start out by saying i believe the standard of review for mr washington with respect to this would be doing over the united states did raising its brief some question of whether the trial court  record six eighteen the fourth day of the trial pages one ninety seven through two of nat so i believe that the appropriate standard of review for mr washington is to know vote we look at  this discussion with vedic for the court to look at the three separate indictments that were in this case the first one was in july just after the arrest of two of the defendants who were caught with  drugs or drugs that were purportedly delivered or picking up money then there was the second indictment which is the first superseded dykeman it came two months later and it names those defendants in the kentucky defendants and there are a lot of kentucky defendants the third dykeman the second superseding indictment names dropped the kentucky defendants who would all come back and testify at the discussion of that a spand in the briefs but the first one i would mention is the conspiracy of sheila mccarthy and tammy martin and that conspiracy had nothing to do with the charge of conspiracy sheila mccarthy and tim martin both testified at the trial they testified that they did not know the linchpin and all the conspiracy the other three and that would be james martin and leslie martin and i think there was evidence that sheila mccarthy actually had gone down to florida and obtained pills on her own through scripts that perhaps she had and came back to kentucky and did sell them to an undercover agent and that's how she was charged and the second indictment obviously there's the conspiracy that would have everybody the charged conspiracy and that's the one the government relied on but the government chose to put sheila mccarthy on at the trial they could have chosen not to put her on trial i'll think it was pretty clear that so the kind of hoisted on their own petard if they were going to put her on the trial to testify as with these other defendants then they should perhaps should not have objected to the multiple conspiracy instruction that the defendant requested the court to get swinford i am looking at you i think i'm looking at your proper briefs and i do not see the instructions in the list of issues appeal well just put forth the argument that the multiple conspiracy instruction should have been given by the court we advanced that gave reasons why we thought it should that it should b you give this you said you've set forth reasons for that for that instruction in your brief i think the ring the break here on earth just does not appear in the index and i didn't see it and the i don't see that standard  you mean the third argument like that's cricket fan you're talking about the ariens from the indictment which and right wrong is a different argument than saying at the front end sort of disparity and you're saying you should've got an instruction on the try to examine three six circuit cases the at u n c adams which is the vote buying case from eastern kentucky which everybody in kentucky is familiar with into unpublished opinions which i have cited pursuant to the local rule and it would appear that at least with the sixth circuit from the cases i've been able to examine that there is a it seems like a preference or they recognize that a multiples conspiracy instruction should be given a trial judge  gerry to decide the factual dispute when evidence is presented that there is more than one conspiracy i don't understand why you're arguing on this instead of the variance issue that's in your li well i think they're banned together your honor is one preserve and did you did you did read both of these asserted in the district court only want or need well the multiple conspiracy  there was a motion in limine e at the start of the trial where the trial court costs and the government's attorney and mr campbell not to make any reference to ms my client as you know that was one of the problems going into a trial with somebody representing themselves pro se you can have that perhaps have that issue because a light person did not know but a didn't object initially because they want to draw attention to that it got so bad head to object and judge kaufman carson good long speaking objection there or there's no proof whatsoever n abuse of discretion however i'd like to start my argument with the sentencing phase i think that's a much clearer issue to present to the court judge coffin presided over this trial judge what was the sentencing judge  air the sentencing judge based the criminal history category on a calculation based on the fact that two prior convictions were separated by intervening arrest should the government think that suggest they do that's off the table ok great that takes us to the second part of the argument and that is under a four one for a one point t if you don't get the look are still counted separately unless they were sentenced on the same day the government takes the position these cases were not sentenced on the same day we believe the record shows that they were in fact sentenced on the same day that in february the seventeenth of one nine hundred ninety five just as a factual matter is it true that the district court simply did not focus on this question asked he did not he did not make a finding addressed by the court because it was not on the table at the time however if you look at the record yet to look at for a one point one for a one point two in the author's note and commentary where they recognize the fact that one of the big problems a district court h is going to reputation of the state court records because you're to deal with fifty states and territories and all that well if you look at the government's position they are interpreted in records based on the clerk's notes based on corrections in florida in a sworn affidavit in support of a motion to revoke probation some time later with a probation officer says approved by his supervisor under oath was seventeen took place on both cases in an affidavit which says this in these cases i know it's like another case when in this case the record says that there's an affidavit that says years before this this defendant was sentenced on the same cases are saying three points