the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance that they shall be heard god save the united states of america and this honorable court eighty one i can give you the page numbers if necessary the government didn't fact review this testimony at page ten of the government's brief i apologize for that the court is testimony is important particularly regard these issues the justified about the killing of fantasma one of the honest thirteen gang members who is believed to have been a cooperating with law enforcement and he testified about alleged the conversation recorded the government had an informant specifically c w want their own p l o and who testified and the government write extensively on the transcripts of his testimony he was an informant he had a  seasons in some remittances you know that's a different that's a different point it's one thing if the problem is that there's summary testimony about this case i understand that if there's not on summary testimony about this case i think stands in a little bit of a different position than many of the m s thirteen defendants that you've seen and that is because of the thin layer of evidence that the government presented to connect him to m s thirteen and i think the government's main position and our argument case especially where mr nama rado during the pendency of this investigation was not on any wiretaps didn't attend any meetings didn't pay any tribute didn't deal any drugs was involved in any gun  government that is in a position to have to prove knowledge and specific intent and the knowledge requires some advance knowledge of the mission of the clinic and so the government ministers account so it just i want to be sure i'm understanding this is an argument about the witnesses who identify him as the killer and who identify as well this is an argument that he may have done that but he wasn't part surtant and the evidence to support the rico conspiracy involving  where at cross purposes a number of witnesses specifically identified him as an m s thirteen member who had this particular nickname s turned out michigan state well because judge has no indication as to who is no evidence at all of all the chelsea quick we don't know a thing about chelsea is know that the government presented no evidence if you assume that he was not a different meeting which is what the experts say happens in m s thirty we don't know what was presented at that meeting we don't even know when that meeting took place did it take place six years ago did it take place within the context of the conspiracy we don't know because the government intent to further a miss thirteen's purposes sufficient i don't what's the problem there so whether it's if you is if there's enough evidence to say use a member of the gang and there's enough evidence to say you did this killing which i don't think you're  either of those points that would there's testimony saying he was a number thirteen member others testimony saying he did this killing then the question is you're right you still have to show he did the killing enough in furtherance so you can say that he was part of the conspiracy but given the other testimony that's out there about how emma's thirteen operate it well what's wrong with the inference that he well it's because how do we know because the evidence that m s thirteen operates in a certain way is  evidence about how i'm a thirteen operates why can't i am for he did it in connection with the conspiracy that the books chart because in this case if you look at the jury question the judge answers to the jury questions the jurors are talking about mr a number i don't as an associate not situation where he self identified as an m f thirteen game and because he has a tattoo it isn't a situation where somebody took pictures i'm going into a meeting there's nothing there's nothing to suggest being part of a conspiracy not without evidence to support the expert testimony in other words if somebody is an expert on the stand and sent somebody got shot in the head this this this proves somebody got shot may have known you don't it is your evidence that somebody got shot in the head have the evidence to suggest what the experts saying is true and that's what happened in this case it was a lot of expert testimony about what the gang did and could have done and should have done and maybe did in different countries but with the actual evidence that it happened here and that mr rahman are an m r i  said he was an m f thirteen gang member and that he doesn't remember specifically what happened with respect to the murder but if he did the murder it was born revenge that's what he set now does revenge mean revenge on behalf of and this thirteen what does revenge me which is that he wasn't a gang member that he was an associate and then in the government charges tried this entire case on the theory that he was a gay member and there was no evidence in the record whatsoever what an associate it didn't associate attend meetings in an associate have knowledge that is an sole contention there that although there is testimony about what the mission of m s thirteen global yes there was no evidence that this particular clip of imus thirteen had that mission and even if you can for that they did there's nothing suggesting that he knew that was this christmas and that's our it is it in addition to what was we don't even have any evidence with respect to mr and i'm right now as to what his place in the organization what we don't know what whether or not he would sure you can mute your device at this time and attorney call please on mute your device elise guilty of murder st or nd degree beyond a reasonable doubt and that the jury's verdict or the jury special verdict should be set aside we argue that the  district court erred in finding that mr sillies was responsible for st degree rather than nd degree murder in making his guidelines are making its guidelines had an impact on the resulting sentence and lastly we argued that based on the sequence of facts that was presented to the jury and in front of the district court the district court erred in awarding restitution  of the amount that the other two dollars are