somewhat unique and extraordinary case in that mr ginny's his substance of guilt was not contested what was contested both at the trial and at sentencing was the quantity of methamphetamine that was being attributed to him as part of the conspiracy for which he was convicted with the court's permission i'd like to proceed with the arguments in order beginning with the rule thirty five to the sponsor and struction that was given by the district court this happened the end of the rd day of trial and a four day trial where the district court gave the jury an instruction regarding cooperation the defense theory and the reason why this is being argued on a plane or a standard is because the defense theory was quite simple the defense theory was that the cooperating witnesses had a motivation and a bias to aggravate or embellish the quantities attributed to mr ginny's as part of their cooperation go she ations and agreement with the government the problem with the courts respond to instruction is that cooperation is based on substantial assistance standard which is a question of degrees of cooperation it's entirely feasible that a cooperate in witness could come into the government is give them the information on a low level drug dealer perhaps one or two grams of methamphetamines and that cooperation would not be theme substantial and therefore they would not get the benefit for that british when the district court instructed the jury on rule thirty five dollars it became less a matter of degree and more of a light switch type of analysis with regards to cooperation  and this this was not in significant issue at the trial because ninety six percent of the weight of methamphetamine that was being attributed to this huge unease and there i'm just talking about the five hundred gram professional with the conviction ninety six percent of the weight was based solely on cooperator testimony the only actual amount of methamphetamine that was seized by the government and weighed in this case was approximately one thousand grams of  that that maybe when the district court got into the discussion about it he said something like it's a regular matter with full cooperation cooperation fifty percent cut alice wondered if that helps the defense in the sense that the jury now had in its mind that wow i'm getting out of here they get a fall half off of their sentence and that further diminished their credibility well  honor i i don't agree with that respectfully because what the district court said immediately after that fifty percent cut and i'm quoting from the sort of spontaneous instruction was there's absolutely no assurance of that you know the district court came in and said that this was a spontaneous struction was to clarify a matter but if in fact if you read the wording of the instructions it didn't clarify anything except that the sentence it was a wide broad discretion for the district court and judge rather than pleasing the prosecutor and that's a significant problem because the defense theory was that these witnesses had a motivation to please the prosecutor i given them substantial assistance not the judge the judge in the last i thought they'd already been sentenced yes your honor but they had not received their rule thirty five motions but was no reason to please the judge well your honor  argument is based on that instruction that the district court gave it very clearly gave the impression that the witnesses had a motivation to please the judge because the judge was telling the jury that he would make the decision on what the sentence cut would be if that five motion or your honor that that's not my experience and i believe the district court actually describes the rule thirty five as a mysterious process to everyone except prosecutors and judges so perhaps the government would be better to answer that question but i will answer for my anecdotal experience which is that rule thirty five dollars motion is made within one year of sentencing and then it's sort of a process between the prosecutor and the judge where defense counsel is allowed an opportunity to comment but the actual recommendation by the government i don't know if that varies or not i will say your honor the my anecdotal experience and i think what was being argued at trial was  that the subjective motivation of these witnesses was the only issue at trial and their subjective motivation was to cooperate in any substantial manner because if you don't cooperate with a substantial manner then you don't get the benefit the government does not consider cooperation substantial this was the whole theory of defense was that the cooperating witnesses who again compose ninety six percent of the state and i understand the defense so what what would the proper instruction be let's maybe your answer will be no instruction but to the extent that the court thought there needs to be some clarification and understanding by the jury what actually is going on because it is actually a very complicated issue i mean out of that which you've talked about a sort of sounds you know overarching only straightforward oh it has to be substantial but you're talking about quantity that increase sentences that the jury doesn't necessarily get into so i mean it is a complicated matter and so what would your view be the proper explanation to the jury from the judge on how this works you're i think that's a very good question my answer to that was to that the government argues in its brief that there was a confusion that was that was caused somehow by the defense's cross examination and therefore the district court necessarily needed to intervene in my answer your honor would be its circuit model criminal instruction clive if the court felt the need to jump in it should have given that model instruction and the reason why that's important your honor is because if you read that model cardinal instruction it squarely puts it in