case which is the united states versus the  morning your honor morning with the court richard clue and alan dershowitz for runnin the money this case presents the court with an opportunity to correct several significant errors that led to the conviction and sentence of twenty years imprison for conduct that we feel the prosecution presented the greatest possible risk of convicting the defendant for conic it was not unlawful at the time it was committed the government presented the case tried to present the case as a as a drug case but the way they presented it as a drug case was to call a coach a person from in another case was prosecuted at a time other than his dealings with this defendant and that was the only we're talking about her early early kyle hurley and this focus on hurley and the blurring of the legal and illegal and the construct of amendment of the indictment and the prejudice that comes out from the use of every aspect of hurley's conviction in order to substantively prove elements of the government's case as the government points out in its brief identity of the substance as well as the identity of the existence of a conspiracy the practices of the conspirators and then when we get to the instructions and we see that they do not alter mentally comport with mcfadden they lack a unanimity instruction and they contain instruction by the judge that says the drug that that hurley was dealing with was illegal without a reference to time this combination and in combination with the indictment it was also defective produces a tremendous likelihood that in this one count conspiracy prosecution the jury found the one conspiracy that the government proved unfortunately it was a conspiracy not to do something illegal at the time and it was on charged and it was proved by extremely extremely prejudicial hearsay means there were other beyond the novelty of the government's approach with regard to the indictment which there is no precedent for in the circuit insofar as i can see no other circuit there there was a novelty in the use the overwhelming use of completely unreliable and speculative evidence of harms that may or may not occur from the type of crime issue i thought of an analogy if i were trying a product and the government started to introduce how many people committed suicide in the great depression because of some fraud that occurred it the court would immediately we're saying that has nothing to do with it but that again was what the government did in this case gratuitously for no reason without indiscriminantly what they got with regard to two products and without any hard evidence simply pure hearsay reports at the types of reports that this court had they been introduced directly would have said was is a crawford violation or that evidence come from from turkey or idea principally from dr trekkie yes he would say i've read i've read reports about autopsy reports and they and then he would use this generic term why couldn't the expert do that well because he's put it more sharply why couldn't a district court without abusing his discretion permit him to do it and leave him subject to confrontation in cross examination the question of relevance is is perhaps closer than the question of prejudice in the context of this case in the context of all of the other variations from the norm variations from justice variations from a fair trial to overwhelm a jury with pure speculation because trekkie did not know what happened the reports do not say what happened and they don't have to do with the issue at hand and i thought the objection was the opening and he was proffering was foundation was insufficient because as an expert he was relying on a series of hearsay reports and my question to you is why couldn't he do that if an expert in this field would normally rely on this type of harm it was this is not a case where you have to prove they had a burden to put on an expert to say these drugs are dangerous or the you know any drug overdose or any substance if overdosed obviously if you take if somebody takes too much aspirin they can have a problem that's not what the that's not what the statute is about that's not what the substantive issue was about but they get the confounded the issue the issue is what psycho tropic effects does it have what of hallucinogenic have to show some way that that included in these illegal substances when it's not just yes they have to show that it has the same effect and what they did is they showed how to different effect because has anyone heard of somebody overdosing on marijuana which is there to they're trying to compare it to no so the only case that has nothing to do with trying to prove the point they haven't put on a case which is completely speculative and off the mark because we have no idea whether the substances that issue there were in any way the combination or or the exact nature of them matched exactly these because again they were mushing together the concept of bad drug bad drug and this is the me ask you something just going to the beginning when i read your brief the first argument you made if i have that right was that the indictment itself was defective because it failed to properly invoke federal jurisdiction in so far as it did not identify with specificity the drug that was the object of the conspiracy if i have that right again as the government as that's one of your arguments i think the government has corrected me in their brief by saying  that's insufficient i believe it's completely insufficient at at at a as a fallback position we also preserve the fallback position that if you were to say that then all the statute does is invoke the least penalty possible under the book or the reason i raise that i think there's an apprentice here shoe that you've got there but that's slightly different argument than that the pleading i gree allegation was was insufficient because i never thought that the drug type was considered an element of a given an american violation of age forty one am i right or wrong about that i contend that you're wrong i don't believe the government ever tried it before so to that extent i've had trouble finding cases saying it's wrong but i find language in every case of the circuit substance do we have to allege with specificity in the matter that the controlled substance was x y or z or is it enough to establish the that it was a controlled substance in sanders actually there was in the indict right there was i'm asking do you have to numerate let me give you the nature of the controlled substance in them so why is that