undisputed that there had been no transactions no drug transactions between two thousand and nine and two thousand and fourteen that means the government was obligated to prove beyond a reasonable doubt that the the conspiracy endured past february twenty seventh two thousand and nine there was no credible evidence that that occurred what the government pointed to trial was that there was a phone call between mr sami short  was this phone call the objective of this phone call was to conceal the conspiracy and therefore they argue that the conspiracy endured past february twenty seventh two thousand and nine and that th limitation was not up when the original indictment was filed why are we focusing on the op or the operative indictment the second indictment that was filed in february was and fifteen that would go back to  actions after february twenty eighth and would include some of the transactions that were sound of occurred in two thousand and thirteen and fourteen and the reason i bring it up that your honor because the superseding indictment must relate back to the original indictment rule just stand on its own if it's only looking back to actions past twenty ten well the rule is that in order for the superseding indictment to relate back to the original indictment there must have been a validly pending indictment and it cannot materially broaden the original indictment and my argument is that there was not a valley pending indictment the original indictment was not validly pending when the superseding indictment was filed and in addition to that the superseding indictment materially broadened the the original indictment in that it brought additional charges and for several of the reasons i would like to get into and i cited iran and the jury wasn't the jury charged on this issue and didn't they find that the conspiracy lasted after or continued after february twenty seventh two thousand and one and that's why i couched my first point in in the rule twenty nine motion of the court the trial of the trial  page forty six of the of the record made a rule twenty nine motion asking the court to dismiss because of the statue limitation of the original indictment was up by twenty five or twenty seven two thousand and fourteen and then when the superseding indictment was filed on february thirteenth two thousand and fifteen your honor my argument is that the original indictment was not validly pending when the superseding indictment was a no reasonable jury could have found i were saying yes that is what i'm what i'm arguing and your honor that there was a materially broadening of the superseding of the as juxtaposed to the original indictment and i cited the salomon east case judge and i just want a very very quickly touch touched on a couple of points that some of these case that was a second circuit case went through and it said what constitutes material broadening is when there are violations of a different statute which we have in this case in the superseding indictment it contains different elements which we have in this superseding indictment it relies on different evidence which of course we have they tried to extend it to will be from two thousand and nine to two thousand and fourteen and it exposes him to a greater sentence and of course you have that this would mean that the superseding indictment couldn't resurrect claims that were already gone but but is judge carney asked a few minutes ago why can't the superseding indictment stand on its own why does it have to relate back to something because the original indictment was not validly pending so first they have to prove that the original indictment was validly pending and it was not but that's only if you have that that's only if they want to convict for actions taken before the statute of limitations would rule them out on the superseding indictment but their actions that suggest criminal liability within the statute limitations as set by the superseding indictment filing date and you are right the reason i'm arguing is this the original indictment alleges a conspiracy from two thousand and three to two thousand and nine the superseding indictment extended that the temporally the conspiracy all the five years more than five years up to two thousand and fourteen so therefore and they were and admittedly there were no transactions between two thousand and nine we have this this gap this break from two thousand and nine to two thousand and fourteen so now they are thinks he thinks he remembers something the car missed mr cheney's memory is is horrible throughout this if you read his testimony his mr show to me is a severe drug addict and heroin addict who has trouble remembering you know that he was robbed he has trouble remembering he had a concussion he has trouble remembering her all of this right here the jury heard all of this but again this is in the context of the rule twenty nine motion and the trial court ruled on this and now we have to decide whether or not this superseding indictment he was the person who who conscripted all the suppliers he was the person who referred to my client as one of his customers at one time but at the conspiracy at least in the juries for us as i understand it continued with with your guy taking charge tunisia role and then charge to me coming back in later on down the road as i don't there's no evidence of any transactions after mr short cut off as many transactions between charge to me and your client right or anybody else the test the tony was he told me that there were other that he was doing other transactions but and that was the extent of it that's not proof beyond a reasonable doubt that there were other transactions it was mr schorr to me who constructed all the suppliers everything was according to mr short to me i think i spoke with him he said there were other suppliers i don't know their names he doesn't know about any transactions he didn't know there was no evidence other than he told me that was the extent of the evidence and my argument is judge that that's not evidence beyond a reasonable doubt that because charges need is so incredible yes in in part and if you read through his testimony you know it's it is