coconspirator statements and adequate polling of the jury following its verdict in proceed will air at sentencing but it will variance argument these facts i submit to the core what are essential for the court's determination and of course we are looking at these backs in the light most favorable to the verdict two thousand and fourteen capone you know martin or distributing large quantities of methamphetamine from the jonesboro arkansas lawyer to the greater st louis area stems regarding brian holt in that conversation sims he quote does not mess with old and does not know him at trial hold confirmed that the us testimony that he'd never met  for methamphetamine in correspondingly there are two methamphetamine transactions between hold and a confidential informant supplied by law would those transactions will localized to the jonesboro arkansas area our analysis never contingent in that this trial evidence proved to conspiracies there or fatally bearing for him life and we've charged one on one hand as our contingent there is a conspiracy between simms capone martin and the other a nd conspiracy involving cold and law now the factors that corpse the term used to determine it is there a single overarching conspiracy or two conspiracies are obviously st as basic fundamental conspiracy law was there a common purpose was there mutual dependence that all the alleged members of the pinned on i mean why is the location of the distributions and the timing the five months later toca in two others morales and wayne is agreed to deliver marijuana st louis they were charged in the sequel conspiracy but this court found that there was in fact two conspirators as the analysis was this there were two commonalities in that case you have the same drug marijuana and you had a common player to go but this course all three important distinctions that made this two separate conspiracies the locations  different to st louis timing differ they were four months apart and most importantly there was no mutual dependence between these two groups they did not depend on each other granted they had a common purpose ultimate source dependency the parent of everything the mother of everything on the location element this is the way i read the trial record is sims testifies and you can find the supreme treats for a page i think about to  was again two different locations primarily large distributions very st louis possibly although we don't know what timeframe and there are new specifics some limited transactions and same part in the jones morion a d so going back to the i c morale is really the controlling issue that we have the same drug methamphetamine we do have a same a common player capone but in the locations we've had a timing seven or eight months later and what will ultimately be by my argument to the court is there was there was no mutual dependence between these two groups of people polled in law would were not dependent on s to the phipps is you have the thieves who are supplying the stolen goods to the dance the fence then putting stolen goods out in market place the supreme court found that that would have been separate conspiracies while there was a common purpose to put stolen merchandise on the streets there was no mutual dependence the spokes were not dependent on another spoke they were dependent on the hub but not the  three types of prejudice underlying the spillover effect there is no spillover effect you know the defendant was involved in both conspiracies so for the same reason i just articulated why i think that there are two  that of some saying of receiving calls and going no i don't have speculative as to what that met and again i know we're dealing with a deferential standard of review but there still has to be substantial saying literally i don't have any or it's because i don't deal with holton i refused to be in a conspiracy to hear from mr dickinson afternoon my pleasure be here may it please the court my name is bart dickinson and i represent the united states in this case the four issues before the core the court's aware of and we have brief those issues  our brief appellants brief as as to the st issue united states does believe that the proven evidence submitted to the jury at trial did not constitute a variance from the indictment the purpose of fish and to prove that  review is limited at the record contains evidence a jury could find that one overall agreement to commit an illegal act the evidence of one conspiracy in this case he moved for judg acquittal that was probably did not the district court include a jury instruction regarding single versus multiple conspiracies and counsel argued that point at trial and the jury convicted mr sams of holt and the primary area was jonesborough the argument about st louis i don't think that's relevant because for mr sands it was always jonesborough it was a source of supply in jonesborough to primarily the head of the drug trafficking organization freddie capone any subsequent cells by matthew martin or distribution by matthew martin may or may not have been part of mr sam's agreement to st louis or in the and matthew mark and mr sam for all was just a source of supply in the jonesboro area also mr simms acknowledged in the evidence showed that there was a relationship and knowledge both touch with mr simms mr sanford st to brian hold a zero street name and says i don't know and i don't want to deal with him but i submit that's that street talk for i don't trust him i capone but nevertheless there was evidence that mr sams was still in gaze involved in the conspiracy in the jonesboro area with mr capone and at that time more with mr ho then the the argument that there was a letter a nd conspiracy with mr hope mr logwood the evidence was clear and there were records introduced to show that there were attempts to contact mr sams to obtain that methamphetamine methamphetamine through mr capone i do believe in fact that there this was a single conspiracy that the jury also agree with that there are cases that are each other identifying sources those are all factors to consider