trial in the western district of new york was a single defendant case with with three counts in the indictment of mr cobbett he still was convicted of all three counts interestingly in respect to count number two the the weapon charge under section one thousand and four c the jury also found in it and a special verdict item that mr that there was not proof beyond a reasonable doubt that mr cobb if he still ever ever discharged a weapon in furtherance of the conspiracy and just to be clear the government has suggested in its response that we're making an inconsistent verdicts argument that really is not the thrust or the focus of our attack and the conviction of say it's not we're not here with an inconsistent verdicts argument and that's because the jury was charged on two vicarious theories of liability the section two aiding and abetting theory of liability as well as  given a pinkerton charge the pinkerton charge was given over the objection of defense counsel and so our view of this is that we should not look upon this as an inconsistent verdict but as a consistent verdict rather so that where the jury finds that there was not proved beyond a reasonable doubt that mr coll that he still ever discharged a weapon that verdict is nevertheless consistent with the comfort the conviction in count three if that is viewed as being a conviction on one of those other two vicarious there is of liability and that takes us to our sufficiency before you and then an inconsistency normally we would take each count and inquire is there evidence sufficient to go to the jury on those counts normally that's how we would start in any case if we did that here and looked at the third count and thought there was sufficient evidence under a theory of directly committing a crime not not secondary but direct if we thought there was evidence to support that then wouldn't the only objection to affirming that count on that ground be the claim of an inconsistent finding  no and that is what the district court that judge tracey examined the testimony and there was testimony from two witnesses both of them indicted coconspirators indicted and tried under a separate indictment and that was the evidence at trial of that that the court look to to conclude that there was evidence that mr cobb he's the was directly responsible for that you know that he was one of the shooters so to speak the jury found otherwise the jury found that there was not pro beyond a reasonable well the very fact that you say found otherwise doesn't that suggest that there is an issue of inconsistency here you can make that argument judge but i don't think that that would have mister  relief that we're looking for as we know the line in that area says that we've got to inconsistent verdicts generally you can't tell who's ox was gored and you leave the most stand if we went down that road even probably lose yesterday so rather than have a road understandably you invite us to say the way to harmonize these verdicts and findings is to say they are consistent is that the idea yes judge and not just that i would rather it isn't just that i would rather vote of course i would candidly it's not just that i would rather it seems to me that if these if the verdict can be harmonised it should be harmonised and we shouldn't deem it to be inconsistent solely for the purpose of rescuing count three from what would otherwise our heads and our dishes their case well that says if there's any theory in the evidence that will support a verdict we are obliged to uphold judge there are cases of that sort but i'm not aware of any in this posture where you've got where you've got these this type of of makes verdict and you have the alternative theories of liability to consider for count three so for count three we have this this other possibility and in fact not not just possibility i think we have to understand the jury's verdict as the jurors conclusion that mr colville t stow that they were finding mr calvert he's still guilty of count three of the murder under one of those other alternative vicarious there is liability either aiding and abetting or the pinkerton charge and as to both of those i think it's very clear from the record that there would not be sufficient evidence and the record for the aiding and abetting what is lacking a an affirmative physical act that's that is not and it's one that is not an act of direct responsibility so in this case there was testimony that mr calvert used to was one of the shooters it's it's very questionable and and you know certainly argued a closing i'd be happy to tell you the reasons why i think that evidence was not sufficient that he was directly responsible but i think the jury's already found that  you have to find in order in order for there to be a sustainable conviction of count three under the aiding and abetting theory there would have to be some physical act that mr calvert he still did some testimony that that he assisted in the execution of the but but not the same evidence that mate would make him directly responsible the and similarly with with pinkerton for there to be a pinkerton liability of count three you'd have to find that that th was a reasonably foreseeable that even though he was not directly involved in the killing of his arm and that it was reasonably foreseeable to him based on some facts on the record that another member of the conspiracy would murder me over harm by shooting her with a firearm and again that so lacking so i'd like to change topic and they so try remaining and raise an issue that you did not brief but that i find very compelling and that is that judge departure from a mandatory term of life imprisonment this is from page eight fifty of the appendix is only permissible in cases where the government files a motion for a downward adjustment due to  substantial assistance so he viewed this as mandatory the government tried to save him later on mr rodriguez said at page eight fifty three i just wanted to clarify just for the purposes of the record your honor i think stated probably in reference to paragraph