thank you may please the court good afternoon the supreme court free man in this case for further proceedings concluding that the ninth circuit decided because the indictment and the government stated view there of limited the charge conspiracy to the preseason or involvement now we've i'm not going to go into great detail on the facts of the address those you could not create liability for post she's your involvement the government never attempted to do so cruise did not prevent cruise did not force the government to plead the case the way applied a cruise did not force the government to agree to try this case with the jury instructions get they conceded to those instructions which had the very important time element of when the defendants joined wasn't cruz important in what occurred because the judge you have a first jury trial and a conviction and then the cruise issues raised and the court granted a new trial based on that as i understand this so the crew was important and i think the the district court and defense and the prosecution all felt at the time bound by cruz correct whose was important in the case however about a date uncertain but by november eighteenth each of the defendants including my client lopez did knowingly conspire they completed their crime of conspiracy by the eighteen not on or about the eighteen and in every mall and most every indictment i've seen it's on or about and this circuit has long recognize the importance of pleading on or about  of the oral argument before the supreme court where the solicitor general's conceded this the only way the government can attach conspiracy liability to my client is on the theory that he was recruited after that time after the government became involved and strickly to participate in one load that with their concession at the supreme court now that puts this case in an impossible quandary if that is the fact if that is the truth then the jury in this case would have had to acquit my client because the judge told them to bed the instructions and the prosecutor argue to the jury if you conclude that the this young man was recruited after the fact for the one load he's innocent that was the agreed upon issue at the second trial in this case they willingly accepted that burden to prove he joined beforehand or b he joined a larger conspiracy and now we have a concession based on this court's fact findings they did not prove either of them so that's the government stood before a jury in boise idaho and said if this young man mr lopez was recruited after we became involved for one load  premised on cruise i possibly premised on cruise it's premised on the indictment also yes like i said we are crewed was prepped president vining president at the time of course we were supposed to ignore cruise however however cruise did not force the government to agree to that issue of trial because because cruz said in these strange circumstances like these sting operations the government can still charge someone with attempting to possess with possession or it could charge a conspiracy a conspiracy that actually existed at the time so there was nothing to stop the government even under cruised from charging the us that on or about a date uncertain but by november nineteenth after we seized the drugs my client became involved if they take charged it that away then we have a different case and we know we have a different case because they stood in trial and said that is the essential formulation of the issue before or after it's in the pleading we've given it to you in the export of records i cited in my briefs they said we agree with the essential formulation of that issue when did he join that is the critical component and i would further like to cite that now in light of the way the facts actually panned out at the trial and given the holdings of the ninth circuit that the government failed to prove preseason or involvement on the part of responded courier's my client the indictment might have more accurately been written to say that and i'm reading from page forty of my ex or it might have more accurately been written to say that on november eighteenth at least a conspiracy was formed them by the the case relied on previously in the ninth circuit styron versus united states that three sixty one united states two twelve and which the court says that it may not a court may not broaden the scope of the indictment with the jury instructions it lies entirely within the province of the grand jury to amend the indictment that is the holding there and may please the court counsel whether there is sufficient evidence of post seizure involvement by reseal in a conspiracy this court having previously determined and concluded that preceded your evidence was insufficient we need not revisit that issue what this court has to do it seems to me is look at the evidence in the context of whether the post seizure activity implicate reseal in a conspiracy and in that regard i would urge that it's as this court analyzed the albeit with respect to judge gould who just agree with that opinion and order is correct and would remain correct i would also submit that one of the questions that we have to face here ought face fears the question posed by judge fletcher in her across  jeopardy provisions would preclude the second trial well i appreciate it pressure but i think think i but if you look at the evidence from the first trial regarding cruise throwing cruise out you're still looking season and i think your conclusion would be the same the value of the evidence that was abused to show post seizure activity would be the same and so i think your math or your judgement of double jeopardy would be supreme court in this case and it's a great author and and all of that but what we're talking about is did a jury receive element of sufficient to convince a rational driving off with the truck mr reseal was driving off with a truck and he drove a circuitous route and he had a fanciful story when he was stopped in and stopped by the police and asked one of the elements of evidence assault there's the