please the court the late justice powell writing for the supreme court and around the ohio said the protections afforded by the double jeopardy clause are not so fragile that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into multiple temporal or spacial units that same basic principles reflected in this court's body of law governing double jeopardy issues in the context of successive conspiracy prosecutions this case involves successive conspiracy prosecutions against my client and we're jones in the eastern and western district of virginia is in eastern and western district of virginia both conspiracies allege violation of twenty one u s c eight forty six allege that the object of the conspiracies was to distribute five kilograms or more of cocaine there are we think three basic arguments for why it would be a double jeopardy violation to allow the government to proceed on count one of its western district an indictment against mr jones the first is that it's a double jeopardy violation under a great for an application of the five prong to tell you the circumstances test by this court in mcdougal and reckons the second is that it's a double jeopardy violation under this court's decision in jarvis where on very similar facts the court under the demanding plain error standard review held that in that case it was a flagrant violation of the double jeopardy clause to allow the second conspiracy prosecution to move forward against a defendant and then the third argument is that it's a double jeopardy violation under the internal logic of the government's arguments in this case both below and on appeal the government has alleged that my clients all of my clients alleged cocaine use for fourteen year period are part of a single continuous criminal conspiracy w some independent judicial doctrine that means that we win because they said that but the point is that under the internal logic of the position the government has staked out and it's a necessary component of the western just a conspiracy charge there's no principled reason once one recognizes the conspiracy for what it is why a single transaction should be arbitrarily excised from the broader conspiracy and treated as a separate independent conspiracy so this is my yes my question to you is there it's hard for me to weave all these cases together and make them harmonize if you will and so it's unclear to me how jarvis just doesn't seem to fit in with the other double jeopardy cases involving the small conspiracy and the larger conspiracy and so can you tell me how it's distinguishable not only in this circuit but another survey well i'm not sure of the jarvis i don't believe that jarvis is distinguishable from our facts i think the facts are very similar i think it's as close to being on all fours as you can to find in this context the question of how dart jarvis fits into the other cases from this circuit where the court is held there are multiple conspiracies i think it depends on which particular case because the very fact intensive in corney some of the cases one of the cases the government relies on for example the young reporter decision jones i think we've made clear in a footnote we don't think much of the analysis in that case it's you know rule thirty two point one exists for a reason but in the other cases like in mcdougal in hoyt in some of these others if you work through i think the answer is that there always seems to be at least one or two factors under the five factor those cases where there is just a clear distinction between the two conspiracies in mc dougall i believe it's the temporal distinction that one of the conspiracies ends in eighty six and the other doesn't begin until eighty eight ok maybe i sure but you had to you knew what happened try i think in george's it certainly maybe makes it a little bit easier for the court under the traditional double double jeopardy test write the same evidence test they can look at the evidence and say hey  but i think that that's the only sense under jarvis in which the existence of the trials makes a difference because the rest of it they work through the five factor test what i would the case i would direct this court to his i do understand i think what your own are struggling with i would suggest looking in particular for a contrast between jarvis in another case where the result comes out the other way to this court's decision in hoyt i think it is a great example of how you can have conspiracies that are operating in the same basic geographic area in the same time period relating to the seam statute and yet they can genuinely be separate underlying criminal agreements and the key factor in hoyt doesn't even plug in neatly tenney of the five problems it's the it's the notion that the objective of the two conspiracies and what was different one of them was a horizontal agreement between dealers basically that they would not tread on each other's territory in connection with their distribution efforts the other conspiracy in h was the vertical agreement that the defendant had with suppliers and then distributors akin to the agreement that my client is legit had here and it was just sort of your garden variety cocaine distribution agreement my point would be that the difference between jarvis and hoyt and why one comes out one way and why one comes out the other and why are cases on the jarvis side and the line is that in jarvis and here what you is just a single vertical agreement it's the reason we make this point about the government's characterization of the fourteen years as being a single conspiracy is because once you accept that which i think is an accurate argument don't think either side disagrees with that the stuff that they are trying to carve out separately is no different from what was going on for the fourteen years that preceded it it's the same people involved with the exception of the informant we know from jarvis inserting an informant doesn't make a difference and all they're doing is getting a week to a week and a half's worth of cocaine supply to