judge heard it saying the six total points twelve category five he sentenced on category six because he had three actually four i mean i'm looking for numbers i thought that the ninety two to one fifteen and that reflects that reflects base level twenty four criminal history category five now we also have a problem with a basic level twenty four in that that is sort of tied to the multiple conspiracy argument judge good finds that absent in a lot of discussion about the proper philco was a three hundred pills of four hundred i understand the difference between topic because your client i think looks to me like your client proposed the district court find him responsible for quote three hundred to four hundred pills as the four hundred pills were intended for campbell intended for that's what he says in court but watch what she says as if judge judge didn't already said he was an apartment i think when she said that that there was going to be a four hundred pill count utilized she continues to advocate however instruction in that order your first argument washington yes i'm sorry mr washington of the government condition as mr washington is raising a variance objection ok mr campbell jr is raising the multiple conspiracy instruction to the variance point the standard of review here is that is that the variance occurs only when the trial evidence only when the trial is can reasonably be construed as showing only multiple conspiracy and the guidepost that this court uses to nature of the scheme was a drug distribution enterprise which this court has recognized over and over again if they joint enterprise people the top people of the middle people at the bottom folks don't need to know or may not be aware of all the identities of everybody along the chain folks may not be aware of the full nature of this conspiracy the activities but everybody falls into the same umbrella oddly all the conspiracy are overlapped in some fashion and that's the third guy most  chain that the government focused on at trial kept us campbell and stephen breyer washington were funneling pills to james martin who built and sold them with his wife and freddy campbell jr in around c down the line and the the evidence does not bear that out kevin campbell was supplying both james martin and other defendants theory freddie campbell jr the government presented evidence that freddy campbell jr had also delivered pills to james martin finally at the end of this allegedly discreet chain is mike marshall launch l and c and freddy campbell the third were selling these pills to help bond mike marshall out of jail the same mike marshal that was the at the end of the main chain that the government was focusing on now under the standard of review here the jury could easily find one overarching conspiracy that test you know could the jury find one conspiracy that a multiple conspiracy it instruction would be appropriate when within reason the jury could find multiple conspiracies and i think the defendants are and mr campbell is outside of that response box and here's why it all comes back to this court's decision in united states versus kelly which is where the court found that a supplier in san francisco i was part of a large conspiracy with suppliers in los angeles and washington d c they didn't know each other at all they didn't want to wear that of the others activities but they were all linked up by the common supplier so if you take the defense theory of the case that tempest campbell was supplying to this allegedly separate group the problem with the there was clear evidence and undisputed evidence that chemist campbell was also supplying to in naples now that is part of mr campbell's conspiracy it may be would be depend on the facts in whether or not the conspirators are on the same horizontal plane if it's just sort of a one off transaction i think the level distributors the on challenge and for the campbell the third were allegedly middle level distributors as well i think we have a lot more problems if sort of the focal point was not to have a scandal at the top who is a supplier but somebody in the middle or if there was some sort of mismatch in the lines but everybody here is on the same horizontal plane and all the out that they make separate in discreet conspiracies here we didn't know each other we weren't setting prices together we weren't coordinating easier argument for you on this the prejudice argument do you think i don't see it easier i think it's equally successful tricky there so this court is only recognized three types of prejudice that come from various claims it as well as multiple conspiracy instructions the same spread of this category one unfair surprise by the evidence related to the allegedly distinct conspiracy number two were the defendants convicted of a substantive offense committed by somebody else and three spillover let me walk of take mr washington first minister campbell jr mr washington  never claimed any unfair surprise here number two he has he was only convicted he was not convicted of any substantive a sense in this case so that category doesn't apply and third there are no spillover concerns because his sole defense at trial mistaken identity claim and so there is absolutely no basis to believe that these points of evidence now tainted the jury's deliberations of mr washington's defense let me turn to mr campbell he can't furthermore this is the point that the cave and all the witnesses when they were talking about these participants said pretty campbell jr is not involved this is separate and apart and that shows that makes it very unlikely that the jury was somehow going to b everything together and assess mr campbell's culpability by reference to these couple transactions well let me ask you because i know you're pressed for time and a lot of issues you just mentioned that mr washington sold the fence a trial was why isn't that really prejudicial here will i'm actually not sure that the jury is going to look at mr campbell statement as if this is bears as evidence as compared to the faith a government agent was doing it or the prosecutor was doing it i mean isn't he worse i mean he's somebody that the jury is going to think actually knows this individual that he has true knowledge like a witness and he's calling and