blanco following the supreme court holding in the united states versus davis is conspiracy to commit a federal robbery is no longer a predicate crime of violence or night twenty four dollars c conviction not a crime of violence then pinkerton liability which finds its sole authority in the conspiracy should not have been used by a jury of making got determination and this should invalidate the verdict on the firearm count the specific or real world approach by utilizing the fate of the phrase quotes as committed which read to the jury this too was expressed plea rejected by the supreme court in davis jury charge requires that they pay to or of the firearms conviction we are asking this court to send this case that for a new trial the combination of the court's non harmless abuse of discretion in allowing both the gun and drug prior bad act evidence all created a perfect storm that ensured her conviction i thought i did in my brief united states forces cronic w the supreme court quoted a circuit to judge who had written quotes while a criminal trial is not a game in which the participants are expected to enter the ring with a near match and skills neither is it a sacrifice of unarmed prisoners to gladiators close quotes as is set forth in ms blanco's affidavits in support of her post verdict motions for family pulled resources and square around together twelve thousand dollars to hire retain trial counsel believing that because he was being paid privately he would do the best job but he failed to review discovery with her interview or even contact a witness that she requested he speak with or present any semblance of the defense the government's stated in their brief and undoubtedly had to say that they will say again today that the evidence in the case was overwhelming but that analysis is based upon the fact the trial counsel never employed the tools he had to prove to the jury that mark say the principal bank robber was a lawyer only mateo identified  any or all of these things the result probably would have been different judge on under a strict stricklin analysis i think that the criteria is that there is a likelihood that the of the result would have been different but i just said and and the cumulative effect of all the things he did not do i suggest if you were to look at them cumulatively would leave one with the impression that there is a manifest injustice in this case but not this thing sorry that's just not the said let's take them one of the t on how do you show that if he had reviewed the discovery with the defendant there would have been a likelihood of an inquest what was there in the discovery that would have led to such a result after the  the on bank robbers had told them that he was involved casing the bank for six months meanwhile virginia blanco had only started in the bank three months earlier the jury was never able to hear that and  made her he received yes judge kaplan he received that discovery test on may rd two thousand and eighteen before the trial commenced on july th two thousand and there have been casing it since lincoln was president but she could still have given inside information is not right that is that so we true but if you look at the other information i think it's important for example and remember these names were given to the jury on the day of jury selection and one of them was thought to lille and the other heard that he was involved with mauritania i'm sorry i didn't say anything i apologize for the last minute drug evidence as another example in that particular anything that he could have developed to show that marte say was not telling the truth would have given the opportunity for jury to find ms longo not guilty that was never developed here you're over time to research a couple of minutes rebuttal would you like to take us now or do you want to come back after the government i think would be prudent to come back thank you bill all right very good thanks very much we'll hear from the government please the court my name is jamie back leapster i'm an assistant united states attorney in the southern district of new york i represent the united states on this appeal and i also represented the united states in the proceedings below the jury in this case as he said it made explicit that the nine hundred and twenty four dollars c conviction was predicated on both bank robbery and bank robbery conspiracy because bank robbery the crime of violence under the force clause the appellant cannot now take back robbery itself the substantive crime was unclear as to whether the jury was relying on aiding and abetting or on pinkerton liability which itself could be called into question by davis offense a conspiracy a bank robbery charge does not become a conspiracy charge or stop qualifying as a crime of violence under the th clause just because pinkerton liability is considered by the jury  in any way limit the a quick ability of the th clause nor does it affect the theory of liability or call into question the theory of liability upon which the worst offense i have a problem with that supreme court decision in david and all that date if it looks to the language in the residual quad what the jury is asked to do is to determine whether the defendant is guilty of using or record that you objected to the district court's decision to proceed to address the merits of the rule twenty nine rule thirty three quotient she said she was doing so as a matter of case management and not making a finding of textbook neglect but  object at the time did you cite any prejudice no your honor at the time the district court was very clear in that this determination was only for case management purposes and that the government would have the opportunity to litigate whether it's feasible