right cases to be submitted today on oral argument we will take at least one recession maybe two during the argument or hearing the last case and we begin with united states for sheesh daniel  i am here today on behalf of defendant andrews missy andrews was convicted on five counts of marriage fraud and other fraud related activities there were no drug counts that took place within this case she was sentenced to twenty four months imprisonment she's been released but her appeal is not moot because the term and the issue that was raised in her appeal relates to a condition of supervised release the special condition that's being challenged by missy andrews is the special condition number four and that is the provision that requires that she not knowingly purchase possess distribute administer or otherwise use a psychoactive substance this was not objected to in the district court no your honor this was not objected to it is being subjected to the plain error standard of review the reason that believes this court should find there to be plain error in this case is a three fold argument the st is when you look at the burden imposed by this overly broad and vague term the burden on this andrews and on the probation officer is too much to satisfy the normal conditions that are looked at when looking at whether a condition of supervised release is closely tailored to the policy reasons behind supervised release conditions the burden on the sailors to find a legal job as a convicted felon with a fraud conviction and this is her th conviction so we're talking about a career criminal trying to find a legal job and remember that is that one of the policy reasons behind conditions of supervised release helped these individuals integrate back into society she originally had a job as an aramark cashier now that is not something that she could necessarily obtain a job at because psychoactive substances when you look into scientific journals could be right i think the lawyer should have objected but i can give what i think is the reason why there may not have been interjection judge posner wrote in united states versus siegel about how sentencing hearings trial lawyers there's there's nothing in the th circuit on psychoactive substances if nothing in the p s r in this case about conditions about i'm sorry i'm i'm having a hard time hearing you i need to get closer is if there's nothing in the p s r about don't know how long the cycle walked of substances term has been used i don't you know we have substance abuse terms that you see i'm not talking about this particular one i'm saying that the conditions he's been in the have been in yeah and i don't i'm not suggesting there's a tactical reason i'm suggesting there's an excuse for why it wasn't thought of as deeply and as intensively as we're thinking about it now how do you think more broadly and you think so bromley you don't read the p r well the objection that was made in the focus by the trial lawyer at the sentencing hearing was on the enhanced mut for being an organizer understand a leader you don't get you to another hearing to know that i was the concern about that  and the reason i think this would fall under play their review is because of the long standing implications of the term like this  well and don't let me mislead the court i am not here on an ineffective assistance of counsel claim what i am here on is a plain a review despite the failure to object on this condition infringing on the personal liberties of missy injuries now that she's out trying to get a job when she cannot touch or be around a cycle active substance scientific journals have stated that psychoactive substances include coffee sugar cigarettes things that are not illegal what i'm suggesting this court do is send guidance to the trial courts to the district courts that better language could be used for these conditions such as illegal psychoactive substances  tried together that's almost impossible for you to overcome and i just don't see where you're anywhere near that in this case well your honor with all due respect there as at least one case from this court to ferd versus wainwright which i would point to that gives some support for our argument today this case is unique from many of the other cases that you look to in as much as we have a constitutional right which is that specific risk that we would look for that high standard and prejudice that needs to be shown in these cases i would also refer this court to the holding and bird where the united for your injured mother on trial here i'm sorry  honor specifically because dan mr daniel was unable to call as a witness his wife in a marriage fraud claim where he proffered an affidavit to suggest that she would explain to the jury their relationship how they met and that it was in fact a non fraudulent lawful marriage because he was unable to compel her testimony in this particular case because as my colleague has suggested she's a career criminal she had a significant criminal additionally and we would also have to show a specific and compelling prejudice and it would be our contention that we've done that by pointing to a constitutional right to present a defense and to offer witnesses which mr daniel was affectively denied the right to do in this particular case and in response the government suggests that he should make a choice between his right to th amendment silence set another way that he should testify if he can't com testify or beef prevented from effectively presenting the defense that he wanted to at trial the case law in this area as this court says is difficult to overcome but i would suggest that our case is distinguishable in this much as it identifies a clear constitutional right which meets that high standard cases like bird as well as stiffer versus wainwright support this contention specifically i  would also point this court's attention to satirize vs the united states where they talked about this type of risk meeting the standard way back in the eighty's when this severance last started and they specifically said such a risk might occur when evidence that the jury should not consider against the defendant and that would not be admissible if the defendant were tried alone is