no i gather from what you want to do ten minutes ten minutes ten minutes saving three for each one yes you know there are several issues that are common and then there are some issues that are independent h i'm going to rest on the brief for my client mr towns unless this court has any questions for me and i believe that in the ten minutes mr ayres is also going to be addressing some issues regarding mr black prove a single overarching conspiracy and we would submit to the court they were unable to do it no single enterprise was ever proven in this case and we would submit because one didn't exist the government failed to show that there was any common purpose or single enterprise that linked everybody within this indictment did not show a meeting of the minds there was near there was association there was  but obviously that's not enough to prove conspiracy and the circumstances have to lead to an inference that there were some form of overall agreement again that wasn't shown and then they would have to show that each of the defendants had a reason to know the scope of the conspiracy and to believe that their benefits derived from the conspiracy scuse me rested with the success of the entire enterprise again none of these things were shown in the evidence what was shown was that there was a group of people the majority of the people charged in the indictment the commonality was they grew up in the same neighborhood in compton that was between eighty third street normandy so it follows many of them were a tray gangster crips members of that gang where they were friends of those individuals that was the commonality the other commonality is that many of them went to spokane in order to sell drugs for profit again that does not create an entire enterprise of all these individuals that were indicted although it's very very strange that you would have everybody either a member of a gang or affiliated in some way with the same gang from the same area in compton that all decide to vacation in spokane well they decide to vacation in spokane at different times and again i would use an analogy of airlines you know you've got all these different airlines and one of the airlines decides hey i'm going to start charging baggage fees for my passengers i'm going to make thirty bucks ahead every time i passenger boards the plane started then american says that's a great idea i'm going to do the same thing another airline great idea i'm going to do the same thing there's a profit to be made and that doesn't mean they all conspired together it means that somebody saw somebody making money and decided to do the same thing again there are so see it s and i think the one of the testimonies of the one of the government's witnesses i think it was madison said as soon as one of the co defendants miles his  of his couriers was busted at the airport with a lot of money everybody realized wow i mean everybody is talking they're all friends with each other so it's friends from the neighborhood talking about it everybody realizes this is you know something to be gained by by going there but again what happened in the trial so we would submit there there was no proof of an overall enterprise but what happened to trial and this ties into the issue relating to the government's use of law enforcement as testimony as experts is that they miss characterize the evidence from the beginning all the way through they had  agent sullivan get on the stand right out of the gates and call this a d t a drug trafficking organization which immediately lent the air that this is one conspiracy then they mislabeled all the individuals that had been indicted by saying if one individual secured their own source sold their their own pills kept their own money the government labeled that individual in the trial as a manager but within the pyramid so they said carmen is the head of the pyramid and everybody else is in the hierarchy in this pyramid which was a complete mischaracterization of the  which one could find one conspiracy i am however with the district court's limitation on not allowing you to argue that these were that these were interlacing conspiracies rather than one conspiracy not permitting the defense to argue its defense that it is a defense to a single conspiracy charge that there were in fact multiple conspiracies and in this case although the instruction was given then mr ayres w discuss that further it really was form over substance because the defense was not allowed to argue and show the jury you know and untangle the the words of agent sullivan that in fact these were separate conspiracies and there was no overall and the government argued they shouldn't be allowed to do that because these other people pled guilty but as this court is aware there are many reasons why guess i thought the district court might have been responding to the concern that as i understand it you all or the defense counsel had been able to get the evidence that all these people pleaded guilty excluded because it might prejudice the fans who were on trial and so what the court thought was that you all were then going to take advantage of the fact that the jury had never heard anything about these people having pleaded guilty to then say hey you they weren't even part of this conspiracy i thought the judge was just saying well if you're going to make that argument that's fine but you have to acknowledge that they pleaded guilty because you kept that you kept out now and that wouldn't be fair to for the jury to be misled i would say if you look at the plea agreements of everybody and i've just got an example of one e c f number sixteen zero four but they're all the same when they go into the background of the investigation and it starts off with and again there's a whole several pages that  mischaracterizes the evidence so for that came in in front of the jury the defense would have to as bad as it was that the jury's going to remember that agent sullivan said this is a d t o the plea agreement shows in short  it became clear that there were numerous members that they came here and that you know i'm not talking about admitting necessarily the physical plea agreements themselves i'm just talking about wasn't the jury kept from even learning that any of the people had pleaded guilty to count one just the fact of the guilty plea i thought that's all the court was saying is that if you all want to make this