rochester this morning was that one of the like of trains planes enormous beals so i was unable to sign up initially so i will not ask for a two minute rebuttal thank you and i apologize for coming like how can you reason the first see an occurrence as a necessary or natural consequence of an unlawful agreement that had never happened before in the in this case five year history on the conspiracy co fourteen charged public plaza with the intentional murder of francisco city santos while engaged in a comics conspiracy taking the evidence in the light most favorable to the government as we must santos was a member of drug conspiracy alleged an indictment that involved the defendant his brothers and others the defendant believed santos had stolen narcotics from him from his safe that the defendant in another shot at a house that they believe that santos resided as a result of the theft and that the defendant also assaulted santos several months earlier with a box cutter knife however the government kept must concede foreign heat say things which for c m lead others to kill people and people are we have been all over the newspapers now with respect to saudi arabia i mean it's just the most common thing  and the fact if he's in custody is that what difference does it make if people understand what he was well your honor expect we disagree with your assessment in this case well it's not my assessment it's  the question is is very nuff evidence on that servitor jury could find that link i'm not you know that's a very different thing understood judge but in this case there was no conversation whatsoever between the defendant and the others to plot and to plan why does that why does he have to do to have a conversation i mean action speaks louder than words he put a four inch long one inch deep gash their head never been in this conspiracy an incident involving an intentional or unintentional homicide we call that the indictment charged an intentional murder as opposed to a negligent murder or some other form of homicide or assault in this particular case now the isn't the question of whether and correct me if i'm wrong whether plaza reasonably could be said to foresee santos's murder that is the question but i had to that question no because you answered that question and that's a perfectly possible answer the jury answered the question yes and the question before us is is it possible for reasonable people on vs facts that answer vet question the opposite way from the way you did but it certainly is possible to answer it way you did you on then he says about cisco mr censuses death that he was not going to go back to prison he did it because he was not going back to prison for assault second was that not the testimony that was to test more of the whys and that because enough because of the circumstances one mr defendant being in jail two that this was there were no details concerning how my client would have communicated the requests for the homicide to the others it's just a ball you approach that you have a conversation a pop as a yes and what plaza tell you when i told him about the police was coming around questioning me about me and asking about santa cisco he said that he did it because he was not going back to prison what why isn't that  direct evidence while you're out because it's impossible for him to do it he was in custody at the time and there is nothing beyond that one statement which would give an indication statement i did it mean there's no doubt that he didn't pull the trigger but it was his brother right and there's nothing from barnes's testimony to explain or to say that my client had said that the others had done it it was just simply the statement that i had done it so i don't believe that that would be enough for the jury to go to the issue that this was a natural consequence of the conspiracy that is an intentional murder as opposed to an assault i can agree that assault would have been a natural foreseeable sq consequence so it intimidation but to go as far as in a traditional murder judge i don't believe larry could have done that i'll let you take this i did it to mean what you what you are you saying that he was just lying or bragging or talking about things which were in there what does that mean for your honor my humble opinion if i take it literally i did it you move on to the eighty seven thomas street yes argument certainly looking at the evidence in the light most favorable to the government's conspiracy existed heroin was being packaged at eighty seven tommy street defendant more most probably received some heroin from eighty seven thomas street but there was no testimony to say that the defendant ever participated in the packaging or manufacture or distribution there no testimony that he ever entered into eighty seven thomas street and the government conceded but given you know you've got it's it's a large operation yes which he which he knew about and that witnesses knew about it his role in the conspiracy he knew that the that gonzales lived at eighty seven thomas tree right but so wouldn't wouldn't couldn't then a jury outside of his residence and that's it there was nothing about him going into the house going to the door so just the mere fact that he was that since you can tell us made it clear that he had a gun  gonzales did have a gun inside the house but he remained quiet if i recall the testimony correctly so i don't know how my client would have foresaw to use a bad word out that he had a weapon there but the otherwise