martinez mr martinez this case asked this court what the minimal level of inquiry is acceptable it when a defendant requests new counsel or complains about his counsel a chronological breakdown of this case if we take it in segment shows that there was virtually no way corey and the inquiry that was done when he complained about his counsel was so wholly insufficient before following indictment and before he actually took his play in november of two thousand and eleven he filed a national letter complaining about his counsel nation but i mean we rely on these things you know and they serve this purpose certainly your honor but in the context of a defendant who has complained about his lawyer with no recognition on the record that that the court has received those complaints heard those complaints and then rest and there's nothing in the in the plea colloquy country of the governor government's characterization that that the court specifically addressed his letters there's nothing in the play call of way that addresses the letter complained about his counsel the complete and the complaints were specific she hasn't filed motions on my behalf she hasn't sent me documents in my native tongue he doesn't speak english he complained that my lawyer wasn't communicating with me in spanish that he was she was sending everything to him in english you can compare that to the to the play he took in his manhattan case in the manhattan case the judge there said have you been provided everything in spanish have your documents been read to you in spanish and he said yes that didn't happen here even so the complaints that i had reviewed the play transcript he complained about his plea she then turns to him and says do you have anything else to add doesn't say i have received three additional letters a total of five now from you complaining about your lawyer do you have anything additional you would like to add that is not what the what the government characterizes as declining the court's opportunity to be more specific how would he know but how would how would a defendant know that what they've submitted the five little letters that they've submitted complaining about their counsel isn't sufficient how are they to know that that's not what the court needs to hear isn't going to address it the fact that he says nothing doesn't mean that he hasn't in those five letters articulated very clearly what his complaints were she hasn't objected to the precepts you i have i have errors police what was important to mr martinez was i never possessed a firearm they've charged me with brandishing but i've never possessed a firearm the piece pre sentence investigation report comes out and very specifically in the pre sentence investigation report on page thirty seven there is one of the robberies and it says mr martinez brandished a firearm randle martinez brandished a firearm he had been very clear in his plea that was the one thing that he was emphatic on in his plea proceeding was that he had never had a firearm when the government of the police said we have evidence that he brandished he said not me no way i don't have a fire the defense lawyer doesn't object to that in the pre sentence investigation report and in fact when the government said saying advocates for a higher case in the context of that there wasn't adequate inquiry into what his complaints were about his lawyer and one of the problems of that is that the whether or not the conflict was so great that it resulted in a lack of communication preventing an adequate defense and the the lack of communication from signing an advocate with an adequate defense is in part him taking a plea everyone supplies when he comes to the plea proceeding any suddenly the day that day says i'm going to take a plea today and nobody's prepared and nobody even has the indictment with them and then when you look from the time of the plea until the time of sentencing there's no objection to the pre sentence investigation report that that notion that he possessed firearms and he had firearms there's no is no objection filed she the judge informed him about what was required it's really quite confusing i think when you read the transcript some page fourteen or fifteen ever brief but when you look at what the judge said it's there is aiding and abetting in a quick and accurately identifies what aiding and abetting is and then says so if you are guilty if you're if somebody is guilty of the conduct that occurs in count three guilty of the conduct that occurs in count three not you can be found guilty of aiding and abetting if somebody else context of it not being explained to him in the in furtherance of a crime in the furtherance of a drug trafficking or crime of violence that it's not playing to him in a way that i think is at all clear i see my time is expired thousand and nine if he withdrew from the conspiracy by november of two thousand and four he has a complete defense to the charges based on the statute of limitations at the trial there were five cooperating witnesses all of them testified to committing robberies with mr fiorentino none after two thousand and three you withdraw from experience that's correct but i think it's in my favor that there was no robbery after two thousand and four ok but in addition starting in two thousand and four the gang if you will developed a new modus operandi for these robberies before two thousand and four they used the fake cop routes they would pretend to a restaurant dealers and steal their drugs from them but after two thousand and four one of the fernandez brothers i think it was you dress  developed a plan whereby they would put g p s locating devices inside cars that had traps and then that garage man would notify them of potential drug smugglers smugglers and traffickers and this way it was all to all of these cooperators in some manner it was not as clean as i am withdrawing from this ongoing conspiracy at this time but with regard to  in hernandez i'm not sure if i'm pronouncing mister vito's name properly the last robbery was the fourth independence robbery and at that robbery there was some violence and mr fiorentino was greatly upset by that he ripped off all of his police garb and told all the others i'm never working with you all again then with regard to kanno martina's he actually ordered mr