argument that they weren't part of it you least have to acknowledge that they actually did plead guilty now you can make all sorts of arguments to why they might have done that why they might not really be guilty but you're not going to just stand up there and you know having got kept the evidence of the guilty pleas out then be able to make this argument that would be misleading well i don't know that it's misleading i think because those people pled to that doesn't mean that there was overarching conspiracy and so while the government had spent the entire trial saying there was using words like in the hierarchy the defense was trying to unscramble it and show the separate conspiracies and call them for what they were saying there was no overarching these were separate who were permitted to make that are not exotic allowed to use the word separate conspiracies no not allowed to say you can say they were members of separate you could not say there was no overarching because they pled to it according to the judge in the government air go it must have existed which completely and even if and i'm almost out of time here i've got a case that directly addresses that even if that were the case the defense still has a right to argue their theory of the case and i'd like to reserve if i may hours under the weather psychologist in advance so i'm covering the jury instruction number eight is a constructive amendment to the indictment so we have to look at the major differences we have to look at the end i think i think my concern is really not so much the constructive amendment question as to whether but really the whether the district court didn't allow you to argue that there was an over that there was no overall conspiracy they didn't allow a loud the defendants to mention that there was multiple you know little or conspiracies that's really what it boils down to the and jury instruction number eight kind of gets to that point a little bit so the major differences between the indictment and jury instruction  indictment counts who's language from one twenty eight says did knowingly and intentionally combine conspire confederate and agree with each other and with other persons whereas jury instruction or eight says there was agreement between two or more persons to distribute oxy contin your contention is because the indictment mentioned sixty two people that it's ever to instruct the jury that they can find it's just two or more they had and they had to instruct the jury you had to find all sixty two yes because here's the thing that's what they charge was sixty two well the charge of conspiracy charge the conspiracy among those sixty two it doesn't mean that all of them are going to be convicted of that but here's the thing when they charge that when it came to the petite jury that jury instruction completely changed the dynamic of what the conspiracy that was charged so the defendants or alternately getting convicted of a crime they were charged with that's what it really boils down to so they're getting charged with two or more people not sixty two  conspiracies he's forcing the jury to decide whether there is one overall conspiracy it may or may not have involved all sixty two but it needs to involve a whole bunch of people or you don't have an overall conspiracy well the little bit of a double edged sword here yeah and the biggest limitation is on the fact that defense counsels limited from mentioning anything about so you know singular can see multiple conspiracies right that's the sort of forces the government to it's proof it's going to wind up or down on the question as to whether there is one overall conspiracy but they never said anything about and they never proved an overarching conspiracy when looking through the record you see different things like for instance i'll give you my client mr blackman what was proven against him is the government would go down piece by piece and say oh you know like for instance and horn's testimony she would mention oh he had social visits with people at flame and joes oh you know he was branch you know and she was doing drugs with the carroll but at the same time they said oh everyone separate every no one's with carmen there didn't appear to be any taxation connection between mr carmen and mr blackman or mr carmona mr tones and weren't you know the thing is is that's how those jury instructions were misused by the government because they didn't have to prove the overarching conspiracy because of it and they were required to i can tell you this that trial counsel did argue to have the indictment put in as an exhibit with you know with the to go back to the jury so that they could have a better understanding of the scope of this conspiracy of the sixty to defend a conspiracy but ultimately those defendants were convicted of a crime charge of not or not charged by the grand jury so is your contention that if that if the if the judge had had said we got sixty one people here that you would you have to find that that would be a constructive amendment of the of the indictment as opposed to sixty two you mean right yes because if it were if they weren't the jury would have to come back and find you not guilty even if even a can find sixty one you have somebody on the list that got got got tossed in there got it's going to got swept up and they get dismissed early on out of the out of the case everybody agrees to it well in that case the government could have come back and superseded they did it didn't i let suppose it doesn't happen but at that at that point you're saying that the jury would have to come back even if it had a conspiracy among sixty one people but i would have to come back and say well this is otherwise a construct of a amendment of the indictment therefore it's you're off  would seem sort of silly doesn't it at first yes but i would say you know what the defendants and you have the rights to a public trial and a right to you know have you know nobody's going to let anybody know nobody going to bar anybody from the court right right and to have basically the  case proven against them beyond a reasonable doubt so it's got it would be the you know six to ten in that case otherwise the government can supersede and you know a little bit before trial just to change the number i've had it in another case where slight language just before the trial was supposed to take place in the district court on another