record conspiracy count and one count two conspiracy to distribute methamphetamine the government proceeded on to theorise of conspiracy liability number one he's association with co defendant gary by and number two and that the taxing activities of st taxing drug dealers in the area amounted to conspiring with those percentage was that gary but i was also involved in the he's only drug dealing activities but what the government did not present a trial was a connection between mr lookout oh and gary by stroke dealing activities yes he was working for delgado they were working together the role of government by was to monitor older drug dealers work in the area and to collect free taxes or or rent from them and then given the money to do  conspiracy liability those raised by the government which is essentially if you tax illegal activities that makes you a coconspirator of those illegal activities that may be true but in order for that to be true the person who's doing the taxing has got to be doing something in furtherance of those drug dealing activities that are being taxed and in this case the evidence that was presented was that the drug dealers and wayne were paying taxes under threat of physical assault there was not an affirmative action on the part of missile that got zero you know to assist them in their drug dealing activities in the area or facilitate the drug dealing or devotees in the area and these became very revealing in a conversation that was captured between mr and also by cortez a drug dealer where he said if you don't pay taxes then your name will be dropped and the mexican mafia will will take care of you and me basically his words were the names will be dropped and then the whole means if they decide that he's got to go he's got to go and which man physical assault and the government also said that delgado sentencing when he said that the deal with the drug dealers was not simply failure to pay was not simply go somewhere else where your drug dealing activities but that there will be retribution so that was the reason why and i believe my time is up you know he wanted to have a new counsel appointed apparently his is attorney contact to the district court in about six weeks before trial when the matter actually came before the district court at the initial hearing on this issue both mr colossal in his court appointed counsel discuss with the district court what the problems or with respect to their relationship and following the to the hearing the district court agreed and appoint a new counsel for mr colossal there was an issue about when the whether the counsel would be able at that point to keep the current trial data so there was some issues about who was going to be the the attorney in the case and there was a hearing about two weeks later where mr colossal was before the court with a attorney who was supposed to conviction and you know three four months later the sentencing date and the initial sentencing hearing mr franklin said judge we need to talk about the counsel issue he has of his speaking to me and the judge asked mr colossal what he wanted to do and he just said i want to be sentenced today that was clearly a a frustration from mr colossal in terms of motion had been denied he he didn't think it was going to be granted going forward and so we just want to get the process over with doesn't require new counsel if the conflict arose from general a reasonable notice or manufactured discontent of the defendant so in light of all the circumstances  pretrial denial of the motion to substitute was acceptable given the unique characteristics of that second hearing i think he desperately needed an attorney he could communicate with for the sentencing and by not having one i think likely a twenty  chance that you really wanted to flesh this out a little bit more think a little bit more about the issues and decide what the appropriate  a late pinion on the basis of his experience in the in the individual investigation such opinions may not be based on either fear say or specialized knowledge here the defendants repeatedly objected both before and during trial that the government was going to present improper expert opinion testimony of the guise of rule seven zero one and the cross examinations of the government government's witnesses demonstrated precisely that the case there were thousands of wiretap calls before trial the prosecutor announced that he was not going to introduce any expert testimony on drugs or drug jargon rather he said that he was going to introduce law enforcement witnesses who would offer lay opinions under this court's line of cases in freeman and gadson lay opinions under rule seven zero one based on their experience in this investigation now what that became montra that the government repeated over and over again with respect to virtually every question that asked them direct examination of law enforcement witnesses aged based on your experience in this investigation what does rant in this was something that it happened every day during the course of the trial it became clear through the cross examinations we asked for a hearing outside the presence of the jury we were denied that but we cross examine the government's witnesses and it became clear that the foundations for their opinions were based number one on hearsay which is officer mckean told us explicitly that his opinions were based in part on what he had been told knowledge acquired through investigation and in years of experience it's hearsay which is not permissible for a lay pinion under seven a one in one specific example is officer makino know that you answered my question  well it is hearsay i agree with you but this is experience gleaned over a number of years of investigation that's proper subject for seven o two not seven zero one that specialized knowledge and the gadson and freeman both specifically state that a seven zero want to pin you may not be based on scientific technical or other specialized knowledge within the scope of seven o two and gadson also says that opinion may not be based on hearsay mckean specifically told us and in front of the jury that when he formed his opinion that went what went was and i remember whatever rent meant that his opinion as to the meaning of rent was based on what he had been told by  you can't do that under rule seven a one maybe under rule seven zero two but certainly not under seven a one and that happened repeatedly well maybe even seven o two either if it was only experience but go right  is now the government i think characterize this is a synthesis of various source materials that is not what this court authorizing gadson and this is also not playing there which gadson was a informant right away