one sixteen of the pre sentence report that a downward departure from a mandatory statutory term of case and the court says thank you and yes so to the extent that that the judge suggested that there was something mandatory in that mechanism the government did clarify it later but i that we could notice even though you didn't brief it doesn't and that being the case i'd ask the court to take notice of that and ask for an opportunity to address that with the rules when a letter if i could well it's not rule twenty eight it's not something that you aren't aware of you're right there yesterday you said i think when mr rodriguez try to try to save the judge try to tell the judge it's not mandatory and you said nothing at that point no that's not true you said we agree with that which would be the case judge that but it's not it's not mandatory and i think that was the appropriate thing to say that time thank you ok thank you we'll hear you may please the court sorry monica richards on behalf of the united states of america on this case morning i'm a little rattled of course by the judge judge pooler by your final question there and i wish i had more time to take a look and see but judge tracey who an experienced as to court judge does usually say the i'm sorry ok he said he's very experienced and we know that he knows that this sentencing guidelines are not mandatory and yet we have to go by the record he made you think he meant that the departure could not be made but that doesn't necessarily preclude a non god line sounds altogether i'd like to think so your honor thank you i read that  dealing with the application i thought that we were very specific when i read it quickly right there i did think we're doing very specifically with that issue again the lying on this judge's experience i know that he's well aware that the guidelines are not mandatory  if i could then with regard to the substantive matter with regard to the conviction this is nothing here other than an attempt to vitiate the jury's verdict on count three and with regard to that this court's noted during this argument that in order to sustain that conviction this court as the jury was also instructed is to consider that count independently of any of the other what counts what's the evidence that supports are you going to betting  pinkerton with respect to count three i don't want to argue but what is the good and sufficient evidence or the good to the aiding abetting i think that's easily addressed i mean he was one of the two people who got out of the car whether or not he shot his gun may have been a subject of the jury's discussion we do know however that there were nine or ten bullets recovered in each gun held five bullets each so when we do the simple math we know that you're reduced and then you're assuming that he did charge the gun the jury told us he did well the jury told us with regard to the aiding abetting if i could just make that better argument perhaps that even if they both got out of the car and the jury didn't believe that he ever shot the gun then the other shooter was there the other shooter was present and shot the gun and caused the murder when the jury was instructed as to aiding and abetting the jury was instructed that they properly there was no objection to the eating and abetting that the in order to find that you don't have to know which gun was the source you don't know you have to know which one killed but that if it came from one of the i'm sorry i'm sorry i'm eating a betting that you have to have proof that the it wouldn't have happened but for the actions and this was a gentleman who was known to have been the source for guns for the and as a supply source for the guns and the storage source for the guns for this conspiracy he had the guns he was present at the scene and he was part of the plan to develop the let's go take care of that situation meaning let's go shoot the rival drug dealer he was part of that plan at the house he got in the car he got out of the car he shot at that well i'm sorry he got out of the car with a gun and the person was murdered the one shooter fired the bullet that killed a person well we don't know that i mean we don't know that the other but the evidence was one that the might have been the medical examiner but somebody said that the shot to the head was the one that killed correct but we don't know that the other shot wouldn't of also eventually caused the death i'm on this record we happened to have a fatal shot that was a certain marks on the server that part was certain yes so i'm sort of shocked that they had killed him in one person killed in fact in the jury could have thought it was the other person that's correct similarly with regard to the pinkerton liability that it was reasonably for senior people to him was the point that my colleague highlighted as the part that's unavailable in this record i was strongly disagree this was a conspiracy a group of conspirators that had a history of violence that were involved in two murders prior to this and the jury heard the evidence of that they regularly conducted drive by shootings they had in fact with regard to this very this drug dealer that they were going after that night they had previously driven by the place where he was known to be and shot up at the house where the party had been the night before so this isn't possibly something that wasn't reasonably foreseeable under the pinkerton liability so even if this court discounts the direct evidence based on a pull through of the jury special verdict on count two which again i must know was a matter that they found for sentencing purposes only if this court worded find that that was undid a direct a finding with regard to direct evidence of his involvement in count three i can't suggest the court to do that by any means here but if it were there's plenty of available evidence with regard to aiding and abetting and  and then deal with the finding as a inconsistent finding that we are supposed to disregard but and we do that i did that i hope the score can do that with regard to