marcano martina's to return after he said did he do anything in furtherance of the conspiracy not with the not with anybody but certainly not with hernandez and detail who were present for anybody's we would have to be correct so with regard to kanno martina's he actually demanded of him all of the police garb that mr cannon martinez already had and then said i'm not working with you either ok and the third the third group of cooperators where the fernandez brothers with whom he had his greatest problems they fought over a car fiorentino was shorted on what i call the long island job which was in the middle of two thousand and three and then one of the front man fernando's fernandez brothers domingo was kidnapped shortly after mr fiorentino was shorted they all believed he was the kidnapper and domingo testified at the trial he didn't need a letter from mr fiorentino saying he was out everybody understood they were not no longer working together  finally there was evidence submitted at the trial that mr fiorentino had extensive travel in florida and the peruvian beginning in two thousand and four and that he was incarcerated for a certain period of time following two thousand and four all of this making further impossible his continuation in the conspiracy with regard to the sentencing which is the second point in my brief i note quickly that mr fiorentino was sentenced to two hundred  sixty four months in prison meant of the twenty three co defendants in this case there's only two who got more and one of those was convicted of a nine twenty four c count the judge did seem to be impressed with his baseball bat beating  of somebody just because a person of the brothers he did but but on the whole what mr fiorentino was trying to do with the fake police officer ruse was to not have violence there is that incidence of violence but i also draw your attention to the fact that mr for your in tino had nine robbery robberies to his name some of these defendants had one hundred hundred fifty and he was like a lesser player compared to everybody else so it's quite extreme for him to be at the very high end of the imprisonment term thank you thank had insufficient nexus to the grand jury which was supposedly the proceeding sought to be obstructed if the if we consider the leading cases that talk about this nexus requirement there's three cases that were up defendant made a false statement to an agent who may or may not have later testified before a grand jury egypt's specifically told them the grand jury might hear evidence same thing ensures in arthur andersen which was overturned because of jury instructions but the facts were personally knew there was an outstanding are in jury subpoena that requested them rice fax to forge order to his lawyer who directly that directly alter the course of ongoing litigation in the second circuit in the eastern district and the esposito wrote a series of letters others to create specific fake pieces of evidence while he was sitting in jail on that particular case which case is to hot as more like it is plainly more like this first category of cases that all came back rather than these cases that was upheld and that's because his conduct had no nexus whatsoever to the grand jury in the normal course of things that you go to the grand jury you get a true bill indictment then you get an arrest warrant and then there's the court proceeding that follows if someone's asking about the arrest warrant they have no interest in the grand jury from their perspective the grand jury is doesn't mean anything it's over they're interested theoretically in that arrest warrant itself or the proceeding that would follow in the district court and to adopt the government's position broadens the statute or broadens the conviction here in such a way that any conduct that's ever going to touch on this criminal case even later on an appeal even later in hades context could conceivably be reaching back to the grand jury and that's that's too far afield the judge gleason said running someone's name through warrants database affords an inference that the defendant was trying to find out if there is a warrant it doesn't follow from the existence of a warrant that there is a grand jury proceeding at all or that's a hard or had some interest in the underlying proceeding from which a warrant mine emanate that hits the nail on the head curiosity about a warrant does not get you where the government wants to be there's the nexus that needs to exist but there's also the defendant's intent the bottom must have intended to effect this grand jury proceeding but there is no evidence the witnesses testified oh if i knew there was a warrant i would have come back but there is no evidence that that was communicated to hotter or that he knew about it what do you suppose he thought was the basis for their curiosity the person who told them to check was t entire trial made it clear that he was the kind of person that gave you only enough information for you to do what he wanted you to do without telling you everything and to neo did give him a raft of other reasons why he should be checking to see people's licenses reclean to see if they had they could get back into the country because one guy had a problem at j f k when he came in previously so there was not sufficient evidence that it's a hot a new why these people wanted it ron and that it was his intent the result so the government's argue that  in port in the conspiracy got arrested a couple days before and now they want to see if this person's arrest has prompted something but there is no evidence that the hot a knew about that arrest so not only is the nexus requirement failed but the there is no intent either foreseeability another hurdle that the government can't can't meet the to how to must have foreseen a specific grand jury proceeding in order the government argues that because he was a cop and you testified the grand jury a couple times after recip made that he would have somehow known that there was a grand jury proceeding putting aside that he didn't even know the arrest that been made the moment remaining do you want to talk about the identification yes your honor  the eight zero one says that it is if the if the government wants to expand they don't want to allow an officer or an agent to testify about the