marshall requested that aspect of it i will turn directly to that in regards to what is referred to in the brief as construct of amendments in a fatal variance what has occurred in this case your honor as it is the meaning the multiple conspiracies exist because when i see two distinct conspiracies the way the trial was structured by the government is a discussion mainly about and you all the individual by the name of christopher are very and then the individuals under omar's ross adonal which really branched out there was a michele mitchell aspect on the on the one side on the other side mr dano and then the conspiracies on the other side involving miss mitchell i think that what gives the court the best vision of this it is an e r to fifty evidence in other words we spent the first more than half of the trial talking about christopher robbery this doggery had was found with an extreme amount of drugs guns more proof  confusion of the jury is actually evident and and its verdict and not only the differences of the amounts but there was a jury question asking that question to the court regarding the confusion in the instructions between the individual mounts and in the amounts if there is a comparative conspiracy found if it wasn't all raw conspiracy if there truly was that proof of the jury the jury by way of the evidence would have to find each of the individual filter for the same amount because each one would be responsible for the distribution of the other the multiple conspiracy instruction on or is one in which they say if you do find that there are multiple conspiracies you know wasn't in that wasn't what the indictment there was an overall conspiracy sort of multiple conspiracy instructions as if you have more conspiracies you must acquit by finding that there's these different amounts of portions to ea the government put it on they allege that all the distribution was no and throughout the conspiracy that they had real knowledge of these individuals that the amount of i understand it the judge addressed it orally then gave counsel an opportunity to submit something in writing the next day or within a few days of raising any objections to the consolidation for trial and i unless you off out not off and if i recall correctly we have appeared before a chief judge vansickle regarding how the trial was going to proceed it was early in the month of august but i remember correctly and he said well i'm just i'm going to put all these together  at the time of the trial now it was put before the court in a way of a motion stating that the the indictment was duplicitous and we brought it before the court as you please it just and that's what they were really doing was alleging a number of conspiracies court is familiar the knock and announce rule provides of the officers and agencies are to knock and announce their presence and then they may ensure forcefully if there is a refusal to answer that refusal can be by the way of silen evidence in this case show that young mr mitchell was seen in the window as they approached the house mr mitchell testified that he was really told to get down on the ground right when he was seen in the window this was also her kid down on the ground by the exact officer who was conducting the not going to now that's really only cooperate evidence of what was heard the police officer said he heard it the individual said he heard it now if you knock and announce an individual shows within a few seconds you tell me get down on the ground told one person to get going well you are that was the person they knew of and couldn't answer the door and they told them not to answer that's what they based their compromise on they said they entered this house because it had been compromised which they equated with the lose the aspects of surprise at that point but nevertheless that's what they relied on in their testimony as a reason they call it compromise now this so called accident circumstances the compromise did not appear in any report regarding this raid it didn't come up until the motion to suppress it and they testified to it at that point here which the bottom line counsel on is what your bottom line is that they should have waited a long it's ago when they shouldn't have made a fourth one injury which sure aren't being the bottom line your honor is that they should not have forcefully answer until they have the opportunity from the opportunity to answer but they created the exigent circumstance that they now claim was the reason they forcibly entered without allowing enough time but there's a and to compromise if they claim to go in the door so really the whole fifteen to twenty seconds is a sideshow it's not really the issue here because what they did is they prevented it from ever happening right off the bat they never gave them the opportunity well you know one of the team and some of talk in the morning the individual the winner was the first one they saw whether or not there are other ones in the house the basis for what their claim is the actions you see in the compromises not the other people the house they claimed it because they stated this individual didn't follow the but the problem is is the time that they i disagree with the time and that's and i want to make that they're never the less they created the time they created any delay by their own actions that matter if they created it the question if it please the court my name is earl hicks than representing the united states on this matter your honor there are obviously two issues that courts is concerned about those two issues being the single versus multiple conspiracy and also the not the knapp's not generally what i hear last is what i respond to first unless the court wants to change that order first of all on the narcan announced issue some of the factual findings by the court first law i think the court considered the district court considered all the facts the district court had to make determinations of credibility the district court had to determine what was reasonable in light of what the officers knew at that time and at that particular time the district court did not find that the officer told the young normally and i think that you can take into account normally a person would say normally if you look out your window or other people look out the window and they see a law enforcement officers or they see that somebody is at the house or make a comment like coming or i'll be there that's absent because it didn't happen what happened according to the officer was is that the individual retreated one away from the window after he instructed him to by this young man that he had either felt the vibrations or heard something a reasonable officer would believe then that somebody is looking out upon them realizes that they are there the person doesn't say coming doesn't say anything he