case where slightly which was changed two weeks in the indictment of course the government gave defense counsel a heads up that that language was going to change just to correct it in case there was an appeal of sorts what happened you're suggesting amendment but of the indictment before trial what happens if you know the united just sixty two the evidence comes in and as to one of them it's pretty clear that it's  it depends on what the evidence is against all the rest of the defendants it really does well it's enough to convict them of unspirited but it's a sixty one person conspiracy is opposed to a sixty two can person conspiracy which is what was charged indictment then they could have proven it against the sixty one i'd have to concede that a little bit yeah but what do we need to do with respect to any amendment to the indictment little we need to do with obstructions i mean i'm with you with the instructions itself what should have been done was that they would have to put in at least the indictment as an exhibit which was tried and the court didn't go along with at the trial level or they could have had the language matched the indictment for jury instruction number eight which did not happen here the other issue i want to cover was the unanimity instruction so the court improperly denied the proposed unanimity instruction as to the number of the member in the membership count and the duration of the conspiracy and it was that was and i know the court the government charges as we know sixty two people over two thousand and twenty thirteen basically the court has to look at several items they have to look at the clarity and the presentation of the government's case which in this case is pretty messy it's you have when the government tried to prove the case they change from one line of questioning to another very quickly without finishing the thought and i can tell you the best way to understand this case is reading how the defense counsel question because they had to make or unravel everything the government was talking about and it was more streamlined and understandable the texa instruction would have helped that membership and duration of the other don't have too much time up at the last couple things i wanted to cover in regards to my client was mr blackman was that first degree kidnapping of state of washington should not be considered a crime of violence currently right now second to reach an app is not this court's found that and and the government as well as the court from looking at a down and over an eastern district where they went through the entire categorical analysis step by step by step here mr blackburn never even got a chance to have his to have have his statement to plead guilty or sentencing with regard to the california drug crime marijuana crime that he was convicted of back in the ninety's and thank you your honor i want to reserve the rest of my time thirty seconds it please the court and council my name is suzanne elliott and i represent our friend carmen and i am going to confine my comments today to his conviction under the c c e count because he was the only one who went to trial on that count  i will begin by stating that my issues are likely to be reviewed under the plane air standard that is that there's air that it's plain and that it affected a substantial right  seriously affected the fairness and integrity of the proceedings my argument in terms of the unfairness and the serious we effect the serious effect on the verdict in this case has to do with two primary cases from this court one being jerome and the other being barona and because the government here presented evidence and argued that carmen supervised or controlled persons who asked a matter of law were not supervised or managed by him and who specifically are those people who did he who he did not manage i can who are the people that as a matter of law could not be supervising use their well there are one of the informants who was simply a buyer seller sally got three who was his of romantic partner who rented a vehicle but was never involved in the  the overarching conspiracy never delta need drugs or anything and there was a daisy ochoa who was a woman who was also a romantic partner of mr carmen's whose house was raided in california but he was never in spokane and was never manager supervised by mr and both of these did both these plead guilty debate plead guilty to conspiracy where they charged they were charged with both charged this got three i don't believe pled guilty to charged but she was nevertheless included on the list of people that he managed to supervise yes and then there was brandon who was charged but who testified he was an addict and bought drugs from carmen so he was with i think i think i think for saying that he's not part of the conspiracy i'm pretty well you see i'm not arguing about the conspiracy i'm arguing about whether or not he was managed supervised ok organized you're willing to concede that he was part of the confederacy but not everyone him in the conspiracy was managed the proviso organizing and that's the difference between obviously the c c count even though you even though he was threatened and he felt threatened then he felt like he had to respond to things that carmen said because crimes that was going to hurt him and again he could do it very very quickly and he knew that he was supposed to respond to the plane air where is the plane air or the plane air is that that the case law is clear that buyer and seller relationships are not sufficient for supervision and the plane air is that in parana is there any people in this conspiracy who were argued by the government who were not manage the supervise ease or under carman in terms of the of the overarching conspiracy or overarching c c count and i have listed individually and their testimony in our brief i see the government's reference to a show in closing argument did the government also argue that guthrie was a super so i'd like to get to that briefly as to how the government argued to supervise the prior to trial trial there was a lot of litigation over a bill of particulars and questions about who's going to be what's your argument going to be about all these people and the government said it's going to be everybody and in that particular her letter it appears to be sort of the pyramid scheme which was well if carmen supervised michelle reeves and