is going to take the other ten all right we've got it and so the dep the clerk has a lot of time and put that time on the clock to make it easier for you to track i'm assuming brief and i'd certainly like to focus on whatever issues your honour's have questions about or i'm most interested in but with that said i'll do a little bit of issue selection and obviously let your honour's direct me differently if you want me to talk about other things let's start with what you think is your best issue all right your honor i think i think my best issue and certainly the most all encompassing issue because of the impact it has is the self representation for re this person who wants to control everything that's of particular relevance actually to the self representation right because the whole point of that right is about a defendant being able to control his own destiny  have control and frankly if as the government claims i don't necessarily agree with this as you know from my briefs but if as the government claims it's a case where the evidence is overwhelming then frankly the right to self representation may be about all the defendant hass and you know the case is takfir read itself talks about that i think respect for the individual which is the lifeblood of the law and that becomes all the more important if the evidence is overwhelming and that's all the defendant has i as i've argued i don't i don't agree the evidence is overwhelming but certainly if it is as the government argues the right to sell for his representation becomes very important on that issue what do you do with the factual findings made by the cork that go towards the district court's belief that the request was made for purposes of delay he said well you're bringing up the last minute you're trying to manipulate the process it's time to go to trial you're  a lot smarter than that and that's a district court who's had some prior dealings with the defect that right there not a lot of more prior dealings with his attorney i think than the defendant but but your honor my response as first of all i want to make crystal clear the government tries to argue this factual finding about it being equivocal and there's no factual finding about that it is just about the delay and i think your honor that factual finding just can't be upheld because mr sanders sallah never asked for extra time the district there was no what the district court should have done before making that kind of finding is ask mr sanders sala are you are you saying you also want to continuance if mr sa to that then perhaps that finding would be supportable but without that finding the court without that question in the end sure the court couldn't make that finding a second your honor the other thing the court could have done is it could have said i think what it should have said in that context is not flat out deny it but say well i'll give you a self representation but you got to understand that you're going to trial on tuesday or monday or whatever the day it was after the status conference  so i don't think you can support a finding like that when the defendant never asked for extra time and you don't ask the defendant whether he's asking for extra time so that i think is the response to why that finding what the court needed to do here was basically two things you needed to ask exactly the question i just described and then it needed to have the fred a colloquy but is it conceivable that he could actually take over this case and proceed to trial in three days maybe because he had been mean there was a lot of things in the record that suggest he was trying to meet with and have discussions with his attorney and looking at discovery and things like that i think he thought now course we're not time out whether we could or talk about whether he thought he could because the case law is clear that it's probably not a good idea for people to represent themselves they're probably not going to as good of a job but we're spec their right to make that decision he had been involved in this case with his attorney with multiple tourney for over a year maybe going on two years and he had had a chance to be looking at things that were filed in the case looking at discovery et cetera et cetera so maybe he could have been ready at least as ready as he thought his attorney could be and so i think that question didn't need to be asked that there's actually lots of cases out there i think your honor in the reported cases where defendants make these requests just before trial and they don't automatically get denied on the assumption the defendant wouldn't be ready there also might have been an argument that the district court had to give them a little time especially maybe when the other trial first in this trial second which would have been an easy thing to do but you don't even reach that question the district court might well have been within its discretion to say no if the request for self representation was contingent on getting more time but he never asked that question he didn't know whether that was the case it didn't know that if it said to mr sa no i'm not giving you the extra time you still want to do it it had no idea whether he would have said yes or no to that but in this in the quote colloquy on this issue the it appears that the defendant did know what he had to do in me the judge should have been worried about were he was making a knowing decision here knowing the consequences and that's exactly why you follow up the unequivocal request your honor w the next thing the court would have done is go through that long speech we see in the case law about how dangerous this is and all the