well here the next case on the calendar united states versus dickens and cru dickens and then missed and then the schneider will come next thank you judge judge mr dictions takes the position that the plain error rule applies to both issues that are raised by him on appeal concerning the st he takes the he request of the court find that the superseding indictment that he was convicted count one of the can superseding indictment that he was convicted under was witnesses ever being in possession of a quantity of cocaine in excess of twenty grams we do sir that the situation is one in which the court should have or emotion should have been directed to the superseding indictment concerning the aggregate weight argument that was being made by the government in their case there was no evidence at trial that would have suggested that mr dickens him self was personally responsible for an aggregate weight or weight in x or an individual weight in excess of twenty grams and the government's argument to that end was an effort to push mr dickens into a sentencing range that would impose a higher sentencing category concerning mr dickens it's his position that that just nd argument judge on the nd argument the government to government seems to take the position that the errant argued in that situation is wait and it is one where the jury verdict form when it was compiled contained an inherent defect that defect wasn't recognized by the court wasn't recognized by the prosecutor was a recognized by defense counsel at the time the fact that it was recognized does not mean that the error wasn't there and the that the jury had to consider must be cocaine base was there ever any question and the real question was what was involved in judge there were there were there was testimony as by various witnesses as to the presence of cocaine base in their possession but there was also evidence throughout the course of the trial of other drugs being in various possession of various of these coke defendants and cooperative witnesses and that suggests that there were other drugs that the jury could have considered when you  other of the co witnesses are i'm sorry the cooperated witnesses were in possession consuming and using drugs for their own purposes which might not have been if if if their part is false then the answer's no but i'd like to have that confusing i think what's confusing judge is that it's a question i think it is a question for the jury as to whether or not there is cocaine base that is foundation of the conspiracy and when the question number one asks if there was a conspiracy involving the controlled substance and then question number two suggests that the controlled substance was cocaine base i think that takes away from the jury's role to decide whether or not cocaine base was in fact part of the conspiracy because the decision has been made for them or suggested to them by the trial court thank you this is this is judge cat possession with intent to distribute judge i take your point concerning an argument and the defendant's position would be one to the fact that he is asserting that he was never in direct possession of any of these  never found to be in direct possession of any of the alleged cocaine base and that there is no individual instance of him being in possession of more than twenty eight grams and that when there is no certainty that the aggregate weight claim to have been possessed by each one of the individual coke conspirators or cooperated witnesses can be directly attributed to him he shouldn't be there should not be a finding that he going to be attributed with an aggregate weight in excess of twenty grams thank you thank you  protected time if the court would like to ask me questions before then i'd like to focus as well on the issue of the jury verdict form the sify claim that my client was denied his right to have the jury determined drug and i'd like to point out from the get go that the government in essence concede that this was error it says it would have been preferable for the jury verdict form to  st require the jury to identify the controlled substance involved but it's not a question of preference the defendant has a th and the th amendment right to have the jury not the judge determine the drug  involved but as mr crocheting pointed out there was evidence of other drugs introduced as trial and i'd like to point out it wasn't just evidence of witnesses or co using other drugs it was the dealing and trading of their drugs there was evidence of that trial for example ms rose area testified about giving my client two perc other drugs as being part of the object of the conspiracy or was the government summation focused entirely on cocaine abuse or ready the government as i recall the government closing argument was focused on crack cocaine however the argument of my client in closing did deal with those other cocaine and the bickley made the point that cocaine is not crack so although the government was focused on crack cocaine it was controverted as trial that that was this if the jury didn't believe crack was involved they could have just answered the contemplated questions no the problem with that is that saying someone conspired to distribute less than twenty eight grams of crack is a perfectly different thing than saying they did not conspire to distribute crack at all and your the jury was not given that option of saying no it wasn't crack the jury clearly spelled out that my client was guilty of a drug conspiracy but the next step is what twenty grams with that have addressed your concern here i'm not sure i understand is your question about birds asking the jury what drug was  involved it seems like your complaint is that the the the question conflated two issues and i guess my hypothetical is what if it just identified that there were two issues by saying one  that would have been fine if the jury verdict form and that if you find him guilty of the drug to various the then tell me what drug was involved in the drug conspiracy different form to say something different but i guess the question is what if it had just as written and added number one and number two in front of the two parts of the question to break out that there was that it was compound with that had been enough to i guess i