on that note i did ask to reserve ten minutes for a bottle or excuse me five minutes for rebuttal but because my time is limited my intention this morning was to focus my comments on what i see is the most important issue in the case which is the argument that there is a prejudicial variance from the indictment here the count one of the indictment which was incorporated by reference in counts two and three alleged conspiracy to commit wire fraud and it was real specific as to how that fraud was committed and allege that appellant and others over about or six or seven week period in the late summer early fall of twenty fifteen in the western district of michigan committed liar for hide by installing skimming devices on gas station and hops so i don't mean to interrupt the scope of review you agree that this is plainer i don't your honor and then with the language where i think it's page id seventeen fifty nine where they said judge has told here's an argument but i'm not making it well and the judge can relax i would i would have to say and agree with you that it is a less than perfect preservation of the issue that's a nice way way reading this in its entirety the transcript portion when the parties were going over the jury instructions trial counsel said to the trial judge i have considered the issue of multiple conspiracies i'm not sure if it applies i've done a little bit of research on it these are as is three conspiracies different conspiracies that i see that are proven and i don't think it applies if i'm wrong i'm open to correct the district court then i have the ability to express its view on why is the in charge should we not have any possibility and then it would be confusing and then later argument later said no objection to the jury instruction yes you're right as correct and then the government was able to weigh in on its a view of whether the multiple conspiracy instruction would be would be useful so in my view your honor i if the point of raising issues in the trial court is to have the parties express their view and then have the court offer its own input on the issue so that the court knows what it has to address not say here's an argument on don't blame me for making this dhamaka hypothetically don't blame me for making this minimal argument but i'm going to make it but i'm not making it i mean and i certainly understand trying to transform the obligation to discuss the issues from the party to the district court i mean it's like if we attribute some significance to the district court having discussed multiple could spears these with your client's lawyer said i don't think it apply as and then said no objection to the instructions what we're doing is rewarding the district judge for having some for taking care to discussing it briefly well to the extent that the judge what did the district judge was able to address its view on it and may have those views mayhaps weighed trial counsel for from pursuing it from pursuing it further i think as trial lawyers we're always kind of you know walking this fine line of beating  as a district judge you quickly laurer that a good bit of what goes out in a criminal trial is oh only for the sake of preserving the objection that's often what it's all bad and so should we apply the plain error doctrine then in analyzing this well i would ask for de novo review as we have but even on planar review i think that we have a legitimate issue regarding the multiple conspiracies last week i was a little bit of a johnny come lately also submitting some supplemental authorities a court in the united states vs my is a great roadmap for this particular case and why i did not find it when i was originally briefing the case i don't know shame on me but as i was preparing for all argument it did come up and that's fine and i wouldn't suggest that you don't show the stuff that you fin ok and issue in the other case had to do with how much was being charged for totally understood by my eye it was a case that was out there and i should have found it in the initial process but i did it find it and i think it's wrong how so if we if we get to the i mean we've been talking about the standard of review but if we get to the underlying issue why is there any you're calling this not a material variance well because i believe as i've laid out in the brief that there were actually four different conspiracies about which there was evidence in this case the indictment charge the conspiracy to use skimming devices in this real specific timeframe and despite sort of defining it r of the other called conspiracy time frame the membership the means there was a there was extensive evidence about the use of credit card fraudulent single conspiracy charged and defined with specific time parameters and buys pacific well we all know that you can go a bit outside those tab parameters and most indictments i can bet this web site on our back out and it's understood that that income can encompass a somewhat broader time and i certainly agree with you there but we're talking about a whole year of evidence versus probably a six or seven week period that's charged in the indictment we're talking about well you know even if you could sigurd the credit card use not per se a part of the conspiracy it would been relevant evidence because it would have shown how they all timidly got involved in the skimmers due to the lack of success with the first one that may be but i think that when you're trying to offer it problem there right well but i think were it to be remanded these things could be parsed out more finely you know raise just isn't totally far flung as well what we really need to do is is focus on what's the least prejudicial way to give things context when we're talking about race just so rather than offering a lot of testimony or forensic evidence and or cell tower evidence about other separate conspiracies to give context to the one that this one evolved into you can do it in a much less prejudicial way you talk about the indictment as being critical with the days but looking at count one it says beginning not later than ju july twenty fourth twenty fifth and continuing until i believe september ninth twenty fifteen so it is giving me way at the edges highways and just as a factual matter there is nothing after september ninth i'm complaining about that's when the evidence pretty much ended as far as the conspiratorial activities but leading up to it i i i i'm not sure frankly what the authority would be on this but i wouldn't think that beginning not later than july twenty fourth wouldn't necessarily include things that are going on in march or february or or april so the events were all in twenty fifteen  good morning and i please the court system u s attorney hagan crank the united states i tried this case in the district court and i submit that the record for this court establishes that this defendant received a scrupulously fair trial i telegraphed