telephone hollister's the driving off with the truck there's the fact of the possession of the truck there's the burning marijuana and and again i i smell burning marijuana that i've not i've the car being driven burnt marijuana in the car driven by mr copas not by mr reseal we know that there were some non owner insurance and and quite frankly again with respect we call  terminus in the first instance whether that evidence was legally sufficient whether there was evidence and and quite frankly it was found wanting  wasn't really home that eve of a fact that would allow rational jury to conclude that it by itself or it in combination with some other factors meccan indicate mr rhys you always involved it was just a fact but it's is probably fact and so we can't just let the jury rummage around that's why we have the reviewing court i think that's what this court did in its analysis and west through all of those and all i'm suggesting is that if you will take the same an said he might have had it for any other per see might have had it because he was the only guy whaley it who knows what he had to prove a part of the conspiracy hell phone calls that were to hear in there that were right into other people is of of being involved in the conspiracy is the fact that he was driving off and told a goofy story and clearly it was a goofy story but it's everybody that tells a goofy story become guilty of being involved in a large disparity with mr r c recruited at the last minute he went to arizona and drove after that with the ten or twelve million dollars worth of doping a vehicle and everybody accepted the proposition that he was just a bit player why couldn't these two young and have been recruited to last minute just to go get a truck why did they have to be told that it was full of pain and twelve million dollars worth of they were going to drive twenty five or thirty miles not from phoenix arizona like mr r c so i submit that on a just community gets rather simple what we're doing here today and with respect to some of the other arguments i think i think it's district court below as well as the briefing in this court makes it clear that the only significance that the timing of precisely when resealing lopez joined the conspiracy was predicated soley on the crew's decision at the first trial the jury received the standard conspiracy instruction and that as struction was that the government had to prove that first beginning on or about a date certain but by november eighteen thousand nine hundred ninety seven there was an agreement between two or more persons to possess with intent to distribute or distribute drugs and secondly that the each defendant became a member of the conspiracy knowing of its objectives and so forth that's the standard conspiracy jury instruction of this court the that language is standard charging language that has appeared in literally hundreds of indictment i cited the lake in case which is a previous decision of this court in which that is not the way that this court has traditionally interpreted this very standard charging language it is in interpret it the same way the district court  when it instructed the jury with no objection from the defense which was what the government alleged was that the conspiratorial agreement had come into existence by that day  honor i have to say that that's not the way that that language has been interpreted by this court previously that's not what the government meant and that's not what the district court instructed the jury the district court instructed the jury that that language means the conspiratorial agreement came into existence by that date not that every defendant had joined by that date the jury instructions that if i have this right that the jury could guilty of joining it when your honor in the second trial when the cruise instruction was given which is what you were just reading from instruction twenty four i believe for the smaller conspiracy under crudes this is where this timing issue comes in from cruise only the government had to prove either that the defendants joined by the time the drugs were seized which by the way was not just november the eighteenth it was one eighteen am on november the eighteenth that's what the government had to prove in the second trial on the smaller conspiracy theory there was nothing like that in the first trial and i would point out that even in the second trial the jury was still instructed on the basic conspiracy instruction from this court exact same language just from the first trial and two that was added the special cruise instruction the arguments that the defendant made before the jury in opening and closing in the second trial in their briefs in their post trial motions for judgment of acquittal of the focus on the timing issue was not just the eighteenth in general it was one eighteen am on the eighteenth when the drugs were seems and it was predicated on the cruellest based rule that upon the government seizure of the drugs the conspiracy in this period in fact i believe it was defendant mopeds who argued to the jury in closing argument in the second trial that even if they that once the drugs were seized the conspiracy has and it is impossible to achieve the objective and even if a third within it admitted to receiving a call on the one think that november and knowingly picked up the drugs he simply not guilty of the conspiracy the that even if we assume for the purposes of argument that the government did a legend was required to prove that each defendant joined by the eighteenth and that as you suggested in your questioning of mr sullivan the law of variance we're talking about a one day variance here between the eighteenth and the nineteenth the thing is cannot show any prejudice from that in the law of this circuit and as a very circuit that i'm aware of is that if the proof shows something different than what the united does particularly in a conspiracy case where timing is not an element of the offense then endless there is prejudice to the defendant there's no grounds for overturnin conviction and