the case well there's there's the non jurisdictional reason of fundamental due process notice of course that's which is a pretty fundamental reason and we didn't realize how important no i understand that that's not what my question is going to jurisdictional reason is if i can do it by analogy if the government charged a conspiracy to murder but they didn't say to murder a person to murder a human being and then it turns out that they're really charging a conspiracy to murder a sandwich that's the problem you have to say the things in the charge that bring it within and that's what russell says and that's what hamlin says that the when you get to a point of you can't just say this is at the level where the government said the got these people did something wrong under title twenty one years to break this pretrial and it was brought that way as to the as to the due process notice part we are supposed to although this court's precedent in i think allows us to raise it even even if we didn't do that moreover because of the way this case was mis tried as well as miss instructed and because the way it diverted on a constructive amendment to this other substance that was legal at the time i don't think anyone in the in the trial realized where this case was where this train was headed how it is going to crash so i think that excuses that but i think it is jurisdictional i do not want to i want to come back to that because that's what the case law says some cases you can say conspiracy if you conspire to jaywalk on this street that's fine but it but there are some statutes that you cannot simply say it states jurisdiction i mean sharp in the question a little bit let's assume for purposes of my question you accept that as a matter of jurisdiction you lose that it was enough that they track adequately the statute i think the heart of your argument on this point is that there isn't a print the violation on jurisdictional one based on a challenge to the indictment failing to allege the drug type or amount but it's basically in the print the argument in so far as you make an append the argument in this case because it didn't specify the drug type or cite specifically that eighth forty one b the indictment does list specifically the names of schedule one controlled substances  controlled substance and the logs that were involved quote unquote in the conspiracy why isn't that enough we think that's actually a separate and additional jurisdictional violation your honor because what it did was let's forget the label you placed on it  it tells the jury under a a standard that doesn't even meet pinkerton and i resist under that doesn't even hold up i think for sentencing purposes but certainly not under conspiracy law to tell them it's ok to go there and that we think is is is the it's the icing on the cake of the problems with this indictment i would we did make the alternative argument of the a pretty issue this is this is a case where we don't we know that the court confused the mcfadden instruction in the initial instructions the jury came back asked for some summons further instructions and then further confused over multiple defense objections at the so we had and this was the fear expressed before the case goes to the jury by the by defense counsel we're not going to know where the jury is going here and we still don't we don't know where they're going in terms of who had mens rea who didn't have been we don't know where they're going in terms of legality illegality of the product because the instructions  o these hurley transactions that were legal almost all of it and we'd rest on was there not some evidence that went beyond was this thing from him there was evidence that it didn't match up to the one sixty one to one ratio of all but if a small quantity forty i would say forty kilograms and the and the other connections to other people in the case for example they tried to bring in another person as being involved this person is found with five grams of something having nothing to do with any transaction five grams is the is a is a person and he's found and it's not even in connection with any transaction five grams and that is that is a again the one of the problems we have other than the forty grams that they attribute to the possession assuming there were a conspiracy you really can't justify the rest of it certainly not under the one sixty seven to one ratio thanks very much you have reserved three minutes for good morning good morning my pleas to court and jonathan columba half of the united states with may counsel tables martin gardner is was one of the trial prosecutors in this case mr cohen me ask a question at the outset and defend really know what he was being charged with here could you could you fairly tell what the essence of the charge was yes the four corners of the charging instrument yes your honor as you pointed out although the charging language itself is tracking the statute of a generic drug conspiracy addressing both controlled substances and controlled substance i don't log says those are defined in the statutes it also then went on to give notice as to each of the three controlled substances and controlled substance analogs i want to start by  saying that once that excuse me listing of the controlled substances where they and they had that it was listed in the indictment it was not part of the language giving notice as to which of the drugs he was going to be held reciting to specifically and what it says the controlled substances involved in the conspiracy attributable to attributable to the defendant as a result of his own conduct in the conduct of other conspirators reasonably foreseeable to him include schedule one controlled substances that is a before been aka p b twenty two and x l r one one violation of title twenty one united states code section eight forty one a one the controlled substance analogues involved in the conspiracy attributable to the defendant as a result of his own conduct in the conduct of other conspirators reasonably foreseeable to him include th j twenty two zero one five chloro your you are one forty four and five bromo you are one forty four which are analogs and schedule one controlled substances in violation of title twenty one united states code section eight forty one a one eight zero two thirty two a and eight thirteen this case was not limited to one drug this was not limited to legal drugs or drugs that there was any ambiguity about whether he was possessing he was found in his car in his storage unit in his home to have each of those three listed controlled