all my punches or the whether plain or should apply i submit that this era was or excuse me that this issue was affirmatively way we look at that transcript judge rogers that you were focused on from seven hundred fifty nine to seven hundred sixty the page again numbers the defense counsel didn't say that she just read a few cases she said i read quite a lot of case law quote i'm not intending to offer any sort of argument that there were multiple conspiracies then she went on i wanted to raise the issue so that everybody knows i've looked at it i don't think it applies it's hard for me to imagine a more explicit and knowing waiver of an issue by a defense counsel on the record then that i think this issue was waived in the court go on to talk about it because i think the district court was leaving the door open that if she wanted to revisit it if you could i think you can think about it and see if anything gels over the weekend is what the district court said then express the opinion that that would be a tough row to hoe and then that ace any instruction along those lines based on the evidence that have come in at that point because this is after proves the district court opined that that would be a confusing instruction in defense counsel said that was my conclusion this issue was waived in the government's opinion and i think that it in the discussion of this issue however if we do move on to player which is defense burden to prove that what we have is proof of a single overarching conspiracy with of people who made different trips in different configurations over time all of them at the direction of this defendant and this was a the proofs established a collective venture with a common goal and the only thing that changed over time was one aspect of the scheme the scheme is to get other people's credit information and cash in on it that's the scheme and you do that by getting that information and re encoding cards the only thing that changed the conspiracy ran its course with the same group of people operating all over the united states at defense direction the only thing that changed was the means of acquiring the account that where they started out buying it online and a lot of those numbers turned out to be duds and then june july timeframe of twenty fifteen defend it figured out a better mousetrap but the scheme was always about catching mice it was always the same group of people out there trying to catch mice when   doesn't have to be one that you actually cash in it could be a bit of the one that you tried to cash in it didn't work yes yes and why didn't they work because because they'd already been presumably in this sort of case when you get these numbers online you're dealing with someone who hacked into a database somewhere and then auction it off and may have auction the same number off to more than one person so it's already been exploited and that number has been shut down well and out with these big numbers that were large lack of a better term dud rate you can have a lot of numbers that you can't exploit and that's the advantage of skimming them from gas ponds because those are freshly harvested they're local so if you want code those on another access device and go shopping with them understand that are ok another question about the i'm alive why do what are the necessity for these trips i understand why drug dealers have to make trips all the time like why are they what is the necessary aspect to this crime that you're always making these trips and i go to your local target and do the same thing you can but then if you cry at a hot spot and law enforcement gets a hotspot an area where this activity is known to be going on and has been going on long enough for law enforcement to get its and ten up and start focusing its investigative resources on that area you increase the odds of getting caught if you're the person doing this so for instance in this but they're thinking when they drive all over the country to do this yes rotten and sometimes like in the upper midwest and you have these meyer stores i've had other cases because i do a lot of these carting cases where they're attracted to a particular retailer and the policies the retailer has in selling prepaid debit cards and if you can use a self checkout line and swipe as many cards as necessary to buy new store value cards then you're going to gravitate towards those stores so for instance the upper midwest ohio michigan where we have all these myer stores that draws people from this forest florida from as far as texas but it's also moved motion is life in this sort of case the more you move the lower your  arguably multiple conspiracies as opposed to one single conspiracy and and why isn't that the case here and and that pres martinez would be the head of this group and the head of that group and the head of another group because the the evidence on the different groups broke down into two groups one there was this fellow named alexi romano that some of the co defendants testified to that they went and they were doing this type of fraud for him in colorado shortly after they got to texas from pew that didn't work out so they joined this defendant's group this defendant's group consisted of a qadri of about six people f karbala sanchez pupil and one or two and a guy name of food that group consistently not always the same five or six of them but consistently over time constellations of those different groups the core group of people traveled around all of them working for antonio pres it's like a drug conspiracy where everybody does make all the tria but that doesn't mean that there isn't one single conspiracy exactly or exactly him who with with this was that not pereira's or tina's or was that somebody else both there isn't actually you on the food and he is a guy who was involved in this conspiracy he was a roommate of falcons so if there is a felony on my food who did make fraud trips the reason i said both is because when defendant was calling this defense attorney that he hired for falcon a pupil after they got arrested in michigan in august he told the defense lawyer testified that he was retained by a guy who gave his name as you on food and that you on the food called him a lot i mean a lot and then we had connection records showing that the number that was calling into that defense attorney was a cell number ending in two zero two way that to zero to eight numbers we superglued that to the defendant through several different means including calls he had made to an insurance adjuster to try and get his car repaired in the summer of twenty fifteen so anyway we identified the twenty twenty eight number as solidly this defendant's number that number called the defense attorney who was hired to represent falcon and pupil and the caller said his name was my food but then the connection records between that defense attorney and twenty twenty eight the number that overlapping personnel we