our next cases united states versus scott conspiracy case spanning the period of time from two thousand and eight to two thousand and fifteen and granted you a part of that client was in prison that would create some with just the problems of the trial but you know it was a relatively simple case no job double jeopardy problems no real withdrawal problems it focused on the conduct of mr scott after he got out of prison the government have had elected to supersede the indictment and go back to warriors went back more years and with that they created the double jeopardy problem they created the new statute of limitations problem and for what gain the government gain nothing for all practical purposes by expanding this indictment there were two witnesses that perhaps somewhat mounted participants that they picked up by going back at that fall but that was it there were no new documents indictment clearly violates the will jeopardy there is a complete overlap of time with the two thousand and six indictment the teachings of short reagan's jarvis and jones tell us the government can't do this and the government cannot use the indictment to manipulate around double jeopardy what they claim that the what kind of drugs are involved in this case they claimed in the second case that two thousand fifteen sixteen indictment they claim there was powder cocaine more than five kilograms of cocaine crack cocaine and marijuana the jury will resolve the crack cocaine of the marijuana issue in favor mr scott and what is interesting about that fact is all of the testimony involving the crack cocaine all of the testimony involving marijuana were from were alleged to have occurred after mr scott was released from prison around double jeopardy and that's what they've attempted to do here the government has the benefit of a conspiracy and there's a tremendous benefit to the government and doing a conspiracy hearsay testimony is admitted that otherwise would not that they actually do not need to show actual drugs they can have people come in and testify that we had drugs over this period of time and that the evidence rules are somewhat looser with the conspiracy as to who can come in and sit you indict people straight drug sale case where they say you sold this amount of drugs you've got to do the chain of custody and all that stuff that makes a little more mentally but that but that's a burden on the government when they were in the conspiracy also and that's the fact that when they do an overlap an indictment they walk into the face of a double jeopardy problem for what gain none in this particular case let's look at an example of what can happen with these novel lapping conspiracies suppose you have a typical wheel conspiracy  acquittal in that case the government can't come back and say well we only use six albums but we're going to indict him again and use six new people and therefore you know we don't think that bollix double jeopardy it clearly does and the same experiences could be involved in two different conspiracies but the burden is on the government to prove it's two different conspiracies and they haven't done it in this case they hadn't done it so if they had if they didn't know the name of the other six and then after the because they didn't like the sentence they couldn't come back and say well we found six more people that you sold to all that you that bought from you and they're part of this we're all a conspiracy and we're going to it doesn't work that way and that's what  two thousand and fifteen indictment did include a marijuana charge that and the two thousand and six indictment that was going to trial anyway so i'm still i'm still not clear why that information jeopardy is you don't have to go to trial that's true that's that's the reason it's an appeal will order at that stage is if you if it's really a double jeopardy problem your client didn't have to be dry that's correct but they were going to have to be and what did he do after that jury said as he did nothing because it exonerated him for the three charges they have against him for conduct after he was released from prison oh excuse me you say they found him not guilty of the three things they have against mr scott they're related to activities after he was released from prison then they found him not guilty on so that would be an explanation as to why they went back two thousand to well i don't know maybe that maybe they recognize that a weak case well could be the point is this mr scott went to prison he got out his testimony was when he was in prison he vowed never to get back in the yet all he has ever asked for in this case is for a jury to fairly determine whether or not he engaged in any illegal conduct once he was from prison the original indictment focused on that issue when the when the government in this case in their closing argument told the jury that they can read aloud upon what mr scott testified to to convict him and when all he testified to was opp pled guilty to traffic trafficking or conspiracy to traffic crack cocaine more than five kilograms because that's what i was guilty of that  evidence of this for a while in the sense we put in evidence because mr scott testified and then the government and the government in that closing argument said and since you don't need to go any further than listen to what mr scott because he admitted he dealt in more than five kilograms of cocaine and that's sufficient to find him guilty and the jury did and when the government's able to use the cram that my client pled guilty to to what happened the conspiracy prior to him going to prison in the government's brief the government describes seven witnesses who testified that mr scott reengaged in this conspiracy were actually never left the conspiracy continue to began to provide mr eric scott with cocaine in two thousand and three and going to the double jeopardy announces so we have plead guilty to that he did not he did not and you're saying it was a in this case in the indictment the government alleged cocaine crack cocaine and marijuana he pled guilty to the he patrick ok in two thousand and six yes ron and he was found guilty  powder cocaine in a separate conspiracy yes you are in two thousand al you say it was a separate conspiracy but this but that there was never anything guilty on crack or never anything guilty on somehow did not find that this defendant mr scott continued to engage in the conspiracy after he was released from prison and is speculation i would also point your honour's to the evidence in the record related to what the spartanburg conspiracy was about because the evidence in the record comes from the pretrial hearing we had with judge kane on this issue in that pretrial hearing mr wise with what evidence taken at that here there was there was not there was no testimony as relates to this issue mr weiss maligned exclusively on the a comparison of the indictments in this case versus the case in two thousand and six two thousand and six is mr bellow your own known or coconspirator he is not he is not the i'm sorry you said bellow wasn't that's correct in the purpose for the purposes of the two thousand and six indictment he was not it was not node or a not that's