disadvantages of doing it and that kind of thing if there had been that sort of forever colloquy maybe mr sound a solid would have circuit where they talked about vacillating that vacillating often happens when you have the threat of colloquy and if there had been that sort of vacillation during the for at a colloquy then the court could have possibly found it was not unequivocal and denied it but that district court all the district court said was quote it's too late now unquote and under ninth circuit law that's legally and correct because under ninth circuit case law it's clear the requests can m made anytime up to jury selection what the court could have said is i'm not giving you more time do you still want to do this and if he said yes ok let me tell you what the disadvantages of this are and what a bad decision it is and try to basically talk him out of it and see if he changed his mind then so i there might well have been ultimately a proper decision and denial of self representation here but that the judge has an obligation to try to talk him out of it while i well for read on a whole bunch of ninth circuit case law talk about a judge having to advise about the disadvantages of self representation i'm i maybe i' characterizing that is talk him out of it that's not quite the way the courts phrase it but you definite to tell him about all the disadvantages but if he says too bad i still want to do it forever and the other cases make clear he has a right to so that your honor of course if if we prevail on that issue you don't need to retain any of the other issues i did want to talk a little bit a guy for a couple of thoughts and please direct me somewhere else if you'd like to own that he's just going to get a new trial you're going on that because it would be consider structural error it's correct you can that's why in a way that's why i characterized that as my i think there's other issues that are strong but that strongest in terms of you don't need to get into harmless error question going to that sort of steps into what i was about to say first about what i think is the most significant evidentiary slash fourth amendment issue the cell phone evidence  one thing i did want to make real clear up front is that the admission of the cell phone evidence was definitely not harmless there and remember for time out the fourth amendment issue it's the higher harmless error standard of harmless beyond reasonable doubt let me sort of lay out why that evidence was important to the government's case it's are you talking about the the suppression issue or the doubt the officer now talking about using this software program i'm talking about both because either one would result in the suppression of the cell phone evidence so there's two issues that but the admission of that evidence first of all was not harmless it was very critical of the government's case three maybe four people and and every one of those three or four people was if i can use the vernacular dirty first you had two alleged coconspirator editors who were trying to work off their cases they were the ones who were caught red handed with the drugs second there's a drug user stripper ex girlfriend name mystery who admitted resenting mr sam to solve because of their break up and her testimony is really sort of tangential and general anyway third there's an  felon named byrd who's testifying so he won't be prosecuted for felon in possession of a firearm the cell phone evidence provided curricle critical corroboration of these witnesses who won their face could unquote like he done other quote missions unquote so so rejection of the direct defense whose idea it was and why mr sound a solid did this very much depended on miller so  first of all your honor so correct that the rest was the defense but only as to those counts and second even as to those counts rejection of that defense the cell phone evidence was important  so we have the two issues on the cellphone evidence we have the fourth amendment issue is actually two fourth amendment issues but i'm going to talk about the one that effects all the cell phone evidence which is whether the probation condition allowed cesar's as opposed to searches first of all i would submit that issue is preserved that claim is preserved under this court's case law there is a motion it's an excerpt of record nine forty eight to nine hundred fifty where there's a general claim that this was a warrantless seizure so you know it wasn't just a that's enough to preserve the claim you have two cases i give you in the briefs one guzmn podio one williams where the government gets away with making very general  even different arguments in the district court and they held well that preserve the claim just because they're arguing more specific theory on appeal doesn't waive it on the substance you have this really well reasoned opinion it's not a court of appeals opinion that's binding on this court the swearing in opinion but it's a very well reasoned rational logical opinion that faithfully applies this court's precedent in the supreme court precedent on probation searches one of the things that makes a probation search without a warrant and on less than probable cause or even with probable cause but without a warrant permissible is that you have a condition that tells the probation officer he's allowed to do it and tells the probation or that he subject to this the condition here said your stuff is subject to search it didn't say seizure and there's a big difference especially when you're talking about a cell phone and a good reason why a probation condition might draw that line you seize a person cell phone and hold it for