good morning your honor is my name is matt schindler i am appointed counsel for mr rollo or cilla and we are here today to discuss his appeal on that emanates from a jury trial where he was convicted of an offense involving a twenty year mandatory minimum sentence the cornerstone of the part of the appeal that i'm handling my colleague mr anderson is handling the sentencing issues that were presented in this case all reserve about half the time  anderson to address those issues and questions that the court may have i focused my so you're suggesting he will address the penalty in the hands and and the actual sentencing that's correct your honor my focus in the briefing in this case were on the trial and evidentiary issues that are presented by the unusual instructions and foreseeability requirement that were injected into this and that interest me so let let me tell you what's interesting about this is if you could help me the jury was instructed that the heroin use had to be the but for that was part of the instructions had to be the but for cause of the death correct correct that was not objected to that's correct do you think that's the correct standard absolutely ok so let's assume that the jury found that the heroin as it must have that the heroin use was the but for cause of the death isn't foreseeability does not place a greater burden on the government the words what how does the foreseeability instruction hurt you if you think that all that was required was but for it seems to me and asked the government to prove more than it needed to i just disagree fundamentally with that analysis because at the end of the day what reasonable force will the foreseeability allow the government to do in this case was to introduce evidence that wouldn't otherwise be relevant to have  asking about the instruction now this is all just an instruction ok go back to the argue about special verdict special verdict certainly question how do you how were you hurt by the special verdict question since if the jury found but for cause it didn't matter whether there was foreseeability maybe that's a better way of phrasing well i think that perhaps you weren't hurt by it at the outset but i think when the jury gets to the point of considering an instruction that says on one hand don't consider reasonable force if they want they weren't they were instructed simply to find but for they were asked a separate question was there foreseeability but that someone might have i'm still having difficulty i understand why you don't like the evidence that came in to show for c ability that's a separate question ok i want to ask you next but just focusing on the jury question for a moment you couldn't be hurt by that question could you well i think you can because again what it's asking the jury to do in this case the jury was told in its bug for analysis don't consider any of this reasonable foreseeability and then it's asked if it finds the spot for causation van to analyze reasonable foreseeability in the supper context it  it wasn't told to sequence it was just asked this question write a question didn't say if you find but for cause then we want you to move on to foreseeability guess that's the way it was structured so i still say problem use your view is that they should never should have been asked and asked asked to answer the separate question correct but and that the way it was written and drafted was inherently confusing even in contradictory given the fact that they were told to find but for cause first yaba you you were harmed person there was no or there was no let's say there isn't a specific harm that emanates a jury instruction like a vat i just think as a human being that speaks english it makes no sense but  lawyer arguing an appeal in which no objection was made you have to demonstrate to us that the are was so plain that it infected the fairness of the proceedings so understood not making sense you know now making sense isn't the standard we  so again i'm i really cause it's the center of your case tell me how it prejudiced your client well if you're going to force me to say that the specific jury instruction considered in isolation without all the other things that the government piled in behind that didn't client i can't say that of course it ha so so let's go backwards that because it seems to me your real argument in this case is that the introduction of the heroin harm evidence to which you did object at the time you're  other words the instructions that were received the legal arguments that were made relative to those the evidence that was admitted in order to prove reasonable foreseeability and the idea that reasonable foreseeability in a heroin case makes no sense everyone here close how's that thank you all right sorry i've heard everything you've said to judge her words questions and i guess i want you to step back one more time and think about the answer because we're really here on plane air review we're not here on is this an abuse of discretion problem with a special verdict form we're not here on whether this is  of discretion whether they introduce evidence about the harmful effects we're here on plain error because nobody has asked the district court to think about it and now i feel i'll be fair i thought about this the same way judge who it's did if in fact you've already proven the but for cause it doesn't seem to me there's much left except to make the government go the i got to find in there i got to make it plain and i got to have something in the record to say i got to toss this over so think about his questions again maybe you can give me a different response  i'm not entirely sure what what the response would be my view of this trial in its entirety considering the totality of the record and the way that the government presented evidence a reasonable foreseeability is that a heroin on a case about distribution of heroin where the defendants have stipulated that helen killed the person you cannot there is no it is a plain error to have a medical examiner comment testify about expectorating blood around the walls and about how many hundreds of thousands of people are dying from heroin overdoses that was not an appropriate thing for them to be in this has been just a minute out of if we go by a legal requirement that didn't exist it proved an element of the crime that's not there so let's get back to my question because now such fischer's framed it in exactly the way i want you to try to answer it the evidence you must be claiming was irrelevant and overly prejudicial correct of course ok so we view that under what standard well in this case i think it depending on whether or not there was an abuse