level and handsome and for witness intimidation contend that he should not get that enhancement because he it is really based on jailhouse rumor and it is based upon unsubstantiated statements from these informants or from unknown persons part of the basis for that is when and unknown inmate a guy named soldier told an informant that hey washington put out a kill coyote on you the court never questioned this inmate named soldier we have no idea who this person is we have no idea if he's a real inmate or not and it is true that i believe that was lawrence nelson who did testify to that who did say that this other inmate soldier told me this does not make what soldiers reliable does not make it an appropriate basis to enhance mr washington sentence by two levels and along the same line and another basis for that enhancement evidence if you call it that it lacks context it's vague we don't know what was said if somebody is going to be enhanced for witness intimidation we ought to know what was said we got to know the words that were said that were intimidated in that were intimidating him another basis really the the other basis for this  informant was an informant stated that mr washington told him hey one of my co defendants can't testify against me because the guy's got some prior criminal conduct that's it that's not intimidating that's probably the case in you know fifty percent of the federal cases in court yes it was a little more than that because as it's recounted in in paragraph forty two dollars it was a washington also told us yes we now we know who it is that one of his co defendants would not cooperate with authorities because washington had information on him that the codefendant had been involved in the homicide so in other words he was he'd better be careful or else i'm going to testifies against me i'm going to use this against him why couldn't the district court find that the enhancement applied based on that kind of a common well i guess st of all what is interesting about that comment is that we don't have mr washington saying to a codefendant hey you testify against me you know i'm going to open up this can of worms for you but you don't do it we do not have that we have mr washington telling an informant you know if the codefendant testifies i've got information that that could be used against him and so i think again we've got there's a context issue and there's an ambiguity issue  yeah he knows information that could be helpful as you say and it could be helpful at trial pretty pretty common for defenders to have information about about informants and to tell her attorneys hey look into this or question him about this i don't think that there's anything about that that that you could hang your hat on to give this guy two level announcement don't those go more to wait unlike your argument with respect to soldier where it's an issue of threshold no indicia of the liability  arguments on this other theory really go to weight and and we've reviewed this only for clear errors that correct i don't think so i think there's a threshold in there some way or even as to weight i mean talking loudly telling  telling somebody hey the guy testifies against me i've got information on him that i could use that's not if you don't have any threatening statements to a to one of the co defendants there are no threatening statements mr head i don't believe could explain this threatening statement was made and that's what's required for a witness intimidation somebody has got to be intimidated and instead what we have i mean the odd thing about this is  here's mr washington he's in jail pretrial for i believe close to and between three and four years and what we know about him is he's a model to me ok jail deputy says that this guy is a model inmate he picked up some piece of tile which was could be used as a shank he returned that this guy and he's a trustee right those guys are allowed to go with freedom throughout the jail serve people inmates and do whatever at the jail so you know i just think that witnessing the intimidation it is it doesn't it's not even for weight if there is a threshold there and it hasn't got to that threshold we don't have the actual statements  begins with the premise that for there to be the leadership enhanced meant there is required an exercise of control that you're controlling exercising control over people and that is in essence the crux of it now we have what i refer to as the insider witnesses and essentially i think it shows really mr washington having these ad hoc relationships with individuals or group of individuals involved in either getting the drugs or selling the drugs is that conspiracy right right count one the count one conspiracy that's the one where you argue there should have been would really have no practical effect on his time in prison what well you know all these other convictions for three sixty's or nine or whatever was right i mean there are the all the individual convictions and i'll ations i believe in two thousand twelve the individual sales violations as well as the count two conspiracy and you know count one what i would say is i think in a global sense in terms of presenting the sentencing case that it could turned the corner on this turn the back on this and had had a lot of support from his family so the answer is that i think that some of the could some of the drug quantities still be used under a relevant conduct theory for that count one that's possible there's also a lot of vagueness in the testimony of these individuals of the insider witnesses about exactly what was what were the quantities what was being done and and sort of reliability issues that connected them so that's count one you're not challenging count the count trues i'm not challenging count