the jury's decision question in the jury's determination it says whether or not to cooperate in witness testimony may have been includes by his desire to please the government or strike a bargain with the government about his own situation is now if you take that language and that wording and you compare it with the instruction that the court gave it is full of the pronoun me at the core the judge says it's entirely up to the judge that's a that's a quote from the district court since it and so the court also said so there's a very wide range of discretion as to what the cut would be if any the problem is you're under the model criminal instruction squarely puts it in the jury's province and the district courts suicide instruction with it's not a model instruction put it in the the prohibited person in possession of the firearm and in the opening statement is the brief states it was conceded that mr ginny's have engaged in methamphetamine dealing with what was contested was the amount and that's why i believe it's p this is a problem that probably a dumb question but if the if the preponderance finding of quantity at sentencing was correct why does this issue matter that's a good asking for it to further up your nd argument is is plain error in increasing the drug quantity without adequate findings but if you lose that argument my question is why this is why does this instruction what was the significance of this instruction thirty five ish your honor because i think it is affected the entire trial and i think it tipped the balance in favor of the prosecution and therefore it would be an issue of asking the court to remain for a new tr to not believe the cooperating witnesses or they were to scrutinize the the amounts being claimed by the cooperating witnesses and the mindset that quantity was less than five hundred grams we would have a different verdict and the reason your honor is why this is an issue and not merely an academic exercise is because as the government sites on its twenty one of the three i don't think give the example of one of the cooperating witnesses who test there's two issues with this the st is that this is a drug transaction where my client wasn't even present which means that those two criteria could be applied differently in contesting that specific amount the other problem and  problem with there not being factual specific factual findings in the record is did the district court apply one hundred and thirteen four grams or did they apply four hundred and fifty three fifty nine grams in that one piece of testimony when the court refers back to trial testimony it's still unclear there's no specific factual findings for this court to review to say we understand the factual findings they do have a question because as i understood d that and that was sort of the end up and so just a part wasn't really given an opportunity to put to rest any particular concerns that counsel had about whether it whether it was the issue you are raising double quantity at trial differ so wildly from the from the question of quantity at sentencing to begin at trial it's really at the threshold issue of the mandatory minimums at sentencing it's which got a line to apply and so those are those are two different two different issues and so the objection to quantity was consistent throughout trial and sentencing which was mr ginny's as objects to the testimony of these cooperating witnesses because they are incredible in sixteen to thirty two and i'm on the sixteen i'm just saying that was the actual weight methamphetamine the court was was free to find by preponderance of the evidence using one b one point three what amounts it trippy to mr cheney's but under the there's a swing or a difference right there in that one piece of testimony of over three hundred grams so i don't know if they fully answered your question your honor but but my answer would be that this was the district court was on notice from the st day of trial that mr g subjected to all the in the lives that were being attributed to him and therefore the district court had a responsibility at sentencing to apply the correct criteria one people one point to be and to make specific factual  you have a quick response to judd bed's question yes yes or no on control robertson no your honor robert previously judge kelly you had asked about whether the instruction that the court gave during trial actually may have been something that assisted the defense and i submit and i believe that that's the conclusion that i've reached also i situation where it was not just the court talking about all d the different things that the court would do with a rule thirty five motion in the will thirty five process the what actually occurred was the court instructed the jury you've been hearing about this rule thirty five you've been hearing about these protections and here's how it works the united states has to make a decision about whether these cooperat after it had done that that's the point where the court went in to look that it's up to mate so this wasn't a situation where all discussion of how hopeful these witnesses are and how helpful they're trying to be all the different motivations d that they d might have for cooperating all of those d were in the instruction that the court gave in the middle of trial these things  said look at the transcript it was a situation where defense counsel was asking some questions about the witnesses and their levels and how they're trying to keep the united states happy and certainly those are fair questions i think it just became a little confused and confusing when defense counsel went into how happy they were trying to make the government and then at the sidebar counter exam for the court had given the instruction of course really difficult issue and it's very hard to explain and new lawyers out of this works much less a jury and understanding how our witnesses may or