several days or several weeks i don't i don't frankly use one of these smartphones yet but people who do it's very disruptive it's like your whole life there is all of sudden taken away from you for a for a minute and so it's very logical that you might draw that line with the condition as it was drawn here the search is just five seizures in the correct how do you search without first season well you pick up the cell phone i think that i don't think that's a seizure i agree that thirty implicitly allows you to hold the thing to look at it and that's not a seizure well it's not your data you're depriving the owner of the possession right because you want to search that i would agree is implicit in the search but taking the thing out of the courtroom to the f b i office for a you say for show courage or time is implicit within the authority to search how can you then start drawing lines as to how long that implicit seizure may occur i think that where you draw the line your honor it's not just time but location also i think you draw the line by obviously you can't search something without holding it and looking through it so that  caesar has to be implicit in quote search unquote the other type of seizure does not have to be in place and search and this is not the type of thing where you can't search it at all without taking it to the f b i office you can still look through everything on the cell phone that's still there the stuff you can't do is the forensic type of search that gets into the med it data and the deleted items that's that's so it's not like first of all let me ask you this then if  the probation officer wants a piece of clothing and it wants to search for d n a in possible blood that is their right are you saying that it's not implicit that the probation officer can take that piece of clothing physically away and keep it forever linked the time it takes to do the d n a testing yes i am your honor because that's someplace where they'd have say search and seizure because that's not it's a seizure that's implicit in an ordinary search what if what this condition is basically doing is saying things can be searched but they are not nazis then and  i think when you're talking about searches that go beyond searches that require a seizure in the sense of more than just holding the thing and looking at it or look it sticking your hand in the pocket or been rolling through the seizure here is a little bit less not there it's not in the record the record says later and quote eventually unquote as to the two different warrants but it was i think fair to and read from that days or weeks later so th get a warrant later but that's a product of the seizure and especially in the case of a cell phone cell phones and especially there may be data and deleted items are going to change over time you know you're not going to not all messages are go preserved i don't know how you're on how much your honour's know about forensic searching of computerized thems and cell phones but you know they have the stuff the deleted stuff is hat there in this unallocated space and it's only there until that unallocated space gets used for something else so as you have more messages that cetera coming into the cell phone the things that are in the end allocated space may not be there four days later or five weeks later or whatever the case may be wanted to save some time  significant and the first question this court must answer or address is what conspiracy was charged in count one what was the scope of that conspiracy and what did the government prove in relation to count on the government in its answering brief seems to want to limit the conspiracy to only those individuals named in the indictment that is not how the court instructed the jury the court instruct the jury that if two or more people agree to commit a crime that is a conspiracy in instructing the jury the court didn't name the individual of named within the indictment so there is no limitation for the jury in that regard in fact the court instructed the the indictment is not evidence and does not prove anything and there's no indication that the indictment went into the jury room was a read to the no not that i'm aware of i don't didn't see anywhere that they read the entire indictment in the you know it in this case included a lot of information that wasn't relevant to mr cammon of on their accounts as to mr assange in which mr wasn't charged and that would have been irrelevant and should have gone into the jury room and under the list of overt acts there's overt acts as well that weren't relevant to mr cam and shouldn't have been read to or gone into the jury room oh you're sure of that and so the judge never read the indictment to the jury i don't believe the i don't recall a judge miller's low fee and your client and when when the court read that he read the last clause of that sentence and others both known and unknown to the grand jury so it names those individuals and it also listed others known and unknown to the grand checked the heroin box on the indictment and the verdict form indicating that it had found that heroin was an object of the conspiracy it's unclear if the jury check that box based on the guy c mr guy testified to at length or if it which was not part of the charge conspiracy because at that point there's no indication mr even knew mr say own right but that's my read off those names  asked whether the judge read those names that we just talked about because these folks weren't involved in that other conspiracy was there was there a risk of confusion between the two when oh  judge told the jury this particular conspiracy involved these individuals