tells them to stay there at that particular point in time it's a reasonable thing to stay there because what the officers testified to was that there was no response for in a fact and what happened is that they felt that the circumstances had been breached not just because the secrecy of the search but because somebody had done something contrary in effect to a command still what happened is that they felt that they then had to react again the government's position is also when i'm talking about the accident the government's position is that fifteen to twenty seconds was a reasonable amount of time now in addition to did not there was only one officer who saw that it wasn't all the officers and this officers was stationed behind so he saw that he then related that he felt that there was a breach the officers that up front then act in announced again now again the estimates of time for just that because we don't have officers looking at their watches to pay attention to that because they have to pay attention the more serious of creates a difficult circumstance but i think that if you look at what the officers knew at that time and as the judge indicated there was the possibility of firearms there and we're not looking at this  isolation because the case law tells us that that alone is not the next engine c but you also had met them ten of the you had fifteen to twenty seconds which had expired you had an individual who can't come to the window and then that individual had disappeared from the window whether he had gotten down and what the circumstances are and then as the court indicated that there was confusion at that some point because as the officers then answered they said get down get down the judge has the right to make the credibility determination and of course you can review that for clear error but when you have conflicting testimony that's what a judge is supposed to do they're supposed to decide based upon what they feel as it is in their mind most appropriate so if the government's position is that there was no exigency which was created by the agents they have to protect property they have to preserve evidence and they have to be concerned about the safety of their fellow officers all at once and they have to make some rather quick decisions so the government's position is that they did what was reasonable they'd let the necessary and appropriate amount of time go by before they breach testified that mr peer would assessed by ripping it out for redistribution putting it on the scale for redistribution during this period of time both come to what can excuse me come to court lane and deliver there's a falling out between this rough during this period of time of the same players it's not necessary that we have all of the same players because if we were to have it's not unusual for there to coconspirators not to know who they're who they're dealing with and their overall we have evidence distributor for example you would have in this case we have pound distributors both of them are pound multiple pound distributors of people that are involved and i'm talking about not the ones that went to trial but the overall structure of what was going on back and forth that potentially that evidence would have it there mr bright top is a lower level player mr bright top was somebody that the jury found that he didn't have the same level thinking that through what happened is we had of late the blakely decision that came out and basically the instruction that dealt with the amounts was a sentencing instruction and the structure of the believed to be mandatory guidelines at that point in time was that and if you look at the structure of that instruction was that it's what was reasonably forseeable because it is not the case that just because you're a member of the conspiracy that you're responsible for all of the drugs that are involved and i think that was a start in screwed a very sharp jury that looked at that and said wait a minute this is what that there were a couple of times where for personal reasons i tried the case but there were a couple times for personal reasons i was not present course and i do not believe that they moved to sever these counts i do believe that they did have a concern that there were multiple for single conspirators involved it was an issue that i know between counsel was discussed and i'm not trying to avoid the question that i'm just trying to tell the court that we need when you asked that i sat there and said to myself and i tried with college and i cannot i apologise for that court to court for that but the government's position is that there were that it was only a single conspiracy that the overall purpose of the conspiracy with is to distribute a multiple pump quantities to methamphetamine and that the evidence supports that there's more than one link  more than just all marla's rozell it's the middle and that he he was the primary source of supply we know that the that chart is really what sources of supply because there were other sources of court that there is testimony from mr shane the officer she's he who did the knock and announce that he heard exactly those words please get down you can find that in our one eighty two as well as other areas so that's the only evidence of what cooperated by other police officers there was a police officer who was controlling the streets who stated he said to mr mitchell stay where you are or get down he was confusing or not get down stay where you are or something  between that young man and the police officer on the street but we can't forget that the takes of seems to be the man who's actually doing the knock and announce testified repeatedly that he heard police get down on the ground it was cooperated by the police what young mr mitchell said it's not just a young individual who is nervous this is a police officer doing the knocking on the announcers think that's what i heard at the time in between my first not announcer simultaneous or their their end or between or during the second knock and announce that's what he said in regards to the the destructing them and i attempted to look up on the record for judge marshall the pages in which that occurred  in particular the of last night's speech which is never good here we go in relation i would point out to the court another charge that was provided by the government that is s t r volume one page five which shows another supplemental volume one and then as well as the fact that when we were arguing for the multiple conspiracy instruction the issue was again brought before the courts so there's no doubt that the court had before  indictment the other which is the severance are these defendants being tried together unless the prejudice resulting from that i understand on some level you're arguing the prejudice from people being tried together is what's