identification that it should at least be a reliable identification and here the identification was dangerously unreliable she at trial she said the only description she gave was that she knew he was tall and dominican looking that was for one person supposedly tonio the other one bad skin and a mustache that supposedly to heart of what the cop did was he mixed together her suppose a description the husband suppose a description and a description of a daughter who didn't even testify put it all together to make one composite description and then told the jury well they basically said the same thing weaving with the jury leaving the jury with the impression that three different people came up with this you argue is in error to this identification testimony by the police officer by the agent because it violates eight zero on and the strongest case  the government cites to come back that is lewis case and even lewis it says lewis was about the lack of an in court id lewis says failure refusal of the identifying witness to recall in court the earlier identification might well raise questions concerning the attic see of adequacy of cross examination and right to confrontation of the original identifying witness why wasn't it harmless error this was very much an id case judge  there was a laundry list of cooperators and this was a quintessential example of quantity over quality the only person who could really identify the hot it was ten yo because they knew each other so when you have a civilian person presented to the juries three civilians making it look like the hot it was the person who actually did this robbery it was incredibly damaging impossible for him to come back from thank you  this appeal really concerns one issue and that is the issue of whether or not judge towns properly added a seven year term based on a nine twenty four c conviction which was the subject of rule thirty three proceed ings and it also involves this perry treatment based on the same record fiorentino trial which was a separate trial together dismissed the gun charge there because there was no evidence of any gun possession or use within the limitations period and judge police predicated his the citizen in fear and to know based on a combination of the united states supreme court's rosemont case which stands for the proposition that for x sorel liability the the government must show actual knowledge in advance by the eight or in a  better that one of his cohorts will be using a gun in connection with a crime of violence or a narcotic scrying and that the defendant's who's the accessory to the crime acquiesced in that particular  predicate crime in this case marcos rodriguez was charged with having produce updated in one form or another in connection with fifteen robberies hobbs robberies all of which predated the limitations period and in the course of those fifteen robberies marcus rodriguez in the main part in fact in almost all the robberies his participation was that of a lookout according to the government witnesses and other robberies he did some surveillance and he also sold some of the narcotics that were taken in the course of the drug related robberies  but in none of these fifteen robberies with which mr rodriguez was implicated at trial did he use or possess a gun he was an accessory this to fence was not case because counsel did in fact get up and cross examine witnesses and he did in fact address the jury both an opening and closing statements the end effect of part the reason we're not we're not raising any any challenge to judge handles his rejection of the rule thirty three in connection with multiple conspiracies slash statute of limitations as to the robberies themselves want to prevent if if the if the rule thirty three was rejected because it was some might and you think that would raise the question is to the effectiveness of counsel i mean that's the kind of thing that it's  responsibility for gun possession or use should be within the statute limitations here none of the robberies that mr rodriguez participated in according to the record were within the statue imitation so this brings us within the ambit it seems to me of the preddy case where although in that case the gun was seized before the statue of limitations period started and this case there's a complete absence of any use any brandish any weapons because they were no weapons related robberies that took place within the statute limitations how could mr rodriguez then be responsible under pratty and also  rosemont as an accessory to the crime for for gun possession which didn't even occur within the statute limitations within the framework of the record so my argument is based on a reading of the case law arguments as to randall martinez and marcos rodriguez turning first to the defendant here in tino a mr pure and tina was charged within the statute of limitations period with respect to his criminal exposure robberies together with mr fury in the rest of the crew in the dominican republic mr buell mond and mr fury participated and a gun points incident in which the obtained the proceeds that had been stolen from a robbery that occurred in new york and while mr pure and tina was down and in the dominican republic he was in touch with coconspirators including mr hernandez who warned him that law enforcement was looking for him with respect to the baseball conspiratorial discussions with other members of the conspiracy including domingo fernandez he discussed with being a fernandez the possibility of doing additional robberies so quite simply put there was no evidence that he withdrew in fact the evidence showed that he continued to do robberies in new york together with a codefendant in the same case that codefendant is marcus rodriguez in his proper statements which were admitted at trial mr pure and tina admitted that he and marcus rodriguez continued to do drug section fifteen twelve i believe that judge had it exactly right at sentencing in denying the rule twenty nine and rule thirty three motion as to those counts of conviction judge gleason noted that in an ongoing grand jury investigation if it were successful in keeping away co defendants out of the united states he would have been actively frustrated you're assuming an ongoing grand jury in indictment charging him with robbery conspiracy so