united states versus to this case and i want to begin by making a couple points on that question and then i'd like to move to respond to some of the arguments that were advanced by the government that are have nothing to do with legal real circuit on how a court is to go about evaluating a double jeopardy challenge to successive conspiracy prosecutions and that is the same evidence test the government says it still appl now they acknowledge that the court in legal did not apply the same evidence test and i think that's clear on the face of it and i would go one step further and note that not only did the court not apply that test it did not cite pocket for any principle of law but it cited it did cite block berger and then quickly in the next breath explained why a different test applies when you have a double jeopardy claim directed toward success of conspiracy prosecutions and i think it's significant that the court did not cite pocket let alone apply it because the question of puckett's a plurality was squarely before the court and i will grant you that implicitly it rejected the application of that case but it rejected it nonetheless the other point i want to raise about pocket is i think it is not a  fair reading of the case to say that it a stablish is that the same evidence test actually applies in this context and i say that acknowledging that other courts other divisions of this court have disagreed with me on that point but the fact is puckett's block berger's same evidence test applies to double jeopardy challenges and it goes on to say of course there is a growing concern in the wall that that test really doesn't work in the context of successive conspiracy prosecution is our circuit the only one not to step up and say that the totality of the circumstances applies i believe i believe that it is your honor although i cannot say that i've done a a nationwide search on that i can say i've not come i've done a lot of research and i've not come across any circuits that say the same evidence test applies in any form or fashion in this context when you look at it minutes and you look at sounds even though they reference law or when you get down to the analysis they look at factors that are very consistent with the notion of looking at interdependence and looking at common purpose it so if you look at the substance of those cases it's not clear to me at all that they are doing anything that is not different than on that stance i agree and i think it's and the same in the same in this case by the way the district court walked through nobody nobody even raised in a dependence but the district court in it and talked about it i agree with all of that if you can agree with that but it seems to me that creates a problem for you because even if we draw a line in we can harmonize our park aces and and make them and their expression in full form isn't we'll now the horror of all of those cases is  you interdependence and you can combine that with common objective purpose interdependence that word does not even appear in your opening read any appears very in a very small summary fashion it seems to me if we're trying this principle you're dead i mean no need to i just don't see any basis to do anything with your the i think legal makes pretty clear and it says at page nine of the opinion that the question of injured interdependence is a question of whether there's a common goal or purpose that is the essence of interdependence i agree i disagree judge holmes that the word does not appear in our opening brief in fact it does and what i will stipulate to really what page i did it word search i did not find it at all i mean we cite the the it's i believe it's page seven but but here's an out and i'll quote it it's a it's a site from a case here's the more here's the more significant point at pages twenty two dollars to twenty four dollars of our opening brief we discuss at les factually at legally the common purpose and common goal of this conspiracy and i will that the subheading of that argument is not in our dependence but the fact that i labelled it in the way that say the seven circuit labels common purpose is not to say that the argument has not been argued it was argued at great length and those cases that i cite it's four pages of our opening brief it is all about common purpose and common goal and therefore interdependence the government has not said we've way of this argument they said weighed sure ivory ok but it is that or less all right to your to your point ok if i understand you you're saying that the substance of a common purpose argument exists in your brief i do take the point that  lille and these other cases common purpose is one could argue least part and parcel of and central to the interdependence question why is it it's still a problem i mean you know labels matter i mean groups matter and when you're making this common purpose are human it has to be toward the goal of showing interdependence and that just hasn't happened where i mean you can say you're not persuaded by the argument that i've made in the opening brief and in the reply brief ok i think you cannot say the argument has not been made and i can stand here and read it to you but i think that would not be a fruitful use so i know our ta right so the so the question then is we know from we'll that common goal and common purpose is the centerpiece of the focal point of interdependence we have argued the question at length in our briefs and i think the real question then becomes there's really two of them when you talk about a common purpose and common goal do you insist that all of the people involved in this enterprise are aware of one another and they're joined in the united nations they all share and understand that they all share it or does the principle apply that in large organisations individuals are presumed to know that there are other people involved in the endeavor that they are completely oblivious to they have no idea who these people are or how they operate and you know  has watson legal all ten circuit cases they all say they all invoke this principle that in large organizations you just can't expect everyone to be aware of everyone else in order to establish that they're in gauged in  common purpose knowing who me ask you this if on a common purpose front legal organized the analysis by saying that there is no direct evidence of common purpose therefore look at the timing the location the perp and now least two people in both conspiracy although i agree that the prior to trial when my client is being interviewed by the agents after his arrest he refers to l  in mexico and the trial the other witnesses pretty consistently refer to the person as well senor so i agree that there is some confusion on that question but i think it doesn't matter and the reason i say that is because the evidence is consistent in this case and both the western district of texas case that what you have is a drug organization that is based in chihuahua mexico that imports drugs to el paso where mr meyer garces does his m o he picks it up at the wal mart he puts them in secret carpet compartments returns the car they come back with cash he does the same thing in reverse so you know that there is somebody maybe it's two people maybe it's one maybe it's five in mexico who are really the source of the narcotics really get