admitted against a codefendant for example evidence of a codefendant wrongdoing and some circumstances around the asli could lead a jury to conclude a defendant was guilty i would submit to this court that what safra was concerned about what they suggested should warrant a severance is exactly what we're presenting here with mr daniels levy we've raised two issues before this court the st the the sufficiency of the evidence to convict mr alabi on the basically the argument is that the evidence was insufficient to show his knowledge of the  conspirators intent to violate the immigration laws at the time they entered the marriage and nd the nd issue is the district judges overruling of the request to charge to instruct the jury the defendant had to have knowledge and conspirators were had the intent to violate the immigration laws at the moment they entered the marriage the i'll start with the requested charge that the the government's case here rest the evidence say they rested i was the testimony of gables for the most part who had a lot of credibility issues and her corroborated but the government also relied upon immigration officials who testified about several red flags that they look for as as indicative of marriage fraud these things that they look for that they found in this case and pointed to in this case all occurred after the marriage they were documents that were filed things like that and evidence of not living together think things that showed the marriage wasn't legitimate but there was no factual basis to to infer from those facts mr lobby's knowledge at the time they entered marriage so the  intentionally or not accidently that nd that the defendant knew the unlawful purpose of the agreement to the agreement to enter into the marriage and that the marriage was knowingly entered for the purpose it was entered for the purpose of of aiding immigration law and if the marriage was entered into for that purpose it seems to me the purpose knowingly the purpose of that had to exist when the marriage was entered into so it seems to me there  if the the issue was the intent of the two people who got married then it might be distinct it would be distinguishable from the case we have here where the uncorroborated evidence from misgave or was that mr  was the person who brought the nigerian to ms gable and that the marriage was entered into for with the tent to buy late immigration laws because of all the testimony from the agent about what they look for as indicative of marriage fraud which was all post marriage it would have that that's how the not giving the motion to clarify that that you have to focus on the  moment of the marriage because that's when this all fits and it's a non continuing off and it's complete upon entrance of the marriage and in general that instruction was correct but here where mr lobb even through the uncorroborated corroborated testimony ended if if that testimony was believed that if his involvement and at that moment but much of the evidence that was enter other than miss gables testimony was the agent's and that was a big focus of why these were fraudulent marriages it leads the to the potential of confusion of the issues for the jury in the unique state testimony and the government's been talking a lot about this post marriage conduct in this case i think it would have helped the jury focus the jury's attention on that essential might please the court andrews has filed to a stop less reversible plan and conjunction with the special condition in the judgment the special condition was recommended and the payoffs are as judge hogan botham pointed out judge rosenthal wrote them read the special condition of the sentencing hearing that was the time to object whether whether andrews wanted to oppose it or so clarification this special condition was justified based on paragraph four thousand and sixty four rather and the p s r as well as the probation officers common and the special condition and that andrews had a history of drug abuse she said that she had been smoking marijuana since i think it was the age of one hundred and seventy two or three cigarettes a day until two thousand and fifteen and that's approximately twenty errors actually just shy of that she also told the probation officer that she wanted to stop and in conjunction with the dispute over this special condition the psychoactive substances substances the probation officer and subsequently the judge imposed in the judgment that andrea's get drug abuse treatment that should be tested and she's not opposing any of them not the psycho active substantives substances is not that far removed from the illegal drugs as we know them and in fact it gives example of synthetic marijuana and bow solids andrews can also ask the probation officer if she needs clarification i think an element of common sense needs to be imposed on the lawyers and to the southern district order namely that the examples of coffee getting the jitters sort of language is just saying could it not be better written well st of all i want to be clear that it's a recommendation and the order or not that's not even correct that it's up to the judge's discretion in other words it doesn't have to be impose but secondly to the extent that this court believes that there is some guidance needed this isn't the case because it's under plain error of view and also the way that the order is written and therefore the special condition of the judgment that judge rosenthal chose to follow is that if if to the extent there is some clarification needed to actually talks about prior approval of the probation officer so i don't while whether or not the court thinks that some guidance is needed i'm not certain that this is the case based on the procedural posture here and because of that same procedural posture it makes it even harder to reach the th even assuming the court finds that the st three prongs were met it makes it even harder to reach the th prong where there is a modifiable condition it's not it's not dispositive but but the court can go back and change it which makes it harder as i said after the  in relation to the denial of the motion for severance judge smith course you're correct that that's an extremely high burden