push out through the distribution network in lynchburg understand what you're saying about it but in conspiracy cases  jeopardy cases but just genuine conspiracy cases who have the kids you remember about the prong and the center of it and so you have people there selling your people that are buying and you have people distributing and they're all part of one well put it this way this way if if you if you thought if you thought that the court got it wrong in hoyt right that would only i think lend further support you know to our position if you think that put if it was a double jeopardy violation or if you question the accuracy of the holding there then certainly what we've got here is an even easier case to recognize is a double jeopardy violation what i'm searching for is some principled way of dealing with these cases and to be frank i think it's i think it's difficult the one other i will say though in the law because this is in this in the area where you have the court adopting as the framework for analysis totality of the facts circumstances five factors and then emphasizing in rags the seminal case where it sort of embraces this test it says but be careful even this is flexible because we have to avoid you know problems for completing so it's going to be very much case by case i think it is hard to then in your position now have to take all that and weave it into a unifying thread we don't have a trial on either end not with a little conspiracy but i'm not against jordan still works through the five factors and at the end of the day certainly as best i can tell below or on appeal to demonstrate factually what the difference would be other than to make the sort of question begging argument hey look at our eastern district indictment it only talks about this one transaction the i do not believe the government below in the eastern district argued for the inclusion of that other activity as relevant conduct and that's why we discussed the whip case in our reply because i don't think it makes a difference one thing i did want to know the questioner saying though about a sort of a unifying principle the best one can do i think sometimes in these situations is to look at the cases carefully and sort of try to follow them and impose consistency and the reason i make the point about hoyt and the notion of the two different conspiracies having these different objectives even though they're kind of bumping up against each other temperley in geographically is in rags i believe it's in reg inns when the court articulates the five factors and then it says you know it's going to be flexible there could be others one of the two of the other things that it mentions in rags to other factors that it says might be relevant are the objectives in the means of carrying out the conspiracy and i think i just continue to think that hoyt if you're looking for sort of a you know a case of kind of how it's done right that was a pretty good example because it really is different the nature of the agreement between the participants is different in a horizontal territory splitting agreement then in a vertical acquisition  distribution agreement here as in jarvis we don't have any kind of distinction that one can draw in that manner all my client is doing if their allegations are true is for a fourteen year period he is finding various sources of supply acquiring cocaine and pushing it out through a distribution network in lynchburg there's no reason why if all fourteen years of this are a single conspiracy why the government should be able to arbitrarily excise a single transaction and call a separate conspiracy just because they want to centrally two bites at the conspiracy apple and i think the thing that's exactly correct and i think that's another one of the underlying principles if you're looking for sort of a unifying principle the thing that drives this court's analysis and macdougal in ragen is where first tackles these issues is the sensitivity to the fact that in the context of conspiracy charges they are easily manipulated especially because the government can select and not slip particular over next and the court goes on at length about that and i think that one question the court might ask itself alludes judge must what you just said is flip this put the inquiry were saying hey you know we're the ones here challenging the decision below but think of it this way could the government logically have taken the currently hotel transaction with my client in martin martin sanchez wrote who had been supplying him for a year before that in the western district according to the supplemental of the sealed appendix here could they have taken at and just lumped that in with the other fourteen years  charge one well then the government wouldn't be anything wrong with them manipulating it by doing different indictments and parceling out their overt acts across multiple indictments but if you recognize this logically could and should hang together as a single conspiracy and it's just are charging decisions that have made it on paper even given the basis for saying that it's too well they're charging decisions cannot trump the do jeopardy guarantee that's the entire point of this court context it is certainly not a fact finding it is at best a mixed the reason for that is there was no evidence there was no witnesses put on in front of the district court from either side there was no other  evidence put on that would call for the fact finding analysis that a district court meek's that's the underlying trigger for the clearly erroneous standard and there could have been ragging makes clear one can call all witnesses on either side and sort of have a sort of preview for the court of what the evidence is going to look like but we don't have to in order to meet our initial threshold burning and we didn't and the government didn't and so at this point the section that's labeled factual background  district court opinion is almost literally cut and paste from the government's brief so i would submit that in that context it