there we go ok you may mute yourself if you're not speaking but it'd be good to leave the video on so i know everybody is connected and the court appreciate your willingness to accept the appointment in this case and the criminal appeal this was an extremely complex fully litigated jury trial in the district of nebraska there are real they brought to the attention of the court in the four of them what i would consider to be novel and complex issues of law as this court knows by the record and the briefs apply this was a prosecution under rico and under the  superseding indictment the u s attorney had indicated numerous overt acts that the jury could consider when determining some pattern of racketeering activity so no also this was all four counts superseding indictment account two of that supers nd superseding indictment was attempted murder the jury my client mr hani not guilty of that crime three of the superseding nd superseding indictment was attempted assault with a dangerous weapon the jury to found this trainee not guilty of that crime three was  firearms one hundred and twenty four dollars c prosecution the jury likewise found mr haney not guilty of that offense so what the jury did find mr guilty mr haney guilty of was  and we're familiar with the history of you want to get to the issues for argument i'm sorry judge the issues are for i'd like to go to the instructions st of all the convention to mr haney that the instructions a weapon mr haney on pages seventeen through twenty transcripts prior to the selection the jury indicated to the court and made an objection as to the underlying beg to differ i think the issue was preserved when the court overrode the motion that i made on this train at the start of the at the start of the trial prior to jury selection the  announced that it was obvious that undercounts undercount to the government had alleged certain violations of nebraska law to support  their version of the case as it related to count three however the government did not allege that this was some sort of act of witness tampering that comes into play simply because  at the sentencing hearing the government suggested to the court that count the counts that were mr rayney was found not guilty of constituted acts of witness tampering i filed a three the attempted statute of nebraska and nd degree assault the state that you were alleged by the government the witness tampering nor was the federal statute witness tampering alleged by the believe that that was harmless that even if there was an error in the cross reference the instruction number thirty five as it relates to count three of the nd superseding indictment that should not matter doesn't matter because the jury certainly could have concluded from that flawed instruction that instruction number thirty five that the jury could conclude that they could consider that for purposes of conviction of mr cheney jury would have relied on counts as part of this argument i think it does make it is important and i would direct this court to paragraph fourteen and paragraph twenty and twenty one of the nd superseding indictment under the overt act section of that indictment because very clearly under paragraph fourteen of the nd superseding indictment alleges the incident regarding a richard johnson that the government suggested my client was involved in overt act paragraph twenty and twenty one included actions against michael legan's that the government relied upon as an overt act again suggesting to the jury of course that they could consider that for purposes of a pattern of racketeering although the jury found mr haney not so taken as a whole i would simply say that the instructions were flawed and if this wasn't considered to be an abuse of discretion and perhaps the court might find that there was some sort of plain error analysis that would be more appropriate because i suspect the government may argue that certain objections were preserved or made as during the instruction conferences nonetheless it certainly could not be argued or refer to this court that mr cheney didn't suffer some prejudice if there was there are effectively cement that it was plain and if there was an error i would submit to this court that it was prejudicial to acts for that purpose for those purposes the instructions were clearly flawed and i would ask the court to consider that argument in terms of the guideline i'd  like to touch on a couple of the other issues i'd like to reserve at least three minutes for rebuttal rebuttal if i may the guideline range issue that the court wanted this brief it's interesting to note that at the time of sentencing the government conceded that attempted assault with a dangerous weapon was not clued under a pattern of racketeering they argued that throughout the course of the trial they charged my client with it but at se assaults and not attempted murder that's reflected in the body of the transcript also under the fence hearing and also pursuing and in sentencing members memel that was drafted by the court  my argument with the guidelines has always been and what would continue to be that as this court knows mr haining was in has been incarcerated since two thousand and thirteen the trial occurred in twenty eight dollars he was serving time on consider under two he won a one of the united states sensing guidelines guideline calculation was was flawed by the district court and rather as because even assuming that it is there are of course the guideline range was higher for that error and a guideline range under the way i calculated got to me one point or a one was fifty seven to seventy one months after the certainly had some significant change in the district court's analysis of what might be inappropriate so the guy going to proceed said you want to see three minutes for a bottle so i was going to let you close if you wish but i really want to handle your times fine i believe i'd like to save the time judge thank you very much very well thank you very argument mr milsom we'll hear from you  should be reviewed for an abuse of discretion with the judge's legal determination being reviewed on a daily basis in this case there could be an argument if you preserve the issue with regards to during the discussion during strikes and so under a very generous of you the court could consider that argument to preserve that issue but only as to the issue of whether or not the abuse is whether or not the attempts of state crime point during the jury instruction conference arguing that that there was any any reference at all to assault a felony assault as being part of the pattern of