he would have frustrated the goals of the grand jury as judge lisa noted quite often and in ongoing grand jury investigations each time you have a rest of an of a defendant there's a possibility the defendant will cooperate with law enforcement authorities provide additional information that's then presented to the grand jury and it's ongoing investigation that can lead to the national charges of others that's what happened here and that's why there is  lineup this was it was no second viewing here i understand your honor in essence there was its second viewing of the giordano's testified that they could no longer make statements of identification that were as reliable as the statements they a country authority from other circuits any for the proposition that an identification must be as to a photographic or a or a stand up necessary after it says after him after is and is isn't that nat perceived the bank robber as having brown eyes this wasn't the sara lee a photographic array or show up for the sake of my question that it was there or to admit that testimony his counsel just told me that this was a purely identification case tell me why it was harmless error there was abundant test there is abundant evidence as to this defendant's participation and the schley avenue robbery this is where the officer at the night of that that incident who testified that he assigned to only one hospital run in his entire tour of duty and on that occasion when it was time for jose to hide it to be sent to the hospital he was nowhere to be yes i understand your honor and i think our argument would be that there was abundant assuming that that that there was an error in allowing that hearsay to come in there is still abundant evidence showing that it's a had a had participated in both  you please the court my name is sylvia schrader and i represent the united states in the appeals that were brought by randal martinez and marcos rodriguez to respond to the points made by martinez's lawyer first marion seltzer did file a motion for a bill of particulars which was one of the specific complaints that martinez raised and that motion had been filed prior to judge towns even receiving the letter so that point for example had become  addition marion seltzer did indicate in her letter that she had discussed in her sentencing letter that she discussed the p s r with martinez and any objections were noted below that's at the the martinez's appendix at two o four so she whether there were still objections that he had to the p s are not she did discuss those issues with martinez and raise those in her sentencing letter and then as for the sentencing itself of course there's a different standard at sentencing as to whether or not martinez had firearms forces when he made the plea whether he was consistently going to say that he did not possess a firearm or brandish a firearm the government if the government provided sufficient proof to the probation department probation department decided by preponderance of evidence that the government had shown that he possessed firearms i could be included in the p s r so that's not necessarily an error it's just a different standard of that time and then the third point i'd like to raise in response to mr martinez his argument is that and martina's his appendix at one forty one you can see that georgetown specifically says when in explaining aiding and abetting liability for the gun so it is not necessary for the government to show that you yourself physically committed the crime in count three in order for the government to meet its burden of proof it was it was clear in other words at georgetown's could have used what aiding and abetting meant and that the defendant didn't himself have to carry the gun and in fact he didn't he admitted that the appendix one sixty four he admitted that there was more than reasonable for say ability because he guns specifically said on some occasions they would pull their firearms out to scare people so if you want to complain now because he doesn't like the fact he ended up getting a seven year sentence that's not what the what the law counts for if there are no other questions on martina's then i'll turn to rodriguez ok and then as for rodriguez unfortunately for rodriguez versus united states is a case of the supreme court decided this year in which it specifically said that a district court's failure to enforce an unraised limitations defense under section three to eight to a the statue of limitations cannot be a plain error so he's out of luck if it wasn't raised before or during trial yes it would be considered it as plain error but himself isn't which you want to see with the entire what's going on the tr to be aware is that the government can put on its its opposition or a bottle to that defense and that the judge can put in to the jury charge a status there was a rule thirty three motion the government presumably responded to the government did respond to it and i mean in fact here of course we you know we we know that there wasn't a legitimate statute limitations defense and mr savage wants to have it both ways and say well you can't have an inconsistent ruling on the gun charge but he specifically said a government exhibit page two seventy three during the post from ocean argument he was talking about how there was ok it was it was ok to have inconsistent verdicts with the fact that judge towns had raised well there there was a withdraw of the conspiracy a statue limitations defense and fear and when it didn't work and a friend said mr savage said it's ok to have inconsistent verdicts but you can't have it both ways because now he's saying it's not ok that there's an inconsistent decision with the count one count that judge gleason decided to throw out which of course we disagree with but there are different facts with that knowing as well judge gleason found that there was a break because  tino went to the dominican republic there's no such brazen sort of simplify this much is it the case that the financial limitations rejected on the rule thirty three motion on the ground that it's been six she as she specifically noted in her opinion in two thousand and six both rodriguez and p r into nowhere stopped four times with police paraphernalia in their car or they were searched at their residence so there were