we present for you is our contention that johnson barrett never joined the count one conspiracy we contend that count one charges a specific conspiracy with precisely stated specific objects of the conspiracy and that johnson barrett never participated in or joined the conspiracy knowing and voluntary joined joining of the conspiracy is central element of the conspiracy we contend that this record contains no evidence whatsoever and certainly no substantial evidence to support the element knowing you conspiracy the precisely stated objects of the count one conspiracy are on page two of the th superseding indictment their government lawyers alleged the separate paragraph object of the conspiracy that the number one the object of the conspiracy was to distribute and possessed with the intent to distribute counterfeit pills that contain sentinel number two a further object of the conspiracy was to obtain monetary profits in the form of illegal drug proceeds from the distribution of the counterfeit pills government further alleged in the indictment on page two mean manner in means of the conspiracy which actually include manufacturing manufacturing was not charged in the charging paragraph but is described as a manner in means of this conspiracy specifically the government charge that it was part of the conspiracy to manufacture percocet pills using fenton off in the middle district of tennessee number two it was further part of this conspiracy to use pill pressing equipment in the form in stamps the pills to conspiracy in order to be a part of this conspiracy he must have known the object of the conspiracy in the proof in this case shows clearly that jonathon barrett never knew the object of this conspiracy with the counsel you know let me ask you and i because this is this is concerning you said he never knew the object of the conspiracy and there are you making a distinction between he never knew that the drug operations there can be a conspiracy where that's going to be the manufacture and say oh not everyone has to be involved in manufacturing but they they can still be part of the conspiracy so going to the st question because the indictment specific plea names as the object of the conspiracy that the the distribution in possession with intent to something was with respect to the separation he in the government three the government focuses on the end of the line the last day of the fax where mister barrett bought one hundred and fifty pills that was brokered by mints gonski from johnny williams and then mister barrett who was a local neighborhood pill pusher pandemic distributed began to distribute those pills to his friends in the stamp which is what his business was now yes he agreed to do that there's no doubt about that and the government actually focuses on that as as the as their argument that he join this conspiracy our position is that if at best is a separate conspiracy and not a conduct that is consistent with the objects in the object being to sell pills that can that were counterfeit that looked like percocet that contain sentinel and to join this conspiracy you must have known that and you must've participated in that when we when we when you look at the conduct of our client and compare it with the conduct of the other defendants it is the reason why you know our  rip reply brief we ask you to be to be very careful to look at our case separate from the other the other defendants this is the facts and apply to jonathan barrett are very different than the facts that are applied to the other defendants jonathan barrett did not know any of these other people except for jennifer dot com who is his friend who was an opi what they did in their neighborhood but on this day she made a connection with somebody who they did not know and the pills and these counterfeit pills  barrett did not know that there was fat no and these counterfeit pills that that i guess your argument is that join this conspiracy a set forth in the indictment he have to have know that these pills were laced with that no and i guess if that's part of your argument is there a case that really supports that argument to make the government says something to the fact that he simply decided so several cases that you cannot join a conspiracy unless you know the objects of the conspiracy so have the government pled this as a drug in not included these specific objects that that about counterfeit pills about the manufacture of counterfeit bills about the distribution of counterfeit bills about the inclusion of plant not all of these were included as objects to this particular specific on what the government had just said counterfeit pills and have not included with that no then then you would have had to have known if the object was the the manufacturer in distribution of counterfeit pills then you would have had to know that the pills that you were distributing were not  i appreciate the co pilot's counsel and his arguments because they kind of shed light on the problem mister bradley has to although in a different way you know working through the brief mister bradley stands convicted of the conspiracy count yes but several substantial counts counts two through five and seven through ten or the the in line distribution of these pills to users in and around murphysboro you know at this but the only connection and literally the only connection to those sales and murphysboro is the fact  really almost almost ten layers of transactions and it's that it's the bottom everything after the nd lair mister bradley had no knowledge of or no participation and didn't further didn't survive well and i agree with you one hundred percent but i'm not arguing there's insufficient evidence of a conspiracy or that even there's insufficient evidence that bradley participated in a conspiracy davis certainly i would think that mister williams is me mister bradley would be culpable for that transaction but that transaction is not charged instead he is charged for transactions that