and named them because when the government argued they said when you are looking at the verdict form and you are deciding whether to find mr can live on guilty of the conspiracy check the heroin box based on the camera guy conspiracy that's what they are the debt was about that's what the kidnapping was about with collecting the bad debt check the heroin box so that means the government specifically directed the jury to consider the live on guy conspiracy as part of the overall conspiracy but it wasn't charged and it can't be because there's no evidence that mr kim jong even knew mr santa sala in during that summer of two thousand and eleven and twelve during that timeframe when he was mr kemp was working with mr guy it wasn't until the end of two thousand and twelve or early two thousand and thirteen that mr can have on even met or became related to the conspiracy with mr tsongas all or mr miller and the others and that's important because we don't know when the jury checked those boxes what the object of the if there was any unanimity as to what the object of the conspiracy was if it was the heroin at issue in the guy can live on then that's a separate conspiracy that wasn't charged and that's not relevant if it was creates some confusion and we don't know what the jury decided and that creates a bigger problem when you go to the second issue which is the pinkerton instruction or in they keep referring back to quote unquote the conspiracy charged in count on if you find the defendant guilty of the conspiracy charged in count one then you can find the defendant guilty of counts two three and four based on the pinkerton theory of liability but if there's multiple conspiracies in count one and we don't know which conspiracy the jury found and so that also then impacts count count five because they all tie back to count one was pinkerton argued us in the turnitin during closing i don't believe the government specifically i would have to double check that i don't think so though but the government fought for that instruction the defense objected to and the government fought for it and said that it was relevant it was appropriate and now in the government's answering brief they argue that it's illogical and they say well it's possible that the jury found mr can live on guilty of counts two three and four based on a pinkerton theory of liability it's illogical and if the pinkerton instruction was illogical or not supported by the record then i don't know why it was given and if it was iranians to give it and if there's two competing theories and it's possible as the government concedes that the jury followed an applicable and inappropriate theory then the convictions have to be set aside i'm down to about three and a half minutes which i will say for rebuttal and authorities any other questions all right thank you please a court stuff and collins in behalf of the united states i will take the same tact as mr gunn i will address some of the issues of mice a prompt by question by the panel on some of the issues that i believe  there at the forefront of this appeal and leave some of the others on the briefing i think as mr graham pointed out the question of self representation is that is the question that needs to be first answer the i submit that the seventy five of the seventy seven minutes of that friday before trial ex parte hearing prompted by the motion for substitution of counsel was overwhelmingly solace fear and concern that his defense one was unprepared to start on monday but more particularly he feared based upon what he himself said after reading the government's trial brief the court would not allow him to present his to rest defense he repeated that over and over again it was at the end near the end of the proceeding where after the court had ruled on the motion for relieving mr lien of his role as counsel for mr suga solemn after the court noted that the trial of being continued five times and that if a continuance were granted necessarily new counsel would need at least six months that the case was now set for trial the mr suit was sallah its concerns about the dress the fence had not been a late because shortly before the court announced its ruling it indicated that it might allow the two frets the fence to go forward and this was after mr supa sala had spent time laying out the groundwork of for why he believe addressed the fence should go forward and in context of the filings before that hearing the government had indicated it was seeking to preclude the duress defense because of an inadequate showing of why the allow the defense because if the court stated it would hear from the government further at the subsequent hearing after the court left mr service all of this uncertainty it was about to leave the bench with mr sukh solid raise the issues he supercell replied yeah a court in response well what do you mean how does it work mr suga solace said i mean i don't i don't want to give the government like hey i'm an idiot and i don't know how the court works do whatever you want to do and run all over me if i'm pro se do i get somebody that will help me with legal issues or my literally just by myself i submit the court's response it's too late to do that but i will give you a forger reasonable considerable leeway if there's something that comes up i think i submit the court resumes bonding to do i get somebody that will help me with legal issues not that it's too late to raise the topic of pro se just to su then again fix eighty percent rates of the concern after some explanation by the court he then says your honor all this is very confusing and i just i don't think it's fair and like i said