several times well into the statute of limitations period that both rodriguez and furin teano were found with the evidence of a continuing conspiracy which addresses the issue of both pain and pratty that there was an underlying continuing conspiracy going they were made in possession of things we used in the robberies exactness or mean that the robberies are continuing does well but then we see in two thousand and eight there was a big sting operation in which several most of the sting but he was part of he never withdrawn from the conspiracy and there were other coconspirators that he was working with that were continuing to do the conspiracy and unless he and he didn't withdraw from the conspiracy just because different factions are continuing on and doing the conspiracy doesn't matter that it doesn't matter that marcus rodriguez wasn't part of that sting operation the conspiracies continued well into the limitations period and as for the point about united states says very familiar with both united states versus pain and pratty this continuing conspiracy the underlying continuing conspiracy of the narcotics and the hobbs act robberies shows that it doesn't matter whether or not an actual gun thank you just two brief points one i don't dispute that there's a different standard at sentencing and on what factual findings get made it would be a preponderance of the evidence since to at sentencing that's made by the judge not by the probation department so the fact that there's a allegation in the pre sentence investigation report that randall martinez brandished a firearm that is not objected to and then affirmed by his counsel at sentencing takes that out of the role of being of the judge being able to make a determination about it and a full vetting of that had to have the attorney actually objected and put evidence  contrary to what the government had had already put in to probation the other point is just mr martinez of course at the play colloquy articulated facts and i don't dispute that he said things that made the nine twenty four c charge go through the point is that he wasn't advised about the reasonable foreseeability that another person was going to brandish a firearm and he would be held responsible for it despite the fact that he didn't possess a firearm itself so that the plane air around it is that he's not advised in the full vetting of the at the with respect to the charges not that he actually said something that satisfied thank you the court your honor with regard to the obstruction point i very briefly want to address the government's contention that this maybe could have been an ongoing grand jury there is no evidence of that before the trial jury so for the government to say that now is simply irrelevant because if it wasn't before it shouldn't be considered the idea that maybe people could have flipped and been apprehended later it's speculation on top of conjecture in order anderson there's a quote about how the government courts are supposed to place meets in bounds on the very broad language of catch all provisions they're talking about fifteen zero three later imported to fifteen twelve this is not saying that maybe theoretically someone later could have flipped that's not reading a catch all provision tightly as the courts as are supposed to do with regard to the id point it was in that rose it's your dano couldn't no longer could no longer make the id it's worse than that she would never able to make the id in the first place she said she told the jury that she wasn't really paying attention honestly was just thinking about how to get out of there she wasn't even with the hot a in the first instance she ran screaming out of the house and most of the night most of the night was a blur her husband did most of the talking if the court going to expand a little one to allow officers to start testifying about this at least do it on a case where there was a reliable id but don't do it here with the argument that the chalet avenue robbery was sufficiently corroborated the government did argu vehemently a trial that sergeant jones and p d documents said taht it was guilty we are you equally vehemently that it exonerated him and it was the probably the most hotly contested portion of the entire case and frankly the reason that there is a mistrial hung jury in the first trial if i may be so bold as to offer that opinion so i absolutely stick to this notion that it was damning testimony if there's a quote from perry the two thousand and twelve supreme court case talks about how dangerous idea evidence is especially juries and if you're going to allow it you can't do that the checks on that are strict enforcement the rules of evidence in cross examination so if you're going to allow it in here you've lost both of those it please the court and in connection with two miss waiters observation that i made an argument to judge towns about inconsistent verdicts there were actually two rule thirty three  of limitations i lost that one and i'm not raising that i'm not trying to revive that on this appeal the additional rule thirty three the petition that i put in is valid point said well i don't know if the records are substantially the same i'm only ruling based on the record before me whereas in the earlier rule three three proceedings when i said well there are such things inconsistent verdicts she says well you know tina raise the same the same issue to the jury and the jury ruled against him so that time the judge was saying well the records were substantially the same so you don't have much of an argument on multiple conspiracies and later on that  know sentencing the reverse is true the bottom line is is that if if if indeed firearms is a continuing offense to be tacked to the predicate offenses and not a point in time offense if you look at that strictly then pretty should have been the side of the other way altogether in other words when the gun and i'm not just curious is the one who actually authored the boat the predator the pain the citizens and in pretty of the gun was seized the gun on which which one twenty four c was predicate was seized outside the stash limitations here we don't have any seizures of guns but we also have absolutely no evidence of any gun use possession branch and at all at any time past the summer of two thousand