substances that he was informed about in the indictment each of those three controlled substance analogues he identified them by name in negotiations with his chinese suppliers and the e mails introduced at trial he identified both a controlled substance and a case so although the jury was instructed that he had to have an unlawful plan to distribute to possess with intent to distribute controlled substances and controlled substance analogs so whether he was actually found in possession of anyone is not at issue in this case the point was the jury had to find he had a plan to do so the only one that became a listed controlled substance during the events described to the jury was a before but not the evidence show that that became a listed controlled substance i want to point out before that doesn't mean it was legal it wasn't part of the case because it was earlier on but as just for accuracy accuracy's sake i want the court to understand that before these new substances these new at least one of which was not unlawful until a later period in time but there are others the bulk of which are the case goes to the jury was the jury asked specifically to find a specific controlled substance or was it simply a general verdict and if the answer was the latter and it is then can we tell whether some drugs that were not unlawful but may have come at a later point in time if the jury doesn't tell us what they found and maybe three of them went off on something that wasn't on lawful a nine and something else do you have a problem there did you need unanimity is really what i guess i'm asking you all t instruction and the finding and unanimity in the finding by a jury the direct answer is we do not need unanimity as to which drug he possessed and let me explain why it happens in this case that there were no drugs that were legal at the time of the charge conspiracy at the time that we have proved that mr mani possessed them and was distributing them none of them were illegal at the time of the charge conspiracy or at the time we proved he possessed them was aware of their identity and was engaged with others to just possessed with intent to distribute them he was in possession of them while they were illegal a before binoculars the only one that we're talking about here there were three other control and there were two other listed controlled substances there is no evidence or first after the beginning of the charge conspiracy mr newman is found to be in possession of a beef and the other two listed controlled substances that were never at any point legal or unlisted he identification of that substance by name which is important for mcfadden purposes which shows that is sufficient crude mens rea of to identify your controlled substance by name it became a controlled substance prior to beginning of the charge conspiracy  on or about april first it was a list a controlled substance while he was found in possession of it at the various locations it was a list of controlled substance while he was identifying it and can transacting in regards to it when the e mails with his chinese suppliers by name the jury was properly instructed under mcfadden that when you have a multiple object conspiracy this you can find any one of the controlled substances because this is a conspiracy case you don't have to possess any of them he had to have an unlawful plan to possess and to distribute controlled substances as a quantity of these drugs material fact in this case for sentencing purposes not for charging purposes i want asked for a special verdict finding on the drug amount he conceded that there was no apprentice because he was not being subjected to a statutory mandatory minimum sentence he was being subjected to the zero to twenty range under age forty one b one c which is what you are asked libel to when there is no specific allegation as to drug type or amount that is a generic conspiracy charge and a generic conspiracy statutory sentence so there is no a pr issue in this case if there were then we would have an issue about charging drug amounts of concern drug amounts but there was no apprentice issue in this case as mr mnemonic conceded at the time that he had requested the special verdict finding on drug amount what the specific information about the harmful effects the hospital reports and coroner reports about deaths were specifically responding to dr buffington the defense experts questioning of the basis of dr conclusions dr truckie went through and explained the various ways you can look at the drug health effects on the central nervous system through structural activity relationships which is a sort of a chemical molecular analysis through in vitro tests  which can show some chemical in the lab responses and then animal in vivo tests in the absence of human trials and dr buffington questioned whether that would be reliable information to make any conclusions as to the effect on the human central nervous system he says there is no human data well the government was entitle to have dr trekkie say well first of all big question dr but buffington and to have dr truckie say but i've dr trekkie listed all the sources of data that he has studies reports from the national health which he called the gold standard in these newly evolving drugs you know there isn't a backlog of data because they're changing all the time and he said there are no human trials for these drugs because they are dangerous because they can kill you when he does and that's my word them so i don't want to put them into his mouth but when he listed the dangerous health effects in a very serious help or when the prosecutor is questioned dr buffington and referred to the reports from hospitals or deaths and caused by these drugs that shows and helps explain both to the trial judge who made the proper daubert findings prior to trial and did not is abuse its discretion in finding this testimony admissible or when it was argued to the presented in argued to the jury why you don't have human trials for these newly evolving and dangerous drugs because they are dangerous and that is why dr trekkie explained it is perfectly within the standard of the government was entitled to point out well but there are these reports from people in hospitals excuse me were deaths and that is why we don't have human data although that itself is human data as was pointed out the familiar with the united states versus stockton decision from the district court in new mexico in which the court held that dr trekkies opinions were unreliable his methodology was unreliable i'm sorry your