prejudice to the defendants means that they either were not placed on notice of what they were being charged with or that they could not sufficiently plead double jeopardy should they be charged subsequently saying if the proof show th standard the only objections from the defendants in the second trial regarding the jury instructions were technical objections to some of the language of the cruise instruction there were no objections to the to the other instructions nor to the best of my recollection i don't recall any request for a multiple conspiracy instruction the substance of the other conspiracy instructions not whose instruction honor i've already quoted the elements of the offense as given by the district court which is the first beginning on or about a date uncertain but by november eight thousand nine hundred ninety seven there was an agreement between two important two more persons to possess with intent to distribute or distribute cocaine or marijuana and second that each defendant became a member of the conspiracy knowing of at least one of its of objects in intending to help accomplish that the court also instructed the jury that  you will note the superseding indictment charges that the offenses were committed by a certain date the proof you need not established with certainty the exact date of an alleged offense it is sufficient if the evidence in the case of stablish just beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged that standard instruction language there is no objection to that instruction no your on the record also instructed  marie without any objection it is not necessary that all members of the conspiracy join it at the same time of it all the court also instructed the jury without objection it is no defense that a person's participation in a conspirators or you're out of the first why you argue that is by pointing out that that's a brand new argument that has not been advanced before the district court nor before this court previously their arguments were based exclusively on cruise and had to do with evidence of precision involvement and i believe i i don't want to i mean that the panel's decision will speak for itself but i believe the majority of the panel and its decision there was never a question about the sufficiency of the evidence to show guilt in the conspiracy in general meaning after the seizure of the drugs the only question had to do with evidence being directly pro or involvement and humming around in a more direct sense to your question your honor i would say that simply the events of november the nineteenth without anything more are far and away more than sufficient for a reasonable jury to find beyond reasonable doubt that ratio in the o p s word knowing members of the conspiracy and knowingly possessed the drugs that were in the truck car your honor first of all let's talk about the amount of drugs that we have involved in this case which is a very large amount it's worth a lot of money it's a far flung conspiracy that's good that's involved going from idaho all the way down into arizona it's involving a vehicle that has been modified in order to carry a large amount of drugs this this drug run which was very significant a lot of money had gone wrong that the truck was already late when these two men were sent to retrieve this truck with all this money in these drugs after the mission something had already gone awry the truck and i showed up on time and furthermore the phone call that goes to a conspirator down in arizona i to the effect that so tell us has been arrested on traffic violations so they know there's been some police involvement the conspirators who are the people in arizona the people i know who are trying to accomplish those who are in charge of the conspiracy they know that they were supposed to pick up this truck and bring it back during a critical stage of this what i'm trying to say is the circumstantial evidence here gives rise to it extremely strong evidence that these conspirators are not going to send out to the l a times to need of fights to go retrieve this truck now that things have already gone wrong they know there have been some police involvement down in nevada and there's evidence that lopez and receive go there within two hundred yards of this truck for a full hour before they came to get  receive this truck he said he was going to send them a chacho where you are i'm not fluent in spanish and i saw two different translations of that word in the transcript so i'm i'm not sure and i would point out the most significant thing about that your honor is that r c unlike in the cruise case r c is not calling a couple of his friends local in idaho to come pick up the truck and helping out he's calling some number in arizona he doesn't even know who it is this is somebody in arizona he calls a number in arizona and tells them the truck is up here in idaho at this mall and all of a sudden things begin to happen in idaho this is a big conspiracy and the truck is not weren't supposed to be it's a day late at least by this point they know there's been some police involvement they're simply guilt there they know they need to make up a story but i think the fact that they are in fact in possession of this trough there is evidence of them conducting counter surveillance ahead of time very the ones not anybody else who were sent out to receive this very valuable cargo they make up bogus stories one of them mr lopez on the way back stops to make a phone call back to what the government believes the stash house would be that that would be some evidence a phone call that we've got to truck  they're taking us or to look at the circuitous route which is not the most direct route to where they're going all of these things i think provides circumstantial evidence of what's in their mind now well  the jury was correctly instructed on all the elements of conspiracy in other words the jury here was required to find more not less than the law requires  after the seizure doesn't matter apart from cruise it's totally irrelevant so the evidence was sufficient