images that had to be interpreted by him that he had just see if they even just chilled black or white it is to conclude that what he will also serve in two thousand feet thank you at this time attorney for mental soto should please mute her audio and her video and attorneys some drama please and your audio and video given the circumstances this is a case where there are only two persons alone in the middle of the ocean on a vessel there's nobody else there and the most problematic part of the statement us all considering the part that has to  airplane sightings and the others it was clear that there were some bales in the boat and then when they got there the bales were gone then the jury is left with the question of who  it on his own but the other was they weren't aiding abetting each other or conspired didn't his testimony sort of point towards one of those and eliminate the possibility that your guy did it on his own that cocaine is a controlled substance that is on the record here on and so one of your arguments then is the only direct evidence that there was cocaine on the boat is the statement of  in my right though that the statute in the indictment the indictment required to be cocaine and the instruction referenced cocaine but the indictment say that are just a controlled substance  and attorney car please introduce yourself on the record and proceed to morning greg conner on behalf of the united states me please the court there is no error below that requires a for retrial re sentencing so this court should affirm on all grounds now there were a lot of issues raised by these defendants and our presentation is going to focus on two of those issues the jury selection and constructive amendment issues and then of course i welcome any other questions and out do my best to address those as well so starting with the allegation of juror bias what happened below was an ambiguity followed by a clarification talking about the jersey six talking about his wife's employment being an attorney for doco the court asked could you nevertheless be impartial and juror six follows with a double negative answer i don't think you know which cause the ambiguity could asked a clarification question you don't think his court should view that exchange with special deference because the court is able to assess demeanor sincerity inflection tone and the like so when the prospective juror says i could be impartial the quicker confirms you can be impartial ok and that nobody in the courtroom gives any indication to doubt that that that should i think suffice to  to show the absence of a clear indication of bias and if this court needs any more evidence there are other examples both of prospective jurors indicating that they did think they were biased to sit on the jury  and there's also another example of a prospective juror saying that he can be biased but it was clear that he was misspeaking so again there's the clarification and follow up answers from the perspective juror so on on this record there's no indication of a structural error and just to put a fine point on it to johnson the suggestion that the court was willing to take anybody and me comments about nearing the end of the jury pool right after the court made that statement it also said we have a cushion of eleven jurors and after that cushion will make alternative arrangements so in other words everything on this record indicates that the court was not willing to just take anyone in and would accept a biased or so again i don't think this record  has any evidence of a structural error in the pool now regarding the constructive amendment issues there is a crucial fact that is conspicuously absent from johnson's brief which is that section indictment so johnson cannot claim surprise or that there is any difference in the charge against him when the charge was was always the conspiracy in the destruction of property subject to forfeit so again i'm not sure that the the record supports johnson's contrary argument and i'm happy to address the deep rooted issue or any used the word day and the jury heard that testimony but the substance of the statement i think is is also important and defeats johnson's claim because it's not incriminating to anyone let alone incriminating to de lay on so in in that statement in both of of johnson statements to law enforcement it needed the testimony and to the they jettisoning the engine their separate testimony from johnson about cocaine being tied to the engine only direct translation of what was attached to the engine so it took the i'm hoping i'm inserting your honor's question it took both the interpretation of  other the engine but suppose the statement was the date time they jettisoned an engine to which cocaine was taht would that cause a britain problem i think it would your honor i think it would because it's directly yes or could you just explain how is this different i realize that it comes in pieces and you have to put the statements together but what you're putting together there are the confession so when you just combining pieces of a confession and then once it's come behind that confession creates a problem seems odd to me to say there's no brewton problem because you had to inculpated johnson but it that it didn't even inculcate johnson because it's not clear in either statement to law enforcement that a crime had had been committed it took interpretation of the slang word as so to mean cocaine and the remaining evidence the surveillance videos for the government to show that what was underneath those  earth what was in those black blots was cocaine so in other words just on the statements alone no there is no inculcation to either defendant and especially not de lay on who's the only one reason killing through an engine overboard other than to get rid of the drugs i mean you don't go around throwing engines off boats just it seems so close to just saying he threw the engine to drugs respectfully i disagree with that and that's why the entire trial was law enforcement explaining based on their knowledge and