well was an objection was there sitting was there  special verdict form that's going to allow somebody to talk about foreseeability that your second question as of whether this evidence ought to come in is really answered by answering the first  question i mean if you're going to talk about that in the jury you've got to have some evidence on which to base that haven't sure so if i don't think there's plain air in the british special verdict form and how am i going to find plain air in the introduction of evidence which would be enough to establish what needed to be done in the special verdict form well because the special virtue was never required in the first place once it was there once the government knew a longer prove reasonable foreseeability that became a giant avenue for irrelevant unfairly prejudicial evidence so it's connected that's the i mean i understand what you're saying that it may not be plain error to have a jury instruction in and of itself but it what it led to in the context of the trial affected fairness yeah and i know it's not your fault i mean when i say us always mean your side but had defense counsel said at trial your honor we don't need you know we stipulated but for causes enough we don't need foreseeability and we're therefore we object to this instruction and the evidence presumably the district judge would have had a chance to to say ok then we don't need this evidence and we don't need instruction but in the absence of those objections that's why we're struggling with how it had to deal with this case well i understand and i mean there's nothing obviously i can do about the conduct of the trial of counsel i just read a transcript or look at a trial that's about heroin and not about the elements of the crime i'm going to give my writing time to my account co counsel well frankly you did a good job we're glad to let you do that we just ask you the tough questions we could come up with thank you sir morning your honor good morning judge fisher ben anderson may it please the court i am here on sentencing issues as mr schindler discussed earlier and the place to start i think in this analysis is the statute and it is also the indictment which flowed from that statute the statute that we're discussing is twenty one u s c eight four six that is the statute that sets out shall be subject to the same penalties as those prescribed for the offense the commission of which was the subject of the attempt or conspiracy you agree with me that's the entire language yes yes that's going to now we've now that we've both focused now we've now we've focused on that conviction to what the object of the conspiracy was so in this case the object of the conspiracy was to distribute heroin and what did what is the penalty for distribution over the twenty year maximum no minimum is not within the judge gave twenty years that's what yes she goes so tell me why that was there well that was there because you pose that due to her perception and her ruling that that it was a mandatory minimum not that there was a lifetime maximum in a twenty year mandatory minimum well but you have two arguments as i understand it one is that she made a statutory mistake in sentencing to the twenty year to life and the other one is that she made a guidelines mistake correct under statutory her trouble understanding the statutory one we read this statute it says you get the same sentence as if you had committed the substantive offense the object of the concert of which is the object of the conspiracy right or attempt you said the object of the conspiracy was the distribution of heroin but the penalty for the distribution of heroin in is that results in death is twenty years to life now what that that you made one skip there that i think is is the problem in the script that you made was that in a substantive offense if i delivered heroin to somebody and that person died i would be exposed to that twenty year mandatory minimum it's different pursuant to eight four six in a conspiracy  i'm still not understanding your argument so this is why i'm asking where is your argue what what factor was lacking in this case that would to subject your client to a twenty year lock to life sentence the fact that was never indicted or proven or  well under the substantive statute heroin distribution you agree you don't have the object of that conspiracy doesn't have to the object of that distribution doesn't have to be to cause death quick it's simply enough if death results correct so your argument is that when you're charged with contempt or conspiracy in addition you must intend to cause death i think that's the logical outcome of a ok now i understand you're right and i would point to that you know there we've talked quite a bit about about a fair and there's also a couple other cases cited in the briefs that go to that one of them is never ready aguilar which do you think fair establishes what you are now arguing if there for example because i read here and i thought i don't know how you can well here here's how i would distinguish in looking at the indictment language and i'm not sure if the indictment itself was actually quoted in the vera opinion but the indictment language it itself says say in vera i didn't see vacated the quantity findings in that in that case they did not vacate the conviction itself and i'm not asking to vacate the conviction in this case either i'm just saying that what vera says is that because the drug quantity findings had a problem that affected the sentence unfair and that's why it was remanded for we sentencing but it wasn't it wasn't just kicked out it wasn't the conviction itself was not invalidated in the indictment in a very for example the coconspirators did conspire and agree with each other to knowingly and intentionally distribute and possess when the tent to distribute more than one hundred grams  of heroin for example and there's a number of other and indicted offenses in this case if you look at the indictment it does not accuse either party or anybody of agreeing to distribute more than a substantive crime but it's not the correct approach if you're trying to get a mandatory minimum out of it to accuse somebody of a conspiracy you've already gone over your time thank you very much for your argument we'll turn the government of the united states you know i think the the trouble that we have with all of the issues that have been raised here is that none of them were raised before the district court judge brown was never asked to why we did it and this is in the record i know i know you say you did it because our case was unclear and maybe it would have been error not to give it right in part