occurred in murphy it with respect to the substandard counts they're simply just no evidence that he knew of these transactions certainly they could be foreseeable that these drugs are going to be sold when he when he was manufacturing them and they were getting them ready to be sold certainly the idea is to sell the drugs but with those in line users he never and particularly with the counts towards two dollars through five dollars and seven dollars through ten there's simply no evidence of bradley  if if this logic continued every pill that got out there into society that someone took technically and that was sold by someone else to another individual that would make bradley in that in the chain a distribution because he was at the top and it just simply makes no sense to to go that far down the line it's almost impossible to  the limit hat it has to there has to be a limit and we're submitting that when you're dealing with no evidence whatsoever of any encouragement to these transactions other than the initial production of the drugs  you know there has to be some other form of encouragement to be convicted under a theory of maybe even the betting so with respect to those counts were asked that they may be vacated and i'm need get the my nd point quickly if i may with conspiracies charge here one indictment there's clearly one conspiracy that is taking place with falcao ski and bradley and davis and with respect to the manufacture of the initial idea to manufacture these drugs and these become two conspiracies so with respect to that we have a variance because you know mister bradley has no way to know what he has to defend against certainly if it was a conspiracy charge you know things that he had no firsthand control oath certainly or nd hand or even rd hand control and and we have an inability to defend against that in addition to that it makes the offense seem so much more serious clearly the offense a series of producing these drugs and selling them they're dangerous it's horrible however when you add on at the end of the day all these distribution offenses  which he never even participated in which is actually a nd conspiracy it we have a variance in the indictment that affects a substantial rights you agree to the legal standard is that we have to rule out any possibility of a single conspiracy in other words or making a you know maybe compelling argument there could be multiple conspiracies here is the legal standard that if there's any chance that there was a single conspiracy we should affirm no i don't think that's the standard i think the standard is there there is no st of all there's clearly two different conspiracies here there's a chance there could be once conspiracy i suppose i mean if you if the chance of something happening is to be  government concedes that there can be and more likely looks like more than one conspiracy and with that we've asked the court reversed the conviction in some of the conspiracy counts and the substandard distribution  or understanding to join in the conspiracy to distribute or possess question the chief judge cole asked earlier but what's the what's the best case that says that they have to know i mean your clients are in the middle of it i think we've had heard from the some who started and ended tribute or we've heard from the someone who's for the fence who was in many factory in your clients in the middle but what's the case that says that they have to know exactly the nature of the drug i mean something that they're distributing is sometimes in sentencing we say so long as you're so long as you agree to distribute a dr just the fact you did happen to know this laced with something made more fatal you know that that that that that that's the that's a consequence that you assume is a different rule on the under i think i did the differences of america so before i get started i just want to clarify one thing for the record during the course of argument counsel for defendant barrett argued that mister barrett didn't know any of the defendants other than jennifer de gonski and the record doesn't show that the record actually shows that there was a prior interaction with williams a prior sale that occurred earlier in time before july  h also there's relationships with an unindicted coconspirators like to share randolph who is discussed more at length in my my brief but she was a further down the train distributor and he had a prior relationship with her as well so getting to the merits i'd like to start with issues that are raised regarding count one now in this indictment all of the defendants are charged with violation of title twenty one knew and intended to join that conspiracy the mere fact that everyone may not have known what the controlled substance was is legally irrelevant the case law makes clear that it then it does not need to know what drugs are in a  the object of the conspiracy was defined as district distribution and possession with intent to distribute and then it was defined as counterfeit pills that contain fentanyl if this case was charged the same way and it said methamphetamine or it's had cocaine the result would be the same that the defendants did not have to know what the drug was simply that that was the drug that was being possessed with intent to distribute and distributed your honor in this particular case it's simply puts the defendants on notice what drug was it issue being that these were pills that appeared to be percocet but in fact were counterfeit pills that had f counterfeit respectfully no your honor what is at issue here is that they're joining a conspiracy to distribute a controlled substance and that controlled substance being counterfeit pills that c all that controlled substance being the fenton all but it simply adds detail to what the defendants were distributing as opposed to their knowledge of what that  is the object of a conspiracy does not in peut a knowledge element to that it simply puts the defendant on notice of what they