to be attributed to my client under the laws governing conspiracies the result was that we had to defend against a coconspirator statements and other evidence that had no relationship or nothing to do with mr mark this rendered the trial unfair and it was entirely avoidable result but there is a check on the government's ability to charge fraud conspiracies it's required to prove that fraud conspiracy and if it doesn't instruction is the circuit instructions require that a not guilty verdict be returned and that's the way the jury was instructed because the case and it says that and i give that same instruction but don't the cases then say if the jury finds him jury's verdict is either supported by sufficient evidence or it isn't because that was the instruction that was given now the government was required to prove mercs meant membership in this conspiracy and it had to offer proof that he had reason to know of an overall conspiracy and that he had reason to believe that whatever benefits he received were dependent on their success success of the entire venture what was the direct evidence that it presented the government presented well it call witness robert davies robert davies was also an alleged spoke in this conspiracy robert davis testified about his contact with the winds his dealings with them how old he was recruited by them and how we sold them  and we won't we won't know when the hypothetical trial that you're just got is you're contemplating what the result would have then but again it goes back to there has to be some limits on the government's ability to charge these broad conspiracy as it knew before to charge the case that instruction that says you've got a government you've got to prove this conspiracy or else the defendant is not guilty that's the principle that underlies that instruction it's a check on the government and says you've got to be careful when you're charging and september of two thousand yet the government charged him to be a part of a five year conspiracy that extended for three years past when the government agent said he was no longer part of this conspiracy but most critical about the government agents testimony was that she said there was no evidence that he had any reason to believe there were others involved there's any doubt that he conspired with the winds i mean this is the not even the singled out of there that there was a conspiracy the winds were buying the stall in the sonogram heads and he was isn't so the winds were involved in the conspiracy and the wind said different suppliers and so what you're saying is because your client didn't know about the other suppliers he's not guilty of conspiracy and so you actually are putting the jury's instructions to say if they  with other people or with the same people to do something else but not the conspiracy that's in the indictment you have to acquit him not that if you find that he was he had a separate conspiracy with the winds and they he says every conspiracy with the wind gets off i don't think that's what the instruction means i think the instruction means look if in presenting all this evidence you find that he was wandering money and they conspired to launder money that's a different conspiracy you can't find him guilty because that's not the conspiracy charge in the indictment th indictment charges one conspiracy your argument is that there really were multiple conspiracies that he supplier who didn't know about the other supplier was a separate conspirator that that's what your argument was well is that i would respectfully disagree with one with with with one point that you mate the case was quite clear and one of the other structures that was given was what does it mean to the unknowing participant wasn't what does it mean to be a member of a particular conspiracy and sort of government is required to prove that mr america was aware of these other suppliers that was that's part of the the burden that the government bears well that's that he was aware the other spy that they have to prove that he knew that there were others that he wasn't alone and not only that he wasn't alone only if it affects a substantial rights of the parties and you're saying that if the district judge gives the instruction the pattern a circuit instruction that if you find that he's guilty of another conspiracy than up to one charge of the indictment you must find him not guilty that essentially what we have to do is put ourselves in the position of the district judge at the time of the rule twenty nine motions and we say the district judge should have granted is what you're saying that's correct i mean i don't think you'll see in duran that there was any instruction similar to the one given here so i  that that there was have been doing this for a long time and district judges they they love that man you on that destruction's been in the manual at least since i've been in the ny circuit i mean at least since i've been practicing or judging in the ninth circuit which goes back to eighty five are sufficient evidence to support the jury's finding of his being a member of this conspiracy but certainly was a member of conspiracy with the winds but that's not the conspiracy that was charged well because they charge that there were other people that were a member of the of that conspiracy they had to prove that mr parrish had reason to know there were others involved has shown that there's no evidence of that and the government will probably stand up today and speculate and draw a bunch of deference is that the government offered no evidence that he was aware of others  hopefully have a shot myself in the foot by using a bad example but i think that part of it you know pointed out examples that if this is a if this is a jewelry store in downtown seattle the point is the defense is going to get paid regardless of its reputation regardless of whether there are others involved i still come back to the one thing and then the other side's going to need to address is that i see i see what you're saying but the brown case doesn't talk about variance and they just don't deal with it at all that all the other cases do and are our most recent jurisprudence says that if there's a variance and and i understand your argument that the risk of that if there's a variance we still don't have to go to whether the fact that substantial rights and you're saying no we don't have to do that because you gave this instruction you threw all these people in the same conspiracy but you didn't you didn't you didn't prove any sort of remedies are people just acting in parallel to each other i have to grant a motion for i have to grant the motion judgment of acquittal you haven't proven a single conspiracy there was no question there was the two issues i think that come up and the multiple conspiracy and single conspiracy and that is did he have reason to know the scope of the conspiracy and did he have reason to know that he benefited from the overall actions in the conspiracy and if you'd like me to i can address that issue in terms of the benefit it's not a transaction by