instructs the government the government is prohibited from read mitigating issues necessarily results in his favor importantly the district court determined that the jury's verdict reflected it cocaine conspiracy existed but that hicks did not participate in it and then rd in so far as the rico conspiracy charge is concerned this means three things rico conspiracy is broader than just basic narcotics conspiracy and so there's no issue preclusion problem with retrying the rico conspiracy charge conceded much in the district court be the government could prove that the racketeering scheme involved cocaine trafficking the government could prove that hc knew the will boys organization engaged in cocaine trafficking and it could prove that other members of the enterprise trafficked in cocaine first of cocaine trafficking by other members was admissible to prove  overall question is that is this double jeopardy issue structural error or is it subject to some other form of  evidence may very well i mean the court can comfortably conclude it may very well have impacted the jury ultimate verdict and here in this case government could introduce evidence of cocaine and cocaine based trafficking on the part of other co defendants if that were channeled for the jurors to establish just go of the enterprise but the government could not suggest as they did that hit participated in cells in cocaine or cocaine based trafficking as part  sort of the threshold question is could you have a racketeering that was broader than any individual conspiracy in the inserts and yet then i think the next question here is is that what that the government theory and in fact broader than just marijuana the marijuana conspiracy that the st jury convicted on it was broad enough to include cocaine and cocaine based trafficking however mr hick was not part of that nevertheless that that evidence could be good evidence of cocaine trafficking on the part of other members could have been admissible but not for the to the heart of whether or not he was able to not only receive a fair trials but a trial that was even remotely structured around evidence against him that would have been admissible and of course our argument is that the constitution firmly says it's not so i certainly don't think that there's any reason why this court couldn't find a couldn't determine that th structural error and i think your prose you've just told us that it was not well yes your honor i prefer the court view that as a fallback argument i mean as i  just colors the entire presentation of proof much much the same way other structural eric do if the court disagrees with that my fallback position would be that it is subject to harmless error but that we can comfortably meet that of the parties argument where we're very well delineated there was you know two rounds of written pleading there was a hearing where the parties present it argued that the defendant very clearly course he was convicted of the church of conspiracy to distribute just that the special jury foreman the only marijuana not the other substances that make a difference i mean usually when we have issue preclusion somebody actually been acquitted of the charge why should we treat that the same well that is the way that the the district court read the verdict they got the verdict split that is the way the government read the verdict but in the district through his own testimony suggest that there was never the was a cocaine and cocaine they say that was sort of a foot in the neighborhood however he  would really be any other way to interpret the jury's  that we haven't really gotten to the severance and i guess i just wanted to ask one question which is you going to follow the loss of strategic disadvantage is that mr hicks suffered from not having the joint trial like to argue  instead i'm asking this court to decide that when a court is faced with the decision whether to join our club or trial and whether to disqualify an attorney is appropriate to consider the ramifications of those choices with respect to the defendant and in this particular case there was considerable prejudice to mr hicks because clear evidence that this is the fact that because the trials were severed the government was able to prevent the testimony of three witnesses prosecutors are former prosecutor about the disposition vent alleged overt act in the indictment that is evidence that the government otherwise would not have been able to admit against my client had the trial been joins and what's more this issue was lax for the court at st you know hearing it simply that it appeared the district court at that time around is erroneous we assumed that there would be no introduction as evidence in the as a result a separate that wouldn't happen if the verdict did have an bearing on the nd trial contrary to my opponent justin significantly it removed from the nd jury consideration the issue of whether the  the charge of the introduction of evidence and the suggestion seemed to me to be that if he had been charged with in the sense that would have required that would have been with the issue preclusion principles that would be a structural error but that a different  should apply to the introduction of evidence that there's some different quality to that was that what you were saying thank you yes so then you could just explain that distinction but that's the problem here is that we had here with no problem with preclusion here the judge after the st trial was asked and answered the question now during the nd trial evidence regarding or the issue rather a grieco the rico conspiracy could proceed be a structural error if the government had truck had charged him in the nd trial with the cocaine distribution conspiracy but the traducing evidence that might be re argument and that sentencing determination what that meant for the nd trial was what i've already said i think which was that the statutory maximum late imprisonment was removed from or not he sold cocaine on x date with blood on the basis for multiple charges it could be just a transaction it could be just to possess i'm sorry could be just the sale it could be just possession and it could be considered understand that others the argument that is an argument that there is no error the question that i asked was should we in the cessna and how to review error if it exists is a structural the district court correctly found this was not a matter of whether or not the nd trial could proceed on rico conspiracy it most certainly could proceed and rico conspiracy because they are the crime again is a single object conspiracy it's not whether or because that is the rico conspiracy component of that but i'm not going to belabor the structural error point because i don't think they're actually answering my question but what you are very focused on is there was government refer to his participation in the cocaine conspiracy involving mr contrarians if your honor i was trying to find that if you're on to point me to the page that you're referring  knew that he was getting into knew what he was getting into and that it seemed like there was no objection to that it seems was precisely reference to precisely the evidence that the district court judge had conspiracy takes a number you know it doesn't take well it doesn't i'm not going to a conspiracy is indeed a separate charge that what arises from the same individual transaction and as narcotics trafficking  or a conspiracy to trafficking are caught in the such evidence around or frankly that's what i was trying to say that was not the issue determined by the st jury all those facts are relevant to both types of charges ultimate issue there is whether or not again he knew of in the greed to general object it's