i would just rather to represent yourself and and if you are granted that status you are not going to get a continuance because up to this point he didn't say that he wanted a continuance well i appreciate the fact that it's really difficult to imagine that a kid in a case of this magnitude somebody could come in pro se and be ready in three days but there was no continuance requests made to the court is that is the whole  it air not to have colloquy i submit in the context of the entire proceeding at this mr super sallah was stating again repeatedly that he did not know if the court was going to allow the the proceed it was an inquiry about how does a work i'm confused about what's going on because the government has said i don't like on page fifty six one of the issues that i just found out last night after mr lean left the government's trial he says that we haven't turned over any evidence and now we can't sounds like it's already crossed i didn't know that i mean i think there's lots of things that at least want to try to get in front of that or he was focusing upon the ability to present his to rest defense the opportunity presented and his fear is that the court's not going to allow him to do so so that's when he said i know this all confusing i just don't think it's fair like i said i believe he's referring to i submit he's referring to the courts the government's statement that the court sh directs the fence and he said i don't think it's fair i would rather represent myself and then the court says quite clearly on page fifty eight i understand your defenses and i'm going to allow you to present them to which mr super solid response i appreciate that your honor i submit that people don't express appreciation when they are denied what they're asking for they express appreciation when they and he had counsel and the court granted him the opportunity to be more involved and so all them in court issued its written statement when the court observe that was to suit ourselves attempting to manipulate the process i think the court took into account all of this his complaints that his case wasn't ready to go on the other investigation the interview no witnesses the subpoena of of witnesses the requests for further discovery tied into this concern about getting the dressed offense i believe the court just finally felt that mr suicidal ultimately was trying to game the system to get what he wanted and that was the court that definitively say i'm going to allow you the defense with out hearing from the government because the court did allow that arrest offense despite what it said earlier was going to have the government have an opportunity to weigh in further the court granted that the rest offense and the issue of pro se was not what he was asking for it was not unequivocally asking to proceed pro se he was trying to get the court to approve the pro se or the rest of the fence with regard to the cell phones there to enter twine aspects of that and first i'll address what appears to be mr gun's primary focus is that as as your honor observed you can't search something unless you've it and in this case there was a search warrant approved and it was executed and the contents were therefore uncovered a loews what was the gap in time between the time when it was originally in the war it was issued well there are multiple well there were two incidents of probation seizure watch i believe mr guns focusing on there was one from the car the vehicle and two the one from the residences where mr supercell was believed  my calendar is correct to see it may have been ten days it may be a little may have been two weeks from the first because i believe is on about may twentieth but you at least concede that if  the view is the defendant is accepted that the war is completely irrelevant because it was so far distant i don't agree with his assertion because one there was no evidence that that though the language of the probationary search condition may have expired may not have explicitly laid out seizure but does that mean that the seizure can go on for weeks months i believe under the he days i believe under the facts of this case because this was a an ongoing continuous investigation it wasn't i'll get to it come christmas kind of i've got other things going on this was a continuous series of investigation twentieth the date of the encounter at the gas station following his leaving of the probation office he was the focus of the drug trafficking investigation shortly there after the and then the the probation search was scheduled shortly after it was observed that mr sulu saleh was the active participant in that assault so this was a continuing not a and some unrelated event in or interferes with the ultimate execution this was the case was building and building and building and then so i think under these circumstances the time lapse between the car or which was limited to a certain set and the probation search did with a different set of electronics that it was reasonable under these circumstances not that this what i don't think this raises an unreasonable seizure  i think you have to take into account the each incident to see if it's reasonable under the circumstances for instance if if well try to figure out analogous circumstances  that issue as far as well before you leave that is that the suggestion was you know you could have a short term seizure deuce again through the screen and see car there's no evidence that he was none the less willing to give consent to unlock the device and allow them to look through the various files as well as to recover whatever he had himself  from the cell phone so that much of the