is certainly the clearly erroneous standard and frankly even if it was i think we still win because the facts the courts looking at the documents and this court is that is capable as the district court of reading the documents and drawing conclusions from them please the court and couple through the united states i think first i want to address judge harris your question about the standard full were the this court's review i do have to agree with counsel that i think it is a mix question of law and fact this analysis that the that the judge has to go through in applying the factor tast and and much like in the reasonable suspicion context it can be factually driven but it's how you apply those facts to the that opposing counsel has made much of the fact that the government in offer any evidence or witnesses but those courts jurisprudence have made it clear that the government can rely on a factual proffer which is very similar to what because of the timing of the jury trial that was impending and judgment properly relied on our factual proffer about what we expect and anticipate that the evidence at trial is going to be and i think here that it is important to note how jarvis is distinguishable from a lot of this court's other cases ruling on this question of double jeopardy in the conspiracy context and i think that what's important is the court found it very persuasive that in both trials in jarvis that this same witnesses and the same evidence was presented that the case presented against the defendant was the nearly identical as as it went to trial and i think that that is significant and i think that's significant for double jeopardy purposes because those are that is your sure in other words to preserve his argument he has to do it pretrial with respect to the second one so there's really no way he has to bet the store in not doing a get trial testimony was expected the second trial and that i completely agree with your honor but i do think that we you know you're relying i think w have you believe it's actually much more than that so when the conspiracy there is not just the face of the indictment but there was a statement of facts that was filed and in that statement of facts it describes the context of conspiracy the sentencing memorandum filed by the government in the eastern district of virginia conspiracy which talked about the far eastern district of virginia entered into a plea agreement with mr jones was the government also investigating him for the full scope of the conspiracy in the western district of virginia yes it was and that is something that was acknowledged at the sentencing he and  exactly that that was what's to be a problem in the negotiation stage in the they are negotiation him pleading guilty to  that won't get into that but in a page one of your brief you assert that there were two separate conspiracies here varying significantly in nature and scope what is your strongest argument that that is the case because i included the single aug twenty second two thousand and twelve transaction in the western district of virginia in mn could you i don't know that that's true your honor and i will tell you that this is and it's the government's position that these are separate conspiracies because this was such a new venture which rate even accepting that i have seen in twenty years of doing this i have seen many times where the government's clid to conspiracies or more so it could have been right not the case and let me just make sure if i were seen a case like that i just want to make sure i understand separate conspiracy counts could have been included in one indictment there was five hundred thousand dollars involved in the transaction on august twenty second two thousand and twelve is that the is the government taking the position that that five hundred thousand dollars was not somehow from or gained by mr jones from the western district of virginia conspiracy that the government says had been going on with these same actors from one nine hundred ninety eight till two he was he making five hundred dollars a year not based on our evidence that he was making five hundred thousand dollars a year now on our list of come from the the money for the singular transaction in eastern district of virginia seems like it must have come from the overall can spirit i do acknowledge that that is a possibility i will tell you that that the government's investigation didn't give us insight into how the money was passing through mr jones's hands or where in fact it was go in after that where the cash was coming from and we don't have that in say i think that is the government's position about th argument this my and was employed as a whatever he was employed as certainly not making five hundred thousand dollars so where did he get it use your common sense as the jury instructions tell you that's exactly what you would be say and if you were trying this case i think that in order to bring in the evidence from that transaction we would need to potentially litigate for a for be a motion in front of the car i mean you would have to if you had charged the conspiracy i didn't let you answer my first question so you go ahead and explain to me your strongest argument for why you say there were two separate conspiracies varian significantly in niger in scope i think much like this court's decision and jones you have commonality of actors but they take on very different roles in order to engage in a new venture so we have a fourteen year conspiracy to distribute with mr jones at the top of that conspiracy directing the distribution activities of those below him in order to get cocaine into the hands of customers throughout the lynchburg area and then you have the scope of the conspiracy was which was the amount of cocaine that was distributed over one thousand kilograms is what the government expects the evidence at trial will prove that was involved in that distribution conspiracy within lynchburg in that conspiracy mr martinez and mr sanchez weren't these sources of supply they were the