incredible because of the fact that  he and i tried to list all of this in my in my brief judge all of the problems he had with the heroin addiction and well i'll leave that for the rest of my when you come up later you directed us to a forty six of the record which i promptly turned and i'm not sure what the role of a forty six is but you know eight eight forty six eight eight forty six is where is where mr body begins his rule twenty nine motion ok your honors may please the court my name is jonathan cohen i represent the government and i was one of the trial attorneys trial for mr mchale the district court did not err in denying the appellate rule twenty nine motion as to statute of limitations first the original indictment there was nothing improper about that the jury heard abundant evidence of drug dealing passed it late into two thousand and nine and even passed that second of all as judge carney has discussed  relevant indictment for trial was a superseding indictment not the original indictment and the government does not need to rely on the relation back doctrine here and doesn't do so in our view the conspiracy continued until two thousand and fourteen and because of that there's no statute of limitations problem could you could you address why this wasn't a two conspiracies i was having difficulty with the notion that mr chart to me actually continued with the defendant  having the evidence seemed to suggest that he was upset that he was owed so much money and he severed relations in so far as a cousin can do that and then mr proceeded on his own with other people pursuing the same activity but still charge to me seem to have withdrawn and seemed to me that he was then entering into a number of other conspiracies to sell and distribute marijuana but there wasn't much basis after two thousand and nine two thousand and nine for finding mr turton he was participating so it looked to me like as a sequence of conspiracies rather than one continuing what am i overlooking in that i can address honor just because a conspiracy changes in face does not convert it from a single conspiracy into multiple conspiracies and here our position is that the conspiracy changed in phase when mr charge to me was unwilling to sell mr mchale mari on consignment but but but the conspiracy still has its base and agreement so you have to have two people we're not talking about a rico enterprise or something like that this is a conspiracy charge and if one of the people who entered into the agreement with draws and let's presume that he actually did withdraw as he as he said is that the same conspiracy if the one of those individuals continues in the same line of business if you will with new partners is that really the same conspiracy first you know your honor i understand the hypothetical that's certainly not what we're arguing neither party with drew the bar for withdrawal is extremely high and the second circuit and i have many reasons why neither mr charge to me nor be with that because it absolutely like there was at least a plausible agreed argument that he did and they severed relationships and then mr mccall pursued the sale of marijuana on his own with other people i believe the record is  clear that there was evidence that they did not sever their relationship they were mr mchale was based in connecticut mr cheney was based from around two thousand and ten on in california even after that trip let's come back to that but i want to understand your position about whether that would be still our position is it would still be a conspiracy and that's because that's because even at the time that under your hypothetical that mr sharp to me with through mr tueni knew that mr mchale had additional coconspirators who were working to distribute the product and the fact that mr charter to turn to me was had made the original agreement with drew but knew that his former partner was continuing means that that was a single conspiracy continuing just his a member there's no evidence of withdrawal i think that the better answer to your honor's question is that there is no evidence of withdrawal it's an affirmative defense of conspiracy is as presumed to continue unless the goal least when i understand your position on the law about whether you need to have any agreement that remains in effect i think the agreement the object was to sell marijuana even well into late two thousand and withdraw there are suppliers to charge too many who became suppliers to your client or to the defendant that's absolutely correct and we know that from two sources one is from two incidents one is when the defendant gets introduced to mr dunning up about two and a half hours north of san francisco where char toony is introducing him to a supplier so that he can say continue to sell marijuana and we also know that on the repeated visits that mr shier toony made back to mr mchale they spoke about the marijuana business and mr mchale confirmed mr tueni he had other suppliers so those are sources to know that it was a continuous operation but i think the law the second circuit's law on withdrawal and continuing conspiracies is the most important thing here the bars extremely high the burden is on the defendant to show withdrawal of either take mr sure sure toony or mr mchale either one of those individuals would have to have made a clean breast to authorities which neither did at any point either would have to or or in the alternative to be fair to the defendant either individual must communicate the abandonment in a manner reasonably calculated to reach coconspirators neither neither mchale nor sure to any took either of these steps participate in a conspiracy in the defendant did that here not only that deals in late two thousand and thirteen in two thousand and fourteen where there's you know two large marijuana deals and you know the count to conduct is around the same time not part of that same conspiracy so i'm not including that but that that conduct mcneil clearly got a benefit and clearly participated in the conspiracy and that that those those two reasons the fact that he did that either one of those two things would have meant that he did not withdraw from the  