responsible that we have evidence for is one with murderous intent but when you focus with attention on what the evidence of the spirit or actually show or what it a murder took place in the in the form of the testimony of the two witnesses who who written about the attack as you just one question about the rest solution issue yes your  is you're making an argument that because it was a conspiracy offense it can't call triggering offense for restitution but your honor we make three separate or an argument in three separate its definition of a crime of violence that put says in the realm of the categorical analysis and that rico conspiracy does not qualify this was not raised to the district court we argued that it was plain now or the court should recognize and then we have two other challenges to do the work of the restitution we start to the even if that were the case in this case the victim who is being awarded restitution is not the victim of the d offense if the court follows my meaning what makes it didn't divisible is one in a special verdict of murder he and conceding for the sake of argument that murder is a good and in divisible crime of violence massachusetts murder is an individual or it is a divisible crime of violence under the court's precedents but then mr rivera the quality in this case the predicate act of murder that's tying your client to be a conspirator therefore guilty of defense is a predicate act he's claimed to have committed correct that necessary to the offense in other words the way the offense is constructed to be guilty of the conspiracy there has to be a predicate act of murder and you have to agree to be part of the conspiracy it's not necessary that you be proved as the person who committed that predicate act just happens in this case that that is how they're proving him to be part of the conspiracy correct i act in the following way the conspiracy conviction is in agreement which in theory would not require proof of any predicate act and trial but simply intention to commit or more and it just happens that the way they proved it here was by making the case that he committed the predicate act of mert correct but yes i would i don't know that the government's theory of the case would  it's irrelevant if the evidence was overwhelming that in you in this case your client had committed the murder that's the predicate act because the nature of the offense is there's no requirement to prove any violent conduct by presented to the court this far the easiest way to resolve each of these issues is on the standard of review st as to the coconspirator testimony the argument made this morning is different from those made in the briefs is that there was too much that would miscible coconspirator testimony amounting to a prejudicial effect that's a four o three objection that objection was not made at trial it was not made in the griefs it's both waived and if not on plain error review and no errors clear obvious as we explained in our brief however their testimony was properly admitted and the district court committed no air next as to the law enforcement testimony most of the expert testimony here just to clarify came in through agent norris who was not a q c agent in this case this was done specifically to avoid the dual capacity problem that was going to not by my opponent agents would and trooper estimate i gave i think about three pages each of what could be considered a sport expert testimony but the bulk of their testimony was from their personal knowledge it was authenticating exhibit it was reading the admitted transcripts to which there had been no objection when they were  there were three cooperating witnesses who identified him as a homeboy and us thirteen that's not necessary that's a full fledged member he confessed that he was a member of i must thirteen not alone is sufficient for th support the jury's verdict and again the standard to review is whether any rational jury could have found the elements of the crime beyond a reasonable doubt my opponent to suggest that there was no evidence regarding the chelsea clinic think gathering with them and i think the most telling piece of evidence is when he needed a guy who did he call he called other m s thirteen members their numbers are so huge and his phone under there and this thirteen games he asked them to motta and that is he's invoking the gang as the justification for the fight then he goes back the next night feeds them a gun and the justification here and now he's going to kill them using imus thirteen to get the gun to get the back up to get the cover to hide the gun and to get out of state it's all in us thirteen finally i saw before you leave since you just st mention this gun issue i'm rado makes the argument that i timely objection to that so why is that not a problem and three answers the st is that if you read carefully that closing argument he says beat aloka when he's talking about before the shooting and he only says an m r i don't when they're talking about the getaway that doesn't so here's something that's different what's what's different about that is like the cases that you rely on like the heroin dealer case where the thing that's just different here is this the worry is that the opposing person is not just saying no i have no knowledge of he's a heroin dealer my client doesn't know anything this is my client knows something he heat gave the gun to that i don't know that we have a case like that where the concern is that the opposing the other defendant is effectively just lying about his personal actions that are inconsistent directly contravening the defense of the other party that seems pretty troubling to me so i understand your concern but i don't think it's quite that troubling in part because an amount of presented to is different than the defensive even if he did it he had a reason to be excused from having done it or something like that but whether the gun went to him part of his defense was he didn't get the gun right his i don't i mean i'm sorry i just don't read it that way because the the distinction between before the shooting when you know we're talking about who's making the phone call also you know we