she had three people under her then you know all the pyramid goes up to carmen and for ok that was the original theory however in closing argument and in trial the government posited two different theories the first one was what the government argued was and i would pose to you that evidence is quite clear that a majority of these individuals can be traced back to mr carmine and mr hayes as being managed unsupervised by them because after all it's his pill game it's his hustle he was the million dollar man this theory was that because mr carmine had come up to spokane early on and realized that he could sell pills for more on the streets of spokane than he could in spokane that anyone who came after was manager supervised organized by him that's just not supported by the evidence and as we listed out and describe each of the other well well there was some evidence even in the testimony brandon warner that carmen threatened him and said you're dealing with me and if you're talking to other people you're going to get hurt yes but that doesn't mean that mr carmen was supervising all of those other people knowing that there may be you may have to have other evidence of that certainly indicates that carmen carmen was a big dog here yes absolutely he was he was he had sold a lot of drugs but that does not mean he was managing everyone who was selling drugs  rather ubiquitous way on the streets of spokane i mean the government's theory was that if you came up to spoke if he was the first one up there and you came up after him you were his manner g organize your supervisor and that just wasn't true in fact there was a great deal of evidence about a schism between mr carmen and mr reeves and the rest of the group and that leads to the government's other argument about why he was an organizer manager  r important person in this continuing criminal enterprise and that was this theory of taxing first of all i don't believe there's any evidence in the record that anyone paid the tax and this led to a big schism it's described in our brief but in closing argument the government argued that carmen charger wanted to charge everyone that stepped into the selling pills in spokane attacks and the government then argued rhetorically is that not managing or supervising i can find no case anywhere in the country that says that taxing someone is equivalent to managing organizing or supervising them and i can't find anything in the record that shows that anyone paid that tax so on that theory again the government's theory of seller relationship with her but they had well i don't believe there's any showing she sold drugs at all she rented the apartment in los angeles why does that disqualify her from being a supervisor because she wasn't being manager supervised as a part of this conspiracy i think she read an apartment and they were romantic partners and for miss got three she her relationship with carmen was romantic and she said that she rented cars for them and until the time of the arrest denied knowing that they were involved in drug drug trafficking at all she had them hosted them at her restaurant she let them stay at her house because she and mr cartman had a romantic relationship and she said she rented some parts for his friends but there's no showing that she sold any drugs at all so the problem with that theory and the and the finding the five supervise these men a g s and organize these and the government's theories about that were exacerbated by the jury instruction which then did not state correctly what the jury had to find and that's jury instruction seven and i agree that there was a unanimity instruction in this case as required by jerome so the jury had to be unanimous as to which five of the other members argued by the government where men were supervising so we had a jerome unanimity our instruction but the instruction failed to tell the jury that they had to be the unanimous as to the five persons who were supervised instead what the jury instruction said was they had to be unanimous as to five persons quote in the enterprise well that's a completely different concept than being a supervisee in the enterprise meant you had to unanimously agree that there were five other people who were selling drugs who were part of the conspiracy that jury instruction should have said you must agree on the five persons who are managed organized or supervised by carmen so you had the problem of both being over inclusive including people who as a matter of law could not be supervising ease and then you had the jury instruction that then expanded the universe outside of what would the government was required to prove and simply to prove that there were only there were five more people in the end and obviously enterprise was picked up from honors for the united states first i just want to say that this is a simple case with overwhelming evidence the fact of the matter is it's a conspiracy it's a scheme and before i go into the details of the conspiracy i think we have to keep in mind when a conspiracy is committed conspiracy is committed when the two elements are met that being that there's and agree there is an existing agreement and the defendant agrees to join it everything else all of the acts in the drug conspiracy that are presented as evidence are simply presented for the fact to show that that individual had an intent to join the conspiracy so with that why do we say a overarching conspiracy it's an overarching conspiracy because this particular scheme is different than anything else that we in our common understanding or common thought process really look at what happened in this case is that some individuals but one individual in particular we are been carmen started distributing pills in spokane it was called a hustle hustle was defined as a business that's how particular i say particular today trey's in this case because that's who testified at the hustle was their business illegal or not it legal that's how they made their money are even carmen had a hustle going on in spokane he reached out to gilbert madison madison in turn connected carmen with miles madison came up madison brought sent turner up who is  alternately madison came up madison stayed for a while there were others up there that were also working at the time testimony from madison was that these individuals were working together they were  paying they were required to pay a tax to carmen to