honor i'm not i would be happy to address it if you would like in a letter to the co following i will point out that we have cited in our brief several other decisions including two district court decisions i believe with bays and roulette where dr trekkie under a daubert standard was found admissible for trial purposes i submitted to the court two cases that were for sentencing purposes so it was not exactly a daubert analysis but nevertheless for the issue of the drug ratio which is the ultimate issue in this case where his conclusions and methods were found to be reliable and under the abuse of discretion standard i believe this court should say that the district court's daubert hearing in this case was extensive both dr trekkie and dr buffington had opportunity to present their analysis of why they thought the methods were not sufficient to reach their expert conclusions and the district court made findings in regards to under daubert for its admissibility and i believe that that was not an of discretion in this case since the ratio was brought up i just wanted to point out that it's important to note in this case for sentencing purposes because mr timoney received the statutory maximum sentence  lower than what his guideline sentence would have been because he had maxed out on the guidelines this court would have to find in his favor on multiple sentencing grounds to talk you could do without the hurly evidence entirely as to the drug amount i did the math  i did my best for the multivariable algebra and as far as i can determine even without hurley's drug amounts not not just the final product raud i mean the final product mixed amount but the raw product itself i believe if you were only to find that hurley was in hurley's drug amounts were inadmissible in their entirety it would still not be enough to reduce the offense level by six points to bring it under the statutory maximum sentence so if something that's intrinsic it was intrinsic your honor was not only wides intrinsic to the charge conspiracy ok first of all as i said they were to continue to negotiate transactions in ab fab in aka up to and including march twenty eight which is days transaction that is why it was inexplicably into trying to sell his business his knowledge of that of the chemical because under mcfadden simply knowing the identity of the chemical can establishment and it shows through his circumstantial actions to his knowledge that he was dealing in control or illegal substance the court has no other questions on the other issues we think that the evidence in this case was abundant on each of the three controlled substances and controlled substance mr clue you have reserved three minutes for a bottle thank you and that's not an that's not a complete answer to the early problem because again there's no limiting instruction there's no everything that comes in which is all almost all hearsay and  either the part that's not hearsay is what i did with her own enough money was legal the rest i wasn't it intrinsic to the conspiracy what i really have to say as opposed to being a prior crime or what we know wasn't a prior crime so that and that is that i want to know why it wasn't intrinsic because it wasn't illegal and that's the whole point and that's that's that's a fundamental problem the just completely poisons their case you can't make that the focal point of your entire case and then tell the jury over and over and kills people if you've been out to kill people but i expect this jury to do anything other than what they did which is read an instruction that doesn't distinguish between the dates of the the instruction told the jury that there was no way there's no limiting instruction any jury would have said well mr hurley pled to the conspiracy mr hurley says there's a conspiracy and you've been up to the judge that's been uk is illegal that's enough we go for it we go from there and then we couldn't ask for a limiting instruction i'm just trying to say i was intent to spitting that they would come up with some other argument for it but it can't be lawful conduct offered to convince the jury that there's a conspiracy is fundamentally problematic i know of no case that's permitted permitted that known that's what they were doing which is an argument that comes up on appeal we would have asked for a limiting instruction but that's not what the case was they were permitted to do everything with her we objected over and over again throughout the one seventy and one seventy one this case turned into a hurley prosecution maybe it was illegal that's what the judge if they can do it to this court can you imagine what jurors who have never experienced anything like this would would would find of course they're going to they're going to convict him based on the one person who comes up i can spirit conspired with him they try to break it down into simplicity issues of oh well it's just this is just that the there has this is just a conspiracy charge if they had wanted to charge him with possession of what he possessed in the storage locker they wanted to go that route then they would have had that opportunity to prove that he intended to distribute what was in the storage locker of which there was no particular evidence that he did but they didn't they charge it as a conspiracy and they feel on the mens rea of the field on the other conspirators they want to blame his brother for doing the transaction that transaction was legal they say oh it's one hundred thousand dollars transaction it's a legal hundred thousand dollar transaction and yet still being offered in the court of appeals to try to prejudice the defendant this is an overwhelmingly prejudicial case every aspect the deaths are not hadzic all to anything you cannot say because we the other fellow's going to say that as courts have also found you can't say that because an animal has a reaction that this drug is is going to have a psychotropic effect on a human being because this is because our expert is going to say the same thing for them taking a different position at oral argument than they did in the brief in the brief they said that language about reasonably forseeable wouldn't be the first time it would be the first time but they're wrong in either event because we argued it as if they were going to take this position in the initial brief and that language is inadequate it makes the issues are although some of them are first impression the weight of a lot almost every single issue is strongly on our side thanks very much thank you counsel i will proceed with the next case