experience what common practices are from these drug smugglers on let me try this the codefendant says two things one the s s tied to the engine and two giuliani and i threw it overboard that's the that's the statement by the is that the whole ball of wax no no the only bones missing is what that s so it is a translation issue well i mean that's it that's a pretty crucial point what exactly is in these mysterious black bloods and what was thrown overboard and why that's the practice of just to be precise that's not the point me that's just a word if it s no means cocain then whether there's other evidence of cocaine is beside the point he is suppose you use the spanish word for cocaine instead of cocaine would you say in that instance it's not a proven problem no if if he said it's a little more difficult because it comes into statements but i think that would probably be a prudent problem because it's a wrestling coach so the key thing here is that this word could mean duck could mean direct could mean a one thousand different things that's part of it and i i also want to touch on the fact that this comes in two different statements four that are actually sitting so in the statement stage and calderon i only johnson that's involved in that statement he says he's a bunch of times i got it but last thing is there any anything in the record to suggest an alternative interpretation  of no i think it was certainly it's a very general term it means that in spanish so presumably the defense could have contested that interpretation of a slang word but merely that i guess i'm not sure what the inculpate ing part of these statements are especially regarding daley on who is only mentioned in the one statement that they thr overboard a small spare engine nothing nothing in johnson statements to agent calderon were time related to to de lay on so under this court's case law under the supreme court case law it takes reference to the other evidence it trial to assign any responsibility to to daily on what evidence was there directly  demonstrate that there was cocaine on the eula and then we also included the cell phone extraction from from they leone's phone that said things like you know tell me the price to sell they're giving pin information don't move don't make calls it certainly seems to be exploding conversation and then yes the broader even though that instructed the jury not to consider the statements against d on the remaining law enforcement evidence about common practices about this being a well known drug route all of that could be considered against and against de lay on did you need to prove that it was cocaine connections probably not based on the indictment it is it does become more specific by the time the jury is instructed by the district court it's any contraband on that indictment to to the jury instructions this court doesn't really address that as a constructive amendment issue it addresses that as a variance issue but whatever there was that narrowing is not prejudicial didn't affect the notice to the defendants so that whether it's a variance or a constructive amendment neither occurred and neither prejudice the defense well the only basis for convicting under the confines of insects was that it was cocaine there because it had to be proved that the device even if cocaine wasn't thrown overboard that the device itself was related to the cocaine trafficking but the jury found not guilty verdict on the cocaine allegations so it was an instrument but the jury seemed to think it wasn't tied to cocaine than the a problem know that this sort of relates to  throughout the defendant's briefing that you know you couldn't convict on five and six and not convict on one through four and the st circuit in the supreme court that said but you're supporting you're supporting five and six by saying it was cocaine and i'm what else what else would have been the basis for concluding it was the kind of equipment or instrument or whatever the statutory word is except that it was tied to spare parts or something like that right so it might my point was that i was addressing the constructive amendment issue for purposes of what the proof the trial actually showed it it's our position that it did show that that those that the spare engine was attached to controlled substance and the district court informed the jury that cocaine is a type of a controlled substance accidentally or mistakenly convicted just you know for this like oceanic littering theory that you know it was just the ocean or just the engine that was thrown overboard and that's one that's not the statutory definition  ut it no matter what whether it was equipment or conveyances and i think those are more likely just surplusage surplusage is in the instructions but anything had to be related to a controlled substance yes under the under the charges against this isn't in the briefing but for example when there's a difference from the indictment to the eventual conviction this court has said in the past that the specific drug type does not matter so that it's not if you're because it is the position you're putting to us that the evidence suffice to show it was at least a controlled substance even if it wasn't enough to show it was cocaine or you saying that the reason there's evidence to show it was a controlled substance is because there was enough evidence to show it was cocaine which of those two positions is your  position i will suggest a rd option which is that we could win if it was any type of controlled substance i've ever since it was just to figure out what your thanks to are are you saying the reason there is evidence of fission to show it's a controlled substance is because there would have been sufficient to show cocaine were you saying there is evidence to show is a controlled substance even if there was not evidence fission to show it was cocaine i think the former and  the reason i'm hedging it is the indictment charged the destruction of property subject to forfeiture so i don't think it matter there's the guy there or not it was just there's