number one number two the jury was correctly instructed on all the elements of conspiracy the crew stuff was in addition the government was required to move prove more than it should have and thirdly the jury in its verdict necessarily in finding that the defendants were guilty under cruise they necessarily found that they were guilty under standard traditional correct conspiracy law and so there's no need here for a third trial we did yes ma'am yes ma'am oh to affirm that i do not believe that there are any double jeopardy problems with going back to the first trial because the wants the jury was directly instructed under the supreme court loft conspiracy the jury returned its verdict properly there was no allegations of of problems there the only reason why defendants were granted a second trial is because post trial they they raised the crew's issue and the judge said well honor i would argue that that you could because they necessarily found everything that they were required to farm beyond reasonable doubt but i don't see any impediment though under the unique circumstances of this case the going back to the first trial and in that regard i know that mr o receive those substantive conviction comes up as well and i know that earlier as this court noted the prosecutor conceded that m serial would have received a new trial had he included that in his post trial motion but that was a very ill advised concession because mr lopez received a new trial on the substantive count because the jury may have pinkerton theory mr riccio that's possible he was driving the truck so i confess that we did concede that point we should not have that's in  well they challenged it on the basis of ineffective assistance of counsel arguing that their counsel forgot to put that in his post trial motion he would have received a new trial otherwise but number one once you take cr out he would not have received a new trial number two it was it was an error for the for the united states to acknowledge that he would have received a new trial harry included because there wasn't a pinkerton problem with resale he's driving the truck i think that the court could go either way with it either by firming the convictions after the first trial or the second trial i think the court will be on solid ground either way it goes the defendant's received two fair trials they were convicted beyond reasonable doubt as to every element of conspiracy apart from cruise in two trials they received a second trial only because of crews who's now been overruled i think the court is on solid ground either know we had only about a minute and twenty seconds on the clock for the two of you but the government took the government over almost three and a half minutes over their time so why don't we say each of you can have two and a half minutes to three minutes and we'll go for it thank you appreciate your time a couple of points i don't think there's a legal basis to go and reinstate the verdict in the first trial i just don't know how telephone call by our say was not a recruitment call but one of notice and a preexisting conspiracy as far as they lopez you were concerned they always maintained they were members all along they've always maintained second point that jury was specifically in the second drug into basis to convict one you find they joined before the eighteenth or you find they joined something bigger than that and this court already said there was no evidence of either so there's nothing i submit nothing for this court to say to a farm or to a farm we have to go to that third area that i quoted from earlier that wasn't there before the  and i'm signing a thompson versus called around one twenty federal there are ten forty five from this circuit the prosecutor cannot pursue wholly inconsistent theories of the case that separate trials they can't say jury of boise idaho if they're after recruits for one load let them go we were green that's the issue and they can't come in now and say a farm a conviction just for that it's untenable under the due process clause moving on mr burrow indicated time is a critical and a jury i mean in the conspiracy case i think courts rules of criminal procedure seven the comments the date of the indictment i'm quoting is significant in all cases but especially in conspiracy cases the date is critical it's especially critical in this case and we were prejudiced because we were promised by can link with the united states attorney here's what we want to try a lawyer your boys join and i use the word boys because that's what we say which actually before the eighteenth and that's what we're trying that's the case that's going to trial and that's what we are and there's no evidence of that and still whatever happens we can affirm the verdict  over a period of time until the conclusion of the truck that's always been the issue that's always what i focused on that's what i understand as evidence and judge what you're asked what's the rest of the story and i would submit to you that not to be cute like that there is no rest of the story as mr harvey would say the evidence was a fanciful story the evidence was mr pearl tells us that they were there for an hour before they picked up the truck where they told it to go pick up a truck that in a stolen and to be careful and drive accumulators we don't know that the evidence doesn't know that but isn't that just logical  standing around to pick up twelve million dollars worth of dope that we don't want to think about was a fanciful story just an invention of an illegal alien who when immigration staff people lay off until i think the record was joe and and others would know fanciful stories is that implicate the old knowing that you had twelve million dollars worth of guilt now and indicate something but what is that something i submit there is the scope frankly we thought we'd died and gone to heaven when we found cruz and that's way that case was tried you know that and the record shows that and so we tried that case on cruise and every question was before one thousand i am on november eighteen