good morning your honor is and may i please the court for appellant robert rasheed and i'll watch the clock and try and reserve two minutes for rebuttal i'll start by focusing on the probation condition that requires mr  to fulfill one thousand two hundred sixty hours of community service because it's the most pressing concern to mr rashid who has just been released in particular i'll focus on the practical concerns that make it plainly and reasonable the alternatives that could make it reasonable henri manned and the application of the plane air standard as recently discussed by the supreme court in rose alice morel us first the practicalities it's clear from the outset that this sheer volume of ours is incompatible with mr rashid's uncontested need to maintain full time employment in order to support himself and need the policy goal of rehabilitation i'm sorry but just to give me that's the amount of time over what period over three years your honor and so the point that we made in our opening brief is that is approximately eight hours a week although mr rashid has already been out a week so now he has sixteen hours next week and that's on average and the reality that is glossed over by just calling it eight hours a week is that eight mr rashid can't simply show up and serve community service when his work schedule permits there's not a drop in center to do that and he can't simply get it in one chunk one day of the week why not why spend sunday in community service or saturday two points on that your honor the first is that the district court was very explicit about saying that mr rashid will need to give thirty minute presentations to real estate groups for as much of the time as possible so that means mr rashid will need to schedule with these with various real estate groups around the bay area travel to those different locations and of course present them at the time that the real state group has available for him to present the thirty minute talk that he is supposed to give another reality is that a community service is not available to someone every day of the week typically a probation officer will find an agency or multiple agencies that are able to facilitate community service particular one is unduly burdensome that's correct your honor what why not go back now that mr rashid who's out of confinement to the district court in the first instance say let me show you how th q work exactly and that's what we're asking for in this direct appeal i understand but my point is a little bit different when it comes up in direct appeal we have to address it facially we don't know what the circumstances are of the defendant after his release from prison now you have circumstances after release if you were if you're an employer born to a leo unemployed eight hours a week might not be a terrible thing vs the opportunity to get a job and they can be arranged that's that's a little different so my question is why isn't this an issue to be taken up with the district court in a motion to modify the conditions well a few points on that your honor first of all i think the district court could use the guidance from this court on this issue and i think that facially we can show that this is just incompatible with his need to maintain full time work if it were fewer hours if it were six hundred hours four hundred hours i think we would have a hard time saying on the face of it this is incompatible but it's clear that he can't plug in eight hours a week especially doing thirty minute presentations and still maintain full time employment the second problem with the suggestion of having mr rashid rather than on this direct review go to the court and ask for a modification is that he no longer has entitle mint to representation in the district court i can ask the public defender's office if they are able to take the case but the reality is that probationers aren't intitled to free counsel which of course i am on appeal but i'm not his trial attorney and i'm not attorney of record in the district court and that's why we pointed out in our reply brief that the courts of appeal have decided not to kick the can down the road on this type of  issue and make the probationer go to the district court at the time that it becomes clear that it can't be a man and the case we cited for that that really describes their predicament is the seventh circuits case in united states versus ca e which is in our reply brief add page sixteen to you first my recollection about what you told the district judge when you nothing was said by trial counsel and here's why and i think that's that's my difficulty and my  difficulty is that you're asking us to hold the district judge you posed a facially legal sentence made an error even though nobody pointed out to him that it would be difficult for your client to do this and that's why i'm wondering whether or not this is most appropriately rage raised despite the difficulties you mention in the motion of modified again a few points your honor the first is i think it came about because the district court announced this formula and this number of hours after the sentencing hearing when he described what the community service conditions would be so a trial counsel walked into that hearing not knowing that it was on the table that his client didn't object didn't is quite quite forgiving for the district judge right and so you know we can't just say well you know we would have done some other way or this as you're saying well it's better to do x and y the case involved the judge who made improper guidelines but here's why rose that less applies because the supreme court mentioned two factors that in particular warrant the plane air or a reverse onder the plane or a standard the first is is the error of the judge's own devise and that's why i think it's really important that the judge came up with this formula on the spot for a trial counsel an announce your honor that that condition of relief is illegal because it's incompatible with with the need to work and and his need to work has precedence was that argument made no that argument was not made but i think it's clear from this number of hours the district court recognized that he would need to work to support himself and the irony is that a fine