got to be enough evidence to satisfy even the controlled substance so is the evidence that if you were going to evidence that would have to be sufficient to show its cocaine are you saying even if we didn't think we would know what type it is the evidence nonetheless shows it was a controlled substance might my position is that the government should win even if there is just evidence of that generic controlled substance ok and what would that evidence  e well it is specific evidence about cocaine such as esso being a slang term for cocaine such as agent we're just saying all of his interdictions are cocaine  so i'm trying to do it and i'm not sure of this is what you're getting at i'm trying to distinguish between how the government could win under the terms of the indictment and what the evidence the trial actually shows because that part helped ju declarant right so it should answer is that the government complied with the confrontation clause by complying with richardson if the statement is not made against d on and if the district court gives an instruction that the statement should not be used against daily on which the district court did twice then you don't run afoul of the confrontation clause and other circuits bear this out a little more i don't think this is really something the defendants developed but to the extent this court's curious the consensus seems to be that if you comply with richardson you comply with the confrontation clause and  crawford so it's a if the instructing judge mentions the magic words that takes away any confrontation problem that's sort argue for his conviction of smuggling the remaining evidence it's our position that the government did not use this against de lay on and as we know not brief when the judge gives that instruction under this court case law the jurors are presumed to follow those instructions so no these were not statements against a leon and actually i don't think they were even statements against johnson at least not facially incriminating when that two assessment is whether the substantive crime actually happened and some of this is by inference because the jury was the jury was able to view the bills on the boat and then the pictures of the boat that didn't have anything in that space afterwards and because they were you know a group of two on a yellow on a common drug route  the jury could infer that he assisted and intended for the the drugs to be jettisoned well but just in terms of it's not a can it's that aspect of it the jettisoning is not a conspiracy charge alone a no i think so i get to this question what is the at affirmative evidence that he himself played any role in throwing over the engines clear the engine was overthrown there's two people on a boat who threw it over what's the evidence that we know there's testimony that one of them to participate in it what was the evidence that the other one did other than just being on the boat it again i think the evidence that the jury has is the before and after the bills are there then they're not there and i think a rational jury can infer that they were in this together and  aspect of it what is the basis for and through it ok so again the substantive act of of it probably being destroyed and then this will  agreement itself will be by an inference that they are you know it together or that they're agreeing they're about to be apprehended so they're going to destroy the evidence there i mean the  government was not able to provide testimony to that effect but that doesn't mean that a rational jury can't think you know two individuals hearing the loud boat from agent orders is inter diction crew decided together that that they would get rid of the evidence firing the shot  probably not be i think it would be less less rational for a jury to conclude that two individuals held the trigger together i think it's more rational for eight jury to conclude that two individuals on a small boat that hear law enforcement would decide together to destroy evidence presented the shooting of a single bullet seems a lot more like an individual act but let me go back to judge bear in this questions to the convictions were for conspiracy to destroy property subject to forfeit then destroying it was the offense but even if the home was painted as a drug dealer that doesn't advance the question of who picked up the engine and threw it overboard which was the conspiracy to throw it over what's the evidence of supports the actual convictions again part part of the counts of convictions are going to be based on the inference is that a rational jury can draw that when two individuals on a known drug route here it law enforcement boat that they agree to destroy the evidence i don't think we have to have evidence of the a ctual conversation that would never happen but a rational jury can say that both of the defendants decided there's a book coming we need to get rid of the evidence just sort of clarify mr connor so i think there's a conspiracy to destroy the evidence subject to forfeiture charge correct that's correct that's one of the charges there is substantive charge of destroying the evidence subject to four which are also yes yes there's and as the nd charge you're saying it's irrational to conclude that he must have participated in it because beyond a reasonable doubt but does it's the kind of thing two people could  do not not just that two people not just that it's something that two people could do but that it's probably the most obvious conclusion from from evidence that two individuals on a known drug route from the dominican republic here law enforcement would want to get get rid of the evidence and in fact we have the indication from  from the before and after photos that they did get rid of the evidence by the way we also have there's testimony regarding the weight of the engines it makes it more likely that that i forget the exact pounds that they discuss but these are relatively heavy so yes all of the trial evidence allows the jury to determine both that there was the agreement and the joint action of