morning i'd like to reserve most of my time ten minutes and i only have a few comments and the main point that i want to make is that the angelo case that was relied upon by the district judge is not present at all it's just not relevant at all and i wanted to point that out first of all that's a constructive amendment case whereas we have a prejudicial variance case and it was decided on the basis that there was no constructive amendment and the second very significant difference is that is that the defendant in that case had eighteen months notice from the prosecutor that they were going to use the telephone as well as the internet as a means for committing that crime in our case we had no notice the prosecutor had had tried the case against the brother solely on the gun theory he opened on the gun theory he presented his entire case and the gun fairy there was nothing anything anything about a broken bottle until after the jury was in deliberation and sent out the question to the judge in my wrong in my recollection that i don't know if you try the case or not but  the defense counsel move for a directed verdict verdict on the ground that the broken bottle was not a dangerous weapon on that basis i don't think i was surprised at the end that became an issue and then the third significant way in which the n d l case is different is there's a specific statement in that case that defense counsel never claimed prejudice so if they'd just decided on constructive amendment there was no claim of a prejudicial variance where in our case it's a prejudicial that was the main points that i wanted to make the certificate of appeal ability is limited to prejudice cards or the certificate of appeal ability is limited to prejudice that's what the district judge said that he he felt that there there could be a difference of opinion as to whether or not there was prejudice so what exactly was the prejudice what was the prejudice well issued for us from the overall prejudice was that as  you know i didn't i did not know until the jury comes out with a question that says may we may we find him guilty of robbery because his partner had in his hand a broken bottle and that's the first time anything came into the case at all about a broken bottle but specifically there was evidence of the broken bottle not really there there was no evidence of a how did the jury come up with them a jury did well the reason the bottle is broken is because his brother assaulted one of the victims see broke the bottle over his head so it wasn't broken until he knocked it over his head then it was broken but there was never any evidence that that a broken bottle was used as a robbery i mean by that i would assume you know i have in my hand a broken bottle and i'm pointing it at you and saying give you my mind give me my money or something like that i think you just picked up the money off the floor right thank you did a pretty good job of beating the gun charge to be perfectly honest he would have been much worse but if labor convicted him of aiding abetting with the use of a gun which there was evidence there was evidence that there was a gun and there was evidence that there was not a gun and there was evidence that there was a broken beer bottle and got broken after being hit over somebody say yes or yes or but i'm but there was never never any evidence a broken bottle was used as a robbery it wasn't pointed at anybody was stretton dave anything and also if that had been in the case i had to ask questions about that i did establish clearly that that there was no threat with a broken bottle i would have asked my client that question he might have decided not to testify which is what he says he's prejudiced because he testified without knowing that but i would say that i would have asked him you know was there any threats by a broken bottle you certainly would have testified no less i would have asked all the other witnesses that so so i certainly was prejudiced in cross examination and prejudiced in the in the argument did you cite any supreme court case are you aware of one that says that the really narrowing i'm i'm trying to think you if it was a supreme court case i think the quote this if i'm pronouncing that right case is talking about to wit but that's not the supreme court case well i would think that would still be relevant president your honor and in addition the the treatment by the michigan court of appeals isn't reasonable because it doesn't it doesn't deal with this prejudicial issue council move for a directed verdict arguing in part that a bottle is not a dangerous weapon and therefore as a model matter of law in the armed robbery with regard to hardy took place sat right well that's defense counsel but it's only me that's what he says he cites transcript volume two page three sixty two this the court now i'm not talking about would that make a difference if that's the case i'm sure i never said a broken bottle because a broken bottle i was shocked when the jury came out and said can we find him guilty if his partner had in his hand a broken bottle it's ok and never never defended on that basis at all i'm sure and i would have had that been an issue but was never an issue until the jury was who but the jury can come up with stuff i mean we can't control what juries do as long as they're basing it on evidence and instructions befor them the judge judge judge sort of facilitated that ahead of time by by defining weapon too broadly at some point you know he he he did he didn't he didn't limit limit two to the gun which he should don't think i did make a specific objection to that i should have i don't think i did right on or stand appreciate your candor i'm just trying to figure out what it was is actually where things went wrong here it would go on it went wrong when the jury sent out that real morning bruce edwards michigan assistant attorney general on behalf of the warden judge rogers you're correct it's the magistrate's report recommendation that talks about how defense counsel who for directed verdict arguing in part that a bottle was not a dangerous weapon so that is correct does it make a difference that it's broken bottle versus a right any difference if i'm holding a bottle that could be a weapon if i'm holding a broken bottle that could be a dangerous weapon either way  certificate of appeal ability was limited to the question of prejudice that surface if we're just looking at prejudice and the and the state court didn't reach prejudiced does that mean that on the prejudice issue we're not bound by at the aiding and abetting is the