almost immediately after that well two weeks after that the entire wheels of soul nation convened in philadelphia for a national meeting at which mr smith presided there was testimony at trial from a number of witnesses including the government's informant and alan hunter both of whom testified that at that meeting mr smith gave specific directives about who the wheels of soul was out more with he named two organizations initially he damed one he named street soldiers and he specifically referred to the incident that had occurred in chicago the testimony at trial was further that when the meeting concluded members of the mother chapter of the wheels of soul provided two guns and a bullet about three guns in a bulletproof vest to walter lee anthony robinson and ask them to try to bring those guns to chicago and walter lead testified that the express purpose of those guns was that they were being provided by the mother chapter to this to the westside chicago chapter for the specific purpose  retaliating against the street soldiers for the january second two thousand and eleven shooting during the same meeting there was testimony at trial that the members were notified that a shooting had occurred in florida that a member of the wheels of soul had been shot in the head by a member of a group called outcast and during that meeting mr smith indicated to his fellow members that the wheels of soul was at war with outcast as a result of that shooting shortly after that we hear recorded conversations were dominic henley speaks to al hunter and he talks about his hatred of outcast and how he doesn't want to have anything to do with outcast and twelve days after the national meeting in philadelphia is when the incident happens in east st louis where mr elkins mr fry  and a number of others conspired to commit the murders of members of outcast in east st louis the government would submit that based upon the evidence that the jury could have reasonably inferred that that attempt on the lives or that conspiracy to commit the murders of members of outcast in east st louis was in direct response to mr smith's having instructed them some two weeks before that the wheels of soul was at war with outcast so i don't think that the relationship between mr smith's conduct and the crimes of violence in this case were nearly a tenuous as mr smith would have the court believe what would you say the evidence shows is the common purpose linking these acts as i understand that there was no drug trafficking or extortion or any profit making the common purpose linking the act or linking the members of the i'm sorry i'm not sure that well the common purpose requirement in the case was as i understand it you argue that there was a  purpose well what is your point i'm not sure whether the courts referring to the common purpose element related to the existence of the enterprise or the same or similar purposes relative to the pattern of racketeering active ice acquired well i think i'm referring to the enterprise ok the the evidence that the government admitted with respect to the common purpose element of the enterprise was simply that these were motorcycle enthusiasts the government doesn't dispute that at all and the government actually admitted evidence at trial that these people had a constitution a written constitution and in the written constitution there is specific language that says the purpose of this club is to ride motorcycles and hang out and have a brotherhood and to advance the interests of the individual members so to the extent that there was a common purpose that's it and that's not the government's words those are the appellant's words those are the words in that within their own constitution to the extent there was a  the require there be a common purpose it does require that there be a common purpose and that's it and i think it was it was helpful to the government obviously that they were kind enough to actually write it down and spell it out for common purposes motorcycle enthusiasm correct and and not only that but to enhance the interest of the individual members and i think that's important and it's not just to enhance the individual membership as the testimony at trial amply demonstrated as testified to by alan hunter and others that the purpose of this organization was they were one percenter club there was ample testimony about what a one percenter club means there is ample testimony about what a one percenter club's role was in the motorcycle community and a number of witnesses testified that as a one percenter club that club had to maintain its position had to exert its dominance had to in had to assert control over the entire motorcycle community in whatever location they work so th old that applies to all one percenter motorcycle outlaw motorcycle clubs and again a number of witnesses testified about what an outlaw club was and we heard testimony by way of recorded conversation from dominic henley and others about what is an outlaw club and one of the one of the  one of the characteristics that was discussed a number of times over and over again was that if you are a one percenter club you're the top of the food chain the discussions about the bottom rocker's that's all that had to do with was who is going to assert control over the motorcycle community in that particular geographic area  to be to the extent that there's been a suggestion that the government's evidence failed to prove that there was an attempted armed robbery occurring on january second of two thousand and eleven without belaboring the point or exhausting all of my remaining  time the government would simply invite the court's attention to the testimony at trial not only of charles irvin and his friend carl davis but also to the testimony of the two women that were eyewitnesses their testimony was in the government's view entirely consistent with charles evans and curl davis i the sense that they described an altercation involving a number of wheels of soul members who had cornered charles ervin against the bar and were shouting things and back and forth conversation was taking place that they characterized as an argument to the extent that there's been some suggestion that it could not have been an armed robbery because mr ervin didn't hear anybody say that they were going to steal his vast nowhere in any element of any of these offenses was the government required to prove that they announced their intention certainly having a gun at one's face or head or torso or any part of one's body and having knives displayed while demands are being made to remove one's vest the jury certainly could have inferred from that testimony that this was in fact an attempt to relieve mr irving forcibly of his street soldiers vast so to the extent that there has been a suggestion that they couldn't have been an armed robbery because they didn't say it was an armed robbery that's simply not the law at all i think i skipped over mr pickett's argument with regard to the special verdict when judge politan and i got into the discussion about the listening post so i just want to refer back in my minute that i have remaining to the special verdict issue the only thing i would mention with regard to the special verdict appellants have not cited any case