come up and do be involved in this scheme as this scheme continued the conspiracy continued and i may be jumping around a little bit but this conspiracy continued from its alleged beginning to its i would say alleged and when all were arrested are going carmen was in the very center of this thing for the entire time so help me understand because it's not quite as simple as i think it took a long time to try to sort through all this but i got the impression that there might have been some early period in which carmen was trying to enforce this tack scheme which apparently  not work it wasn't successful and then it's really the period after that i think most of the evidence the trial focused on right i can't remember the dates now it's like two thousand nine hundred ten and whatever it is going forward until the end point and in that period it just seemed like it was the wild wild west kind of similar to the airline example that your opponent offered so why why is that not correct that basically everyone just saw what a thriving business carmen had established and decided we want to get out of this action ourselves and kind of set up their own muscles i would say yes and no first i would say that absolutely it was described as the wild west a conspiracy group and the reason why it grew was because of the commodity and that's where i say that this differs from perhaps the airline example or perhaps even better the example of car auto parts dealers that was referenced by mr tones as counsel on closing this is a commodity that has no other way but to grow the testimony was from dr layton which is not in here but who testified on behalf of mr chavez that in the time period beginning  in two thousand and eight two thousand and nine it just went exponentially and grew it became almost an epidemic i think that we can all understand oxy or the opioid epidemic so what happened is that it did grow so yes it got bigger and bigger second why did the trial focus on the end the end time or the middle to the end and i would say not necessarily the middle to the end because madison who was there in the beginning testified horn who came in two thousand and eleven testified and then couriers that it come up at the end testified what we didn't get testimony from was defendants who were in the beginning because they did not agree to cooperate or i'm just trying to get straight in my head how the thing worked once this taxing idea came and went because in order for carmen to be the head of this overarching organization afterwards would he need to be getting a cut of everybody sails and it didn't seem like there was evidence that that was happening not necessarily and here's why for one thing in this in the matter of a conspiracy people can come and people can go there if the core men the same as one of the factors that we have in here so in this case we have core members as they say those that came in and got kerm or authorization to come in and engage in this scheme could leave the conspiracy but that doesn't mean that they weren't part of this overarching conspiracy from the beginning as in the ninth came in after mike at the end of the conspiracy he was still guilty of being a conspirator so the fact that carmen may not have been able to tax didn't mean that he didn't still continue to benefit from the people that were in the conspiracy for one thing everybody continued to benefit because of what the commodity that was being sold people testify that they shared fades they shared their people that they delivered to sometimes they didn't like to do that sometimes there were some competition and people stole fades as they said but this is a commodity to where if if i sell a person one oxy pill today as the testimony was this index by the attics that were involved this group that means that someone else then i would probably sell that person to oxys next week maybe for oxys the week after that so what happens is that this is not a type of an organization to where there's just limited amount of money or limited amount of resources that they're going after this continues to grow and what happens is that they're able to feed this addiction and therefore if if i sell to forgive me your honor but if i sell to your customer today and i go back to los angeles somebody else comes in as my customer as the customer you're going to come back and continue to buy when i'm back in town and probably buy more what they did is they grew the entire conspiracy or scheme because of the actual nature of what they were doing now the next thing is why is this an overarching scheme why is it that people could come up and kind of do their own thing or as they say are divided into crews are divided into franchises are these words that were used to kind of one of the terms was independent contractors gives rise to concern right that these were independent operators doing that they had their own hustles and they weren't in fact paying a cut of their profits back to carmen so how how is it that he was overseeing the whole operation it does your honor in the way that we think about that term however i would say that in our office we have contractors that are not a part of the department of justice but still further our mission so that doesn't mean technically that independent contractor doesn't further the mission of the group now the result just to help me with this one question is that carmen is controlling the supply of the pills up to spokane like he has a bottleneck on so everybody who's out there distributing is there treating pills that he was responsible for having santa or are there multiple you know distribution channels up to spokane that don't involve him there there are multiple there are multiple suppliers everyone  evidence is that other people got their own plugs their own supply but the system that was placed in the fact by carmen and and maintained by the score conspirators is different then our general of conception and here's why as the court mentioned that it's that there is significance that these men these people that were involved in this conspiracy were a trade gangster crick members from the same neighborhood the purpose of this was to come up as madison said was to elevate basically to elevate a tray he became dissatisfied with what with the greed that was happening testified to is testified to by one of the absolute highest members of that structure he also has testified