they're very casually and precise issue that you're raising wasn't actually raised to the district court the fear that mr campbell as a pro state defendant was going to say they are all over the room justifying at that point a motion to suffer motions made after mr campbell started calling in there in the courtroom i believe i'd only not contemporaneous to that i believe that one of the defendants made a motion to have or towards the end of the trial if the circuit requires there makes i'll do the drug quantity first i'm going to go into the criminal history score the p s r came back recommending seven hundred pills counsel for mr campbell says the proper number of pills should be three hundred to four hundred expresses a preference for the three hundred but i think at least as i read it would say that the proof would appear to support the four hundred as well and then the district court selects the four hundred first couple the questions from judge cook we think that that is invited error but even if not mr campbell cannot show clear error in the district court's finding because unpaid transcripts six six document six sixteen three nine nine five three three nine nine eight recorded combe phone call between mr campbell and r cooperate or mr martin where he mr campbell is told not receiving four hundred pills and he right you say you said three it should have been four it should have been four he mr washington was telling me for our cooperators to sorry i sold them off mr campbell says well what about chemists bills are cooperate or they're all gone i got rid of a thousand before i even got here mr campbell god damn that shows mr campbell is attributable to four hundred pills the original agreement he he can get hit with the pills not just for the substance of offense but for the conspiracy as well now going to the criminal history score that we've conceded that there was no intervening arrest some sympathy for the district court here because this precise objection was not in the objections to the p s r it was just raised in the heat of the moment and objection about i'm sorry the defendant's objection about the double counting it was not in the objection to the p criminal history score was in or what object are you talking about the objections of that incorrect thing or the objection that they're making i'm sorry i was just trying to lay it i was just my tongue tied so what happened was i'll try to untie myself the objection about whether or not these two florida conviction should be counted separately or together was raised in the middle of the sentencing hearing which is why we have such a sparse record for the district were to walk through for a one point two the government concedes that based on the records we have there is no intervening arrest and the district court didn't we argue did not have the opportunity to walk through the remaining two now there's no dispute that these two florida convictions resulted from a separate charging instrument so that's not on the table the only question is data sentencing and there is a discrepancy in the record of the government concedes that we don't think it's not terribly material discrepancy because the document that mr campbell's referencing is a probation violation report that not from the court and it was not from the sent court and it was not contemporaneous to the sentencing dates that are at issue here whereas the government is looking towards that the least for the first fraud that could be official clerks minutes in the second fraud for the sentencing judgment and these are the type of records that courts take judicial notice of the time we think that that could be a basis to that the problem here is that the district court never made a finding it's one thing if the distorts sifts through all this and you know there's a hearing and everybody argues it them it really gets focused on it's a hard issue like you said it's and for us to do that to novo here i mean if the court has its advantages it has pause given the record the appropriate remedy would be a real man in the district court can make the sexual findings in the in the first instance and make a determination a full determination under four a one point two and then we'll we'll have this dispute back down in the district court so unless there are any more questions or with respect to any of the other claims that the senate raises i'm happy to sit down argument i can perhaps like mccord i don't think that with a contemporaneous objection at the time you mentioned there you have to remember i'm sitting right next to mr campbell at counsel table during this time i know it's not in the record but he knew not to call it there i didn't make the motion to sever at the conclusion and i think that was one of the basis that you know the prejudice that happens now with respect to the vari conspirators were dropped off the second superseding indictment and perhaps in i don't know why but perhaps the government's attorney you know maybe saw that there were more conspirators and i don't know but i can tell you this you know if you look at the briefs sheet all the evidence in there sheila mccarthy intamin martin were not part they dropped i couldn't find any case law to address what happens twenty the superseding indictment when a number of the other defendants are dropped off but i can tell you this they  guilty all their judgments bear that takes a number of the case that i'm up here with mr washington thank you thank you incorrect because of his fears pulled money to purchase drugs cooperated to evade lone forstmann work together repeatedly and engage in high volume drug sales they were working is a group that did not have the separate conspiracies in place judge kaufman relied on the water decision it was a quite a bit of argument about that he took a recess to consider the wanted to says if you go to the warner analysis the warner decisions a little bit in this one because the one or opinion was on  instruction mr campbell asked for the instruction and it was denied that take these i want to get to about the pill count and judge should here to consider relevant conduct at the time of sentencing  the jury could have found that the conduct of the consisted of multiple conspiracy behavior and with that we will take your case under