judge would basically say in any kind of large scale narcotics conspiracy that any place where it's being manufactured that a coconspirator is going to have to have knowledge that this was going on in a certain location and i don't believe that that would be a true reading or true verdict that jury can give in this situation it was simply and govern conceded that the defendant would not participate in the bagging so agreed with you about that what would be the consequence in terms of this frankly if we disagreed with you about the burger but agree with you about this what would be that consequence to use a non legal word papias it's not going to make much of a difference really it to the ultimate sentence you know would it make any difference you say much of a difference i don't know about its means i'm sorry it means nothing and basically no it  would not change the ultimate sense to conceive that in other words it would be harmless well it would be harmless as far as the sentence is concerned but as far as the one hundred dollars surcharge is concerned that's not harmless thank you monica richardson we have united states of america with regard to this appeal i with regard to the santos murder based on a court's questioning of my opponent i believe that the court understands that the pinkerton liability or  eating and aiding and abetting under section two is the appropriate was appropriately charged here and was what the jury determined was the that there was sufficient evidence with regard to those aspects i know that he wasn't in maybe i don't know what that he did it right not that i mean he couldn't have done it because because he wasn't he wasn't there right the jury evaluated the testimony that he was in jail and that he said he did it but it also heard all these other things so i couldn't answer the court's question wh or with regard to his motivation he it wasn't for lack of trying that he didn't kill somebody either in the drive by shooting at the parents or at the assault when he used the gun and used to i'm sorry a knife and hurt as had those that testimony really can't be dispute with regard to the strongest argument i'm not sure that i would want to pick between those but it was definitely reasonably forseeable and that can't be denied either he again it wasn't for lack of trying that the stand on wasn't you know hurt injured murdered in the course of the prior events which were this specific defendant acting this isn't like we're talking about some other conspirators going out and doing a drive by or some other conspirators using a knife and slashing and said we're talking about this defendant actually taking those  here it seems that and correct me if i'm wrong that the the reason for the original attack on santos was that he stole the safe i believe that was the only reason for any of these attacks  the motive for the actual murder was to prevent santos from testifying oh with regard to the assault that's true it doesn't mean that there weren't two motives but i believe that right i would say that was a dual mode of yes are you saying that any time  with regard to these facts pacifically the timing we have again as i mentioned it was this particular defendant who undertook the prior acts but we also have the timing that he was arrested and then sentence was kidnapped and killed that same day and that then talked to philip barnes about having killed him so i think that those thing in that timing context i wouldn't say every case now i would say with regard to the timing is significant in this case terms this court's going crucial in that  regard to the use of premises the use of premises here is it's undisputed this conspiracy use that location to package in and prepare the guns for say i'm sorry here the heroin for sale and regard to the drug trafficking activity and there are somewhat of an inconsistent verdict regarding plazas participation in the sale of heroin and there is this whole verdict was a little confusing with the  proven finding so you know this jury did and did follow the directions as they were given to the best of its ability and that's what we have here in terms of the result is a verdict sheet that showed that they were taking it seriously that they were trying they weren't just checking the guilty boxes all the way down the line a way to explain the rational way to explain with the jury was thinking when for example to quit on count for drugs well to be clear the jury didn't acquit on count for the jury found him guilty with regard to the possession with intent to distribute heroin from eighty seven thomas street what they but then they checked the box with regard to the finding of not proven as to the as to the amount and so that was a sentencing matter we a scottish law not proven is a little you well know respectfully your honor well no we're not trying it again but respectfully the jury verdict was guilty as to count four but then with regard to the special verdict it was not proven so that's not technically an acquittal i mean i understand we could talk about that but with regard to the count five again we don't need to explain the inconsistency of count five as a stand alone count with regard to the use of premises the other conduct having been the conduct of the coconspirators with regard to count five unless there's any questions about the evidentiary issues that were raised in points two and three of rest in the brief thank you thank you thank you thank you both for your arguments the court will reserve decision