this is supposed to work under gadson is that presumably the law enforcement officer who sits in the room listening to these hundreds or thousands of calls picks up the vernacular just from listening his perception of the phone calls i don't agree with gadgets holding but that's what it says he doesn't say he can go out and ask an informant what something means and then transmit that directly to the jury which is what this officer did and this is this is a recurring problem in these wiretap cases because the government has taken gadson to be a blank check to have their law enforcement witnesses basically say whatever they want provided they preface it by saying based on what i learned in this investigation it all comes in that's the practical effect of it but in this case we actually have we demonstrated the problems with the foundation for the opinions i was going to address harmless error but i'm running out of time so i'm going to move this court because we preserved it in preserved it and the other question i want to ask is does it does the outcome of that make a difference in any of the sentences for any other defendant than well certainly for mr rodriguez i think it i think it would he was he did receive favorable verdicts on the method felony but with respect to the heroin we introduced substantial evidence that he was a heavy heavy heroin user and and a substantial portion of the drugs the went to the prison were for his personal use now it's based on based on the jointly undertaken and reasonably for be either or right ok ok so sorry if i didn't make that clear the jury was instructed in the disjunctive and mr mr rodriguez at the jury could have concluded that there were heroin transactions that he didn't have anything to do it because it again this is a far who's prejudice by this error in this case it again my client was prejudiced by the sara because of which client you're rodriguez because the jury could well have determined that it was reasonably that that there were pair when sales that were not part of his jointly undertaken activity that were nonetheless reasonably foreseeable to him that's just one example and then as to  the jury should have been instructed in the conjunctive however they lost because it wasn't preserved so it was the it was the dissent in taurus that said this government was actually it was judge i cood is what the law should have been on and how the jury should have been instructed that the only way you know that we can overrule the prior cases is by going bonkers and hearing it on but because  the guidelines are inconsistent with the jury instructions because what ends up happening is he the jury ends up making a finding based on a less rigorous standard by the beyond a reasonable doubt standard and then statutory realm not in the guideline realm so the district court properly gave the instruction here it's only a question of whether this court wants to go on bach and try to change the law as it exists i would think that we should determine what the statute means by what the that would affect how this court interprets a forty one it doesn't make a lot of sense but i would submit that this case is not the one that is necessary to go on bonk on because this instruction did not make a difference for most o  so even if the jury made no drug and now finding at all that would affect their sentences so the only two that could be affected were amador and collage who got twenty four point five years and thirty years respectively  but the reason why it wouldn't have made a difference in this case is because the evidence even as to those two defendants was substantial that this amount of drugs one hundred grams of heroin for amador or fifty grams of methamphetamine actual of was both reasonably foreseeable and within the scope of their conspiracy i mean as to amador there was a number of intercepted calls where an inmate came into the  called and he received calls immediately after that sort of discussing what happened but there were a number of other calls that made it clear that mr amador was acting as a secretary at the highest level of the mexican mafia and that he was actively cordoning with other drug dealing that was going on in his yard and into other prisons and collecting the proceeds from from those drug transactions the problem is since the jury didn't make that finding we start running into print issues like how can we i mean doesn't the jury have to make that finding and we can't just say we're going to make that finding that's correct on but they did make that finding i mean with amador that the jury returned a special considered then the lesser if it's i can gently standards right but again that's not the law of that court ok but look the issue the i think you need to speak to is whether or not an indoor had knowledge of all the quantities of which he was convicted there was one interceptor earlier intercepted calls dealing with one incident that show pretty clearly he if he were convicted in the or if they were instructed in the destructive go ahead right and this is not an actual drug drug distribution case and the only question is whether this overall conspiracy whether it would be reasonable foreseeable to him at this entire conspiracy would involve more than one hundred grams of heroin and there was a number of interceptions besides that one fifteen gram incident there were interceptions when mr amador was sending out reminders to everyone on all the different yards reminding them that his payment was due for this month there was testimony from a number of cooperate as and from an expert describing how the mexican mafia worked that they were primarily in the business of bringing these drugs and and that there were multiple additionally multiple see seizures of sort of outs quantities of heroin that were coming into the prison so given his sort of overarching role the multiple interceptions where he's directing people what to do collecting payments for the drug sales the fact that there wasn't more than one fifteen gram seizure rightly attribute him doesn't mean that the overall conspiracy did not involve more than one hundred if you're able to show reasonable for about methamphetamine he could have been convicted of conspiring to distribute fifty grams or more then he did there's no evidence he was involved in methamphetamine correct that's correct on the jury did not return a special  methamphetamine i didn't get that yes the jury returned a special verdict to him as to both one hundred grams of heroin and two fifty grams of pure methamphetamine or five hundred grams of meth mixture but in this case all that methamphetamine that was seized was you know if you are that would be problematic under taurus wouldn't it