now we're going to switch venue for our video input i think we're going to stay on the bed and what happens if it's always like a minute or two thank you good morning the video will now be coming from buffalo but let's wait until we actually have counsel there  court my name is julian harrington and i represent jose martinez i was assigned by this court to represent mr martinez on direct appeal i did not represent him and the district court below as your owners are of course aware we raised five issues in mr martinez appellant brief we started with the sufficiency of the evidence of the conspiracy the narcotics conspiracy basically they were there were at trial there were two sets of charges here we had the drug conspiracy and we had the murder charges there were several charges related to the murder and mr martinez was acquitted of those murder charges and convicted single conspiracy yes the single conspiracy  that is my recollection i'm pretty sure that there were others who had pleaded guilty and were cooperators at this trial yes and so mr martinez before you is only convicted of the conspiracy although he was sentenced based on the acquitted conduct and i'd like to address that briefly a little bit later we'll start with the sufficiency of the evidence mr martinez had presented  we don't call it defense spend it the buyer seller he had asked for an instruction on the buyer seller relationship and that instruction was the request for that instruction was denied by the district court  what the argument here is that mr martinez was selling drugs to quincy turner who ultimately was the victim for which the murder charges arose he was selling to mr turner there's no evidence whatsoever that he was in were the buyer is buying for personal use typically when we envision giving that charge that is typically where it has been used but i think this case would be the perfect example of a case where even though these were larger quantities that this case demonstrates all the reasons that the buyer seller instruction was formed we have mr martinez who was selling directly to one person  no evidence that any member of the labor organization even knew him they used in fact mr turner it was there was testimony mr turner used eliot says even when referring to mr martinez called him rick also fronting drugs and our case law does recognize that fronting suggests a joint interest in the downstream sales and in those circumstances i'm not sure how you can say that this qualifies as  seller relationship limited circumstance that is judge who points out has informed our precedent what do you how do you deal with the fact that there's evidence of fronting here i mean you've got quantity you've got repetition you've got fronting all circumstances that we have said typically take it out of the buyers and large quantities right again under this factual scenario and those are factors of course that this court has recognized in this specific factual there was some fronting there was testimony at least that there was fronting or consignment as some people like to call it i argued in my brief that that just demonstrated of the relationship that had formed between turner  and mr martinez that had nothing to do with certainly the quantity and the front it's not use of once you front you have an interest in downstream sales taking place because otherwise you're not going to get paid and at that point you've got more then everything's done when you sell you have the ongoing continuing interest that that allows conspiracy to be family but the fact that these two there was just the connection between these two mr martinez didn't care and that's debated i know by the government that he's part of course but i'm focusing on even what you say i don't see how you can say that this could support a mere buyer seller relationship well the relationship is between mr martinez and mr turner mr martinez has nothing there's no evidence that in fact when mr turner was doing  sessions with the government and mr martinez's name came up one of the agents testified at the trial that he thought that turner may have been lying because mr martin is a name never came up he never appeared on the cameras he never appeared  voice was never heard on the wiretaps he's not mentioned in the wiretap after the events he was never a part of this case there was an established relationship based on the evidence here between turner and martinez and that's all i guess i'm just i'm having difficulty given the quantity the understanding what distinguished this case from from another large scale conspiracy that was similar features i think that the factual scenario here and i think it's important that these tape cases are taken on a on a fact basis case by case basis the fact that mr martinez was so segregated had nothing to do with the leaper organization and you know and that brings us to the point where this court has said that if a defendant requests and instruction no matter how tenuous the defense may be he should get that instruction but there has to be some foundation in the facts and i guess i'm having difficulty seeing why this is why your construction of when the instruction is appropriate wouldn't be true almost every  narcotics case i don't know that it would be on every it may be maybe in more cases than it is given you know if we go back to our elementary school concentric circles you know we have the leaper organization and we have mr martinez mr to point out we are not immediately assuming that this is a leap or conspiracy because that need not be with the jury found i don't think it was the government's theory in the district court think it was and that was an argument that we made also in this point was that we don't know which conspiracy and in fact the government never locked itself into one there was no bill of particulars ordered it was it was denied on several occasions and then when the government charged there was nothing specific as to what this conspiracy actually was was it some conspiracy or scope of yes and who the players were and so again we are left with is there any evidence that mr martinez dealt with anyone except of in fact several of the cooperators sad that when mr martinez walked into court on the superseding indictment because he was not included in the n f l indictment they didn't even know who he was and there was also testimony that when mr turner  containing a large sum of cash and the federal express package arrived without the cash in it and i think that's when and then there were products supply issues as well i think around the same time i'm turner had then turned to another man who happened to be mr martinez's brother and then mr martinez stepped in and became have gone into the government but he wasn't a member of this conspiracy for the four years of the investigation and any of it and only joined if he joined at all toward the end of its life the scope of this conspiracy while the the argument was that for about six months i believe that he was supplying and that would explain why no one recognized him or knew well it was ongoing you know it was ongoing surveillance there were cameras outside of labour's home there was the wiretap surveillance they did twenty four controlled bias and counseled the government to to name to to describe the conspiracy and asked for a bill of particulars and never got that information from the government is never correct absolutely and this was a very lengthy trial it was a nine week trial almost a six thousand page record a very large number of witnesses cooperating witnesses all the government's case the defense to put on it continue or give you a little more time because we've asked some questions you have more issues ok think you actually unbelievable to me to be honest with you our criminal justice system is based on the jury it may not be a perfect system but whenever people say that us as officers of the court we say find me a better system if you can see established by supreme court absolutely and i can see that and that he was not