equivalent of the crime which we know but it just didn't really but there was you know with whether there was some prejudice there and and that it strikes me that you know while we have to give that deference to it the idea that there that the argument is totally answered equating aiding and abetting with the crime itself doesn't really answer the question of whether the gun is the same as the as the bottle i mean that was the nature they specifically argued it was wrong to give aiding and abetting instruction all by itself and so that's why the court of appeals specifically addressed that issue on object to their addressing it makes sense for them to address it it just didn't really address this gun versus bottle issue well i guess it didn't didn't say anything right well even the district judge he just says that it doesn't matter which one it is because it's not a fatal variance if you look at the information you know jim you've got the obligation to be notified i mean there's a constitutional requirement that you have notice of what what the particular crime is that you're absolutely i mean you could say to wit shot george at ten am and then convict him of shooting billet five pm each can't do that can you know i mean i would assume there probably wouldn't be allowed and why not it's because they don't have notice in the notices if you had the notice you might be able to make you might tailor your defense gear to what it is you're accused of and that's what i'm wondering why there wasn't prejudice here but here i'm so what you were accused of what would the defense have been if they had left out you know the fence might have been i don't think there was a  remains to convince the jury that there wasn't a gun except that there was testimony at the plymouth or examination about the bottle the victim had there was tell its only about a gun to his head and the defendant testified at trial you have my brother the guy in the head with a bottle the defendant admitted it had his but he admitted it because he thought that would help his case instead of hurt it's k you know if i can help him there you know for example but you could if you gave him the notice that his admitting it would cause him to go to jail as opposed to his admitting it would would would would not say anything about whether he had a gun or not see the trouble i'm having here now to say well he did it and there's evidence that he did it but his argument as i understand it is i was prejudiced because i went along with the fact that there was a bottle because i didn't think that was going to be attributed to but but here you don't have to surplusage to put that in but once you put it in i mean he might say oh you know i was on my way to kill bill and that's why i didn't kill bob at town right but he's not going to say that if he knows that's ed put cases the supreme court has said state courts have a lot of leeway when you have a very general standard i cited the ninth circuit case in my brief where they said the u s supreme court has written very sparingly on the sixth amendment right to notice concept and so it's my position that the michigan court of appeals rejection of this claim was within that very general standard that has been set forth by the united states supreme court in its case law now counsel talks about how she was ambushed but whenever you have two defendants a codefendant an accomplice you are automatically i notice the aiding and abetting is going to be in play and for example after the opening statement by the prosecutor he says at one point  it's not my requirement to prove beyond a reasonable doubt every single fact only the elements and that's exactly what happened here and then later he says at some point in his trial you will discover the judge will instruct you on the theory of aiding and abetting and he says it's our theory he and his brother are working together he's not only responsible for his own conduct he's also responsible for his brother they're responsible for each other's conduct in that partnership so this was the opening statement so everybody knew going in the prosecutor's position was that i only have to prove the elements and they were he's an aider and abettor to his brother and he has to answer for what his brother did so right then at absolute minimum there was notice that i only have to prove the elements and the fact that a gun is not an element and he's on the hook for whatever his brother it and it's common sense that a broken beer bottle would be a dangerous weapon theoretically and the jury so surmised why they didn't believe the testimony about a gun were all left to wonder but what they did the trial arj the indictment he knew he was charged with possessing a dangerous weapon and that they had stolen some money in the case or the proofs came in and established that really no question now recently found it's martin vs question is whether it's fair yes yes and no case and that we're not talking about federal cases that require that it where ms variances are by the constitution brick notice and for before it's a matter of prejudice actually yes and that would be traceable to the notice sufficiency of the notice right now in our case martin is nine seventy f second fifteen thirty nine the defendant was charged with rape by forcible compulsion and then the judge instructed the jury he could be guilty of if he committed rape by forcible compulsion or if the victim was incapable of consent because she was physically helpless in the six circuits and no problem these are merely two methods by which one crime rate could have been committed that's my argument you can commit the armed robbery with a handgun or you can commit with a broken bottle that's merely ten ways breaks down i mean it's got to be a spectrum sure you could convict him that makes sense but at the other extreme you're talking about bill at ten and bob at five it's two two different i don't know what it is you have to defend against so you can cite cases way over here but there's a hypothetical sway over here and i'm just wondering what in the this is kind of in the middle i'm wondering how far well this case there's no change in victims and there's no change in time at all but there's a big change in method though yes but the method asian method that specifically refer the exact dangerous weapon there was a change in but that's not how it was elements of the crowd and how it was used it wasn't used by the defendant it was he helped someone else to use while but that's all we ever ind t where there is a codefendant aiding and abetting is implicitly in