neglect had been shown and in looking at the four factors to be considered by the court in determining whether excusable neglect was shown whether the government object not one of those factors so what prejudice is that which you point to particularly there was but was so delay of a couple months right yes it was five and a half months from the time that new counsel was appointed more than not nearly seven months from the time that the motion should have been made and there was significant prejudice to the government most notably the fact that memories fade over that period of time and not to be cooperate or in the case had  sentenced one of the individual who testified as the of howland's trial had been sentenced and had been released and everything about that explain that delay in time causes real prejudice for the government address both parts of your question in terms of prejudice i do believe there's a specific prejudice here and that is in the sentencing of in particular mr martinez who was one of our witness at that trial and was sentenced in that time delay appellant are very differently situated before the court march a and martinez were cooperating witnesses for the government they had accepted responsibilities for their clients for their crimes they had pl guilty and they had fully discharged their responsibilities to cooperate or including through testifying at the appellant trial which of course always carries great risk to it to excess but if and they were that well what i read is what was the risk to your honor i there is always a risk with respect to outing an individual as someone who is cooperating with the government here they took the stand they spoke against than the other two men your honor i am not saying that she was more culpable than the other two men i'm simply saying that she was culpable a substantial sentence was appropriate for her and the reason why her sentence  are not only didn't call witnesses but never interviewed us know their troubles your honor st i want to know if i do not intend to duck the question i do believe that the differently sit decided not to call them but the years my concern was is our of apparent failure to even interview well one way that he would know from before investigating for testimony and missed in judge i got was very clear on the limited amount of testimony that could come in on that point so for that reason it would be clear that any testimony that mr riposte or mr pena could have shared with the court would necessarily be highlighting that limited testimony n b s limited probative value for that reason so that is one reason that was out even doing the investigation trial counsel could fully have no or could have known what limited probative value there would be what i also know here that the appellant has to be able to show prejudice and have to be able to show that but for that investigation of those witnesses the result and if there is a reasonable probability that the result in this case would have been different and trial counsel cannot do that those witness their carried with them enormous downside your honor the drug evidence that was invented was limited it came with too limited an instruction both at the time of the testimony and during the charge of the jury and it was not any more sensational than appellant's conduct which was planning a very dangerous bank robbery with her boyfriend so it was not substantially outweighed by any prejudice and what was brought forward was barry limited and was grell events because the completed the story of the conspiracy and it thank you just for me i did tell you that the word overwhelming would be used and again i chase that the only reason that there was this analysis is because trial counsel did virtually that i would be traveling out of the country i am to k that that ms blanco was about to get birth in prison in february to her rd child and i asked for sixty days to bring post verdict motions there was never never any objections voiced by the government no letter no telephone call nothing had there been that possibly it could have been done sooner but there was  address two weeks before the trial was this gets canceled to start in may the government saw a permission from our state to testify about the defendant's prior instances where she assisted him with the handling of guns to show the so called trusted relationship and to complete the story to explain how working mothers with no prior criminal history would have been involved with him in the commission of a bank robbery just sidel question why you're waiting to the last minute she allowed it and i don't quarrel with that because there was relevance and it may have been appropriate for the bad act evidence being utilized by the government to establish the trusting relationship what i have a problem with is that approximately one week before the sort of the trial would july the government again sort permission to listen for more to the evidence of her drug dealing with more thing in connection with call looking back that you point to your pinkerton argument but has any court held that sustained that argument where that where it's unclear whether the jury convicted on the pinkerton theory addresses the same issue and in fact as part part of his decision he granted two thousand two hundred and fifty five dollars motions and vacated the judgment but it's the same carryover statement for him to say all that the government had was some boyfriend girls and that's it it's it's you know you never address the lies that you told to the f b i and that needed to be trial counsel but it was it was premature because she hadn't been sentenced so and it's you to your question the twenty to fifty five was the method but it was pro se and it was