material that the cell bright uncovered was stuff that he had that had been deleted either purposefully or by as you know first in last out kind of process so it would require information that despite the fact that they hadn't yet to see the video that there had been this kidnapping assault involving mr supercell which they were further developing in just five delaying getting a warrant on the phone i believe that the it that's part of the probable cause that well it's back up i don't believe that this was an unknown reasonable the tension or delay between the execution of the warrant from the time of the seizure because the mr suga salas interest proprietary interest you never developed as having been interrupted he's hypothetically arguing that that every time that probation takes an item for further investigation necessarily implicates the proprietary interest that it was an unreasonable infringement upon his proprietary interest was no he said that he said that implicit in the search is the is the seizure that's limited in nature so you can you know if you effectually if traffic stop you can search it right then and there so it has to do with time as well as location but i think the objection is in carrying somebody's i phone away and then keeping it for some lengthy period of time that sort of seizure is what the defense is focusing on as i understand it i still submit that under the circumstances it wasn't unreasonable for them to to retain it for that period between that first probation search and shortly after the second probation search where other items were searched cumulatively and or you or your job search and i think that's what he's doing trying to marrows in on the difference here and there's a difference i recognize that there is a difference of but in this context the searching the search necessarily implied a longer seizure than would have been occasioned by simply doing a curb curbside look at the screen because it felt mentally require the use of of a piece of equipment to unlock it and look at well not literally look out but divulge the the contents they have so it necessarily would having acquired a longer period of seizure them just simply let me see what's on the screen and what's on your recent contacts or recent calls list so i submit that i did these circumstances because of the use of the specialized equipment and that part of the delay was getting was to apply for a company part and the consequence is the great well the consequences are great but it's not critical to the ultimate case because there were multiple sources mr miller's phone it was not subject to mr super solace constitutional interest the testimony of the victims was not subject to the search the the physical evidence recovered well you know those have they say they need a warrant i think they exercise due caution by applying for was ok i guess that's my point why didn't they use due caution nine days before they did days nine days to get the warrant i think that in between that time was when they were just they discovered the the videotape of that there was actual confirmation that aside from rumors of a sexual assault kidnapping there was in fact a victim and now there this is been elevated from rumor now to hard fact that there isn't a crime of violence and that the the development of the case should follow constitutional norms by applying for a wart is de argument but that may cause more problems doesn't because you're saying well now we think it's important so we better get a warrant that's problem i'm having there damn short for it going for the warrant versus well it's you know it's one thing for no good going unpunished if if it was a good deed that occurred the day after the actual seizure but i'm not sure it's a good deed when it occurs ten days later all right let's hear from m no ma'am i was not can you address the unanimity instruction argument where come from his heart was saying that during the course i think it was argument  the government directed the jury to the wrong conspiracy yes but create confusion as to which conspiracy of course to require specific unanimously instruction there must be a realistic possibility that the jury was confused about to whether which of two different conspiracies might have been involved the government does concede that there was a misstatement made by government counsel in its closing argument as to one small piece of the overall conspiracy it in order to tick off the various elements that work work wired one of which was whether or not heroin was involved in the underlying conspiracy it mentioned the fact that the drug that gave rise to the kidnapping and the sexual assault was based on heroin deal that that we c was erroneous the underlying possession of that heroin with intent to distribute was not part of the conspiracy in this case but i would suggest that when you look at the record there's no possibility that that brief mention could have confused the jury that the opening arguments of both defense counsel and the government focused on described and focused on the indictment that was charged that conspiracy that was charged in count one of the the evidence at trial was overwhelmingly about this one overarching conspiracy that involved mr camm ivana mr sega sala and others defense counsel misreads the answering brief there is no suggestion that that the conspiracy was limited to the named conspiracy years conspirators in count one but simply that the conspiracy that was charged involves though at least to those conspirator wars plus others named and on and they another reason why the it well then from the evidence at trial at closing arguments again both