were distributing and based on this court case law and indictment can't increase the government's burden i'd point the court to united states versus kettles or recently decided case there the indictment contained superfluous elements that the district court didn't require the government to pay for while the indictment can increase the government's burden doesn't the government have to prove the indictment and they get it if the government is the master of its indictment and so it has to distribute filth those pills happen to contain fenton all those pills happen to be counterfeit and the part of that indictment there has to be an agreement some agreement for the for the conspirators and it is to commit an unlawful act and here you say it was it was to distribute drugs and so you said that it that is really what they have to prove in all of these other things and forty six conspiracy and those elements are clearly defined by by case law and this court has repeated time and time again that a defendant does not need to know what the drugs are they simply need to know that they're controlled substances in fact that the cases that are argued by the opponents sligh whoa and morrison in those particular cases morson specifically united states knew that the defendant proved that the defendant knew that he had some hidden some sort of contraband in his car but they did not prove that he knew that it was controlled substance that's not the case here at these defendants all knew that they were distributing some sort of a controlled substance and that they were conspiring to distribute some sort of a controlled substance they just a proper rating under a misapprehension of what that controlled substance was and i die don't concede that all of the i'm talking specifically about williams and barrett may not have known that their what the contents of those pills were and what about this so i would decision that seems to be d a focus of caution on the other side  say there again the united states failed to prove that the defendant knew they the conspiracy he joined was one to violate the drug trafficking laws and that's not the case here this is very clear that all of the defendants knew exactly what they were doing being that they were conspiring to possess with intent to distribute and distribute controlled substances those being pills the pills just ended up not being percocet th were actually multiple defendants who pled guilty some off of information the ones that were charged in the conspiracy in this conspiracy and that being  o just to to close out this argument even if these defendants sincerely believed that they were illegally selling percocet rather than illegally sending selling fenton all it  truly doesn't change the result the way the indictment is crafted is simply it puts the defendants on notice of what drug we're talking about but it doesn't in any way change the object of the conspiracy par the elements of the conspiracy and what the united states must prove and i just do want to circle back to carol's because there the th circuit dealt with a similar issue where the indictment contains superfluous elements and the district court did not require the united states to prove it and the circuit th circuit actually said that indictments routinely can include allegations that are over inclusive and that those can be ignored when particular case this this is a chain conspiracy that all the all that all of the defendants joined conspiracies can often be described as chain  agreement can be inferred as you move down the chain that all the participants understand they're participating in some sort of a joint venture and beals this court explained that all participants need to share the common goal of making money by distributing drugs and their each participant was aware to some extent that the conspiracy was larger than simply his or her individual interactions with others and that's what's happening in this particular case and smith this court explained that to prove a conspiracy the government needs only show that each alleged conspirator had knowledge of and agreed to participate and what he or she knew to be a collective venture directed towards a common goal in this particular case it's also on pardon me under martinez this court has also explained it's immaterial that the defendant didn't play a central role in the conspiracy so and that the government doesn't need to prove that there's an agreement on all the details and deed in caver of this court explain that once the existence of a conspiracy is shown the evidence linking an individual defendant to that conspiracy actually needs to only be slight so in this particular case there there is a chain conspiracy we were able to prove from the person who order the sentinel from china down to one of the last people in the chain of distribution and how they were tied together this is a single chain conspiracy not multiple conspiracies original manufacturer has opposed to just agree to sell some drugs at a friend of the evidence a trial established that he hadn't a long relationship with the gonski that involved pills and the sale conduct of his coconspirators just generally understanding that he is engaging in a conspiracy chain conspiracy that is reliant on those persons higher up the conspiracy to do conduct but barrett was reaching out to the gonski to try and get pills for multiple days prior to gonski then found out that williams had pills to sell barrett had bought pills from williams on one other occasion  there was an effort to create a long standing relationship  and so and even assuming argue endo that there are multiple conspiracies in this particular case the defendants can't show prejudice because the evidence showed that they conspired with other above and below them on the chain of constraint on the chain of distribution and so if this were charged as multiple conspiracies the result would still be the same and nothing of significance turns on the number of conspiracies