have a common goal and the only thing that changed was the means of acquiring the numbers and that's just building a better mousetrap but it doesn't change this from a conspiracy  the issue of the notion that the defense that the district court made a mistake by admitting evidence of flight we submit that the standard view for that issue while normally admission of evidence is reviewed for abuse of discretion we think that in this case at most it's plain error because again the defense at trial it's hard not to see how they didn't waive any objection to the instruction on flight  six times six times in the record the issue of flight came up it came up in the draft instructions before the final pretrial conference where the defense counsel noted that  their objection to that was that they were going to argue that the defendant that the defendant left texas not because he was running away from this case but because he was going to canada to visit family and i don't recall any evidence being presented that he gone to canada with his family but in any event that was the defense's first pushback on flights saying well we don't think that he was running from the case we think is going to canada this family second time it came up was in the final pretrial conference where the district court brought up that draft instruction that had been submitted by the parties and said asked and this is that twenty thirteen in the record asked if this was just an argument going to be an argument based on the facts whether he went to canada to visit family or whether he was running from our case or whether there was a legal issue there and then the district court asked that if the jury hears testimony and believe your client left the jurisdiction for the reasons the government articulate i guess it would fall within the flight instruction right and the defense said yes it probably would and they went on to say and if that's how the evidence comes in it makes sense to me to have an instruction about that if the fact to prove that he did leave at the same time well the facts did prove that he left at the same time because his probation officer that when she called the cell phone number his brother answered that phone number that they made affirmative efforts to find him in williamson county in texas in november and couldn't find them and that's all it six thousand nine hundred sixty nine in the record and then of course we know that he stayed gone until he got caught crossing from canada into derby line vermont in september of twenty seventeen so the government did present evidence oh and the the other important thing now much missed that to mention is that if we look at that phone call pattern between the twenty twenty eight number of defendant and the defense lawyer in michigan that he had hired to represent falcon a pupil and this  is twenty thirty four it was a summary chart presented by the government there were one hundred thirty six contacts between twenty five august and nine september of two thousand and fifteen one hundred thirty six contacts that with thirty four voice calls  hundred two text messages and that was right about the time early september when the defense lawyer told quote unquote the food that this case was going federal no more calls after nine september september is also the last time that texas probation officer saw a defendant couldn't find he didn't show up in october and they couldn't find him in november and again he stayed gone in canada until i got caught and september twenty seventeen so the defense conceded that flight was going to be appropriate at trial if the proofs where they're indicating that he left at the time this is going federal the proofs were there that he left at the time this is going there's no other discussion between the district judge and the defense lawyer about the flight instruction there is actually one of the day before the day before trial there was a hearing on an unrelated issue and let me back up a second at the at the final court said plan on it coming in and then the day before trial the district court said that it was incorporating its comments from the final pretrial conference on ruling and for all for be a motion when the texas matter in general then when i had the texas probation officer on direct and we went into heading towards the flight instruction there was no defense objection then after that testimony the district court gave a preliminary flight instruction to the jury the defense did not object then in the final instruction conference at eight hundred thirty four the defense did not object and what was the actual flight instruction that if the juror and it was a standard it was the  your honors i'll just be brief i guess i would again ask the court to take a look at united states versus mine as it has a nice road map for even order and one of the defendants hadn't raised the varians issue at trial or even on appeal and the court records still reversed doubtless was because of the parallelism of the three right if you're right if they don't relate the panel didn't really discuss it in great detail to dissent criticize a panel for doing their i would assume that would be the reason it would be hard to reverse on to and not on the third on that type of issue i would you would you would know better than i would i would assume that's why but it but it does find plain error nevertheless i think i think  evidence there was an objection to the flight instruction and that's not what we raised what we raised was the admission of the evidence at all it was it was something that the existence of  it was addressed at the final pretrial conference and when that court if it has the time can read the transcript from the final pretrial conference the government had not yet formally and advances theory that the prior conviction was going to be used for anything other than intent it had not yet advance of the area that it was going to be using that prior conviction is evidence of a flight from probation  so when judge younger plan on it coming in that wasn't a ruling or even an advisory rolling it was a would be prepared and will deal with it after the government submit something in writing outlining its permissible purposes and those types of things are the sort of a you know better to have it not need it in need and not have it type type ruling from the bench be ready for it and then we'll discuss it in more detail and it was discussed in more detail the pretrial ruling as i read the record was that the fact of the conviction could come in but the other information about whether or not any left the country and abscond in on probation that that wasn't fair game at all sort of changed in the middle of trial due to the persistence of the government but that that is what the objection was and i do believe that it is preserved and if you don't have anything else i appreciate it thank you both for your argument the case would be submitted