don't necessarily i'm not sure i agree with some of the concessions in terms of i would start with the concept of it doesn't seem to so i don't i don't think we necessarily have to accept concessions by the parties so i need to be convinced on some of that i'm only speaking for myself that certainly on areas of involving circumstantial evidence i to me it seems like the prosecutor has conceded way too many things that circumstantial evidence cover so don't necessarily assume that i agree with you or don't overlook the concessions so it's ok i'll try to answer the questions as the call well ok mr arius i guess from the standpoint relies on the pier right in for the argument that the district image instruction however in that case look here was charged as the only defendant who allegedly conspired independently with his two drug suppliers whereas here mr arias allegedly  i'll assume that although i disagree and i'll get to that later there are conspiring in las vegas let's assume there conspiring what the government needs to prove for the conspiracy in count one which is a conspiracy in is that they conspired with somebody in guam who committed an overt act in guam so even if you want to assume that those two conspired although i don't think the evidence was particularly strong that they did but even if you assume that they did that still does not get the government around the multiple conspiracy problem because they haven't proved the conspiracy in guam that's alleged in count want is the question whether there's really an opportunity or us are alike that jurors sitting through this trial really were confused correct they have i'm sorry i'm right it just seems to be really tough for us to figure out whether the defendant substantial rights were affected i'm i'm just looking approx twenty three dollars and four dollars of the plane air tests and so i'll tell you my problems one it's really tough for us to know i speak like a trial you know the that the likelihood that the jurors were confused particularly given the government's concession government there we were there and the other part of the problem is a problem for which seems to me to be uniquely difficult concerned about the undermining the public reputation in general proceedings given that there's another defendant whose case came out different on this issue correct in let me start with prong for  number one the government never argued prong for in their brief so i think they've waived any argument as to plan for but even if the court excuses the waiver as to prolong for yes we have another defendant who got relief on this same issue so i think the two substantive counts mr already is has already served over five years in prison on if the government does not go forward on a retrial on the conspiracy count he's still subject to up to ten years in prison he has no prior record i don't think if the court reverses the conspiracy count that there would be such a fundamental disruption of the integrity of the court when mr arias is still subject to up to ten years in prison for offensive is your best argument these are very serious charges in the context of me is very very serious certainly str we have to decide what the defendant substantial rights were affected and i think there are differences i pronounce it leap year but who knows i do between this case and that case because in this case just for starters the other the alleged co defendants were identif indictment but there was no of the way the case was prosecuted instructed to the jury there was no way for the court for this court to tell whether the jury agreed as to which group mr r use conspired w so the fact that their names in the indictment and we've argued that actually creates more prejudice because the jurors are confused they believe was just one track conspiracy i mean mr arias said mr cortez elia and they had it up a drug distribution scheme and how isn't that just one conspiracy well i think as the government concedes and i know you're on is not accepting it is that these four groups in guam there's no connection between the four groups there it's like les pure where you had conspire with somebody in guam it's not good enough for cortez ally and already has to conspire in las vegas that doesn't get you a prosecution for conspiracy in guam and the way count one was alleged because it had to be alleged that way to get then you will for them in guam that they conspired with these groups in guam so they have to show that mr arias conspired with a guam group and that's where the problem breaks down because they have four different groups and we don't know whether the the jury the six jurors found that he's in the late pure is would is there a possibility that the jury did not return the unanimous verdict that the agreed on the exact same conspiracy and we have that problem here particularly because with some of these groups the government presented very weak evidence as to whether anything moved beyond a buyer seller relationship between mr areas and the various groups and while for some of them they basically just had mr areas selling drugs to somebody in  california ok so what's that what was trial counsel doing there just to be in a potted plant i mean i was wrong plain error in and i don't think he made the proper objections and made the proper arguments but we still i still think we to mean any property derived from or obtained or retained directly or indirectly through some form of unlawful activity including the gross receipts of such activity or proceeds include the receipts from the sale of drugs how is the insufficient evidence to support the jury's verdict here if you count circumstantial evidence here this is well i mean i you don't do you don't prove these cases but the wrecked evidence people don't go oh these are the drug print that there there are there's a lot circumstantial evidence here so i don't understand the government's you know the money so there's no concession i don't understand the government's concession there it's because it's a specialized money laundering charge it's a conspiracy to commit promotional money laundering and the cases say that simply making a payment for drugs is not promotional money laundering and that's what the government has conceded they did not prove promotional money wanted they may have been able to proceed on a different money laundering statute had to triage a different money laundering statute but that's not the that's not the offense that they charge and that's why they're concession is well taken but ok but what about the definition of proceeds and of this section that i just right and the claim here is not a challenge to the proceeds definition that's not our argument and that's not what the government has conceded the argument that they did not prove conspiracy to commit promotional money laundering the source of the funds your argument they didn't put the source of the funds is that right you know the argument is upward adjustment for the aggravating role and i understand your argument to be that this was improperly apply or or should have been warranted here because your client was in