that there was a structure that a trade structure continued to spokane albeit somewhat differently as madison indicated he was a big homie in l a because carmen initiated the pill hustle in spokane carmen would be considered a big homie in spokane in the context of this hustle so much so that if you were madison was subordinate to him when he came to spokane now that all sounds like i hate to say it but a bunch of words but what the meaning behind those words is that this structure this structure of authority that was describe someone as paramilitary as soldiers  generals translated to spokane because it was a way of life in los angeles we're dealing this case dealt with individuals who testified that they had arch enemies within their neighborhood because they had arch enemies which i think they said was another gang they had to have each other's back as she read a horn said we when you become a member when she was adopted into a trace all of a sudden the expectation was that they would i think i'm quoting this would back each other's play so with this mentality this in  a grown up in a violent neighborhood testimony that relying on each other to back each other's play relying on each other with this structure of authority that they followed  within the gang structure transferring that to school can the same structure applied you know other words you keep using the word structure and i don't understand how it translates into facts on the ground so you're what i hear you saying and really all i hear you saying actually is that every single member who came to spokane even if they got their source of pills from somebody who had nothing to do with carmen if they just emulated his you know his hustle on the ground and they never none of the money they made ever made it's way back to carmen that they were somehow part of a conspiracy that he had and that to me makes no sense whatsoever because they are allowed to come up here they had to get to come up and that's what was testified to by madison they had to get his authority to come up and engage in the hustle and when they came up he set people up in the beginning such as to he more he set him up and he set the horn up and they were then allowed to continue to do their thing now that means now that's what i go back to what is a conspiracy a conspiracy is committed when the agreement to join is completed that's it there's not an overt act we didn't have to prove that any number of these individuals sold pills on have even left a conspiracy they can be and they can be out they can divide up into subgroups within that conspiracy it is a conspiracy and it continued and carmen in many ways was the heart of this the center of this not so much as a wheel and spoke type conspiracy that we see with one person giving out pills down each spoke but in this case it was one person that held the authority of this wheel and spoke type situation ring around that conspiracy as is set forth in the case law was this mentality this structure that was expressed in testified to in trial that that carmen had the authority and that you had to get his authorization to come up and do it so in terms of multiple conspiracies i wanted to indicate the question was asked whether or not how the defense counsel was able to argue and i would note that are on and excuse me closing the way that closing was set up for the defendants if the court recalls was that they tried to divide up some of what they were going to argue the defendant that's not present mr chavez his counsel really established the multiple conspiracies argument they want the fact that the court gave them that instruction and what was stated in that argument was quote what i'm here doing i'm here stablish ing the multiple conspiracies that existed in this case what occurred at closing was that names were placed think they were magnetic if i recall were placed on a board in different groups to do to quote establish the multiple conspiracies that existed in the case or to be able to argue that to the jury in fact that siniora are forty eight seventy one through actually through forty eight eighty two so he was counsel was allowed did argue that there were multiple conspiracies next over objection over objection by the united states district court allowed counsel for mr tones to state we have set out  what we would put forth as a bunch of different conspiracies in this case mr tones came up here except for a late in the case later on counsel said these were separate businesses working out there so they did get a chance to argue their theory of the case the contention can you address on the merits why the district court was right to restrict them because that just struck me as an odd ruling from the court i didn't quite understand why the court would think that it could be stopped from saying that this person was a member of the conspiracy well i think your honor hit on it and i had in my notes that i think the parties probably didn't articulate this is well the defendants technically were not prohibited from saying that the that their other co defendants were involved in different conspiracies but the court said yeah but you have to say that they pled guilty to it so the practical effect as i think the parties presented was that the defendants were prohibited from arguing that which makes sense they certainly would not want that to come out in closing argument and i think the reason why the court why that's correct is is twofold one is that for the defendant to leave this inference the jury instructions say that the court's not supposed to consider what other people have done in the case so for the defendants to leave an inference that there is this question out there about these people are all in different conspiracies they must have pled to different conspiracies they must have decided this and done something different the court simply was saying paraphrasing is that you have to present the jury with the truth you can't present them with a a suggestion or a false narrative or an inference to a false narrative to say that they pled to different conspiracies without the follow up  that they were involved in different experiences without the follow up that yes they pled to these conspiracies and so the judge wanted defense counsel in closing argument to inform the jury about the fact that no evidence had been presented on a trial is that that's what i'm just i don't understand