may not be motivated particularly when you're slicing it as then as as to quantity so do you have a recommendation on what this instruction eight should have been or a better one would have been in this particular context well your honor the court had already given i believe the instructions were given before the jury heard the evidence they had already been instructed in the instruction i believe that the situation developed during the trial during the cross examination of harold brewer and salman rourke with i believe is i believe it's fair to say that defense counsel maybe had a misunderstanding of what the whole process was at the rule thirty five in the rule thirty five process and so some of the questions were a little confusing and the witnesses were confused and the answering differently than i guess counsel had expected so at the sidebar conference a conversation was had and i believe the district judge as defense counsel or there was a conversation about the prosecution making a specific recommendation for the amount of the cut and i think that is really what was behind the instruction that is now in telling your district that the government does not make any recommendation division and the central and northern divisions of this district and that's where our practice i have been drug prosecutor i've had drug cases and i've made a rule thirty five motions i believe that it's fair to say that in the western the united states and then it's up to the court and so when judge but i can make that comment during the trial about there's never a recommendation that's consistent with what i know and what i have seen i believe the same in the central division but i can speak primarily to the western in front of judge like it because that it's so it's interesting if we're talking about cooperation incentives for witness it this is a very this is  rd special category the rule thirty five right so you the cross examination would be different if it were five k because that i think it i guess in your district that the government does recommend a percentage for for a five k reduction at the time sent thing or an amount your honor i don't believe that that's correct actually i think we used the same process and it's five cases actually in my experience from what i've seen are quite rare because the cooperation is so seldom complete by the time of trial or i'm sorry by the type of sentence counsel counsel let me ask you just a very basic question boy most judges would refer back to the obstruction or  refer ahead of those structures or something but some way just use the model instructions and if you know how you can use emphasis and tone of voice and everything why is that the way this should be done is with some version of the model  structure that this court is a person because you know many times i certainly don't disagree that that could have been done in this case i look at the district court's instructions here and obviously defense counsel and i see it quite differently but i see what the judge said as really quite knock you didn't say a lot it just jury here's the process you're hearing about this rule thirty five to hearing about this cooperation so let me just tell you how it works so you don't have to sit there and you certainly the district court could have given the model instruction but here it course oh ok well thank you very much i didn't i then i completely misunderstood let me get it for enemy put it the so you and i are in up on the same wavelength here yeah yours is more of a did not object on that the district or didn't even say i find x y and z witness credible i watched them testify and i credit that quantity to this particular defendant so we don't even have that kind of cursory i saw one it i believed it and i believe we do your honor i believe in the simpson hearing the district district judge said i'm referring back right thinking back to the trial not to dance on the head of the head but to remember it well it's not necessarily too and therefore i believe in some ways you could say i remember that very well because i thought it was outlandish or not  the other mileage were based on the coconspirators the other people who testified about him and so it seems to me that the district court was directly referring to those people by that reference it was not a specific finding that corners instructed us twice in the last three years or so of the very very few guidelines sensing yours are harmless because because sentencing starts with the range and  the district court i i don't recall seeing a case where the court d had to cite to each individual defense this court had a full trial record before it and had the pre sentence investigation or i know there was an objection to expand i don't recall even seeing a single thing in any objections filed by the defense specifically citing guideline section one b one point three which is the relevant conduct guideline what was discussed earlier but here the evidence that was cited i've listed out number of the witnesses in bullet points on page orders based on a briefing and the court record before the court the united states asked this court to firm the district court's judgment very good think all the negro supports my position because in both the negroni this court affirmed the giving of the bottle instructions and the issue was a defense proffered instruction that was rejected again coming back to the courts point i think the appropriate instruction if any was the model instruction and not the homemade instruction you're nd of all your honor we nd point i want to make is that the trial testimony was incredibly different than sentencing correct sample if you look at the record the government asked one of the cooperat witnesses to estimate the amount of methamphetamine that would be on the legal counsel counsel weeping over this and i had that's not that's not true but it was just the last word well i'm