two on the on the grounds of the late year issue the other issue that comes up which really goes to both counts is this issue of the court refusing to give any sort of a read back of mr mack's testimony and it is an abuse of discretion standard but i think there are there are some interesting little twist to this because mr mr mack and it's present from the reading of the transcript it was hard to understand everybody was saying can you please repeat yourself can you speak up people had trouble understanding this guy is testimony was or was what some of the earlier testimony in the case it went on for a long time when the jury wanted to read you know basically the jury's going to determine mr washington's fate for the rest of his life wanted to read back and wanted one of this evidence but i think it's a little bit shocking that somebody facing such dire consequence in the jury's trying to make this important decision couldn't have this under those circumstances i thought it was a little i just thought it was a wrong decision and the main concern about it being cumbersome court reporters as we know bring stuff up all the time they can take a brain that back the importance of it in terms of the concern of perpetrator and the court said that you couldn't just read back the child's testimony because it would just unduly emphasize one side of this you don't still have that is here and this is just it's an important informant that was somewhat successfully challenged in terms of his credibility credibility issues so i'll reserve the rest of my time  ask you about the lay fear issue you outlined five potential conspiracies in your brief that you consider you know could have been found by the jury and that gives rise to the specific un problems right how many of those five conspiracies involved crack cocaine i may have to check my notes for that and just going through your brief it appears to me and i think you have this correctly that only one of them does which is conspiracy number two the other ones that you have in your brief all involve either her wind or powder and given that the jury made a specific  conspired with respect to crack doesn't that mean that at least we know that that one conspiracy was unanimously found meaning that this did not affect substantial rights under plainer view you know save the tough questions for a while i think that's one thing about the quantity the drug quantity instruction is it does refer to conspiratorial in the plural it doesn't limit it limit it it doesn't preclude i don't think it does preclude the lay peer issue just because there we can't assume they just relied on we're focused on this crack of the soul or the crack issue but if it says on the verdict form it says if you found the defendant guilty of count one do you find beyond a reasonable doubt that the defendant conspired to distribute or to possess with intent to distribute cocaine base known as crack cocaine yes and if the evidence only permitted one conspiracy as to crack you may be right that the other stuff is tainted but that count one can stand on any of the drugs and we know that the crack has only one conspiracy and that woman is found i would say that quantity was found in same thing about quantity actually that even though the instructions said quantity they wanted quantity on heroin i don't know why the other one they just were asked to find that it involved the drug and they did make the finding unanimously right that it involved crack cocaine specifically involved i guess my take is it doesn't preclude still one juror good morning your honors jason hit on behalf of the united states i want to briefly respond to some of the questions the court had for mr warner and kind of cutting to the chase i think on the question about would it make any difference in this case mr washington will be three hundred and sixty to life under any scenario so if count one were vacated for example it's still undisputed that he has three predicate qualifying felonies for career offender so even if some of the enhancements fell away for example thirty seven dollars and six dollars will be the default because it's the crew offender guideline and that would be true of the conviction on count two which is not challenged with respect to the specific questions that were raised on the two level increase i may have made the burden harder on myself than i needed to i was reviewing some cases and if the court finds that the question raised is the application of the facts to the sentencing enhanced mintz as to leadership and intimidation in gasco court found that that's an abuse of discretion standard i was looking at it as more where the facts reviewing the facts the district court found that would be clear error so if it's under either standard which or both deferential our position would be we prevail but i wanted to alert the court that i may have messed that up in formulating the standard of review with respect to leadership i do think it's worth correcting that under this court's case law control over others is not required and in the doe case organizer for purposes of enhancement is a defendant who has the ability and influence necessary to coordinate the activities of others to achieve the desired results and what the evidence showed in this case  leadership in both conspiracies was that mr washington was very adept at developing large scale suppliers which put him in the position to set the prices for the downstream distributors like mr mack and in this case the count to conspiracy i think it's almost undisputed that there were the maximum number of participants needed for for level enhancement and that the jury found overwhelming evidence of mr washington's leadership and the court was well within its discretion in finding that enhancement proper  