here and it's even stronger and skin spirity cases because the evidence you risk the run you run the risk of duplicative trials and disparity in sentencing and what judge rosenthal found here is that the evidence if you will that was offered in the affidavit it was duplicative and it was about their relationship where they supposedly met how they're supposedly dated and fell in love and what judge rosenthal found is that this these substantially identical facts would even if the court granted the motion to severance daniel would not be deprived of any evidence because the facts were virtually identical and nd way that the court thought that that the government might try to go ahead a founders were to testify and offer the drug evidence in the court would instruct against it you know met limiting the jury this is what you can consider only against a perp only against that particular defendant and what on the court of course did that in these instructions anyway these instructions are very very strong and what the jury can consider the court was very clear that the evidence had to be limited to a particular defendant and that the jury could not indict or not excuse me couldn't convict one defendant based on the evidence you know that and a defendant another defendant had come excuse me had pleaded guilty or anything like that so the courts the court's instructions definitely protected against any prejudice and of course this court presumes that juries follow their instructions and are capable of segregating the evidence and so the court's decision was correct in especially based on just full economy turning to mr  critical to the success of the conspiracy and the daniels and andrew's fraudulent marriage he was at the central core of all of this gable his coconspirator testified that they had arranged lobby tutored her on how marriage fraud works and she also learned from watching him what to do at the courthouse how to stage the wedding pictures and how to prepare for the emigre process alabi also paid gable to take wedding pictures and gable said he was very smart because he would wait outside the courthouse presumably so he would not be photographed and he would not tell gable how much money he made she also testified that she was responsible for arranging the marriage between daniels and tourists that he brought daniel the nigerian national to her house to meet andrews where they agreed to get married and i just agreed that her testimony was the only testimony here joseph another coconspirator confirmed that a lobby arranged the fraudulent marriages and was paid one time when she was over her friend gamble's house the phone rang they went outside and met a lobbying and she saw gable give him some money and she gamble had also told her that she wanted to take over the business that she wanted to be able to find people minister for marriage so that they would call her and instead of a law one of the points that the defense counsel made in the brief is there was that he didn't have to excuse me that he wasn't involved with the documents and whatnot but that doesn't matter if there's evidence here that he was involved in the front end he was involved in arranging the marriages and his cable said he actually was pay and post marriage actions aren't elem that are elements of the  offense they may be evidence in relation to what the intent was at the time or what have you but this court's been very clear on what the elements of the crime are and the court excuse me the district court here charge that correctly also nobody had to testify as defense counsel claims that a lobby knew the couple's intended of a the marriage laws as this court well knows conspiracy cases often rest on sir from standstill evidence and reasonable inferences and the jury here was the final arbiter of the credibility of these when this was and in relation to the jury instructions the court very carefully considered a lobby's tunder some of it was which is the a lobby record on page two hundred and forty nine dollars his proposal for marriage fraud is there and what he wanted to attach to that is the defendant did not intend to establish a life together with the person he she married and for that he quotes a st circuit case and a th circuit case but he also recognizes that's not the law in this circuit the ortiz mendis case which this court held in two the instructions substantially followed this court's opinion in order to use an a district court of course is not required to submit and correct instruction are one that's already been in the charge and here there's absolutely no psychoactive substances condition is going to continue to percolate up to this court just in my office alone i have two other cases appeals coming up with this issue i understand there's no objection in this case but one of the reasons for plain review is judicial integrity fairness and efficiency one of one of the things this court could do in this opinion is encourage district courts to modify that language for future future usage include language like make it illegal psychoactive case but keep in mind that if this court acknowledges that the owens factors have been met in this case but still find that we have not met the specific and compelling prejudice prong that it would be based on a showing  a constitutional right said another way we have made a showing of a constitutional right which is the highest of the high standards that could be presented to this court and it must meet the specific and compelling prejudice prong because if it doesn't nothing ever will for that reason we ask this court to reverse this judgment married man for a separate trial so that mr daniel can be given a fair trial which he was denied in this case and so that justice may be done thank you  arguing that requested instruction on this appeal that was and that that was a request that is structured it was denied but that's not the instructor that's not the instruction we're raising here the instruction that was requested into ny that we're raising here was that the parties had to attend to violate the evade the immigration laws at the moment the marriage was inert entered into and that is a correct statement fist circuit precedent under united states