down to there's a source in mexico that comes through el paso it's distributed in the united states and whatever happens among and between and with and through this overarching goal conspiracy is one big conspiracy well you know pretty huge well it is i mean it is big and the evidence it's undisputed is the conspiracy is the importation of it minutely you know very large amounts where's the where's the agreement that we have to have an agreement well it's the people who are it's the people who agree to act as couriers it's obviously mr meyer garces and the people in mexico and it is that and the people in mexico like who else in your maybe we don't the government couldn't tell you needed to if you needed to establish i mean that that's you conspiracy with five different people in mexico to move drugs into the united states i would not make them the same conspiracy if however else in your an elm an echo or are we pronounce if that person was the same person that would be a distinction with a difference i mean all i can do is rely on the evidence that the government generated through its investigation i cannot go to mexico and track these people down myself in order to make a double jeopardy claim and i think the problem with saying look we know we know one thing the evidence establishes a chihuahua based we'll call it a cartel in mexico sending drugs to my client in el paso who then distributes it further to destinations throughout the united states and if the rule is because you can't identify with specificity the people in mexico you cannot establish commonality of personnel and therefore you cannot establish a double jeopardy violation  it encourages the government to do less in investigating these crimes certainly disclose less in the course of indicting someone they don't need to know who the source of the narcotics are in mexico in order to convict my texas i agreed with ailsa in your to do this and now i'm agreeing with him again well if that's the if that's just standard then it's just the same conspiracy if that's if that's the rule then i think it's prob solved because my client is clear and consistent throughout elm you not go is his gob always the only guy all of his cocaine comes from mr goh all of his instructions come from him and all the cash he receives goes confession to all of this in texas that's that it's in the texas arrest right yeah he admits to everything everything in the colorado case elman echo how this works with dropping the cars off in the secret compartments m conspirators and the cast the rotating cast in an organization like this the law is pretty clear it makes no difference i mean these people are getting i mean they're getting arrested left and right and he they're course in an organization like the street level dealers are going to come and go it's the core it's the constants and it's and then we look at do we look at where the drugs were going to where the gods are going to be delivered i think destination is one of the things but we also cite many cases say and this court has recognized just because you have some shipments going to denver and some going to albuquerque and some going to waco does not create three separate conspiracies if it did every large criminal conspiracy could be sliced and diced a one million different ways destination buyer courier and i mean out of time isn't the only thing that was argued to the trial judge argument in district court was not well developed i will grant you that and you're correct no argument made on interdependence i will say two points about that if i may though the st is exhibits d s and o r the evidence that a stablish that both of these prosecutions involve the same conspiracy at page one hundred and twenty four dollars of the may th hearing the judge said to counsel look i've read all your that it's all all of them have been admitted i'm familiar with all of them so the argument i will grant you was not defective i think the question we have now is whether the evidence before the court was sufficient and i think that it good morning again and it please the court carl shock representing the united states however the applicable test as friend lay all makes clear that two conspiracies are not a single offense for double jeopardy purposes unless the defendant proves interdependence in the existence of a common unlawful goal lay also makes clear that the disappoints finding on those points is reviewed for clear air here the district court found that the defendant failed to show that the two conspiracies were interdependent and also expressly rejected the defendant's argument that he makes on appeal that the two conspiracies were part of some larger operation the court stated that the evidence failed to establish that point and those that the evidence i mean the government uses the term gatekeeper to talk about the defendant and that as i understand it is that he was a point through which all the drugs from mexico were coming in and if you look at the documents from the texas conspiracy case the the it's the united states who says that it was the purpose was to transport the drugs to destination cities throughout the united states so we already know that that texas conspiracy was not just limited to delivering truck through mexico to it's true that the texas conspiracy references a larger operation it doesn't specifically reference whether the colorado conspiracy is part of that larger operation and perhaps from all of that and all of this other evidence perhaps  there may have been permitted an inference that there was a larger operation so our example and then you add the other the other evidence which is that mr meyer darcy's states is pretty consistent that his supplier is the same supplier all the time in his gate keeper he calls in i think else in your on but it's not like he has six different people in mexico and sometimes he's yes yes so a few points on that st of all i want to be clear that the testimony from your guards says the testimony from ms mota that all came at trial and so that wasn't before the court when it was ruling on the motion to dismiss here the othe r point is if if there was a larger up so i think there are two points here st of all the question is the court here did not find a larger operation and so was that clearly erroneous i think that what you're saying  there wasn't a motion to acquit based on there there was an up or there was not based on this double jeopardy point it was dropped after it was dropped after the motion to dismiss the other point that i want to make even if the court were to disagree and somehow find that that the finding as to a larger operation was clearly erroneous there's a nd point that needs to be made here and that's that these conspirators are part of that larger operation and what all this court talked about  that kind of general principle that where there are different spokes there's only a single conspiracy if there's a rim that corrects that connects those spokes and there hasn't been any evidence here that the individual that the conspirators in colorado and the conspirators in mexico even if there was a larger operation that they had agreed to that operation that they were that they were part of that operation and i think there's an important point here with with well didn't i missed my i may have her name wrong i mean she understood she was