don't i'm not understanding your question i'm sorry if it had said number one was crack cocaine particular challenges would you have mounted to the use of your prior conviction given that as i understand it you were and correct me if i'm wrong europe recruit precluded under section eight the fact that there was a mandatory minimum here so the fact that he didn't object or challenge the prior in the p s r is really not compelling here  and you are correct that after a certain period of time you can challenge the validity of a prior conviction you can however challenge any fa in that prior conviction so you know that if they're not i'm sorry go ahead finish your sentence i was always going to say if it doesn't fit within the definition you could challenge it on that basis i not really new you could challenge it on that basis the problem here is because the court didn't ask the questions that was required to buy that suit we don't know what my client  the procedures in section a fifty one well we don't know whether there were specific things mr cruz could have challenge because this colloquy was never conducted and so he never had the opportunity to say to the court oh i do challenge that prior conviction and i want to put the government to its proof and he never had the opportunity to consult with his lawyer below and and discuss what the parameters were for challenging a prior under age fifty one and so the record necessarily doesn't include any of that and  engage in the colloquy the record necessarily doesn't have anything about this that we can show prejudice but in that case if you said well you need to show prejudice objection to it is waived this is not a case where the court used a verdict form and nobody raised an objection which would result in a error analysis this is a situation where the court had a conference with counsel both counsel and government counsel and part of that conference was directed to formulating  formulation of the verdict form as well as indicating that neither had an objection to it has changed so we do think it's waived to the extent the court will apply plain er analysis to to any defect that might see in the verdict form i think it's it's it's telling st of all that something is basic as what drug was involved in the conspiracy that question didn't occur to anybody in the formulation of the verdict form because there really was only one drug charged in this conspiracy and also the defendants don't challenge on appeal the sufficiency of the evidence against them so no one is saying that the evidence didn't establish that more than twenty grams of cocaine base was involved in the conspiracy to that extent if there were other drugs involved in the conspiracy which is a point the government does not concede it would not have affected the sense that you either of these defend so they don't challenge the jury's answer to the st question yes they were involved in a drug conspiracy and they don't challenge on appeal here the fact that the proof established they were involved with more than twenty grams of of other drugs that was presented at trial and i just wonder if you could address that there was evidence of other drugs at trial it's not clear to me i and i i don't maintain that those drugs were part of this conspiracy particularly because in this conspiracy cruz was the source of supply and all he supplied was cocaine base no powder cocaine whether people were using were distributing percocet has nothing to do with the conspiracy that was charged here so yes there was evidence of other drugs i do believe there's also evidence that cocaine powder cocaine was given by cruz to at least one other individual so a distribution but that appears not to be a part of the conspiracy that was charged here he could not have gotten that powder cocaine at least as far as the evidence is concerned the trial from cruz because all the cruise provided was cocaine based so yes i don't contest that there's evidence of other drugs involved most of it is you know distributed by people other than cruise issues me other than dickens but i do believe dickens at least on one occasion provided powder cocaine maybe two or three occasions so no argument there thank you y but as i say it's not it was not prejudicial to the defendants on the circumstances of this case because they don't concede they don't contest that they were involved in a drug conspiracy and they don't confess that that conspiracy involved at least twenty grams of crack cocaine with respect to the discussion about challenging the felony conviction relied upon to enhanced cruise's  sentence obviously we concede the district court did not follow the procedure it should have but i think it's a matter of bread and butter practice routine  in a multitude of criminal prosecutions where prior convictions convictions are challenged whether they are used to enhance a statutory minimum or not there was nothing about the procedures that occurred in the district court that prevented crews from raising an objection if he had one and in that respect i disagree with mr nader about it's not compelling that or a judge doesn't ask a question necessitated by rule levon and nonetheless the defendant still has to show prejudice and the prejudice that context is i would  have not entered my guilty plea and this is similar to the mere fact that the judge didn't ask the question did nothing to preclude the defendant from raising an objection and certainly the fact that no objection is raised to this time error under the facts of this case if there was error which we don't concede but if there was an error it was not plain because the only drug alleged to have been involved in the conspiracy was cocaine base and there was no prejudice to the defendants under plainer review because they concede that the jury correctly determined they were involved in a drug conspiracy and they're only arguing about which drug which is a sentencing matter they don't challenge the evidence establishing their involvement in more than twenty grams of crack cocaine which drove the sentence here even if there were other drugs involved it would not have affected the sentence and finally in light of the way the case was charged and everyone approached it the defendants can establish that this affects the