both the pleading the other densher e and the instructional phases i will start with instructional problems and time permitting we will also relate those errors t there are many problems with the instructions regarding this count for these counts perhaps the the largest problem is there are two alternative prongs in terms of what is thought of as or called the murder for hire prong or the where one doesn't act to gain entry to an organization or maintain or advance one's position within that organization well i believe they presented the case on really both theories but on the first very the former theory the problem lies in the fact that there has to be a quid pro quo consideration for the act in exchange for consideration and in other words a an offer of money in exchange for killing somebody what evidence was presented by the government in your view to support the earth theory well there was no quid pro evidence as to the improper theory which was created by the instructional error they were allowed to submit and did submit that issue to the jury based upon the theory to both theories and evidence was presented as to both theories but i was asking what was the evidence regarding the first theory that was presented by the government well if the evidence that ties into the instruction given would be the evidence that but getting rid of certain people our clients could increase their drug territory and make more money that's improper under under eighteen u s c nine hundred fifty nine there was a particular discussion would say there must be a direct quid pro quo that they are being paid to in exchange for murdering these people they are being paid money to do that there was no evidence that out of the way they were told supreme court noted that issue but said that they were not going to address that because nobody in grief get since that time that kate had the issue is now pending in the united states supreme court via a case which i'm not going to cite because i can no longer cite it having been except the first start to the u s supreme court and which this the ninth circuit did address that issue and indicated that there had to be an interstate connection that was another california marijuana initiative act so that issue is before the supreme court at this point but i think all of the briefs fully demonstrate that there are there must be some sort of interstate nexus and the jury was never factually and automatically involved in interstate commerce we don't believe that is correct we don't believe that is constitutional our clients never have the opportunity cost of them in congress dictionaries i look at cases there's not really a lot on what ad hoc is what it means there is a california case that talks about a situation where there's all types of administrative rules and making process i believe this being an element of the of the crime alleged i don't think that it's a term that laymen commonly understand or know what it means i believe but i think quite frankly at this point i'm still not sure i know what it means after studying it's something that really does not come up very much in court decisions but i believe the jury had to be not a person's term although certainly we hear it from time to time and it i don't believe it is a term commonly known or understood by juries or for a  situation you know i had to read through the jury instructions many many times to be able or even figure out why the government and the court believed to be the c on multiple multiple conspiracy like it was a very very instruction in which it talked about being there being pleaded a conspiracy and you have to find a conspiracy theory to find the defendant is guilty and you have to find conspiracies plate but it didn't get into the pot how do you close issue where we are there's pleaded one conspiracy but enough to find him guilty of this because it wasn't something of that nature given well i don't think it was nearly as precise as your honor a stand it was very vague it really did not specifically talk about other specific conspiracies or other other wholly contained conspiracies it was a very vague overbroad instruction if the jury was to believe these existed multiple wholly internal consistent separate conspiracies there were freestanding which were not dependent upon any other conspiracies so i believe that that was  called mexican mafia and fact we cite in our brig the case that even noted that the italian mafia in new york the five families actually had a board of director tight working station here we have an organization find that it not guilty even though that may have been a member of the conspiracy that's it's question i would think that you don't think that instruction lets but the fit enough to cover your issue regarding multiple conspiracies no i conspiracy is not dependent upon it another conspiracy theory then it is multiple conspiracies where all of them are interrelated and one is dependent upon the other than it's a single conspiracy so the be given and i believe i believe calculus itself would would discuss that so that would be my guess case on that count i see i only have four minutes left so left so if the court is going to give us a little bit more time than our twenty minutes i'd like to take a few more minutes before i reserve for rebuttal and i understand your honor but accidents and i believe these errors are prejudicial per se again as i was stating i believe there is no evidence that the decision making was anything but ad hoc regardless of the fact that there may be some rules and structure that does not mean that there is not ad hoc decision making there's no evidence that any of the access to the viger pounds were committed on behalf of or for the enterprise and  situation where the evidence showed a few people got together and acted on their own it's let's say a dentist is a member of the american dental association commits knol practice and then gets together with with the dental assistant they conspire patient if the patient comes back to correct the problems i don't think the fact they got together and made some decisions together is a or she was a member of the american dental association somehow that means that they acted on behalf of the american girl associa no money went into the so called mexican mafia coffers this was a few people acting on their own who just happened to be part of an organization that supposedly  my concern is that the jury would have been confused by the reference to other conspiracies in the instruction that you read because the german wouldn't have known whether other conspiracy meant the turns that groups act against marching as group which aren't negate the existence of a conspiracy is that your argument no your honor what i'm suggesting is that the evidence at trial at method of two factions within this alleged organisation and the evidence with those with that those two  actions were feuding instruction that the court read a moment ago talked about how the jury shouldn't find someone guilty of the overall conspiracy if they believe they were acting on behalf of some other conspiracy and i'm just suggesting that certain acts that were testified to a trial which could have been conspiracies in a month and solved and the jury would have been confused between charged only charged acts that could have led to conspiracy t individual members acted on their own behalf even if that was a conspiracy that that was not sufficient to allow the jury to find these defendants guilty of the charge crime i said it very articulately but i think  know what we're talking about when we discuss these things i don't think when we do i think it needed to be explicated a little bit you know you're honest with respect to the wiretaps here when the court has the opportunity to review this case i'm  this case i think the announce of information that the government was able to get from all these other sources which they didn't really discuss their applications they have confidential informants providing them with information they had a confident they had a witness  eventually his identity became known who allowed them to put wiretaps on his phone and then the opportunity to go to other areas to get more information but they chose not to the specific other areas i have in mind they could have gone to the state and asked for the state those insiders were not credible or perhaps very unsympathetic