so yes there really there are two answers to your question the first is we were concerned about the question left open in burrage the second is we wanted to protect the conviction in the event this court or the supreme court were ultimately to hold the proximate cause this required and as you bear may not fully appreciate trials of this kind in which a death results caused a particular strain on the victims so mr de long spam lee members were present they have received notice of this hearing so when we've got victims who are affected by the trial we have a keen interest in not wanting to have to retry the case we also have cooperators who have a long history of heroin abuse certain we want to ask you this question that's it's only get to it once you've concluded that the defendant is guilty under one for but for exactly so can you help me with respect to the evidence that was introduced some of it seems there were seems to be some objections and in other places not object to what's the government's view about whether the her would affect evidence was objected to and i searched through the record i only found two instances in which there were actually objections made at trial so there was some motions in limine back and forth in which this wasn't raised the government because of the stipulation i think this is an important point because the defendants stipulated that the death was in fact the result of a heroin overdose there were four photographs that the government withdrew and those were the photographs of mr de long and they were pretty shocking  your blood for case was made by stipulation exactly and that's exactly why we withdrew the photographs of the victim which would have shown that in fact all of the outward signs were that was that he didn't die die as a result of a heroin overdose us that he had purchased an ounce and there was an objection to that on the basis of hearsay and the government's response was we're not offering it for it's truth we're simply offering it to show that that was why we set up the controlled by later between rossa and shane baker for now it's was was we wanted to replicate what their ordinary practice was the only other objection that i found and this is that excerpt of record six thirty eight to six forty six was when detective big nair was testifying about statements that mr sand of all made and there was an objection that that was hearsay and judge brown overruled that objection because in fact it was the statement of a party opponent so those are the only two objections that i found to any of this in the record otherwise it all came in without anyone standing up claiming for zero three unfair prejudice or the like and in fact our position is that all of the evidence that they' complained about was in fact relevant not for reasonable for c ability but more to rebut the defense that mr de long could have obtained these drugs either from nick post who he was t to get a hold of and then apparently never did because he was trying to get heroin from both god vin and nick post he cocked up with god and he never hooked up with the tech post and also to rebut the suggestion that this may have been an overdose attributable to china white which was something that rossa picked up when he was in ohio so the evidence that we brought it brought forth was designed to show that in fact the long does that died as a result of ingesting black tar heroin i did and i don't see how you can square their argument with this court's ruling and masie os so says that when you're charged a conspiracy that it's the same penalties that would apply under eight forty one b one c and here that's that death resulted from the and justin of this substance and masia specifically rejected the defense argument in that case that somehow because the charge was one of conspiracy rather than underlying distribution that there was an additional element and there's simply no one thought there's nothing in the statute nor is there any case that holds that we have to prove that these defendants actually intended death to res that would be a different char much if they were trying to kill off their customers that would be murder wouldn't be len bias the council never got to because we ran out of time the argument made in the briefs about the the are can you address yeah i'm not sure i ever fully understood the guidelines or i do know that my operation of the guidelines at the statutory mandatory minimum became the guideline se is that any any error in calculating the guidelines made no difference because the mandatory minimum was given that's correct i just wanted to see i wanted to see how they tied together yeah i didn't see a distinction between the two and certainly once we have the mandatory minimum in place and the guideline analysis becomes moot or make a difference had the judge sentenced to a sentence greater than the mandatory minimum it might have but we certainly suggested that there should have been a sentence higher than that we haven't raised that on appeal i also had a question for the government on this there seemed to be there's other convictions if you're correct are they in your view or are they affected by any of the arguments made here i don't believe they are and in fact we move to dismiss count two after the sentencing said that it was count one that was really the driving force and they didn't receive any additional time i think as mr arceo was also charged in counts nine and ten and those essentially merged so as and this is in the quoted in the in the opinion page one zero one three a conspiracy to distribute fifty grams or more of meth so contained within the object of that conspiracy was the trigger that would trigger the mandatory minimum the issue of c s valencia was that there was never actually any any any drugs anywhere it was a reverse sting operation and the issue was hey can i come up and make a conspire to buy some meth from you and you don't actually ha so there was never actually any any methamphetamine or i can remember what the actual drug was so the issue in my c s valencia was exactly what the point i'm trying to make is that the conspiracy the object of which t was to obtain fifty grams or more of a drug that's what drove the sentence not the actuality so in this case in our case what we have is a conspiracy that doesn't have any object that would that would trigger a mandatory minimum and instead the government is relying on the results to impose a mandatory minimum that's exactly what most c s valencia says shouldn't happen but she is valencia says that it's the object of the one five three five eight three four american fuel vs so keef and california air resources board