about count two conspiracy in the sentencing it's a little less clear the district court i think pointed to both conspiracies as supporting it and i argued independent lead that both conspiracies would support it i think the district court's finding in the sentencing back issue that mr warner raised and in this case what's worth pointing out i think different from what's in the brief is the undue emphasis was particularly important here where you had five other cooperating witnesses  testified different from mr mack in addition to mr mack when the court was weighing whether to permit the read back i think it's fair to say that the court exercises discretion appropriately by saying i don't want the jury focusing on just one cooperat five others also testified it's also worth pointing out that as to count one mr mack was not a critical witness if the read back had been from mr nelson's testimony for example it might be a closer question but mr mack was a downstream distributor of drugs from mr washington and i'm not sure in light of the colloquy i had with your opposing counsel that that's true because if count one is saved from a specific unanimity problem only because of the crack cocaine conspiracy mack is quite central to that issue and so the notion that you can sustain this without regard to him and that he's an important doesn't seem to fly in light of that obviously the jury credited it it was direct evidence of a multi year drug trafficking where mr washington was his superior and in fact recruited him to shift from crack cocaine to heroin later in the conspiracy because heroin was more profitable and he told mr mack you should start selling that drug because i'm going to make more money so i think given the standard is abuse of discretion and the district court clearly articulated this court s requirement for making a finding that under the influence or emphasis would be a problem i think the court acted well within its discretion to not permit the read back the final point i wanted to make on the single issue unanimity question it's important to no that mr washington's defense in this case he never asked for this instruction and that makes sense because he didn't argue with the closing argument a defense counsel really focused on the believability and credibility of the witnesses and given that defense there was argument of ladies and gentlemen you can't find that he was part of this conspiracy as some defense counsel have argued and that that can be an effective tactic that just wasn't mr washington's defense in this case and the single issue or the un bases this soldier for whom we don't really know anything about him and then there's this other comment that i've read from paragraph forty two about i've got the goods on him on something else if he testifies against me paragraph forty two it's referred to as a c s you say and you're briefed who that person is and you say that defense counsel know knew who the person was the problem though is no one ever told the district courts of the district court didn't know that it actually had heard from that person and could have been evaluated is dead but you never told the disk so we can't can we do anything with that in assessing the district court's finding when the district court had no clue who this anonymous c s was even though it had been a witness at trial i think well in fairness to mr warner he was not trial counsel he had substituted him before sentencing so it's possible for him it may not have been readily apparent who the c s was and i don't know that you can infer the district court  didn't know who it was if i remember correctly i have to review my sentencing train sentencing memorandum i may have mentioned specifically these episodes certainly as to the soldier and the kill kate and the hit that came out during trial right but i am referring to and with respect to paragraph forty two i think the court given that i may have screwed up the standard if it's abuse of discretion or if it's clear or i don't think the district court clearly urged or abused its discretion in making that finding based on the the facts reported in paragraph forty two and there's one important clarification in paragraph forty two it mentions not only that washington and the co defendants were heard loudly discussing the case this is the critical part and washington warned them not to cooperate with the government and that's where the district court was well within its authority to rely on that reporting in paragraph forty two and i think independently both could be and whether the district court made the connection that thirty seconds that i have yes of paragraph forty two does mention loudly discussing and warning not to cooperate with the government and i still think that this it rises to the issue of threshold whether this is intimidation this is this is standard stuff that goes on at the jail with a bunch of guys in their case talking together at one of the tables in the lunchroom do you know whether montoya is identity is the c s in paragraph dollars which was disclosed to the district court i'm not aware that it was and then in terms of the lake here issue i'm sorry i'm almost out of time but  year was a plain error case so i know that this issue this he says this wasn't argued but late there was a plane error case and the court in light beer was very solicitous of the right to a unanimous verdict  and it came out and reversed the court said that we had essentially no idea how well the jury would decide this and that we did not know what acts form the basis of the conviction and we're not going to speculate what a jury might have done so late beer was a plan or a case where i would i would ask to provide the court with a supplemental letter brief on this issue of the crack cocaine