not evidence evidence of whether or not he participated d in cooking conspiracy and your example your honor would that you know he did not enter an agreement with other individuals to deal in cocaine and then in the nd trial  you the government cannot you back that he participated in this cocaine conspiracy because you i'm just looking through here that the judge found that there were other means but we don't know on what basis the jury determines that it would not check the box with regard to cocaine and rico requires a different showing than to conspiracy which is right but i think you can see that if you were to introduce all the evidence of the cocaine conspiracy and then say by virtue of his participation in the cocaine conspiracy he should be convicted of rico conspiracy it might be a problem but i think i heard you a moment ago saying that that's not what you did that your position is well there's some similar evidence we introduce evidence of individual drug transactions that was relevant to the rico conspiracy charge but we were not asking the jury to find everything that would be required for a cocaine conspiracy charge and so even if there's some overlapping evidence there it can't be tantamount to a retrial for cooking conspiracy because we didn't introduce evidence of a conspiracy we just produce individual transactions that organization he should also be convicted of rico conspiracy that might be a problem it would convict it would conflict with the previous acquittal for cocaine conspiracy but you're saying that the evidence does not completely overlap with the evidence you presented would not be sufficient for a conviction for cocaine conspiracy but only a rico conspiracy and therefore you don't know if that conflicted with something that the jury in the st trial charge i'm saying it would not be problematic because the same evidence also establishes those individual transactions also with them the scale also established possession and all of that evidence would be valid then whether or not he the other i have the other the other question that i had asked two opposing counsel so normally for issue preclusion to apply somebody has been acquitted of a charge but here he was convicted of conspiracy to distribute and we just know about this cocaine issue because the special jury for him so should be treated as an acquittal is that that the same thing like do you agree that the preclusion applies because he was essentially acquitted of the cocaine conspiracy so that sap far as it went with regard to the you're so you're saying you're saying that there isn't even so that you're saying you could even charge him with cocaine conspiracy in the nd trial because the only decision of the jury was yes your honor is right we did get an adverse ruling it our contention was that in right of the court ruling before the nd trial that there would be no purpose in effect except for perhaps that sentencing effect that the argument that the government is continuing to promote now that objecting the trial would have been seattle i would if i could take issue with the court suggestion that this was sort of a brief reference during the nation to his involvement in my client alleged involvement in cocaine in cocaine trafficking i mean it permeated the to the testimony and this goes to why i believe the government's argument about how this was just individual discrete acts of cocaine trafficking as i understand th evidence that hit him with a cocaine trafficker and order to prove that hicks joining or to in order to establish himself with guilty of the pattern element and that is what about what about this well we agree with that which is why we in mr hague conceded below and and i do to an appeal that the rico conspiracy charge could be retried it could be brought in the government could use evident the cocaine trafficking but and i don't i don't mean to be repetitive but as your other point that the way in which that evidence with these is the issue to which that government at the  try to prove rico conspiracy by way of cooking a cow do you address this problem so if if we were to say that it's a problem but that it is permissible to try him for rico conspiracy what sorts of constraints were necessary that this record failed to provide because some of the evidence you would develop could be provided this feels like you think that the theory would have had to be modified in some way i think that the way in which could defend the way in which you mr the trial counsel presented it to the court precisely right which is to say that in the nd trial there should be no evidence that mr was a cocaine trafficker and had the district court agreed with that then and everyone abided by it then there wouldn't be a problem because it still allowed for the possibility that the government could use evidence of cocaine trafficking it with respect to other alleged members of the enterprise but the other problem there would have been there would have been some evidence that some of the evidence would overlap right so if if the government could somehow introduce evidence of the individual transactions with that suggesting that there was coordination to remortgage or conspiracy you know maybe they could do that wouldn't assemblage spirit if you can just have a bar on all evidence which addition to a conspiracy that has to be some other kind the constraints because i think you agree that the same evidence can be relevant to the charges so like to say that no evidence that that was going to show cocaine conspiracy can be introduced at the rico conspiracy trial that would seem to be overbroad when it right and i think what your your honor question is getting out if i understand it and  apologize if i'm not is what the government is trying to get but what i throw the lid is how that could possibly be the case so for example if the government wanted to say ok fine given that now recall given the way that and also maybe of his own participation in connection with proving a separate charge why isn't that isn't that the beating that we should all draw from the end skids no you're right i think the government could prove could could prove that new look at the sure boys organization engaged in cocaine trafficking and it could prove that other members of the enterprise trafficking in cocaine i think have pro cocaine trafficking by other members was admissible to prove picked knowledge of the overall goals of the organization or to prove the pattern element the problem and the government did not use the acquitted conduct evidence in that way yet the government used the evidence exactly how is the landscape that it may not be used to borrow that framing that judge na we're just about to say he's acquitted of being a cook in conspirator the governor did not ask the jury to find that he was a cocaine conspirator all right this using the individual pieces of evidence to establish other things about him and the only thing we know that the jury decided is that he wasn't that interesting we'll know that the jury decided he didn't gauge in those transactions millner through decided he didn't coordinate with other people in some way like th piece of evidence that we know the jury decided was not credible or false so there is a direct contradiction with the jury's decision is there  did the government ask the jury the nd jury to find something that the st jury rejected the government suggested to the contrary that they could convict him of a rico conspiracy charge because he joined the enterprise to traffic in cocaine and because he himself was guilty of one of the patted the overt act alleged in the indictment and i go back to the fact that this is not just simply count two it's not just simply a conspiracy to gazin our ca