wasn't imposed because he didn't have any money and it was clear that you are district judge to explain the situation again i would encourage the court to look at rose alice marvellous and the fact that the supreme court said if that sentencing sentencing areas are different than trial lawyers because they are easy to correct and we already know this case is going back on the risk notice condition which the government has conceded has to be reminded under united states versus evans so it's going back i think we it's easy to correct there are alternatives the district needs five thousand dollars to live and only get social security benefits for one thousand and seven hundred dollars per month so there is at least thirty five hundred dollars that he has to earn and the district court noted that he has no meaningful assets of employment the p s r at thirty eight actually says that rashid's plan for employment after he would leave prison is to open his own business he's going to borrow money and start a gas station he's not intending to arc in a forty hour per week job or at least that was the record before the district court and so the concept that this condition was inconsistent with what the district court would have understood to be happening upon release which now has happened but at the time this was decided let me let me just kept to the chase when this case goes back assuming that mr rashid's counsel says he wasn't able to borrow the money from the yeah station but he wants to go to work at wal mart forty hours a week or whatever it may be the case i would the government object to alteration of this condition in view of new circumstances if there are in fact new circumstances if the circumstances justified it we would not object to an alteration of the condition i think do they that you the circumstances justify i'm not aware of any change in circumstances he was only released i believe on july fourth so i'm going to go following up on what judge the just the sensing court should take another look at the community service hours in light of present circumstances some like that would you object to that i believe that the best course is to allow the defendant to raise this just record in the first to the district or in the first instance because we don't know as we stand here at least i don't know and i haven't heard them what the change circumstances are but you government wouldn't oppose a motion if he if he if he urged change occurs in several cases in which your colleague didn't have time to get to and it's the one of effect on interstate commerce i'm i'm interested in what what the government's evidence was with respect  so the government's evidence essentially took two forms one was that you have a fundamentally interstate transaction based on the location of the parties to the transaction and the other was sort of a follow the money abbott and so you can see the money moving through interest the focus on the second one for me because i'm not sure how persuasive i find first one tell me what the evidence was about where the money moved so for example conspirator denali where you testified that she endorsed cashier's checks to pay for a property those checks went to a trustee in arizona she received back from the trustee in arizona a letter with a centrally a refund because if you're using cashier's checks that the nomination is not going to match the purchase price exactly so she was located in california she is located in california along with the deed for the property and that's in the diaz excerpts excerpts of record at ten forty four to forty eight there are also fed ex slip as are the effect slip and a cover letter with a matching tracking  number that reveals a check going through an arizona trustee i'm sorry from an arizona trustee to a beneficiary in florida supplemental excerpts of record at one hundred thirteen to one hundred fifteen and then there's of course the testimony from the f b i agent who reviewed a number of these tragedies cover letters and checks that were sent out of state at the d a s excerpts of record one thousand one hundred twenty two to twenty four was so multiple indictment originally it was by the time of trial it was a single count so you didn't need to show for each transaction effect on commerce as long as you showed from an effect on commerce from the conspiracy actually your honor for the sherman act i don't think we even need to after lopez we're back to the days of ali's restaurant that if anybody came to california to buy property that would be an no i'm sorry i remember i misunderstood your question you're looking at you've got you've got evidence that that th  agreement affected commerce you don't have to show it for each separate transaction absolutely agree i know with my question yes we have we have what the line of commerce here of foreclosures i think that you would say foreclosure sales so in summit health for example they had an ophthalmologist and they didn't ask the question whether that individual ophthalmologist affected interstate commerce they said i'm looking at the market for ophthalmology services i believe and care member exactly where but whatever evidence about the market for foreclosures are issues so we there's no evidence on that because in a per se case you don't prove markets which is why we proved interstate commerce by simply showing that there was actual identity homma terms cases a little bit more difficult for me what you did for an obvious case is that is that this agreement affected interstate commerce because funds from funds from the foreclosure auctions were said to people out of state and i completely agree or i think particular one another piece of evidence excerpts of record two sixty six question mr and mrs chu where did c r c send the funds from the foreclosure auction for this property answer they were sent to j p morgan chase bank in columbus ohio and from what state where the funds sent answer california that's interstate commerce and i just know that the cases that mr rashid is relying on his brief actually are mail fraud cases and they're talking about the element in mail fr cases that is the use of the united states mail interstate which is substantively different from an element that is only looking for interstate