as how you know i ask can i ask a simple question about look at the record you can tell by the question what's the last date stamps really supplied  new governments new to this conspiracy well there was testimony from me many cut contacts from law enforcement as well as for mr martin the last evidence that he supplied there were phone context in the wiretap where mr sims was advising mr holm that be careful look out there's a canine unit coming by so there was certainly there was evidence that mr capone mr sims were still meeting april of sixteen there is evidence that he will supply methamphetamine to freddie capone through the conversations recorded in the wiretap between mr capone and mr sims what's the best evidence that sims had a common purpose would love wouldn't hold how do you deny them together i don't see how mr sim to to german law i don't believe that those two conspirators were aware of each other or aware that their involvement in the conspiracy i do tie him to brian holt because brian holt made mention of multiple attempts to contact gary sim specifically there was a phone conversation where verdict but was going to be out of town sales i'm not i think it certainly shows that there are further in the conspiracy and they had the same common purpose to distribute in that area absolutely especially when there are other there are so when conversations between other talk about continuing to use whatever source there is and there was the brian hall in pretty good palm discussions it your source will split the money it was my source will split the money that was part of the record as well and i think it shows that those two individuals were looking to continually obtain methamphetamine gary sims also had such a thing as their counsel is attempt to conspire right that's correct that's correct  vs barth clearly shows that the variance would not be prejudiced prejudicial spillover in barth there was involvement but just like barth mr simms knew three  he was the the primary contact for to palm never changed his role never changed in the area and his his role never changed in the jumper area and it was always methamphetamine with mr own so i don't believe both were in fact the clarence who were escorting to the united states versus our eos a conspiracy did exist they were declared and if it were all members of a conspiracy and those statements were made in furtherance of the conspiracy the standard reviews abuse of discretion and i think that this is our as and us st date as cases certainly point out that in a case involving the conspiracy trial there is a broader discretion conspiracy talking to martin who was a previous distributor of methamphetamine telling him gary's got the plug there is a good source of quality quantity and supply of methamphetamine here and just as he has always i certainly believe that he was further in the conspiracy making those statements also statements by mr holt and mr capone later in the wiretap that came into evidence again talk about whether or not gary had some in whether gary could supply g s and z's all of that how he they wanted to get in touch with gary to be a supplier of methamphetamine so i do believe those statements are appropriate to be have been admitted by the district court comes rd point it goes to the inadequate or the refusal to poll juror number four and of course this is the case we found not much in the th circuit however we do know from maya that there is no prescribed procedure that if courts request this and it's appropriate that the the district court should pull the jury and that's exactly what happened in this case none of the circumstances in the cases cited by the of deliberations as to concerns about health and wanted to get off the jury the district court adequately addressed that issue did not excuse a juror and when a verdict was returned the jurors were polled and without pa hesitation or any hint of concern or reservation each juror affirmed the verdict as their verdict you slide right by that i bet you anything the record doesn't really confirm what you just said well you had some kind of comment after they affirmed became the verdict and so that was a little bit as to what was in the record here however and that's the reason there's so much discretion and it's there's no prescribed procedure in a situation like this because it's hard to tell and that record doesn't always show that but i don't think there's i think that the district court held this appropriately and follow the same standard what is suggested in government versus virgin islands ver exact standard in which this court the district court used with the poem the final argument of the appellate talked about the sense in gallon range which again is a standard of review is abus conspiracy in this case the the appellant was finally did the amount of calculated methamphetamine was about ninety nine grams and that was based on delivery by matthew martin who testified that he at the time that but he also acknowledged on redirect that all of that methamphetamine was supplied by gary sams and the calculation up to lay was was very generous and gracious to the appellant to only limit helm to nine  grams of methamphetamine i believe that the court very well could have made a higher determination as to how much the the appellate was responsible for with his coconspirators in the delivery of methamphetamine in furtherance of the march st two thousand and sixteen were recorded phone call again i suggest you not in furtherance of the conspiracy that was a pill transaction by that time the record was clear martin had testified i was for from the pre sentence report came from capone martin transactions in july two thousand and fifteen the current state of our guidelines is that we analyze looking only at the scope of the defendant's agreement not the entire scope of the conspiracy for what a defendant will be held responsible for question is what was the scope of simms as agreement i suggest of the court there was no evidence to suggest he was a member of the conspiracy in july two thousand and fifteen