defense counsel government counsel described the conspiracy that was charged in count one and told the jury that it needed to decide whether or not the defendant was guilty of that conspiracy and perhaps most important the district judge as instruction couldn't have been clear he specifically told the jury that its task was to decide if cam divonne was a participant in the charge conspiracy which the the district court again described to the jury and that if it found that he was involved in some other conspiracy other than that charge conspiracy it had to acquit and then gate then the judge gave a unanimity instruction given those instructions the jury couldn't have been confused about which conspiracy it was that they were supposed to be deciding on and given the fact that they couldn't have been confused there was no need for a specific unanimity instruction and on top of the multiple conspiracy instruction and the unanimously instruction that was already get them but when the judge talked talks about the judge and could not just the names in the charge conspiracy but also the expression of those known and yes indeed and there were others that were involved in that conspiracy it was it's held several year conspiracy involving multiple cities in alaska and transport of drugs from california to alaska there were quite a number of people involved in the conspiracy but so that was not confusing but that was not confusing it was it's not that there were a number of people involved in the in the conspiracy that was charged but whether or not the victim in this case mr guy and his prior dealings years before with mr cam vong was the charge to conspiracy somehow and there there couldn't have been any confusion about that  i would remind the court that this claim is subject to plain error review so you're relying on the fact that there is no effect upon the use of steroids well no actually i'm relying on the fact that there's no possibility that folds her pinkerton liability argument into this multiple conspiracy theory and i would suggest that that that argument shouldn't be considered by the court the only argument open raised in the opening brief was that the kidnappings were outside the scope of the conspiracy and that therefore there was insufficient evidence to support a pinkerton theory  that's that simply defies the evidence that was in offered at trial the kidnappings were committed by named participants in this conspiracy they were committed to extort funds that they they believed  to them by the victims and they were used intended to be used in fact were used by the participant to extort or to intimidate adversaries in their drug dealings and in  recognize that we had hoped that the my would have resolved this question by this point but obviously it didn't and we will hope to hear from it within the next few months i think we are all waiting for that decision but i would like to between the maya and one twenty four c is that to my it was based on johnson itself and the johnson decision takes great pains to make clear that it intends not quote unquote not at all to validity of the language in one twenty four c in question the that the paragraph quoted at page forty six of my brief from from the supreme court distinguishes nine twenty four c step by step from its conclusion and johnson furthermore to distinguish the sixteen b provision that was at issue in the maya from nine twenty four  applied to his or her case before we look to whether or not it's unconstitutionally vague on its face we recognize that johnson was an exception to that general rule but that was because the johnson court concluded that  the residual clause that issue in that case was a black hole that had no meaning that it was it was completely obscure in this case the provision on twenty four c has been repeatedly litigated as to whether  particular statute is or is not of violent crime the course of had not not had any great difficulty and in fact the supreme court has specifically held that kidnapping is a crime of violence under one twenty four c and using the residual clause so we would suggest that upholding the maya we believe that this court still should conclude that nine twenty four c b three is not unconstitutionally vague and i believe my time is right i say you have other questions thank you your honor reply brief which makes which sort of discusses that makes three points that i think are relevant first of all the case law that does allow seizures pending getting a warrant talks about two things that are required one or accident circumstances and to diligence and getting the warrant which i think relates to some of the questions your honor judge murphy was asking about third there was no evidence of exigent circumstances here at all certainly not with respect to the items in the june twelfth search that search was planned at least a day ahead of time and easily could have included planning to get a warrant for first the seizure and second the forensic search so i think that's important to note this idea that somehow longer delay is more justified because they're still trying to figure things out i think that actually goes the issue how they didn't have business making a seizure in the first place but so i don't think that really helps the government it probably hurts it  on the on the self representation issue you have i feel like the only way i get my true side across is for me to be pro  se quote i would rather represent myself unquote those are not equivocal statements they might have been statements that lead to a change their mind been a change of heart if they've been a friend of colloquy there might have been a change