individuals who were selling the cocaine to mr jones in the conspiracy they changed their roles and they still got him the drugs i mean aren't you couldn't you really fine either way they're the two guys who got jones's drugs either through this informant or they handed it to them would it really matter if like in one case you know they walk two blocks to give it to him in another case they drove to give it to him one way or another they gave him the drugs i do think it's significant the difference here was that the part just happened the transaction happened between mr jones and the confidential informant who was the source of supply but the same two guys brought him the informant and they were paid a broker speed your honor in exchange for that which was not how the money transpired or the transactions of drugs occurred in all of their prior dealings in danville when they would go to the stash house they would source their cocaine from different places within north carolina this was a new opportunity because at the point at which this was happening mr jones was paying thirty two thousand dollars per kilogram the price had increased over the course of dealing which had ben approximately eight to twelve months with mr martinez mr sanchez sanchez's testimony and grand jury was paid thirty eight was paid fifty one thousand dollars as a fine your speed for making the connection between mr jones and the confidential informant and setting up the actual transaction and the by jones use of various suppliers in the fourteen year conspiracy he did that he did have different suppliers that he was using in order to bring in i do we hear that mr martinez was negotiating with a new s opinion it's the court did find it very significant that although the same actors were involved the exact same coconspirators in the exact same low during the last month of their dealings together decided to engage in a new venture to purchase two kilograms of cocaine in a separate transaction they took on different roles and that has is a factor that this court has found significant  pyramid where different in the eastern district he's not the top of the pyramid he is not at the top of the pyramid your honor he would be at the bottom of the pyramid in the eastern district of virginia conspiracy he believed he was meeting with a confidential informant who had ties to foreign nationals and centrally the cartel in order to receive drugs from them and this was going to be an ability for him to get cocaine at a reduced price and so he would need to distribute it did he that th a reverse sting your honor so there was no there were no drugs he was intending to distribute it so the difference was created by law enforcement it was a reverse think that was put in to be a news source that you're hanging your hat on what makes it different that the intervention of the government i don't believe that that is what makes a difference because in this court's opinions in the jones unpublished decision it was the same situation there was a informant who was serving as the new source of supply unbeknownst to the coconspirators in that jones case this three of the individuals in the conspiracy who decided to go in on a new venture and the court found it significant that they were acting in different roles let me try to distinguish this case from a published opinion of lawyers drug i can your honor and i think what is distinguishable is that that distinction from jurors i think to maybe you can go down the picture and tell me because it's certainly big conspiracy little conspiracy at the time isn't different so there are some things that are absolutely identical to george's you would agree with that i do agree that there are some things that are the same and jarvis we need there but i don't know what the ones that are different in your view or what i think is a very significant in this case is the difference of time we're talking the difference between a five week conspiracy and a fourteen year conspiracy and so in terms of the the breadth of the conspiracy and that has been considered very significant in this court's opinions we're talking about the breath that does go to the scope and the nature of the activities and it also goes to the nature of the agreement between the coconspirators which is at the heart of a conspiracy charge what was the agreement and what did they anticipate and what were they planning to do what was the agreement there and that is what is at the heart of it that nature and scope inquiry really sorts that out and so between jarvis and our case we have that differing time frame but we also have very different roles taken on by the individuals in this in the e d t a conspiracy and that was not present in jarvis in jarvis you had the same people acting in the same roles in gage and in the same course of conduct nothing about the transactions was different here we have a different amount we have a different price set we have a different venture and we have people the coconspirators acting in different roles than they are in the western district of virginia conspiracy and that is what the government very fact driven case by case analysis that it gets very difficult to start to engage in hypotheticals i think if you change some of the circumstances we might be talking about something different and i know there's opinions out there that talk about you know the  conspiracy and the spokes and and where is what is the comparison there and i think that in our case we're really looking at western district of virginia conspiracy where mr johns was serving as even we're talking about the same drugs and so he has an interest in a couple of different things when he is obtaining a product that's the quality of the product because they were also breaking it down into crack cocaine in the conspiracy and the ability to do that and then to get that product out to their customer base lawyers in the with the u s attorney's office in the western district of virginia that the eastern district of virginia case was  had ben present at the scenes