working for big mexican drug cartel but there's no indication she knew anything about what was going on in texas there's no indication at all well lunch at least colorado holders is working for a massive drug cartel in mexico and they've got a pretty a system it seems pretty well how they're doing do you think in reasonable implication we have cases that say when there's and they rise in the sufficiency context and the point that those cases make is that a fact finder may presume where there are a bunch of large buyers they may presume from that that there is a larger operation and they say therefore the jury can make that conclusion here the fact finder is the judge and so yes perhaps the judge could have been for all that evidence again setting aside the fact that that evidence then come in until after trial but perhaps the court could have been for that but a beginning we're  to have cases on conspiracy where the court elec court is looking at evidence that came in at trial in determining whether there was interdependent yes when there is a yes when there is a a double jeopardy objection made at trial i think that the point here is that there was no double jeopardy objection made at trial and on your suit sorry on your sufficiency point which is if i understand that point correctly what we're talking about is when you have the individual defended in you're trying to tie them to the larger conspiracy and the point is they could presume that they were part of the larger conspiracy by virtue of the volume of drugs that they could i'm a sympathy argument yes i mean that's the context in which is comes up and it's not exactly so so if the government here had charged this this supposedly larger conspiracy that we're talking about perhaps this evidence could have led to the can could have been sufficient evidence to support that larger operation and mid level people being part of the larger right right so it could have been sufficient but that's a different question from whether the defendant has established that and again here where we have a a finding by the district court to the contrary and i think i mean this id yet of looking toward this larger goal at a certain level of generality i think that that can lead to i mean take away all for example surely there was some larger goal of that defendant to distribute drugs for profit which is which is the way that the defendant describes the goal in his reply brief here but that didn't that didn't prevent these two separate conspiracy these separate distribution conspiracies from being separate offenses so the question the ultimate question is is there one agreement or are there multiple agreements one thing that could have played on that is the notion of whether elma necco or or whatever was and she was mentioned in a couple of the exhibits but again i think that still all we have here is is perhaps as the court acknowledging the court acknowledged maybe there is this other individual involved but the court actually said its actual finding was that there was no there there were no common conspirators and that the testimony at the trial the closest actual testimony got or or i'm sorry at the hearing the close of the testimony got on this point with testimony from the agents that said that none of the colorado conspirators were no were none of the colorado conspirators were involved in any way in the texas conspiracy and vice versa so there was that specific testimony  testified that she worked for the next on and she also testified that meyer cars worked for and it appears that there's at least testimony where she thinks the same person correct correct perhaps that testimony against that inside that's the trial but perhaps that testimony maybe that would show that moon jaco was part of the colorado operation we it's not the case that once we get to two all of a sudden they're the same it's still the ultimate question is still was there one agreement or were there multiple agreements one of the things that we looked at was in discerning common purpose was time the timing and also we talk a lot about personnel but timing and geography i mean there are a lot of ways to view that but it seems to me one way to view it doesn't really help you because the time there is an overlap here of the one day in the broader conspiracy charges in colorado also one could argue on the geography point that in both conspiracies both alleged conspiracies the locus was in that you know area in down in texas and in over the border so it's to that why aren't those two factors in the common purpose analysis actually not helpful to ok i mean help why is yet but yes so yes so on the timing point obviously there is this one day overlap i would argue that that one day out of two and a half years doesn't make it the same conspiracy but the more important point on timing that i want to make is that the colorado conspiracy as charged extended for six months after the texas and died and in this court held in rodriguez a gear a which is side in a brace that two offenses can't be the same offense or one continues after the indictment on the st because otherwise once the defendant is indicted he can continue that same conspiracy without any fear of being being indicted for further unlawful conduct so for the case the that rodriguez accurate case on that location point yes you could look at these conspiracies two different ways you could look at where his conduct was and certainly his conduct was in the same location but if you look at the context of the cases that a whole everything that was that issue in the colorado case was stuff that occurred in colorado or on the way to or from colorado so so it dealt with that was located in thorton colorado it dealt with surveillance at a hotel that was located in denver colorado it dealt with ms mota who was driving to and from that stash house or that hotel in colorado on the other hand the texas conspiracy dealt entirely with actions that occurred in on the way to or from new mexico so it dealt with the dropping off of the car to be loaded with drugs in el paso and then the delivery of those drugs to new mexico so yes although there is some overlap in the defendant's conduct all that means is that the defendant was committing these offenses in the same place  that conspiracy was for the purpose of transporting the drugs to destination cities throughout the united states even the government recognize that although the specific wrongful conduct that that they observed and then base the charges on happened in one geographic area that even the government recommended that this distribution scheme was not limited to texas correct that there was that there was that general statement everything else that went along with that plea was very specific to new mexico there was that general statement that is in the plea i don't think that alone is sufficient to establish that there is that there is this larger operation or th colorado operation is part of it but but i think that the fundamental point here is that it was the defendant's burden to show and the district court made these factual findings and i don't think the record here com the contrary conclusion by the disorder the charge is different in the two places texas had a different charge when they were both under they were both under the general conspiracy drug conspiracy i can't remember