count three the jury was instructed to do that the jury was instructed to consider count three by itself and alone as a stand along count that's in the record it a seven sixty nine to seven seventy the judge's verdict there was no objection to that beforehand to know it was also action after were also instructed on pinkerton and there was no on count three under pinkerton then it would seem that that new application to the court was not required to impose my life sentence which i go some point in directly to point made by the presence of of the proof here was overwhelming the proof of this gentleman's involvement conspiracy this knock on come up before this court on the subpoena the fact of the murders is overwhelming the fact that an innocent woman with two children was killed as it was evident from this record so with respect to all of those matters that's why i believe we're challenging this i haven't spoken to my colleague about that but i do believe that's why we're here comes down to the sentencing issue and again respectfully if there's an opportunity that's provided to my colleague to address that i respect i would request the same no you talking about the which application with regard to that pinkerton liability with regard to that uses if if if it comes down to sentencing is is the sentencing issue you think is here is which application notable what would be what makes the sentence life i'm sorry that i don't have it at my fingertips i could grab it but it would be the one that makes the there was a motion there was a an issue at sentencing with regard to my colleague asked the court to depart you're using a different application oh yes i'm sorry i don't have the number in front of me and so if it was as the judge point out if it was jacob's why not if it was under pinkerton liability then yes we wouldn't be facing a life sentence here we'd be looking at a different range but again here on this record the government's missed there's no basis for this court to do that still guilty of the murder under a pinkerton or in aiding abetting theory then application no to be to a guideline to a one point one would apply instead of to a application no two way which is the application  which the court look to and i think relying on for its belief that there needed to be a life sentence and that is the issue that is an issue before the court we believe sense it was a vicarious theory of liability that was the for the conviction of count three that application note to be would apply and that suggests that the court consider a downward departure and that's what we're asking this court to find and to send this case back to judge her a c for that consideration along with reconsideration of the second sentencing issue which we raise in our brief which has to do with the drug calculation in that section of his of the judge's guidelines calculation he simply aggregated all of the alleged trafficking of the entire conspiracy of eighteen years and found that that was the appropriate amount of drugs to attribute to mr colville when the proof at trial was very very limited in with references to that and he received according to the testimony he received on one occasion during this eighteen year conspiracy thirty one grams of cocaine powder cocaine from one of the conspirators and then on one other occasion  those connection to drug trafficking and therefore we argued that mr that judge tracey should have made a particularized finding about the relevant the drug quantity that that was relevant to mr  failed to do that claim as he's the enforcer of the entire operation that's the claim judge that is the claim that's the argument that the government made and even there the proof was fairly limited we heard about two occasions on which she was alleged to  what they testified to they they could and your your your client had been attacked the day before attending a meeting in which was decided not to go after these people and he went he not only got in and out of the c that the car with a gun and that that itself could be any and abetting because he was he was another firearm on the scene whether he discharged it or not he was there ready willing and able which i would say that the  proof as as the government indicated a minute ago the proof was that both of the guns were discharged by the number of the bullets that that i think is the character of the proof and that the two the two shooters whoever they were both shot  the at the house and so i think for an aiding abetting liability to go back to that issue he had to find some other basis other than the possibility that he's out of the gun or the car with a gun and shooting different caliber casings were found there were there were two weapons one of them was a thirty eight caliber and one was a three fifty seven caliber and and actually the ballistics expert suggested during the the proof of this trial that those are more or less the same caliber i don't know if i if i buy that but but yes there were two different caliber guns and there were casings that i think would have bet related to each one of those guns and there was a number of bullets discharged that could not have been discharged from just one guy just come back to the quantity claim again do i understand you right you are not disputing that in force or of a drug operation can be held liable for the entire quantity you are disputing that there was enough evidence to show he was an enforcer no j making the other contention as well that that if he had some role as an force there i think that the court still should make a finding in terms of what drug quantity was foreseeable to him given in the under these facts given what what limited contact in involvement he ever had with the amounts that the that the whole operation was moving it's not clear that he would have known or foreseen or had or had any way to be aware of those astronomical quantities remember this is the course of eighteen years and the court found that it was over thirty one thousand kilograms of cocaine to do his calculation thank you thank you thank you w