and i'm not conceding that there are solely multiple conspiracies here there is one single chain conspiracy here but there is no indication on this particular case that the error of trying multiple conspiracies under a single indictment substantially influenced the outcome of the trial there was significant evidence against each of these defendants about their day in relation to the individuals above and below them on the chain of s in this example this hypothetical knows about the existence of the the drug conspiracy even back to china knows that these people are doing have this business going on and this downstream person purchases drugs from the you know from the entity the enterprise and maybe they've done it a couple of times it's ugh those purchases from somebody with whom he has a longstanding knowledge at least only in relationship is that enough to sweep that as charged in this particular case and so whoever this downstream purpose downstream purpose for some sales to they get slipped in yes your honor  and indeed in this particular case it's the people pardoning just because they didn't play a central role in the conspiracy they still are participants in the conspiracy if they have this particular case the entire chain of distribution was charged because it was able to be proven the pills at issue in this case were very unique they all said  distribution so to answer your question yes those those participants are part of the conspiracy and this particular case though barrett's role in this does not particularly in consequential his his the proof a trial of his negotiations with dick on ski his efforts to try  and establish the price the place the time and the amount those are those were extensive they all came out at trial gonski testified at trial and testified to great length about setting up the deal how the deal took place discussions after the deal d this this isn't kind of someone who briefly slipped into a conspiracy and then it's ripped out there was it was  williams so unless the court any other questions on that particular issue all move on to the question of the buyer seller instruction so in in this case the defendants have i'm sorry the appellant's of argued that the jury should have been provided with a buyer  instruction a buyer seller instruction may be appropriate based on the facts but these particular facts did not merit a buyer seller instruction in would have only confuse the jury it was an abuse of discretion for the district court not to give the instruction and even if it was it was harmless error as this court explained in rigs even where a buyer seller instruction might be appropriate a buyer seller instruction is unnecessary if the district court judge has given a complete instruction reciting all of the elements of conspiracy and requirements for membership in the conspiracy which did occur here the buyer seller instruction is designed to protect the end user who buys drugs for their personal use from being caught up in a conspiracy and that's not what occurred here there's ample evidence that all of the coconspirator bought and then sold the pills as i've already discussed at length this was a chain conspiracy and even if the different repellents didn't know all of the parties in the conspiracy the evidence of trial certainly showed that they no knew the individuals above them and below them and i think that shell is instructive in this particular case there the jury in the case was required to find beyond a reasonable to i doubt that the drug the particular drug caused overdoses but the jury wasn't required to conclude that the defendant agreed to distribute a particular controlled substance there it tries to limit his involvement in the conspiracy but as i've already discussed he he was intimately involved particularly with dick on steam and williams and i also think lastly ham is very instructive there are the six circuit explain this court explained that even where it is not totally implausible that a defendant only had a buyer seller relationship with other coconspirators that was not the version of the events the jury chose to accept the evidence was sufficient there to convict on count one just as it is here there the court found that there was adequate proof of a conspiracy with a relatively new relationship where only two transactions had transpired but the quantities were large and involved extensive planning that was carried out by phone calls and messages and the relationship was meant to be ongoing all and maybe and maybe getting you off your argument and maybe you've made the talk of the summer already but you know getting back to this conspiracy of who gets swept in and what's required and and you told me about the indictment having these extra particulars but there it's not really relevant to the to beyond a reasonable doubt and if that's the case don't you have to take some of these particulars that you talked about and actually prove them up to the jury in order to meet that the government doesn't need to prove mens rea as to the type and quantity of the drugs in order to establish the violation generally now specifically to hold them responsible is that part of your question they were involved in both the substantive counts and the conspiracy and then that the use of that drug resulted in a serious bodily injury or death particularly jeffrey the jury was not required to find that there was any element of mens rea associated with the death or serious bodily injury all that was required to be proven was that the defendant intended to possess with intent to distribute and distribute the drugs shelton is also very instructive there the jury was required to find beyond a reasonable doubt that the distribution of the particular drug caused  death in that case but this court held that to hold the defendant guilty of the offense all that the jury was required to conclude was that the defendant agreed to distribute a controlled substance  so under that precedent no the defendants