of some controlled purchases that were made by government agents but the extent of his involvement and his plea and that conspiracy that was an ongoing investigation when they two different conspiracies and that they were properly tarnished in the eastern district of virginia and then properly charge in the western i sure don't i don't have the same question i just want to make sure i understood your answer so everybody knew what everyone else was doing in this case the western district was fine with the eastern district you go ahead we're doing this fourteen year investigation but you go ahead and bring your one charge we're good with that and the eastern district understood you know we've got a fourteen year investigation we're going to be charging him for a lot of the same stuff but that was ok i everyone was aware that the prosecution was proceed you just a few points first the notion that the kirkley hotel transaction the eastern district transaction could not have been simply charged as a legal matter as part of the fourteen year conspiracy in the western not jarvis can be distinguished i think one of the one of the important things to note is that in jarvis just as is the case here over a fourteen year period jarvis is i think a three year conspiracy there were if you read the facts the facts and not complicated it's a lengthy factual recitation but there are even in that the court has mentions in passing there are variations in the price in the locations and in some of the in the sources of supply for for cooking there is garden variety variations in every transaction probably right but none of that changes the fact that there is an overarching agreement between the different participants that they are going to work together to violate the drug laws and at the end of the day that is what this whole inquiries about in the context of conspiracy what is the agreement who are the participants in the agreement and that's the same reason why i think in our case it's relatively easy to reach the conclusion that we believe the court should reach because you have mr jones operating for a long period of time with various sources of supply always with the objective of allegedly pushing the coup cane out through distribution into lynchburg and then even these two gentlemen who are who was kind of the brains behind the their operation and martinez mata was someone who would help jones get cocaine from various upstream sources it's not like martinez model was growing the cocaine himself and delivering it to jones he would arrange deals sanchez rope would drive and meet them money would be exchanged and that's how jones was procuring cocaine from them allegedly at a clip of about eight to ten kilograms a week so the fact the government then drops an informant into the mix to contact martinez montana and the informant offers essentially what's closer to a two week supply seventeen kilograms rather than ten and they're going to meet in lynchburg where everything else is happening in the western district same guys and  shows up with clearly what are the proceeds of all of his prior western district cocaine trafficking activities and attempts to acquire that cocaine it's obvious that the overarching agreement that existed on that day in august twenty second two thousand and twelve when all that happened was the same agreement that existed according to the government for fourteen years with jones as a common participant in figuring out ways to source cocaine and push it out through the same distribution network to the  customer base and that's why the eastern district indictment references other conspirators both indicted and unindicted and that is not a pedantic point that's a point that this court emphasized in rag ins and jarvis and mcdougal that again if you can allow the government to artificially parcel out across different indictments they can sort of cherry pick certain conspirators and place them in one indictment and then not in the other and manipulate all of it in order to focus its their energy on a single defendant who they wish to charge more than once for whatever reason whatever tactical advantage they're hoping to yet by making someone run the gauntlet more than one time under the same charge so we would submit based on all of that and again we think it's also telling that although judge masipa absolutely correct the case law in this area is not always a model of clarity can be tough to find unifying principles it should be i think certainly telling to this court that the government's primary case it appears to rely on is an unpublished is just position that appears to be i think prohibited from even citing under the local rolls and the district court whose opinion we are challenging here on appeal didn't even try to distinguish jarvis the only thing the district court did was do a but see cite to jarvis at the end of a string cite where it talked about other cases that we believe are readily distinguishable and in my experience using a but  sort of a circular question begging argument because calling one big and the other small is depends on sort of accepting the government's characterizations and looking at each set of charging documents in a vacuum right when you look at the underlying factual reality and we wade through the five  suddenly they're not one big and one small they're all just one from a legal standpoint again jarvis is on point there in jarvis the first conspiracy jarvis it's four days versus three years and you're right that the  gap isn't as big but i don't know that the court in jarvis or any court is drawing a distinction between three years and forty is that that's that's a that that's close enough but if you know they get further out it's a bigger difference and again all of this is somewhat arbitrary right it's just the government has charged it they have alleged that the fourteen year activity of my client is a single continuous criminal conspiracy with multiple criminal actors given that allegation there is simply no principled basis under this court's case