racketeering activity you know what about defendant dealt specifically with whether or not attempts a certain crime fall within the pattern of racketeering activities i think that relates to the st issue in the jury instructions there was never even within that part that was right in the record was there a discussion about whether or not  the definition is divided up into certain subdivision two of which including subdivision name have the profits are beginning language of whether or not certain acts such as murder or drug dealing state offense involving murder of nature another five subdivision have the introductory language of whether or not something isn't datable under a list of variety of specific statute as a number of reports of found including this or that in a different language is of the basis of the impossible i think in a case like this where there is a reading of the instructions were taken to be reckoned system we think we have to do that and in this case he has to fill harm so it's his burden and i don't think you can show harm when a consistent reading of the verdict which strongly suggests that that that wasn't part of the finding the other issue the other response that you have basically is that the instructions do not clearly make that air in the st place so you have a number of instructions which  crimes and do not include felony assault the only possible exception is instruction thirty five makes and only by a cross reference mentions count three which is a felony assault and so that is basically when  mention of it is the defect cross reference if you read the instructions as a whole i think there's a good argument that there was if they are simply was even made in the st place and it is also about reading them as a whole but i'm not tracking why you say the cross reference when the jury instructions said such as the acts charged in count three which charged an assault the jury one of the main witness tampering so it's the instructions as such as the right so the focus is on the act itself and that making is i think there's a solid argument that there is no particular area here and if there is not if if there is not if there's a good argument that it doesn't amount to play near but then the other part probably have here too is when the jury finds him not guilty of that offense unanimously it doesn't make sense then to say that they would have unanimously considered that part of the pattern recognizer and everything there's another reason why the court cannot find any harm resulted here and that is the fact that there is overwhelming evidence of his guilt aside from that you had a number of witnesses talked about his ongoing drug dealing who engaged in drug dealing with him on a number of occasions frank lovejoy and see if listing talked about that they also form control b you had an officer who stopped him and found him in possession of more than five grams of crack cocaine and five hundred dollars of us currency there was testimony about his conviction in state court and you had bernie no more talk about his connection to the gang is well established and i think when you have that type of evidence to find that there was a plane air would not be appropriate since it basically there is no it suggestion that there be any sort of damage to the fairness integrity that guideline range because you use a felony assault is inappropriate that's not racketeering activity so that falls outside of the instruction and this is based on the judge's finding that the two shootings did not amount to attempted murder as the govern suggested that rather just just in the fall however the court could still reach a similar guideline ran actually in a higher guideline range if they had considered those two shootings to be witness tampering as  is the case had he not applied the felony assault guideline which was which was inappropriate rather found that those were witness tampering that would be consistent with his finding that it wasn't were no no no what i'm saying is that the court here didn't want to or found that that was not attempted murder but it did believe that it happened and it did believe that that conduct should be a factor at sentencing  attempted murder that sounds like an argument you need to make on remand and so well so basically what i'm saying here is the the guideline range was in fact there we have knowledge down a proper gatherings would be higher it would be different basically but the district court said it doesn't matter seven years was a sentence that you believe with a profile that this record didn't say it wouldn't go lower in the guideline range was lower that that  about to turn on your microphone for us to hear y troubling that the government would seek a prosecution under rico for racketeering activity they clearly now concede was not racketeering activity felony assault i think mr most and said that a couple of times during and i might say also that it's somewhat troubling that that was only conceded by the government at the time of sentencing but there in that the harm to mr haney in that regard that the government's brings a regal prosecution against alleging acts that clearly do not fall under the federal statute of rico and then clearly fall under activities of racket ering i don't know if that's troubling or mister i might say that this issue regarding the court brought up with mr moses and about inconsistent verdicts is also troubling in that the jury could conclude that under counts three through or the government did not provide proof beyond reasonable doubt to convict this trainee however yet could consider arguably the overt acts since two thousand and thirteen he went to prison inmate of fourteen and the last over it act was in january th clearly  that falls outside the scope of the records hearing activities i might just conclude by saying this witness tampering there's no evidence of witness tampering the state statute was not a fix to either any of the counts under twenty three or four of the nd superseding indictment there can be no finding that there was witness tampering because this was not witness tampering that argument was only advanced by the government  sentencing because they had lost on the substantive counts contained in twenty three and four of the nd superseding indictment they need to re evaluate what direction they wanted to go so they argue that it was witness tampering  there is no finding of witness tampering and as alleged in the out one of the nd superseding indictment i don't know that the district court nor this court respectfully could find any sort of witness tampering by mr ra