right now you know he's not  n you you alleged no none and your honor the reason why i say that is in the cases of jones and jarvis the cases that mr weiss points to when the court references the language known and unknown as i read them based on the facts of those cases it is probable or likely to infer that those individuals known or unknown included defendants in other cases based on the facts again in the facts related to spartanburg conspiracy in this case those facts come from from the preliminary hearing that we had on this motion with judge again in that hearing the judge referred to excerpts from the offense conduct in the pre sentence report for the two thousand and six conspiracy the judge talked about how spartanburg was the hub for that conspiracy i think it's very significant that and i did this last night did a search on the word spartanburg in a joint appendix that were comes up in the trial on two occasions one of which is when cooperating witnesses testify that they are currently being housed in spartanburg county detention center the other is one reference made by walter lee where he refers to one of his underlings sergio smith when he was out of spartanburg so there is i would argue there is simply no ever or very little evidence that this case which dealt with joe bellot being the source of supply out of atlanta georgia going to anderson south carolina supplying mr scott and various other co defendants with cocaine and marijuana there is little if any evidence to suggest that the spartanburg conspiracy and this case is  those cases told the story of those conspiracies and those conspiracies were dependent on the facts of each other in the case we had in spiritual activity in florida ending in virginia in the jones case we had as i read judge backers opinion we had the ultimate goal of both conspiracies was to sell drugs in lynchburg virginia in this case in this record there is and again i don't believe there's any evidence but i'm  could argue your title to drive again anyway or what would be if in effect the original indictment yes aren't well what he did after he got out of prison but and that this is what justice rehnquist talked about in the case where the double jeopardy clause can't be used to i think everyone is sort is struggling with what what was the gain here do a risk do a cost benefit analysis this is created a very significant problem for what and again is this your honor is that had we not put the start date at two thousand and three the scope of relevance as it relates to the conspiratorial agreement arguably would have been eliminated beginning in two thousand told as to when he began to first supply mr scott with cocaine had the government used the two thousand and eight start date you met mr wise would have objected to any evidence related to drug sales that mr scott engaged in prior to which again the government does not agree with and does not leave the evidence shows the government cites the ashur case and that case the actor asher and s h e r the ashur case in that case that involved conspiracy to steal cars in the azure case mr asher went to prison for participating in the conspiracy was released from prison rejoin the conspiracy upon his release from prison and sought to have the case dismissed based on double jeopardy arguing that he had been convicted previously for the same conspiracy and i believe both parties in that case agreed it was the same conspiracy but still the court in that case said double jeopardy does not bar a subsequent prosecution because the evidence was that mr asher rejoined the conspiracy after he got out of prison to be prosecuted rejoining the doing what he did after he got out of government does not believe that there's a prohibition in the government trying this defendant in it for a drug conspiracy that was separate that occurred with the and i would even cite the mcdougal case in that case you had three separate organizations involved in working together but this court held in mcdougal case even though you had overlap even you even though you had common actors even though you had similar drugs the conspiracies were different for the purpose of double jeopardy so i would had been convicted previously and that was that was a jury argument that he wants profitable jeopardy yes ron and the government opposed oppose that mr wise a very artful job and i think ultimately the jury had an conclusion what i would just say to the court is that based on the evidence in the record there is there's just not the evidence to show that the two conspiracies w same that the stories were the same and for that reason the government would argue that double jeopardy was not a bar to prosecution and would stand on its brief on the other issues unless the court has any other questions thank you very much question yet the trial judge made a showing of non frivolous said i doubt michael short of non frivolous let's have a due to the fact that there were no factual disputes that we did it strictly on the documents under the jones case this court would review that non frivolous funny de novo and also point out that in both indictments the only allegation in the indictment as to territory why mr bellow would been admissible evidence and in the two thousand and six trial along with mr maddox mr levy and probably a bunch of others i would like to suggest something to the court and dealing with these issues because as i've read these things they have not always been easy to figure out it just seems to me that what should be done in these type cases is this when an indictment overlaps such as this when completely the defense filed a motion to dismiss on double jeopardy there is no finding of non frivolous showing because once it overlaps it overlaps at that point the government has the burden of establishing legally significant difference between the two indictments because it should the government is the one that elected to draw all the indictments the government is the one that elected do but the places the people the defendants and so forth and third it vives the bar that at such a hearing the defendant can testify are subject to the protections of summons versus united states similar to what we do in a case involving you know illegal search and seizure if we were to do that i think these cases would be easier to handle it would the government would also before it indicts when it knows that this is going to be an only less an indictment and we're going to  face this problem because the court has said you're going to face this problem they will think twice about overlapping indictment and if they do and overlap an indictment they will be able to come to court with a clear articulate reason as to why they  different and well knew something more than basically what i say they've done here is i'm from the government trust me they're different they were the same indictment covering the same district south carolina and the testimony in one would be admissible and the other involved mr beilin was involved i mean period i'm there's no question about that i don't think i don't like the government last night they talk about mr battle was on not even an unknown while he was an unknown because that came out