conspiracy and i think it's also important to see the broader picture here these are two individuals who worked together for years and years you know over eleven years on the indictment but as your honour's know even more time than that and they were always trying to sell marijuana they were working together a lot of the time there was a phase where mr shirt to me was not like your face your honor i would say that it's much closer to between two thousand and ten and the meeting with mr with mr dunning and well ok between two thousand and ten ish and the first of the later marijuana deals in late two thousand and thirteen or two thousand and fourteen that point it is certainly correct your hon but they are working together this entire time he's seeing him on the trips back to the east coast he's staying in contact with them mikael was running mr toonies business for a period of time early on there clearly working together one thing we haven't the the first indictment opposing counsel have suggested that it was invalid in some sense for or for a period of time how do you address that your honor  original indictment all of the evidence in late two thousand and nine which rendered that argument merit less mr karanka wits who if you're honest remember is somebody who's working most closely with mr wells but also with mr mchale was adamant that the last drug deal he did with mr mchale was in late two thousand and nine so that that they are alone you know the phone call after june two thousand and line nine with mr can already as yet another that's correct you are using your own because we're at least as far as statute of limitation statute of limitations purposes this conspiracy was a single conspiracy so if any of the deals any overt ac further it's a conspiracy occurred within the time of the superseding indictment that that would be brought timely that's one thousand was excuse me wasn't the jury instructed that it could look back to two thousand and nine instead of two thousand  believe if that's your honour's recollection i won't dispute that i think that's right and that concerned me because i had conceived of the superseding indictment is the operative one and that would need two thousand and ten was the relevant date if i assume you're correct on that your honor and taking that as as fact our argument if that's the case would be that that to the extent the superseding indictment this a proceeding indictment was brought and did not expand the conduct that was prior to two thousand and nine the what it expanded was the time period from two thousand and nine to two thousand and fourteen to include the later transactions the late two thousand and thirteen transaction in the two thousand and fourteen generally that were within the statute limitations yes you honor and i supposed to be careful i should say that to that to the extent your your honour's indulged that line of questioning i i should say that we would be relying on the relation back doctrine in connection to the extent your honour's believe that  that that is relevant because of the date under which the jury was instructed i'm looking at the jury instructions said the government must prove beyond a reasonable doubt that the charge conspiracy continued to exist after february twenty seventh two thousand and nine it is what i ha honor i just wanted to touch upon one of the questions you had asked about the sufficiency of count two with the oxy code on mr tueni specifically testified in the record at page a one eighty four that he could not identify the pills as oxycodone he could not identify the markings he could not identify the weight of those pills so you know point three in my view is pretty sure that they were right mr church when he was unsure about a lot of things and your honor in that in that time frame in that period mr short toony testified that he was taking approximately thirty to fifty bags of heroin per day and that the oxy code on pills he had in remember the time frame he was  supposedly has his alleged sale of these oxy caught on pills occurred on march eleventh and he was arrested on march eighteenth without any pills so mr toonies testimony is that he was taking on a cross country trip he was taking thirty to fifty bags of heroin per day and he finished all the oxy code on pills so about thirty oxycodone pills per day as well so this is this is the context of mr short twenty's testimony and this is one of the reason that i understand that the government sometimes testifies that he wasn't sure of the weight he wasn't sure of the markings on the pills and there was and you know i don't know it's just refer to something but not actually caught on by name is that there was a lot of text messages regarding the marijuana transaction and one of the things i tried to do in my is juxtapose these two simultaneous transactions of marijuana and the oxy cotto and mr sharp to me was was very emphatic about all of the things that went into the transaction of the marijuana the price the quality the quantity the packaging where the transaction would take place when he was leaving where he would park what's wrong with that and and juxtaposing that to the oxy code on the marijuana transaction your honor a street value of one thousand seven hundred fifty dollars the  transaction street value of four thousand dollars and there wasn't a word not a word not a conversation of a text message the government had the phone they are scribing to my client they didn't follow him anywhere to prove that he went and purchased these oxy coat on pills there wasn't any conversation any text messages nothing and juxtaposing two simultaneous transactions that mr shut to me was so careful to you know you know in list all of the details of the marijuana transaction that was worth less than half of the price of the oxycodone and there wasn't one word not one text message well your friends on the other side say that there were some text messages on the same date that you supposedly provided the the the pronoun those that mr starr to me is using is interchangeable between the marijuana and what the government is asserting where the oxy code on pills wouldn't refer to hills where the i mean