the argument to date is united states against anderson good morning and may please the court my name is peter anderson i represent here i understand in this case there are a number of errors that ultimately affected the sentence in this case and i think the most obvious one was on count two where the government pursued an invalid legal theory of aiding and abetting liability as to the distribution of heroin from frank you write the n b you can  the seminal case an aiding and abetting liability and held in these exact circumstances that a person who sells contraband to another person who then sells contraband to another person is not responsible for that rd person's rd parties distribution or or possession there are a number of reasons for that the law has become more refined since nowadays we say the defendant must take an affirmative act in furtherance of an offense with the inten is in a long term relationship or at least so one could conclude with sublette but is it your are we somehow saying that we that she neither knew nor cared how sublette handled these drugs after words he could have divided them up into user quantities he could have used a lower level distributor could have buried them all that her interest stops at that level is that what you're saying correct in other words she doesn't care who he sells the drugs to so long as he sells the drugs or covering what form he could have sold them at retail himself presumably exactly and so you know if she's selling quantities let's say a one hundred grams or so he might sell those to end users and make the money that way he may repackage it you know what cut it with doormen and then sell it to other sellers she doesn't care she has no interest in how the drug is sold she just wants to make sure she gets paid as i think that you know the testimony at trial about her being very insistent that she get paid the correct amount showed so what about this shred of evidence where we have sublet saying to read a if you have a problem with it namely that kansas city stuff i can send back and ask does that somehow bring her into the arrangement i guess i don't see how it would she she has no involvement with how sublet conducts his business it's you know it  i guess it's very similar if you but that in a gianni context right if the rd party there buys counterfeit bills and says these is don't look convincing at all maybe the seller says the middle person said well hey i'll you know i can go doing his own thing but there's there's just nothing to connect anderson and ready and it's raised distribution that some or she has to know that he is going to distribute heroin and she has to do that's that's why i'm referring to right there is no other person but she she had to know that that person was selling drugs and there's just no evidence sublette got on the stand and did not discuss you know what what he had anderson about his own operation he just said yes whether it would be whether hypothetically of sublet was the one who broke it down to use or quantity she would be just as happy that gets i think she would she she just wanted to be paid and that's that's the whole story of this case we have this web of independent dealers who are all working for themselves they all have multiple sources of supply they all have multiple customers they interact but that doesn't create the sort of liability that the government things that is just is there any time that instant she knew that or would have cared that sublet was conducting his sales by further fronting i don't think there's any evidence that she knew that that i don't think the government point sanny i mean we clearly have sufficient evidence to say conspiracies between two people that are linked together but that doesn't create one big conspiracy mystery what what do you see is the difference between the conspiracy count and the aiding and abetting him i'm puzzled by the fact that you accept the conspiracy conviction count one but not the aiding and abetting conviction count two because this the kind of argument you're making seems to me equally applicable to both or to neither but to distinguish the one from the other seems hard so could you tell me why you are distinguishing the conspiracy conviction from the aiding and abetting the distinction in my mind comes from the standard of appellate review that is applied and the way that i would explain that is to say the jury was properly instructed buyer seller was properly stored some heroin for her yeah look let me let me follow up if she conspired with her uncle it's very difficult to see why the conspiracy conviction includes the enhancement for resulting in serious bodily injury that inhibits me comes from what happened farther down the chain and that's why i don't understand why you are except during the conspiracy with serious bodily injury well you say we should reject the aiding and abetting with serious bodily injury i think i frankly i think that the law ought to be that serious bodily injury only applies when you can show that the conspiracy that the person was a part of distributed arrow so missed my reasoning can i just interject i thought that part of your answer to judge easterbrook would have related to your concern about the jury's verdict on serious bodily injury which says with respect to count one count two or both we the jury find that the government proves that we don't if they found serious bodily injury on count one but not count two or count two but not count one or both of them so how did the disambiguation that i think judge easterbrook is looking for depends on whatever this means and we don't know what it means roy i mean it sure seems like in a practical sense that what we're looking for is are you responsible for the distribution of heroin because deaths are caused serious bodily injury what has i read the court's cases including united states versus walker the court seems to have said it doesn't matter how linked you were to the particular overdose so long as you can trace the drop back to an act that you committed in the conspiracy and so the jury was entitle to find that there's a conspiracy here and it's hard to say that there's insufficient evidence of that conspiracy did not include this heroin but included different certainly the jury could have come to that conclusion but well that's the reason the jury we don't know what the jury found though injury would have been entirely possible if this had been properly broken up for the jury to say we don't find serious bodily injury on count one we do find serious bodily injury on count two or vice versa or yes answer to judge easterbrook question is it shouldn't make a difference because they're in there is no conspiracy here that involves the distribution of heroin says mr buchanan my reading of the law says that serious  injury