nevada thousands of miles away yes  that's part of it and then also under the four circuit decision slayed in the seven circuits decision and weaver someone who sells drugs even large quantities of drugs repeatedly through a repeat customer who then sells the drugs further down the is not subject to an aggravating role even if you want to somehow say that the buyers or selling for mr arias let's say my your time is ticking so i just want to tell you that my read of the record is that there is ammunition here for the government to argue that your client from nevada did direct operations at least to the extent of telling people where to pick up packages that drugs were to send the money back and then there's one individual in particular in concepcion i believe who testified about getting involved in this really to defend against loose paraphrase to defend his nephew to pay his nephew's debt and then his nephew was very directly threatened which sounded like direct control to me ok on the on the aspect of where to where to send the drugs toughest evidence for your client is the evidence to the effect that in concepcion testified that he got involved in this because his nephew was threatened he needed to pay back his debt one of his packages were intercepted he was told i think by your client is the testimony that he then had to pay that back and then he took additional steps so that sounds like pretty tough testimony for your client could you as well the i think the weaver case from the th circuit with with respect to the last point says that if the buyer the fact that the buyer would still be debt yet he says he's unfair right and he also made seventy five thousand dollars testified that he personally profited seventy five thousand dollars but he also testified that seventy five thousand dollars was earned after mr arias increase stet responsibility and and so why can't you make the argument that he was still under fear of mr arias and that's receive little or no compensation i mean it's a little more nuance than just he was just a seller i mean that he was just in there i mean because you have the threat to his nephew you have the amount being upped and so why is he still in fear well paid off long and you need much more money than the debt was i think that was twelve thousand dollars and it whatever his motivations were if the fact of the matter is that mr arias did not tell him how much to sell the drugs for who we should sell the the reason why norma concepcion was allowed to make as much money as he did is because he said his own terms for how he's going to sell the drugs in guam and there's really nothing that mr r s could do about it in a lot from las vegas i say thank you council will give you some time mail packages containing drugs better sell the drugs and go on and send the proceeds to him in las vegas i mean those are instructions that's leadership and again it was all based on threat the government does not think that that needs to be reached but should it go to the court feel inclined to reach it was certainly not a clearly erroneous mind about the district court so turning to unanimity lapierre says that if it's enough that there's a genuine possibility that the jurors were confused why isn't there a genuine possibility that the jurors were confused in this under my reading of a beer that question if answered in the yes satisfies the error prong so leave your saying if there if there's a genuine possibility of jury confusion then the court must do a spontaneous give a specific unanimity instruction so if you say yes there's a jury there's a confusion possibility and you've got to give the instruction if you don't it's air we still have the rd pond we still have prejudice affecting the outcome so how do we know that it didn't affect him we don't do it if you don't then the appellant loses because it's his burden i don't think you should speculate you should it should be proven to you or at least after the conception case we conceded that we did not prove the single conspiracy alleged in the indictment that we prove multiple conspiracies that she suffered a prejudicial variance in particular evidentiary spillover because we can see  shouldn't even sitting next to these guys at their trial because all they were sellers there was zero evidence that they took any interest or further actions with her distribution it was give me drugs i pay you that sellers you meant suppliers will buy or sell or still applies in this context ok so i should know it ok that's your confession in that case and then here that we put once again prove multiple conspiracies not the single conspiracy as alleged the indictment but that she did not suffer project i think it's just it's a different argument but she did not suffer prejudice because there is no circumstance imaginable where the jury would come back and not find that arias conspired with cortez iowa to distribute methamphetamine that is i mean again it's his burden to prove that that didn't happen but if if the jury finds that those two conspired then is legally and constitutionally sufficient and we know what the jury decided well i think again i think we we would have to entertain arguments by the talking about whether the jury was confused just forgive me for interrupting but this is a really critical point it's very tough for us to say after the fact whether the jury was confused or not when the government's me this concession in a different case and clearly concerned about that and my read of the record again it's a cold record but it looks to me like the jury but the at that the evidence rolled out so the jury heard about four separate groups no am i wrong about that or separate groups that have no knowledge or interaction with each other supplied by cortez mars except for norman concepcion had no further relationship with this test distribution other than supplying ok the commentary you just filled in fairly in response to my question i don't think is anywhere in the closing and i'm from those words were articulated to the jury about these being four separate groups the separateness of them no connection i don't think that's as presented to the jury was it we've had to make a lot of concessions is i mean this is not i trying to give you a hard time on it you know we talk a lot about expecting more from the government and it strikes me and invent some instances here really you're to be commended for taking a stand up position so don't get me wrong but i am struggling to understand what your position is on this point visa b this other defendant we would say that the best we proved is a conspiracy between cortez saola and arias not a conspiracy involving anyone further than that or at least not how we briefed it but arguably maybe norma concepcion but the other groups which are called groups an indictment that is not a conspiracy against going back to the buyer seller rule their relationship was just buy or sell it which is insufficient to establish a conspiracy distribute so so it would strikes me again not to give you a hard time that it strikes me you're giving me a lawyer response about what the indictment said but