didn't need to have a particular mens rea as to the quantity quality of the drug just simply that they possessed it with intent to distribute distribute it and that the use the so unless the court has any other questions on the issue of buy or sell our own move on to the arguments related to aiding and abetting so on on appeal and on reply bradley and barrett both argue that the inclusion of aiding and abetting in the substantive counts was somehow improper in this case this isn't the case of a lookout or someone who bought a precursor jar drug these defendants are all principles  who distributed these pills bradley raises issues with his convictions on the substantive counts but each of the substantive counts alleged distribution that occurred on or about july th or th or on or about july  th and that the use of those drugs resulted in particular individual serious bodily injury or death that was shown at trial and his arguments fail on two different points first infer that came from bradley and went to davis another portion of those pills went to look christa knowles she testified at trial about that transfer both the casket and bradley were present for that transfer and both were involved in that transfer both the davis pills and the knolls pills then continued to be distributed downstream and ultimately resulted in some serious bodily injury is and a death as alleged in the seems to argue that he must have put the drugs in the hands of the victims to be liable for the overdoses and that is not the case what is necessary to be shown is that the pills resulted in an overdose which  the question and ultimate question that the jury had to answer was did the person distribute the drugs and were those drugs the but for cause of the serious bodily injury or the death and then if the answer is yes it doesn't matter if it pass through multiple people's hands and the appellants arguments bradleys arguments actually would have perverse results that the and sellers would be liable for the significant penalty but the producer of the deadly pills higher up the chain would somehow be absolved of that penalty or avoid that penalty because of the multiple layers of of participants and that is not how the statute is crafted so unless the court has their questions on the editing and abetting i'll move on very briefly to the motion to suppress in to talk about williams's motion to suppress his statement in his opening brief i didn't understand him to raise the claim that he had  oked earlier in the interview this wasn't an argument made to the district court so this argument should be reviewed for plain error but i would point to the transcript of that interview which is laid out on page twenty one williams as appeal brief williams says i ain't got no lawyer or nothing you know what i'm saying i'm not going to do this all right here and later says i don't want to be in this room those are not clear indications of custody you know joe said elements are simply not met here so i see that i am out of time so unless the court has any other questions i will ask that the court affirm the lower court's rulings and  bericht never knew the drugs were counterfeit never knew there was sentinel in the drugs that proved his undisputed in the record williams did not the gonski did not know barrett did not know and randolph did not know randolph is further downstream from barrett she's a barrett customer there is some evidence some that williams may have been the bear itself once before there is some evidence of that but other than that the what happened on july th is the extent of the bear williams relationship number two we appreciate gallanter suggestion that this indictment was structured in the way it was to give us notice what we've done except that we c that this indictment is part of the prosecution's strategy part of their tactics they this indictment was detailed it included objects it included means and horrible abusive conduct of intentionally manufacturing toxic pills that killed people in florida and in tennessee so this this was done to further the prosecution's motive and when they describe this precise discrete conspiracy they made it necessary that our client had to know about this discreet conspiracy in order to join and he did not there's no evidence that he knew the object of this conspiracy thank you for listening to point out this even although the government calls it a chain conspiracy i think it's i think it's reasonable to see that there is at least two conspiracies here and and when that when there is a multiple conspiracy evidence at trial only one charged there is it's appropriate for the jury to receive a multiple conspiracy in str action that's how the caver case and and that never hurt or never happened and so the primary risk that's associated with multiples conspiracies being tried in one trial under one indictment under one conspiracy is is the is the transference of guilt from one defend to another with respect to their involvement and i think that applies here you know if the transference of guilt for the  fenses that took place in murphy's parole by the distributors of drugs in that location clearly shaded the jury's verdict here especially given the fact there is no multiple conspiracy instruction now with respect to be substandard counts it's pretty clear st of all with respect to the government's point if there is sufficient evidence of a conspiracy to distribute these substances that cause death or injury then mister bradley is being held accountable for those deaths at the end users but there has to be a limit these were drugs that were so far you know thirty four transactions after the drugs were originally distributed by pratley and there has to be a limit as to when he's guilty of those substantial distribution offenses so with that we'd ask that the court provides to our system at large and certainly to your clients and i'm sure they very d much appreciate your representation as well but again thanks to all of you