witnesses to a jury the government might not have obtained as many convictions and they did have the jury been relying solely on the credibility of these people who  argued that least one level of his current sentence is improper because it involves double or even triple counting of the same fact specifically that has to do with extortion which was on charge charged with having done that is by taxing the gains taxing meaning we're going to set up a system whereby you pass a certain amount of money and you'll be allowed a certain amount of territory you can distribute your drugs but the t activity is just extortion that's all it is extortion was not charged in this case but the taxing activity through the distribution of drugs was and judge carter recognized that the taxing and the distribution other issues particularly mr ranney will address the sentencing issues of the court which is to your argument just briefly with respect to the issues that have been raised on this case  inadequate and he claimed that there was evidence presented us to this theory and that the government argued this theory that that is incorrect as the government noted in its brief the indictment only alleged the status of murder motive the alternative i'm sorry did you object to that no and i think i really i wasn't there of personally but i think it was liam form instruction that instruct you know gave a brief explanation of the alternative theory and somebody's got to strike that out but under the circumstances the fact that that that the instruction was given appears to be harmless in light of the fact g not marijuana there was no indication that the drugs were produced death for personal in the medical use within the state of california so that as the law is that if it's under the law as it currently s see that really rewarding that would have made that any clearer to the jury housefull also argued that she has made an argument based on the use of the word adhoc which  the court instructed the jury that they had to find in order to find that there was a rico enterprise and must find that their rico enterprise must provide a mechanism for controlling and directing the affairs of the entity on an was an entity that had a mechanism for controlling the ongoing operations but these were not just individual people independently and randomly making decisions on their own and that is also the case regardless of the fact that there were feuds from time to time between different factions that were seeking to take control of the organization council awful are argued that the  individual by car acts were not undertaken on behalf of the enterprise and again here we get back to the two possible motives for undertaking these acts one is to enhance one's status or maintain one's status within the organisation within the enterprise which was alleged here and the other is to commit the act for money and that has to be done by an additional requirement under our case where the people were committing these viger acts were doing it to enhance their status or maintain their position within the enterprise and he says well that has there's an additional requirement that it also has to be done on behalf of the enterprise that's that's simply not the case and his argument that if there are rival factions within the enterprise then  refuting you said poor control of the enterprise then it's still part of their part of the enterprise and their actions are part of what is what what makes it clear that they were feuding for control of the enterprise and not simply angry with each other well that's why i think that the reason that they were angry with each other was because they there was a dispute as to who should be making decisions who should be you know you know power position over other people within the organization so i mean i think if one thinks certainly characterize  a as a situation where these people didn't like each other but i think of essentially the what what comes through from the otherness is that this was essentially on a power struggle who was going to be listened to who said that when you're dealing with an organization and large and complex and difficult to penetrate as the mexican mafia even having one or more informants is not going to be sufficient think the first so it did not have the benefit of your honor's opinion in that way and and could have been done better but even had information the defense doesn't suggest that there are any there's any information from these remaining informants that could have been supplied to the court that would have in the information the affidavit definitely could have been more complete it did not negate necessity complete especially when you look at in light of cases like shylock where there was a much more well placed informant who was conducting videotaped meetings with high level members  to investigate this organization and you know obviously this is an investigation that had merit and turning to wiretaps specifically at this time was really the only investigative stuff that made sense and   for possession of a fire engine action with another felony those two don't don't double count the defendant's conduct for a couple of reasons first because the provisions really address different purposes they serve different purposes enhancement for possession of a firearm in the felon in possession context in connection with another felony recognizes the risk that a prohibited person with a gun who is committing a felony or a separate felony poses a greater risk of harm to the public so the policy objectives of the guidelines are really different and in this case there was also different conduct that was covered by the guidelines the enhanced one for possession of a farm in connection with the defendant's extortion conduct really addressed the tasks in conduct that the defense related to but the enhancement in the felon in possession contact coverage of broader range of conduct again the enhanced but there is foreperson intern action with another shows that he was involved not just in taxing but in direct distribution so then has been really does cover a broader range of conduct and for that reason you can't treat the enhancement for possession in the extortion all of our clients may well have been convicted under this and proper  well there was some evidence presented your honor the fact that the fact of the murders if committed would expand our client's territory for selling drugs and therefore give them additional profits and as i just judge candy asked me was this be a valid consideration quid pro quo if there was an exchange of being given drug territory in exchange for killing these people and while unfairly that would be the case factually that was not shown here there was nothing to show that the so called mexican mafia indicate  to our clients you know if you'll go kill these people we'll give you additional territory that may have been an indirect effect that there was no quid pro quo interaction france was rather specific to money yes but it was it was specific to money but it did not require it did not require any quid pro quo that allowed this direct effect of the act without being a bargain for exchange and in fact the evidence shows this was not even the purpose for for the conspiracy to commit these murders the purpose which is certainly an invalid defense but the purpose purpose was these people are going t criminal drug sales versus merit medical marijuana personal use it's not relevant what's relevant is is there an interstate connection required in terms of the ad hoc instruction i believe it's an element of the original crime to show that these decision making is not gone on an ad hoc basis and as an element of the the charge crime there's a sou a spontaneous  determined on an ad hoc basis  in terms of the multiple conspiracies the court stated is your honor pointed out to the jury if you find that the conspiracy charge did not exist then you must return a not guilty verdict even though you may find that some other conspiracy be the model instruction but i think the problem is that it is i think the model instructions along because it's simple and i clarify for the jury what their decision making process is going to be how they decide whether it's one conspiracy or multiple conspiracies process without the wiretapping if you look at our argument on page one hundred three shows how this could have been