the law requires what right and i'm trying to imagine what the jurors thought sitting in the jury box what was what as how the evidence rolled defendants and walk right and conclude there cannot be a single overarching conspiracy so if to prove a conspiracy there must be an agreement with at least one other person in what way was the agreement between mr arias and in error you said that so if that if that was sufficient then why is it playing air not to give the anonymity instruction if that's a conspiracy that we're talking about we can see that it was are we have we have one nucleus that that they could if they had to agree on and then the ethics another possibility yet we have the hood up there the hub right there spokes but there's no and their argument is no they could have found different reavis raise one sentence in reply between states waived and you know i think i think his argument on venue is that's where you had to charge it and he was confined to the charge in him die if i understood his argument i don't think he was making a venue argument he was of the trial but the strength of the theory of the evidence as to the conspiracy between cortez sale in our ears was strong and that that should be able to carry the day in for close any previous argument issue instructional or well was a dream improperly instructed as to what they had to find on count i think mr coleman fairly characterized why we made why we made our concession what did the jury get the wrong instructions  yes from the from the prosecutor but now not as a legal matter now did the court give the wrong jury instructions ok so what if you consider all inferences in favor of the verdict what why is it insufficient i may speak to why we can see we can see that same point in corrina concepcion case and the reason was there was zero evidence that it was drug proceeds in fact all the mailings or wire transfers in that case occurred to the line of whether we should concede or not and in this case we've aired on the side of conceding because to be honest this is our finest hour or not this wasn't the best case it wasn't probably the best charge and so we instead of advocate we've chipped we're right on that line and we've aired on  how i guess from the standpoint when you go to a jury trial and there is a jury verdict and there's a lot of evidence that put that's put on if you can see what insufficient evidence means it can't be retried ok and if juror and there is and if you're an appellate lawyer you know that all the you know you have to consider all the evidence direct answer from stansell it's in support of the verdict and there's a reason for that so that's i just don't see where there's insufficient evidence but if what you're telling me is you just think quite the all that stuff between both of them and so that's the fairest way to make this happen argument as far as i read it and you are trial counsel i know that i mean you're talking about a lot of different people doing a lot of different things and there are a lot of defendants and not a lot of people involved in this thing believe your concession the money laundering it's out if if i agreed with you that it didn't affect the outcome but it had to go back and grouping has the sense on count one to the big one right this year so can the court revisit that i don't think there's any need to visit and what can the court if it goes back on the grouping can the court revisit the yes yes because of the law regarding the unbundling it would be planet reset so i mean arguably i'm just trying to think i'm just trying to understand this hypothetically if there were an so with the court just resounds on everything what is it what's the courts what's the range for the court on count one i don't know but i don't know i'm pretty certain it's not life because we've made concessions and we're not intending to argue if this goes back it's the grouping as well as the thread with no with no payment there was testimony that he got paid so we there are a couple things are quite he's not going to say that then but with but then if we don't agree with if the panel doesn't agree and reverses on count one then you don't have that conviction you have to retry on that right and then if we agree with your concession on count two that there's insufficient evidence you can't retry that so you would have to conspired then we can't satisfy prong three it's not sufficiency of the evidence this is the standard from leap year the government argues that any violation of labor's right unanimous verdict was not plain error because there was not a high probability of the error but surely affected the verdict that se frame the plane or analysis as requiring labor to show that but for the error or jury would likely have acquitted him however that is not the proper way to analyze whether larry is leap year substantial rights were violated in this context later at a constitutional right unanimous jury verdict having determined at the possibility of jerk jury confusion about what facts form the basis of his conviction was genuine we are not free to speculate about what is jury might have concluded had it been properly instructed that's the rd prong test so the evidence that respect to three of the four three of the four groups and in won they presented insufficient evidence of anything more than a buyer seller relationship so we have all these different groups we have then conceding that their evidence was insufficient as to several of the groups there is a likelihood of jury confusion and the count should be reversed one final thing on just about the permutations of what happens if the court were to affirm count one despite this argument right i'm not you know you're not conceding it right there therefo levels that they've conceded under the guidelines we've also argued the aggravating role but let's put that aside so the sentencing guidelines range drops from life in prison which was a level forty four dollars where they had them all the way down to think it's more like in the neighborhood of twenty five years that you can see not just you can see the two points for grouping and the two points for under two b two d one point one b fifteen that those need to go as well so it's four points toward so it goes down from a level forty four dollars to a level forty here yes because normally concepcion testified that he made seventy five thousand dollars so when those four levels go i don't have the actual range and funny but i'm estimating he said about twenty five years so it drops from a life guideline range to twenty five years which is obviously a substantial mr arias was about forty three years old right now so he would at least be able to get out of custody if the court were to fall the guideline range but we're asking the court to reverse count one if the court reversed count one then the government has two options option one is they can just go for three sentencing he's still subject to up to ten years in prison let's assume he would get to ten years that's still a substantial sentence for a st time conviction but the goal of course the governor could seek to retry count one and