commerce and he uses that to make the point that an electronic transfer wouldn't count and we've directed this court to opinions including the sorry opinion that says in interstate electronic transfers do you cover this issue when you're talking about interstate commerce as opposed to a violation of the mail fraud statute and the and the conditions that require rasheed to consult with the probation officer but what about addressing you know the the hours oh sure you think you've done that that they should be sorry and i think we have done it in the briefs what i would say is i don't believe that on its face requiring someone to work eight hours of community service a week is too much and i also believe that the touchstone of the reasonableness inquiry is whether the district court considered the right things essential you want to imposing the condition and in this case the district court did consider the thirty five fifty three a factors he did consider the guidelines he actually expressly applied the anti trust sentencing guideline to reach this conclusion and that's a reasonable way to arrive at a sentence but the  to me the conditions seem to a little bit ambiguous because it doesn't tell you whether or not a time then in preparation oh these talks counts as community service right it doesn't say anything either way no that it doesn't say anything either i think it does no no i am agreeing with you know you think you think that time counts as community service for him prepare your dog i think that that's a question best directed to the district court under a motion to modify the conditions if she does not happy with the way the condition is being applied the order issued the way the probation officer come to the hours exactly i think again that's something where it's helpful to have a record of how exactly the conditional happened in this is why we have plain error of you presumably had this been raised the district court could have clarified whether or not he intended that right because he requires written materials to tempting the presentations and presumably that takes use your time but you may have a minute for rebuttal thank you on the interstate commerce piece if this were a civil sherman act case it would be different because i think they met the preponderance standard with their evidence you could potentially guess that the funds crossed state lines but with the burden of proof being beyond a reasonable doubt what is there and yes when someone says i was in california i sent the money to a location in another state and those sent me money but that was the having yes that's not what miss lou said she said that it went to the trustee and the trustee she did not personally send it the crier sent to miss to send to the trustee that the less money was sent from california to ohio mr two said that her department's standard practice was to mail the payment but then they had j p morgan's expert come up who is the recipient of the funds and say that they process all of their transactions electronically and i think very notably miss because you can't draw a reasonable in france given the the the way that the j p morgan testimony undercuts miss choose saying that the standard practice is to mail it j p morgan is saying the standard practice in our bank is to do electronic transfer you also have the documents why is that insufficient because the question is interstate commerce not interstate company i mean you seem to be saying that it has to go from company to company rather than from state to state and that doesn't seem to be the requirement because as we briefed the checks could have been deposited with j p morgan in california but they weren't there was no testimony that they were that the experts said that they could have j p morgan have but there's no testimony that they were but that introduces a reasonable doubt if j p morgan's a testimony which cast doubt on her testimony and therefore there could be there couldn't have been sufficiency but that's not really our standard there's conflicting testimony and we take this and when the light most favorable to the government but you can't take her you can no longer accept the expert says that's our standard practice is different than what she says he may be wrong he may be right she may be wrong she may be right that's why we have you may  have deviated from the standard practice but then the government has improved it beyond a reasonable doubt because the new expert has introduced doubt about how it was actually transpired i think we understand your position and actually exceeded your time thank good morning others may please the court jeffrey johns for the appellate alvin florida mr florida's constitutional right to present a complete defense required instruction on his on his theory of defense the district court refuse the conspiracy charged existed for any period that's a crime and the agreement is the crime that instruction without model a twenty two on multiple conspiracies didn't give the jury an opportunity to fairly consider mr years or i take it his theory of the defense was even if the government showed that there was a conspiracy among others they didn't show that i was a part of that conspiracy correct i don't believe so your honor that wasn't his theory no a separate conspiracies and structure because in the first trial the theory was that you may have that the government may have shown illegal conduct it may have shown agreements not for that violated but it didn't show the agreement alleged indictment ok now i understand that and that's why i'm asking at the second trial if that was your theory then i understand your objection but if your theory was that my client didn't do anything wrong at all then i'm not sure why a multiple conspiracies instruction was necessary because of the theory in the first trial was the theory counsel wanted to pursue in the second trial and was precluded from doing so by either him i don't see that he was the judge he made the argument in closing he made the argument the judge didn't preclude him from making the argument the judge just didn't give a multiple can percy's instructions well in the in the in counsel's closing argument i think it was i think that the contrast between the first trial and