from any jurisdiction anywhere in which any circuit court of appeals has reversed a district court for failure to give a special verdict form in a racketeering conspiracy case no matter how complex the facts the fact of the matter is the guy government was simply not obligated to prove and this is pursuant to sew line a single c are not obligated to prove specific predicate acts rather they were required only to prove the kinds of predicate acts so the district court was well within her discretion to refuse to give the special verdict form that was requested by the appellants in this case it is the government's view that it presented at trial through the course of sixty three witnesses and six weeks of testimony what was the government's objection to for the government's objection was simply that we were not required it imposed upon the government a burden that does not exist in the law what so you're saying it was that you would have been an incorrect statement of the law to give  especially for it certainly would have been contrary to the law as it's been decided by a number of federal circuits who have no i'm not saying whether you're rick right you're saying the court was not required to correct it but there are there other cases saying that in certain complex cases the court has discretion to give it correct so and i asked what was your objection and you said it would have been to the law i would have required you to prove something that you were required to prove i think is what you said i i it's the government's position that that would have imposed upon the government a burden that it is not required to meet pursuant to the law to serve here what burden to prove which specific predicate acts each appellant agreed would be committed as opposed to the types of predicate act while there could have been a special verdict form that was consistent with your view of the legal question there could have been and in fact if i'm not mistaken the government actually submitted during the course of the discussion about the special verdict the government actually submitted a proposed special verdict form in the nature of what your honor is referring to that set forth types of predicate acts as opposed to specific predicate acts however after further discussion and reviewing the case law judge perry determined that she was not required to give a special verdict form and that judges it involves it's novel in a litany of contexts and it's about expansion it's about the government's request that they expand their authority under title three and it's about an expansion of territorial jurisdiction and it's about an expansion geographical expansion again membership is different from associating with one another versus whether or not they're associating with one another for the sole purpose of committing criminal acts and there and that's what the supreme court dictates in this case sole purpose sole purpose is where is isn't there a distinguishing factor with respect to whether or not persons are merely associating with one another and one or more happens to commit a criminal act vs under rico only associating with aligned with the historical analysis of organized crime in the united states because it involves the mafioso mob style culture where they had a defined purpose usually to take over unions they had a strict hierarchy there was obvious communication between the mob leader the godfather so to speak to the captains lieutenants and then the street soldiers we don't have that in this particular case what we have is a disjointed attempt by the government to attach every member of the wheels a slow soul across the united states into one rico style enterprise and i think that was the opposite was proven a trial just with evidence of some of the other chapters for example denver colorado not being part and parcel of most if not all of the government's case  expansion point applies with respect to the electronic surveillance issue in this context first the government is manufacturing a listening post rule word doesn't exist it highlights the long ramirez denman and rodriguez cases in support of that but if you look at any of those court cases there's not a listening post now there's also a statute that's in place title three there's not a listening post rule as articulate in that statute there's not a listening post rule and the rule of criminal procedure forty one as it partially implements title three in various contexts congress has spoken with respect to whether or not there is a listening post or it's also a salient to point out that twenty five eighteen provides an exception or parents radical where if it's a mobile listening device perhaps the government should have put that in the application for title three and submitted to the district court so i think it's a misrepresentation of what the law is to suggest that now this court should create a listening post we're not we're one doesn't exist actually statute doesn't see mobile listening device it says mobile interception device i'm sorry correct but there it's in the parent that a call to the statue and whatever when there's a mobile and i saw your point you need a cell phone is a mobile interception device or i think it's ambiguous as to what that parent that are cool is and i think that's what the court in the united states versus geordi you know and that's what justice silverman was addressing in the glover case is that there's an ambiguity there that needs to be addressed by the court which brings me into this glover case the glover case is not so limited as the government represents to your i think justice silverman to great pains to articulate some of the overriding principles involving searches and seizures there's constitutional issues here serious crimes involving a serious invasion of privacy that's why justice so it's so women identified the cat's case which says that a title three search is still a search and it's still subject to limitations and so i posit this question why are there limitations on title three if we're not supposed to file those now the practical application in applying for a wiretap order in this district or anywhere else is the district court is only as good as the information provided to it by the u s attorney who in turn is only as good as the information provided to it by the agents in a particular case i would note that in the district court's order the target telephone is assumed by the district court to be in the district the government should have gone to illinois and done the traditional thing and obtained the judicial authorization to conduct title three surveillance in illinois it certainly appeared in illinois it certainly had agents in illinois and i think that's important justice call it and you mentioned even if i may real briefly mentioned a good faith exception to what i would call technical defects on the eighth circuit the eighth circuit does recognize technical defects in the application of warrants in a variety of contexts but just as silberman creates a suggest there's a huge issue with having a good faith exception where there are significant constitutional issues at play and that's why he suggests that doesn't jive or line itself with the united states versus geordi you know and then also j ginsburg