what the judge was trying to say but i think with the judge is trying what the judge is trying to say today is that if for example will take somebody they didn't plead or that excuse me  that richard haines right richard haines was an intricate part in the whole entire operation a core member of this conspiracy now for council to say well richard hanes was part of a different conspiracy then that raises begs the question is will if he was a part of a different conspiracy and this pill scheme  d it leaves a question out there that says ok if i believe that then he was part of a different conspiracy and everybody's part of a different conspiracy it takes what it does it takes the focus away from what's at  issue is one whether the conspiracy existed to conspiracy to distribute pills existed and to whether that particular defendant on trial became a member of that conspiracy in fact that so to so to leave this false inference out there that somebody else may or may not have belonged to it didn't allow it wouldn't allow the government to say yeah but they all pled to it the  jury did hear from i think twelve people ten or twelve people that pled guilty to that conspiracy and i would i did want to clarify brandon warner was not charged so i got three was charged but ultimately resolved the case through a plea in state court and daisy cho was not charged in the conspiracy but i did want to clarify that for the for the record for later on are you going to address counsel's argument as to maybe those individuals in particular that as a matter of law could not have been deemed supervised yes your hon and i would say that the difference the difference between the difference between jerome and in fact grown as  well i'm not i'm not sending a text i actually had forgotten the case that looked it up is that first the government doesn't concede that people were presented that were not that were not  legally eligible in jerome it states and this i think this is the background of this it is established that the statute is satisfied with respect to the five persons organized the person charged with the continuing criminal enterprise did not have the same kind of relationship with each of them and the relationship did not exist at the time and the five persons did not act in concert with each other so long as they acted in concert with the organizer in this case well can i ask this just as a legal matter does the supervisee need to know that they are in fact assisting in some illegal enterprise because your point to argument as to i can't remember which one are guthrie was that that person yeah that person might have run into some cars or let someone stay up there but they didn't know that they were helping further a drug distribution conspiracy well i would i would submit that that in the context of the second the second question of whether or not a person is in the enterprise and our response to that is a person can be charged in a conspiracy as in and known other or not actually named in the conspiracy so our position is that despite the fact that mr warner did not was not charged and hence did not plead to the conspiracy that he was still part of a coconspirator and then i'll move on to the others but he was a coconspirator because he agreed to work with carmen he purchased a nuff pills well i think the records solid mr warner and then i rescued this guy i'm not sure the case law is very clear on the point of conspiracy and enterprise of course different words and they may mean different things is it possible that someone can be part of an enterprise without being part of the conspiracy that is to say can carmen be supervising people and directing people they've not agreed to be part of the conspiracy but in fact they're furthering the purpose of the overall enterprise going to be part of the enterprise but not part of the conspiracy i will i will agree that it's not clear on the case law and i would say that if the enterprise i think if the enterprise is is defined by a series of continuing drug offenses or defined by how many people are involved in that and one person who is the person that's guilty of continuing enterprise that i don't know that a person would have to be because if they a is basically a lesser included in that i think that there is a connection in this case i can't think about it should be a supervisee would have to know be a knowing participant in some wrongdoing right let's just for example in this case if it had been let's say there was some person whose only role was to book airline flights between l a and spokane they had no idea what the purpose of that was but they sure sure did it and it sure did further the enterprise that person could be counted as a the one of the five could they i don't believe so your honor just as someone who in many ways has mere presence in a conspiracy but doesn't have any intent to for that reason since you conceded that can you go back to the question i posed a minute ago which is that your opponent at least argues that one of the two women either got three her or i can't remember which one did certain innocuous things that in the real world are not crimes  and of themselves yes they did further the enterprise's goals but that person didn't know that they were helping the enterprise and so yet you guys argued in closing that that person could be counted as a supervisor that's the arguments are just you didn't respond yet  that so in terms of miss ms guthrie i would indicate that as the united states pointed out that this was more than simply we would submit is more than simply a romantic relation with  in this case through the course of the time period the conspiracy three not only had people staying at her house again all of these can be explained another way but when they start adding up rented cars not just for mr carmen but she rented cars for other members of the conspiracy including mr james and i believe mr moore and possibly  of the conspiracy she was she was asked if she wanted to join the conspiracy by carmen carmen indicated what did they ask for precisely if they had so many words you want to join the and what did he say no what happened is that i believe that the testimony is that she was complaining about some bills needing some money mr carmen offered quote and i'm not quoting i shouldn't an opportunity don't have in front of me quote but i would say that that was the intent i believe