there because there's no difference i mean that's always part of the assumption when you have two different i understand that but but but it still makes it different from just to  different methods it's a it's a more different method when you're using someone else well i found another case where the defendant was charged with committing an arbor or using a three fifty seven and the testimony came out it was actually a shotgun in the court of appeals so that was ok in other words he used a weapon and that the only thing you had to prove was a weapon had been used it wasn't significant which weapon it was you're never going to have so long as the element itself does not change and here the element for armed robbery is possession of a dangerous weapon whether what the weapon is is not an element of this crime and the elements were proven to the jury and there was no surprise that there was a broken bottle and the prosecutor in his opening statement specifically said i don't have to prove all the facts only the elements and the defendant is on the hook for everything his brother did given that background i think it's not unreasonable are not objectively on reasonable for the michigan court of appeals to have denied relief and i also think that they destroyed the argument that it doesn't apply because the state court prejudice is there isn't going to be any prejudice i mean that's really what they said if you know we're allowed to read between the lines when they reject your relief on something they don't have to you know dot every i and cross every t is they're laying out their exact answer and i'm not sure how specifically it was argued that that part of it either because there was a big argument that was wrong of the aiding and abetting statute at all that was a big part of the direct appeal made for example once again the fatal very serious which don't apply but even if it did united states versus miller for seventy one us at one thirty six as a part of the indictment unnecessary to an independent of the allegations of the offense prove may normally be treated as a useless or berman and may be ignored so the fact that the information said to wit a gun is not then limit the prosecutor didn't require an acquittal if they didn't prove or convince the jury there was a gun we don't really know what this jury thought i mean we are sort of assume because they acquitted him on felony firearm that they didn't think there was a gun but there could've been a compromise verdict might have been only one of the jurors that didn't think there was a gun and they decide well the rest of us think the broken bottles good enough or he or the person didn't think it was a gun thought wrote in bottles and off you know we we don't really know of course but the defense hasn't shown that the rejection of his claim violated clearly established there's no concrete rule other than just the general idea that you're supposed to give notice so he knows what to defend against apply because it's only based on the fifth amendment talking about the right but i bet that's not the question yes but i'm just saying that even you know the general rule under the sixth amendment is very general the fabled aries doctrines are a lot more precise i think i would win even under more precise wall because when you say to what a gun it's not one of the elements and the prosecutor only has to prove the whole months of the crime well first of all in the last comment it's said to wit a gun and i would underline strongly that they limited their proof but also what he argued about them about the opening statement saying that they're responsible for each other that very general comment did not subtract from the fact that the prosecutor in his opening statement said this was done with the gun and we will prove this was done with a gun so he never ever argued a broken bottle or even asked any questions about a broken bottle throughout the whole case and with respect to your question judge could i agree with consul that coal vs arkansas and in re all over are are hey b s corpus cases from the united states supreme  court so that they have considered this issue in that in that context what would you how would your proof of been different if you're pretty well positioned to answer this because you were the lawyer right i would your proof might have been in the speculative question if at the outset they had said we have we have only to prove either he had a gun or we can prove that he aided and abetted and he's guilty by virtue of the spot i think and you knew about it then what would you have done i think there would have been a lot of questions of the witnesses with respect to a broken bottle i mean if he had if he had argued bottle come i mean you know over three speck to a broken picked up on it without his arguing it right what would you have done in response would i would have established it more more clearly as it is there's nothing you have that what more clearly that there was no robbery with a broken bottle that nobody was ever threatened and refused to instruct anything in abetting and then they said a broken bottle not not not going to be found guilty because one of the victims was hit over a head with a bottle but can we find the defendant guilty because his partner had in his hand a broken bottle so as i visualize that he hits him over the head and afterwards the bottle broke so he has in his hand a broken bottle but he's just standing there with a broken bottle i would established that he would no one was ever threatened with that broken bottle i mean as as judge had pointed out they just pick the money up off the floor you never backed out of the room by holding the broken bottle well i would think to it to have  assault with a broken bottle for either armed or an armed robbery you have to if this is a broken bottle i have to point it at you but if you have hit one go over the head with a bottle and it broke i would be very reticent to try to get my money back with the guy holding the broken bottle well you can judge rogers asked me what i would have done and i would have gone into that i would have cross examined on that so i think i was that that issue was never litigated i mean were you afraid of the bottle as if as you pretending you're a victim where you were afraid of the bottle i mean there's a lot of questions as well as as you point out of the jury apparently agreed with me there was no done they may well have agreed with me that there was no threats with a broken bottle and another that's what i would have done differently that's mike mike my client says he