and what sense if there was a requirement by this court that the be instructed in the conjuncts of that would be problematic because he could have been convicted of the methamphetamine amounts no i don't i'm not sure that that conju nature of that would affect or talk about amador amador i don't maybe i'm mixed up but we agree amador didn't have any involvement in methamphetamine the jury didn't return a special verdict finding that no direct seizures or anything to misuse ip so they can use then you clearly government's position your position is the evidence in this case is fish and even if the instruction was erroneous and should have been in the zero one can i just say this you briefly about something that's on my mind it was an argued from the defense but the pre sentence report as to amador recommended three levels as being a manager or supervisor you recall this yes the problem is that the court went ahead and enhanced by four levels and they did so because they found it he found a district judge amador was an organizer leader of criminal activity involving five or more he didn't make any factual findings on that though he said it certainly appears to me that amador did have in fact an aggravated role in this conspiracy so we don't really get into any of the evidence that would show who the five people were any of these sorts of things that you think that merits a reversal to have him do that no your honor and this court has made clear that out and that specific procedural issue when the question is did the district court offer an option enough explanation the defense counsel has to object and has to say at that time to the district court i'm injecting on procedural grounds and you have to explain more absent that it's plain  you and on the facts of this case it would not certainly not be plainly erroneous for the court to conclude that mr amador had this aggravated us harper says that a sentencing judge has to make specific findings on the record before adopting an aggravating role enhanced moment even if evidence may exist to support the district court's finding he didn't do that seems to be playing error even absent an objection  i would disagree your honor i think in general the amount of explanation that a court has to give for any sensing decision sort of depends on the complexity and the issues that are raised when both parties here argued in their brief as to why he was was secretary for garcia and i see every as the maid member so in just in terms of the hierarchy that we know about mike's mexican mafia he wouldn't he wouldn't been the highest level no he wouldn't but the question is not whether he would be the highest level it was whether he was a manager or five or more people the expert testimony in this case was that there are tens of thousands of mexican mafia suranne euros around the prison system there's then several levels above that at the very top above those thousands one hundred fifty maidan members those are certainly the top of the top immediately below those are what's referred to as secretary sort of the second level below the top of this raise the facts to the contrary well i think first of all there's the expert testimony about it is the mexican mafia there were numerous intercepted calls that referred to him as secretary in sort of  deferential way there was a mess and there is testimony of him passing along messages to booboo garcia on behalf of the drug dealers and prison there was the multiple text interceptions where he's sending around to other higher level people like ballesteros reminders that he's the one that's collecting the men the rant on the yard and he's the one that has the contact to this highest level made members and then there's the fact that numerous text messages intercepted calls showed him directing violence on behalf of the next of kin mafia in prison so this those text messages even apart from his role in the overall structure show that this is someone who is in charge of multiple people and multiple prisons and is directing violence and directing taxing on every district judge didn't see any of that in the defense didn't object so playing air would get us over the yes around term i mean that was all laid out in the papers no one really challenged it because it's fairly overwhelming evidence of his role turning to the next issue which was the lady opinion testimony in this court in freeman and barragan held that the type of testimony in this case which is agent's inter breeding ambiguous terms on calls and text messages is appropriate late testimony as long as it's based on their general knowledge of the investigation which they have obtained over investigation from what the cia told him and that was improper hearsay but that term look just keeping on that term rent over the course of trial and it became clear that the agents had come into this the term red i think there was six different times that it was intercepted on the calls there were a number of cooperating witnesses who testified about rent the expert witness testified about rand and you get the sense even from what was presented at trial that this idea of rent was basically throughout the entire investigation through multiple cooperators and through multiple interceptions and what freeman and what bearing and say in that context when we're talking about an intimate knowledge of an investigation over the course of months of course agents going to know what rant is through sort of synthesis of all of that he's learned as part of the investigation and it's that knowledge that becomes helpful lay testimony and interpret again and you saw that you know the defense focuses on a couple individual comments eight ball in the rent both of which occurred sort of early in the best occasion if you go through in the all the times that the agents interpreted the calls the most of them are either  inter breeding people's nicknames of which almost everyone in this case had some sort of moniker or non drug jargon related concepts like touchdowns or green dots or any a number of the back or other terms that are not sort of general expert drug testimony their testimony from these agents about what they've learned about these specific defendants over the course of months of intercepts and then even those terms like eight ball or teen or other sort of more common drug terms that agents carefully testify that what they were when they were offering their opinion as to those terms it was based on what they learned from the facts of this investigation from what they've heard on the calls and from all of the investigation and interviews and firsthand experience you know as just as one example when there was testimony that a zip means a one ounce of methamphetamine and what