of heart of his said well yes or stand you got to go to trial on monday but those things had to be inquired about and discussed you can see it is the sole reference in this entire record to self representation yes it's two references it's a discussion that it's a colloquy that takes up four pages of transcripts starting with the question and then ending with the i want to represent myself mediately after he makes what you say is a remarkable statement and that is that i would rather this is pretty well first he says basically i'm not going to lie you to represent yourself there's two two things that i say that i think are in the response there and i mean the rest has been tonight i don't think you have to keep making if i think there's a ninth circuit case they may discuss that but i don't think you have to keep making a request when it's when the judge says no says you strike me he's for already said it's too late for that now and then he says you strike me as a very intelligent person and i think you're smarter than maybe you want to present and i think that to some degree by bringing these last minute issues you're kind of trying to manipulate the process so it's time to go to trial i think he's that's saying no especially when it's too late for that now was said earlier which we'll talk to the cell phones when i'm playing air we do you is that right s it's in the excerpt a record there's a motion far below saying this is a warrantless seizure and there wasn't a justification for it i think under this court's case law cases like the guzman padilla case in the williams case lad the government to make a border search exception our border shirts exception argument on appeal when they had made that argument below but it make a general no probable cause required argument there's the williams argument where all they'd argue below was he fled that's probable the government argues that there could be no confusion about the guy can live on conspiracy and i don't understand that at all during the instructions the court said for instruct regarding count one the conspiracy charge first beginning at least in or about two thousand and ten ending on or about november nineteenth two thousand and thirteen there was an agreement between two or more persons to commit the crime of distribution or possession with inten distribute controlled substances but all of you are agreeing at least one of these crimes that does not limit it to the people named in the indictment it doesn't limit it so i don't understand how that eliminates the guy can live on conspiracy from the jury's purview of considering it and the government refers to the guy campaign of on conspiracy as occurring years before when in fact it occurred between two thousand and eleven and two thousand and twelve right in the heart of the time frame of this conspiracy and then finally you have the government counsel during closing argument directing the jury to say check the heroin box use that language check the box on the verdict form because of the heroin at issue and the guy cam the wrong conspiracy that's not part of the charged conspiracy because it can't be because as i said earlier mr can't have on didn't even know mr soong fell at that point so there's no where they charged one codefendant and they named others both known and unknown and they had cognac and bushay who both testified that they participated in these conspiracies but the court this court found that they were two separate conspiracies and therefore there was a real genuine issue of confusion c the residual clause of one twenty four c is unconstitutionally vague and that cited in my brief the out of circuit cases that the government relies on regarding one twenty four c reject the demaio holding so if the supreme court finds in favor of sixteen be the residual cause of sixteen b is unconstitutionally vague then that undermines all of the arguments that the other circuits have regarding one twenty four c and in the context of nine twenty four see first this court is bound by circuit president but second and i'm twenty four c as a stand alone charge this is not an enhanced penalty as in the armed career criminal act as in johnson this is the stand alone charge and the vagueness doctrine should apply it with stronger effect it seems to me if you're going to attribute criminal liability based on a judge found idea that a crime is a crime of violence because here the judge instructed the the crime of violence the jury doesn't get to make this decision the judge makes the decision for the jury this make any practical difference given that counts five and four and concurrently is a good thing on those counts run concurrently it's a it makes a difference i mean if you're just considering the nine twenty four c it would be a pyrrhic victory if that were set aside i mean it does make a difference there's a special assessment that's attached to it it is a conviction  t it still significant and it's still important to get this correct because as we all know law changes oftentimes down the road and just because they're run concurrently doesn't mean that at some point count for could be set aside and as i've argued the instruction as to count four and aiding and abetting is contrary to supreme court precedent so in my view count four should be set aside for a separate distinct reason even aside from the pinkerton theory liability even aside from the specific unanimity instruction which lack of instruction which in my view infects the entire verdict so yes it does all right thank you thank you very much to our council for your help for briefing an argument today the matter submitted then were turned for the week