that ms guthrie indicated that she knew what he was talking about and and so how do you how do you show that she agreed to do that without an infer without an overt act this is what mr did she went to the bank she withdrew exactly six thousand dollars and she hid it in or wall and she was she indicated that she was did that for purposes of the conspiracy ultimately that money was and i say that money was seized because it happened at the time that can at the end time of the arrest and she indicated she was still on the fence but the truth but the point is that she had knowledge of what this activity was about and she continued to assist at the time even at that time she had rented a car for m did not was not on the rental for the apartment that was in on a case in glendale california ms reeves was actually the renter of that apartment as she was the  of the one in spokane ms it show however was the was signed up for all of the to pay the utilities on that apartment within that apartment when it was searched there was pills there were found firearms that were found now the question then becomes did ms chillun know what was going on when she was facilitating this place well evidence was submitted  from social media evidence they had misess with piles of money relevant to the conspiracy and i would argue that while like any defendant we can't say what did you know what did you mean this is the type of evidence that would indicate to a jury to a jury that she knew what was going on she was a utility she lived in the house there were pills there she was but so alternately i think what it comes down to is these individuals were presented to the jury amongst others they had a connection they had a connection to carmen they didn't necessarily have a connection to everybody else which again the unites i'm sorry i'm over i think there was a knot there there was enough to be presented to the jury for the jury to find them to be supervised he's ok thank you very much only have a few points to make here and the answer to the court's question about the guilty plea issue in closing argument and not being able to argue that the other swear part of separate conspiracies and not over the over arching the fact that the other defendants pled guilty meant that they waive that defense but the appellant's here went to trial and they didn't wait they have a right to that defense and not being able to argue that took that  exact because what he's saying it will cost you as i mean it's true that they pled guilty right but not as you could say and people plead for different reasons right but then as the court pointed out none of that evidence had come in  the court before it so that the trick the jury during the trial that was all going to be coming up for the first time in closing that also i would say increases the defendant's burden because now you have to explain why these people pled to this and they  really were part of a separate conspiracy and you've got fifty plea agreements there's no way the jury's going to take the defense counsel's word for that and the jury can be left the way they were forced to argue with the jury can easily been left with the impression that you can have multiple conspiracies at the same time you have this overarching conspiracy but these multiple conspiracies are just part of it because other jury instructions had said you can have subgroups accent or a so that was easily a cause for jury can confusion also to the government's point that all the individuals had the all the e t g s had to have carmen's permission to come to spokane there's clearly nothing in the record to support that other than madison saying that for him he needed carmen's permission and that was back in two thousand and nine i believe and then the last point is simply that the government seems to be  very your honors i just want to make a quick mention that there was no the government did not mention any business connection between mr karma mr blackman when he when they were up here or a business connection between mr herman mr jones either mr blackman did not further any mission for an overarching conspiracy he was out for himself clearly from the record  and in regards to what the government said that they had each other's backs like you know the conspiracy had each other's backs it's clear in the record they missed from the testimony that mr carmen thought mr blackman was a snitch i mean if so if someone think snitch you're not going to want to work with and in vice versa i mean that just creates a very huge conflict in terms of personalities and to jump off of the authority to come up issue  black man that's on the record mr blackman has actually been up and it was up in spokane since to at least before two thousand and four because two thousand and four was when he got his kidnapping conviction in washington state court so it doesn't make any sense  thank you just briefly i appreciate the government's clarification about miss guthrie but she got a diversion in federal court i commend the court to the government's witness miss horne who testified that guthrie had no  in distributing pills that c r one seven seven two there was a discussion right before the arrest warrants came down between mr harmon and miss got three and she did take some money out of her account but she consulted with her children and her children told her that she should have nothing more to do with mr carmen and so she did not give him any money her testimony is  five two zero to three five forty or so and it's clear that she denied any involvement in the conspiracy at all there was no showing that miss ochoa took any direction at all from m carmen or miss reeves the fact that she was pictured with money and paid for some utilities is unconnected to the skin spirity or to any supervision family and we do go on at length in the brief about it but again alex james according to the government's witness mr madison alex james never worked with carmen that's yar one zero zero one he had his own business so in order to convince the jury that all of these persons were carmen's supervised they had to rely on two theories that simply weren't sufficient and that was the taxing theory and the they all learned this model from carmen theory neither one was sufficient to prove that all of the all of the persons argued to the jury were supervised these organizers or managed by carmen so he would ask the court to