that ye that was as you are one twenty nine and then the agent testified that they conducted the sale with the confidential informant and the i'm out there that the c i bought was was one ounce there are other portions of the testimony where they talked about what half ounce was and then they could divide up the discussions on the phone and say they talked about a six of four in a four he add those grams up becomes fourteen that's a half an ounce and that's how we know that this term means a half  or you know references to chocolate and the agents testify that there was a seizure at the women's prison and immediately after that where there's calls about chocolate and they're not being a touchdown but they can use that inference and say something was seized at the prison and this collar call when they say chocolate is clearly referencing the heroin which is black in color that was just seized so it's difficult to go through on a case of this size all the different examples but those sort of terminology based on what they've seen and what they've sort of three factors for the court to consider the timeliness of the adequacy of the inquiry and whether there was a complete breakdown in communication all three of those factors weighed in favor of the court's decision decision in this case  as to timeliness once mr clause or requested a new attorney several weeks went by as the court tried to find a male attorney to accommodate his inability to her his dislike something different here i think the issue was raised she said she put it on calendar for a status or recounts all and then said i haven't talked to him i don't know what he wants to do mr closet then said i want to go forward with sen g and then they this is after the court cleared the courtroom and then even at that sentencing hearing miss franklin could be seen whispering with her defendant and there was some level of communication there but it's not clear from that that the court that the defendant ever even asked specifically that a new attorney be appointed so as my point was if he didn't but apparently counsel did flood the issue so it was that's a request for a new attorney i don't think is is supported by the record and as this court made clear and smith the knot of inquiry that the court is required to undertake changes over the course of time if  defendant makes the same request for a new counsel based on the same issues so by the time we got to sentencing the court had already heard from mr klaas about the nature of his complaints and they were primarily based on the fact that his attorney was a woman he had experience with mr colossal sort of refusing to come out and refusing to cooperate even with a male attorney in that context given the history of the case once mr causes that i'm ready to go forward with sentencing it wasn't  what's the difference why why a thirty year sentence a could have possibly been twenty i think that just comes from the court's comments towards the end of the sentencing he said he at the beginning of the sentencing he said i think miss franklin's recommendation of two forty months seems reasonable to me and that at the end he said i'm now i'm torn between three sixteen to forty miss franklin agreed immediately for a continuance of that then he turned to mr colossal and said do you want to continue and he said no just you read the entirety of the sentencing transcript what became clear is what the court when it said to forty initially was under the impression of mr claus i think he's as he said it was like a pawn in the system and then the prosecutor laid out in detail all the authority that mr closet had  minimum security yard and critically that the fact that mr causal had ordered the beating and stabbing of a defendant on the yard mr daniels who testified at trial in a wheelchair with severe brain damage and the record in the case was sort of horrific to watch the prosecutor reminded the court look this is a guy that was running that yard that orchestrated this near killing and brain damage of the person that he saw and then the court went through the extensive criminal history of the defendant and sort of after going through all of that of when actually sentencing and is it i mean is that a problem given that one's when there's two different standards of proof that has to be met i don't  not sure that it would be a problem i mean i think the disjunctive has been the law of this court for thirty plus for sentencing not for guilt right for the statutory scheme whether that i mean this court recognizing you see a problem with that the jury finding one quantity to establish guilt under eight forty one and then the sentencing judge having to maybe look at a narrower quantity the conspiracy that that would have different results whether it's sentencing or step the statutory range i sure that there could be a case in the future about i don't think that this case on these facts when it's it's very clear that it was then you had the conjunctive which was a lesser quantity then you've already been convicted of a crime where you have to have the statute chary minimum apply even though the sentencing guidelines might not call for  your strongest or one of you to speak on  close enough sixteen i think new counsel with a good relationship with mr clawson very likely might make the difference maybe not twenty years but maybe twenty five years every year counts every day counts and so i'd like to see judge  with respect i want to clarify one thing it's says in the answer in brief that the jury heard intercepted calls of rodriguez arranging to smuggle multiple outs of heroin into donovan prison that's just in the statement is completely factually incorrect that did not happen so i  want to point that out because it goes to the issue of harmlessness and finally the reason this is important to mr rodriguez even though he didn't get more than twenty years is because when the jury makes a finding as to a quantity that's necessarily going to be the floor under the guidelines and so the jury find and set the floor for mr rodriguez that affected his guidelines with respect to the way an expert opinion issue or the way the pinion issue is that the government always goes with this divide and conquer approach in these big cases and say well they point out one or two examples of an improper opinion but it was harmless but this was pervasive this is how they put on their case and unfortunately as trial lawyers we have to try cases not for appeal but for a even when you cross examine a law enforcement officer about the basis for his opinion it only enhanced their credibility from the jury and then when we get on appeal we have a word limit but this is how the government puts on their case that's why