have phone records proving who made the phone call and so the question is is this a manifest abuse of discretion for the judge who denied a mistrial motion during the closing argument after the five week trial and i don't think it is i don't and then after that there's no motion for limiting instruction there's no clarification about question and were pressed for some friends on the basis that inconsistent defenses it's just a blanket kind of big motion for a mistrial so i think that on the record as it was presented to the district court there's no manifest abuse of discretion there's no injustice here and i don't think that this needs to be remanded for a new trial because the district court presented with the objection as it was i think handle that appropriately had there been a request for a limiting instruction that could have been appropriate but there wasn't and so you know when you're talking then about whether the lack of a limiting instruction is plainly erroneous or at this point it's a question an answer go together that they're intertwined and so for the answer to make any sense you need the question so if the quote if the answer is yes yes does it make any sense without knowing what the question was so i can see how a question and answer might go together and make the question the central part of the test and argument is completely separate the arguments are never testimony they're never added and they're never the basis for a sufficiency argument and so you know an argument and the arguments are set apart specifically by an instruction that the arguments of counsel are not evidence so i think that it's different in that way that even if a question in some circumstances could be so intertwined with an answer as to become replaying according to relate evidence from her client i don't think so i think all of the things that she's talking about are things that other people testified to you know the existence of the phone calls the what was said on those phone calls you had that on both recordings you know where to who was present when that phone call was received because vazquez and he says what happened on that phone call so i think all of that is he's witnesses documents miss ralston earlier you made the point that the only thing before the court was a mistrial motion and that it was framed and very narrow term and there was no subsequent requests for either severance or limiting obstruction one cannot understand why perhaps no limiting read somewhat more charitable even your reading is that became a witness through counsel's relaying statement by him now you're saying that we can read the record have  court didn't abuse that discretion ok so now i'm getting the district no plea as a kid but district court articulate its reasons for denying the mistrial i haven't had a chance to go look at the he didn't have to intend to kill he had to intend to do an act that in the circumstances known to the defendant a reasonable person would have known created a strong in plain likelihood that doc would result went to m s thirteen members show up to an apartment with guns cheaper tallied against a member of our bible gang i think it's pretty obvious what's going to happen there and the jury certainly could have found that intent counsel mentioned the sentencing but directly and proximately harmed as a result of the commission of an offense including in the course of a conspiracy so if the i created conspiracy is a crime of violence then rivera having been harmed in the course of the conspiracy is a victim of the without proving that any actual predi i don't know i would have to look at the statutory language i don't think so but i don't so i don't have it in front of me right now just like this i have trouble seeing if you don't have to have committed one of the predicate acts and it's possible to prove as conspiracy i think caseless fairly clear about the problem with calling a conspiracy offense a crime of violence even when the conspiracy is to do violence yeah i understand that i think  submit a twenty eight j letter this point and your opponent who's raised this issue has seven days thereafter to file a response well do thank you your  honor i think should be a straightforward yes or no answer so i'll get that you soon i think that if it if it does right that we're talking about where we have an added element right now this tells us that if you're increasing the penalty you're adding ok thank you counsel thank you council attorney attorney hernandez if you could please reintroduce yourself on the record you have one minute thank you i have a question in your brief while you're complaining about is that you don't think petra's covers what you call idle chatter and it wasn't  for the runs the conspiracy so later when you're making your objection about such evidence are you the way i understood it you were make your device at this time attorney skeptic show you can under your device and you have one minute of our argument i'd like to address the closing argument issue that was raised by the government and in that case i'd like to loca he didn't know but a local was going to kill and shoot a rival then he also said that he didn't know that there was a rival who had been shot until the following day and then he also said that he didn't know that he did not she had the intent the statement is that that he didn't know that but that i couldn't tell if he said he provided the yeah but it just so you you can sync up with the government's argument if the evidence is fairly read independent well i think that they are relaying evidence because a theory of the defense was that these cooperating witnesses were were not truthful they were and it's force can i finish that they want it plates thank you but they were in it because they were being rewarded weir is is the co defendants rewarded for making that statement so it undercut the entire defense that mr hernandez had had raised relative to it wasn't me i didn't i didn't do it and i didn't know that they were m s thirteen he cleared that all up with his closing that's time mr god just one question you're making that argument in support of your sudden saying argument is that correct well