transaction analysis the fact that m twelve years one day but if i give you a piece of paper to diagram this conspiracy for me with the evidence that was it could you do that but i can tell you what the evidence file could you do that a stray and i'm not sure that that analysis is all that important to the questions that are before the court which is whether he knew or had reason to know what the scope the facts records is certainly one piece of evidence too a davies he delivers a ton of cocaine to the winds is merck responsible for the one ton of cocaine well i think it depends on the evidence what we did he take everything you have here and just account it is a reasonable inferences inference that he asked about the scope of the conspiracy that he would be concerned about that that he would be concerned about what else was happening in the conspiracy in the precautions were being taken that he had to have to make sure that he would not get caught he's not just like a person who breaks into a house and takes his daughter one equipment to a sense he works at the company where the equipment is coming from he parents to understand that he's not going to get caught he has to have an interest in the serial numbers he's an inventory manager he knows that phillips pays keith attention to the serial numbers in this case certainly reasonable that he wanted to make sure that other people were taking care of making sure that things were not going to get on gravel and when did he leave he laughed when that's that plan there's no question that we are not holding him responsible he was argued to the jury he was not held responsible for what happened afterwards so the evidence about what happened afterwards is not prejudicial  one transaction who the court reasonably conclude it did not have reason to know about a broader drug conspiracy and that's the kind of case where it is unfair to to wrap some very minor player into a bigger him to to knowledge about others involved i would say the most direct evidence is the fed ex records with the notes my now that doesn't involve some inferences about what else happened there but of course spillover well i think the court has to look at the evidence of what did he know it was stolen clearly there was a lot of evidence that he was actually stealing and so he knew that he was dealing in stolen property because he's taking it out of the finished goods store room and shipping it to columbia medical systems delivering it to columbia medical systems sending it to other people the question is was it highly probable that there was any evidentiary spillover now the mr davies evidence but getting back to my question in this is a legal question assuming that there's a variance what's the court to do in a moment where there's multiple conspiracies found by the court of appeals but there's one conspiracy involved in some conspiracy but not a conspiracy with their right and the jury was clearly focused on that issue and i think the fact that the jury was given that instruction about if you find the defendant guilty of some other conspiracy and not just conspiracy you should acquit them that means that even stronger that the jury focused on these issues and made the decision that yes he was involved in the the jury had arms of west substantial argument which i think is it's hard to know but i would think it would be unusual in many of these other cases that there was as much focus on the legal issue and give these people all conspired and they show that one two and three where that the public conspiracy and three through ten were were supporters and there's evidence that three four five six seven and  knew of each other some by name some by just that that they existed but there's no evidence other than that two through eight knew about nine and ten nor was there any evidence that they thought that you know they had to the other people that they thought that it was just that because they thought they knew each other now so then it goes to trial and the evidence shows that nine in ten were not part of the overall conspiracy that wasn't dependent upon their actions a person could have thought that way but there's a well you know analogizing to a drug conspiracy i think is always going to be a little bit hazardous here because in those types of conspiracies it's more easy it's easy it's easier to assume he had no idea i mean they all met those people on that and they said let's look at the stuff out of the company here and said that they had no idea about nine in fact no reason to know that nine and ten well and if i understand the hypothetical in that be anybody else involved with the government charges nine of them was involved because they're also from another branch of the company stealing the stuff and selling it to one to one and to so it's the exact same thing is my concern here is that what happened is they prove did all that really happened here is they prove the subset of the conspiracy alleged not a different conspiracy just a smaller conspiracy well again it's not only that robert davies was shown not to be a member of this conspiracy that's certainly one part of it but history they charged even if the government as it notes didn't hold this remark accountable for the conspiracy lasting between two thousand and two thousand and three they charged him with a five year conspiracy he had to sit through a trial and have here say  would not have been convicted well there's no there's no question we had a tough row to hoe any way you cut it but you know ultimately the government you know made it made its job much easier and so i don't know what would have happened  like it's a this kind of a technical argument they can't prove that conspiracy you may be guilty of something else but not what's charged but say they didn't have they this is testimony here there's testimony what else could you have argued because he never contend that the didn't steal these things and the evidence rule this way i was forced to do this and i look at and say you know that's just you're just saying that because you can't tell me your guy would have really taken the stand because he's got all these convictions or whatever and so what i'm asking you is would you you know would he have taken the stand we had been obvious a different fans that you had available not just that well this is the strategic approach because if you were prejudiced and things that you would have done something else that would never resulted in the conviction and that's what i'm asking what would you have done that may not have resulted in conviction but it's a fair question i want to take a crack at answering it you know did much of the government's case came in through showing that mr murdoch signed out certain parts and then they had testimony from philips people about why the  certainly would have been one approach that we take but i think that again think the question is now how would we have done this differently if the government had properly charged the case and the fact is it didn't properly charge the case jury was instructed a certain way and it didn't