or this court case is a serious injury in hansen applies even if you don't make that link so long as you link the actual drop and it eventually made its way into the street but i so that that's why that hasn't been heroin was inadmissible hearsay the government in a pretrial filing thought that mr buchanan himself was a member of this conspiracy if they've abandoned that argument on appeal and so for that reason th income then that was a plain error that's the only link that's the only way that the jury could know that this heroin is in any way linked to miss anderson and so for that reason we think the enhancement should be they get it as well  represent the united states of america in this appeal a federal is your land and i want to start you right out because i think you have too is a problem for the government i do not see how the her role seems to have been complete is there any evidence that she knew that  honor i think that there are a few pieces of evidence that would support that inference the wire taps that involved it picked up conversations involving person were not attain till after buchanan's overdose so the  and that's information about the incoming current supply that anderson had provided to him and nd with respect to the kansas city heroine so what monitor raised progress in selling that heroin and when ray told him he had difficulty  immediately offered to quote send back and ask to see what could be done about that so i let me just say mr kirkland i find those very inconclusive links because if if i were trying to buy something you know from a supplier maybe they would tell me that they were that they were low on supplies but they would say we have something coming in now that doesn't tell me that the upstream supplier isn't any kind of deal with the downstream buyer that the middleman is talking to it's just don't worry i'll have something to sell to you soon and as far as this call between sublet and r again you can talk about the china white but i don't see how that links re to anderson it's really just raise finding out from his supplier the name of of the variety of heroin is about to get this i can send back an ask i don't know i don't really see why that links anderson and she might do nothing she might be responsive but it's it's just a business deal well if i could respond to those two points separately your order of the only specifically with the cheaper i disappear are going to fall with respect to that incoming chinawhite shipment i think that serves a very important  anderson though i mean you know this is this is between sublet and read a and just because we know you know it from the a mission to observer point of view that happens to be anderson giving sublet the china white instead of dealer a dealer be your dealer see i don't see how that helps too well i think it's very important that andersen was feeding this information into the supply chain into the distributors and then was giving them information that would allow them to move the kansas city area will quickly in order to make room for the new product with respect to the information about the kansas city area and in this call i think the context of the call is very important because both suckle it offers this very readily and reagan response to it was very nonchalant about the idea of returning a potential return of hundreds of grams of product so both of those i think were circumstantial evidence that immediately created the cannon's overdose that suggested that andersen had knowledge and participation in the scheme in the distribution here but i don't see the link to her knowledge i really just don't i see i doesn't even refer to her he doesn't get back to her or he doesn't you know it's just he's talking about a product that he has to sell and it's in sublets interest for his downstream dealer to to have the capacity to move the new that i don't want to double team you but maybe you know as far as i can tell the only evidence tying the is canon's own out of court statement but that statement wouldn't be admissible for the truth of the matter i mean even if we say  provided contacts to raise statement about kansas city smack ray didn't say anything about the aryan cherilyn causing the overdose what this conspiracy he's just a customer and a consumer of the drug right that we do agree with that your honor of the candidates not a member of the conspiracy and so the admissibility of his comments during that call with r that i would slightly disagree with that i think that plays call is for i'm sorry gray statement during that call is critical in the sense that it confirms that he felt the kansas city era when t v you cannot and i think you know that but there wasn't a objection to that either or any response to it as well so i think that here the court should should take the same route that or hear us found this is just plain error and i don't think that interesting can show d that the admissibility of these statements would be enough to constitute plain error as to tell race says i just need to run like wrap this up race is what's up ray says what happened to you ray says that kansas city smack ain't no joke and then ray says i'll be on the east side what's up that's cool how that ties this together is very difficult to see all of the things you're relying on and you're relying on them for the truth come from what you can and says i went out and do it on that orange what you might call it and then quite a few things then actually depressingly and shockingly he seems to indicate he wants more but i just don't see how you can get there from what ray says well i think there are several pieces of effort that demonstrate the kansas city area before the chinawhite came in so there are these these piece of evidence in the record that demonstrated the reliability of what's going on here in the states that are made but again we do think and we agree that you can't is not a member of this conspiracy and that the statements that were making were the ones that were admissible lottery don't just briefly because i see my time is running out i just want to briefly touch on the balance challenge to the evidence relating to the substantial hospital he gave an expert opinion that explicitly stated that you can and had suffered a serious risk of bodily injury as a result of the overdose so mr so i think i think if we get that far i totally agree with you that sort of the ex post everything worked out fine in the end approach cannot possibly be the law on serious bodily harm my concern which the government doesn't really address and it's breeze is this ambiguity in the jury's verdict on this point and the inability to figure out whether the jury finds serious bodily harm on count one or whether it finds it on count two or whether it finds it on both because we just have or and