second trial could i'm not going to demonstrate my right in saying the judge didn't say no no you may not make an argument who knows about multiple conspiracies so it was allowed ok but they didn't preclude him from pursuing that theory of defense the correct yes but when i used the word preclude what i meant is the failure ok that's very different companions and the instruction given preclude it so let's focus on the instruction ok why doesn't the instruction given allow an acquittal if somebody shows that he was a member of a different conspiracy than the one the government proved because it simply says if the conspiracy charge which is it defines better going what a bittering agreement is it's an agreement to restrain competition and then it's as if the conspiracy is charged existed for any period of time it was unlawful that focus on the defendant's participation in a conspiracy what does it what does the instruction say about the defense because patient yeah i mean it's not enough that there be a conspiracy that you have to show that the defendant participated in so what would what do you what was the individual incidents that through which this overarching conspiracy was carried out but that doesn't mean that there were multiple conspiracies and i don't i actually have difficulty understanding what these what your clients theory is was the if the jury understood with able to understand that that any conspiracy doesn't just any conspiracy doesn't satisfy the indictment it has room then to have a reasonable doubt whether the one conspiracy charge was proven let me ask a judge davis question a little bit differently give me an example of evidence in the record of another conspiracy conspiracy isn't one conspiracy because you sold drugs to tamp people and so you have ten you have ten sales but you don't have ten conspiracies and the same is true here the government proved or the jury found that the government had proved a single conspiracy to rig the b s that is a hard thing to say and they indeed did it in a bunch of instances but that doesn't mean there were a bunch of conspiracies and i guess i have trouble following why you think there were multiple conspiracies because if the jury doesn't understand that there can be that any conspiracy doesn't satisfy the indictment then it where's the where's the can exist for any any period of time in the bittering insurrection and the overarching conspiracy is a thirty month conspiracy it's not against conspiracy that can exist for any period of time i'm the point is that the bittering instruction that of evidence argument i understand that when i don't know just what i'm having difficulty like judge graver with is the notion that therefore you are in time for multiple conspiracies instruction as opposed to just an instruction that said they've got to prove the conspiracy because because he's the theory of the cases most of conspiracies which make sense because the jury the jury can conclude yes there were a bit there were big there were there were agreements or to restrain competition yes but that's not but that might be a conspiracy but it's not the conspiracy and there wasn't room there wasn't room for that consideration because of the instructions given because of the lack because of the lack of the multiple conspiracies instruction did you or other argument i think that was unique to you was that there was some problem made in closing with the government saying that the homeowners might be impacted by the conspiracy that's true isn't that isn't that facially true if we have they will potentially impacted there was no evidence that any individual homeowner was impacted well but he said the corruption targeted auctions that were designed to get the highest possible price for the lenders in the homeowners that's true or actions are  were they were designed that they yeah that's that's true about the design i think the repetition of those arguments it was an argument to cast the individual homeowners victim and there was some there was no object any other arguments that were unique to mr florida that we haven't heard there are any other arguments unique to mr florida that i've read i've raised two claims right yes and we've heard about that's true ok i just want to make sure there's so on here what is the argument the argument here is very similar to actually something that this court dealt with and disagreed with in the kearny opinion in that case the court rejected an argument about multiple conspiracies or joined or a conspiracy saying that quote opponents compute confuse separate acts at separate times with separate conspiracies almost any venture criminal or legitimate is analyzable into a series of bits each of which in turn is characterized well as an individual independent plan article i think that's what's going on the air in the court went on and that decision to say the citation is five sixty f second thirteen fifty eight pages this is of pages thirteen sixty two to sixty three the court went on to say opponents also urged that they were entitled to a jury instruction on the potential for finding multiple conspiracies we disagree when as he on the surface which troubles me about this it may not be legal  made a difference well your honor i agree that the first trial is a data point i think i would point out that there are a lot of things are actually different between the trials we tried to do a lot of things better in the second trial we added so we replaced two witnesses one whom was extensively impeached and became the centerpiece of closing arguments for defendant witness mr wong with witnesses who were less subject to cross examination we added one of those witnesses who we replaced  wong with testified to guilty knowledge on florida's part he's the witness who testifies as mr francoise about florida mr florida making jokes about conducting rounds in jury rooms we also added a witness to shore up our proof on interstate commerce in the second trial the trial team was actually changed you had a new prosecutor substituted in so i think that the first trial it is a difference between the two trials but i think inferring that that made the difference  i don't i would not go so far but i do to your point it is a difference and i think that judge