sentence beyond the guideline on the statutory range for the drug crime of conviction right when he got life in prison yes and that was at the end of the statute but the judge made it clear dander for deciding whether he was involved in the murder was ponder and set sentencing beyond a reasonable doubt it trial absolutely because we give the government a second bite at the that's not a second fight because it's not it doesn't have to be proved to the same degree and it's not going to result in any independent sense i mean we have a statute that says the district court must consider all fac relevant to the defendant his character the commission of the crime except ones that are invidious and that's why the supreme court has said it can be considered what's your reason for thinking it can't be because well i'll give you an example last night i was having dinner with my daughter who's thirteen and she's taking american history and she asked me what kind of case you are going tomorrow mom so i told her the story and she says to me she asked a very interesting question that i'm embarrassed to say i had never thought of she said well what if the murder was the only charge that was presented to the jury could the judge then have set that aside and said i think that you're guilty of not so i'm going to chime going to sentence you on that anyway now i said no of course you can we have your client is being sentenced for narcotics conspiracy in the course of which the judge found by a preponderance that he had attempted to kill a co op or he did arrange the killing of a  a cooperating witness but that year and that's it and that's the basis for the drug crime that's a more serious drug conspiracy than if no violence it ever informed but the a judge should be allowed to reduce that sentence and obviously you know judicial minds are going to differ on that on this question is that whether or not the judge should even be given that opportunity to use the preponderance of the  good morning good morning thank your honor again for the courtesy may please the court monitor richard the united states in this appeal regard to the sufficiency of the evidence it's clear that here a defendant may be guilty of a conspiracy even if he knows only one other member of that conspiracy whether or not the buyer seller instruction should have been given is a question which i don't think requires much attention at all particularly in light of the fact that here there was given a multiple conspiracy charge what multiple conspiracies where were you referring to what was sort of it was with you throughout this case what was litigated was indeed the question of whether or not this conspiracy consisted of one or more conspiracies and that's was something that was litigated all along and what is the government's position now was that one or more conspiracy this was one conspiracy what conspiracy from the beginning from the leaper organization mr martinez was a ways part of the leaper organization that you're now i'm going conspiracy around to respectfully so at some point he joined the leaper conspiracy and that's with the facts here established in fact once the original source straight up from california instead of mr martinez and he then became the source for this continuing conspiracy whether he knew about things the members of the conspiracy have said relevant as we know but once he joined he was in it for the for the for the duration yes and that's demonstrated by the amounts that were provided that demonstrate is your honour's already noted with regard to that fronting in some instances of why did the government resist giving a bill of particulates in this case i heard reports discussion on now your honor i'm sorry that i'm not prepared to answer that i believe that that again it was something that was litigated throughout and the district court must have i i don't want to say much i'm sorry you trial counsel oh no ma'am no i was ok sorry the district court rejected the idea that your the case did i misunderstand not not no i think that the characterization is tricky only because the continuing nature of the sales that we're continuing under you know if we looked at leaper down in this organization that was something that went on for definitely a longer duration than the moment when martinez stepped in but that was the six months and that was the top down nature of it it's the way the investigations work it  typical that we the law enforcement first determines who would be on the street sellers are and then work their way up the organization that's not atypical and i'm sure in the scripts experience and so that here they are looking  i believe it was check the p s r but yes so that the but the timing of it i mean i am not disagreeing with the court's indication that this was a martinez conspiracy but it was from a certain time forward to six months in wh source with regard to the buyer seller did that and that's where this case that's where the district court certainly committed no error and declining it gave them multiple conspiracies charge but a claim to give the buyer seller exception charge and that's certainly appropriate here we're not talking about somebody who is an addict a drug dealer buying for personal use we're talking about a relationship where this defendant writein is was supplying large quantities over a generation that he knew were going to be so based on the nature of the fronting so that this fire except buyer seller exception to certainly it had no place in this case come to you did say you did not try the case i did not your honor  and counsel also made some complaints about their turn over documents at the appropriate time to the trial were you aware of that read the brief of course oh certainly with regard to that matter yes your honor i'm familiar with it and the district court addressed it a gave instructions and provided additional time directed the defense divide to excuse me directed the prosecutors to do an examination to look and make sure there was nothing else that was missing and that happened so that those things sentenced that's what counsel said at the sentencing colloquy ninety eight months which i work out to a little more than eight years and i was wondering why it took that long to bring t a number of circumstances present here and i'm sorry if i didn't know any concern in the trial brief with what sort of who preferred it stands out in this sentencing colloquy ninety eight months he was incarcerated before he was sentenced and i was wondering if the government knew why the west to district has some issues with speedy trials i was just wondering if counsel had an idea why i appreciate the court's question concern but i am not prepared to answer that if that's something that should be addressed in a post post argument brief i would certainly do that of course but i'm not prepared i'm sorry to answer that this is simply is the court would like right now  again with regard to the sentencing man with regard to that sentence that was imposed here otherwise the district court's consideration of the acquitted conduct is something that is it has been admitted is something that the court can and should consider here i would only note also that the elements of offense are tried by a jury but facts relevant to sentencing may be found by a judge for a preponderance of the evidence and here he had not only the trial evidence the district court judge presided over the trial and heard the testimony but he also had the plea agreement is noted in a sentencing proceeding as relevant he had the plea agreement the codefendant wanted to give this santiago and that's cited by the district court and it's sentencing decision that's in the record here at pages sixty nine through seventy one where the judge outlines the additional facts that were considered to be  quincy turner what he says is not front of the defendant is that correct i again would have no answer that's the same question but i trust your honor is a review of the record with regard to that i just know