to not ose decision actually was correct which is that it's redundant and i would note that at the end of the second trial counsel rashid who was the counsel who was primarily making this defense actually told the court as much he said to the court that it didn't need to give the instruction and that it also shouldn't give two other instructions that the government was requesting related to conspiracies because they were all redundant and judged to not it was correct actually strike all three of those instructions two of them over the government's objection one of them over defense counsel's objection  so moving forward my colleague referenced the fact that the jury may not have understood what the government needed to prove to prove the conspiracy he said that the jury instructions would permit conviction on any conspiracy to rig beds and he referenced specifically that they may not be aware of the thirty month duration of the conspiracy judge donato's final instructions actually did tell the jury that it was a thirty month long conspiracy granted when he was talking about the statute of limitations but excerpts of record it two hundred nine the final jury instructions stated quote the indictment charges that the conspiracy began at least as early as may two thousand  continued to at least december two thousand and ten so to the extent that there is a concern that there was no language in the final jury instructions that would explain to the jury that this was one thirty month long conspiracy that language was there  and i want to address briefly which i think the court mentioned that there is no prejudice even if this was some sort of an error in this case because the reason for giving this instruction is to avoid a prejudicial variance to perk to cut off a prejudicial variance from occurring a trial i believe the briefs adequately addressed this but there wasn't even sufficient evidence to show a variance in the first place there might have been evidence of sub agreements within the conspiracy but that evidence alone does not give rise to a variance and florida has not argued for or explained how even if there was a variance which again we don't think there was that the prejudice that would have been a broad additional variance whether by spillover effect spillover guilt or surprise for example at the trial if there are no further questions on that i'll turn to the process to the argument about closing i don't think there are ok so just very briefly on the closing argument i agree with everything that the court mention and obviously our position is that there was no statement that a specific homeowner was harmed and that the harm to the competitive process depriving all groups of beneficiaries of the of the benefits of a competitive auction and the opportunity for a competitive auction was fully supported in the record i do just want to mention that the the idea that there was a thrust in this argument towards you know that punishing the defendants for what happened to homeowners counsel for the government both in the initial closing argument and the rebuttal made clear that they were not asking for a conviction on this basis in the initial closing argument the jury was told by counsel for the government the court instructed you that lawyers are not witnesses and that what is said in closing is not evidence that's because the facts are the facts and the facts as presented by the united states show beyond a reasonable doubt that the defendants are guilty of a conspiracy to rig beds at the almeida county foreclosure auctions supplemental excerpts of record three sixty nine in rebuttal the prosecutor told the jury that the defendants quote didn't cause a financial crisis but they benefited from it they didn't foreclose on these people but they found a way to make money and benefit from those foreclosures and continue to tell the jury that quote this case is about what the defendants dead and then went on to explain that defense counsel was quote asking you to set aside the evidence in this case to ignore the mountains of proof we have brought you and then delved into the facts of the case that's that supplemental excerpts of record four hundred two four hundred three and if there's no further questions your honor your honors i don't believe we have any a couple of points my colleague said that the instructions pointed out correctly that the instructions told the jury there was a thirty month thirty month conspiracy and the judge did instruct the jury on that but that the other instruction given on   distinguishing between the specific conspiracy charge and some lesser conspiracies with regard to that can you address how your client was prejudiced by the absence of these instructions given the nature of his defense prejudice yeah well if if the instruction what he needs to show is that that the instructions given didn't adequately cover his defense theory in that case reversals required but his defense theory i take it next why do you before wasn't that i was part of a conspiracy for four months or six months or seven months and then i withdrew his defense theory was that i was never comes a part of the conspiracy at all well if i can qualify i'm trying to figure i have a time here on that i was never part of the conspiracy but there was no the conspiracy ok even better so you know that there was no conspiracy but i'm still not sure why the time period issue that matters because because because now subject some agreements don't preclude a conspiracy but there were potentially any number of sub agreements here agreements among subsets of these how many thousands of participants in this conspiracy and all the exhibits there's a potential for  those could be seen as lesser conspiracies as conspiracies of lesser scope than the one charged and without the multiple conspiracies instruction the jury didn't have a vehicle to understand that and those were those were defense counsel's words before the court she doesn't have a vehicle to present her theory of defense and she had a constitutional right to present that theory thank you counsel thank you understand the case cases just argued are submitted we appreciate helpful arguments from all counsel and we are joined from this morning session we will be back to