sufficiency of the evidence on the conspiracy case i think what this case really is about is under what circumstances you can get the multiple conspiracy instruction if not this case what type of case could you get a multiple for conspiracy instruction she did flag this as a particularly case that she wanted to look at very closely the reason is because if you look at the record in this case you have mr pres trevino who essentially floats through the case he's not connected to any other of the named them via phone calls via any recorded messages via any controlled buys what about the idea that he's kind of a safety source if i can use that term that when you couldn't get them from rio you could get them from point of the record shows that there was that mr vino's transferred methamphetamine to her but if you look at the united states versus snyder case at most what that would suggest would be mere overlap of personnel now the key issue in this case is that the government admitted at a page eight forty five of the transcript that these are different organizations the maria moore organization as well as market press to reno's organization the argument that i wanted to make to the jury closing argument obviously would a case where they had a large seize quantity of methamphetamine it would cease in oklahoma that in number of small for lack of a better term with a marsh town police department were just sort of drug user type us you know caught for a broken taillight a you know methamphetamine sprinkle in the car nothing related to distribution or anything along those lines i'll get that counsel your time shorts a reason i'm being a little pointed what about the fact it's a fairly small area and a fairly compressed area of time what about that argument which you run it out of iraq the government's i think that's what's so troubling about this application of conspiracy is that it's so broad the way that this is interpreted if you look at the burger case it's not a the case but it's that for the first conspiracy supreme court case where they really outlined the concerns is that if you out one conspiracy is so broad the entire community can be involved and as i look at this case this is construed so broadly anyone who is a methamphetamine dealer in the community can be hooked in to the drug conspiracy what the government has said over and over again is doesn't matter if they know don't know any of the other conspirators it doesn't matter as long as they have a shared passion for distributing methamphetamine they're hooked in i don't think it's that broad and the elements aren't that broad there has to be an intentional agreement that you tried to conspire with others and you said you started to say before you were questioned the argument i wanted to make dad died yes and hold on i'm sorry i'll let you say it eventually but i want you to explain why you couldn't make that even without the instruction because i presume the argument i'm going to make is my guy wasn't in the conspiracy with these other people he was and he was if he if he was a drug dealer he was dealing with different people he never agreed with the charge people here to commit the crime and i understand why you might think highlighting to the jury that there's a concept of multiple conspiracies would help you but couldn't you still argue the same thing without the instruction not with how the government explained and how the conspiracy was argued her view is that as long as there is a shared desire to distribute methamphetamine that's enough and to answer your question the one that i was going to argue was the text of the instruction itself and this particular sense of the highlight is that if the prosecution fails to prove this as to a defendant i'm sorry if the prosecution fails to prove this as to the defendant you must find the defendant not guilty even if you find that he or she was a member of some other conspiracy that's the law that we'd be able to transmit to the jury and that is exactly what i wanted to argue it was the only argument that i could make your honor i could argue that because it wasn't in the instructions you know home porton instructions are in closing argument that you can highlight it and then you can say look you must acquit if there is a pop if he's part of some other group which he was well i think the record shows that statement that you've seen when the defendant is entitled to this i think you have to hook it into and we do in there really isn't a lot of it's not an error to forego the multiple inference instruction so that leaves you wondering when do you ever get the multiple in serious instruction on super close cases just like this one because i think that if you look at i think what the court meant when it talked about if there's evidence is sufficient to establish an overall conspiracy and you're not prejudiced you can say that you're part of another one this is one of these close cases your honor and with judge read you know not overly inclined to grant these sorts of motions in this way in chief like this is a really really close case and the reason she did is there is no connections you look at this is two different franchises the more the more a franchise markel press classic sort of user small time dealer there's no connections there's no control there's a control by but it's not to me of the other name members and so that's precisely i think the problem in this case is what what would it hurt by the same token your hon denied it you know i have a lot of hope when she made that statement but she she did not she she did not just the summary of denial yeah yeah so that's why i would request that now as to the speaking of standards that the suppression of trade you want to briefly touch upon that very similar issue in the sense of we have to be careful that we don't water down the standard particularize criteria the need for the inventory exception that it become so watered down that it becomes functionally meeting less if you look at this case what the government relied on to justify the search of the inventory search was the following language from the shoto police department you shall conduct a thorough and uniform that case i think in that case though your honor there was the officer testifying to write her own policy and i think correct the record here they didn't he did a looser date on what the oral policy was he slowly relied on this policy written policy and said this is what i have applied if you look at the kennedy case that was a good policy improperly applied this is even worse the centrally no criteria at all and i'd invite the government i'm not sure that that's a fair statement i right i mean and that seems to me the better part of the argument i mean i think the policy as written is a policy that gives guidance question is did the officer go beyond the guidance and if you went beyond the guidance what were his reasons and and was a part of a standardized search or was it a pretext it seems to me that's the real question and that's not in the policy that's the problem is that that policy doesn't provide criteria it's left to the the officers discretion which is precisely what the search serve confused that was not relied upon and i don't understand why that was not relied upon there was a fine stuff in the car marijuana and drug paraphernalia marijuana yes that was not relied upon and they because that wasn't argued i don't know what point he actually saw it whether it once he began the inventory search that's what he smelled it it wasn't something that the was brought up or view or at all all right we'll give you your thirty five seconds in re driver and that they had a falling out and they're no longer together are objectional was that's hearsay and it doesn't further the conspiracy now that's all or was and m was asked did mr meller aren't tell you to do something with that information now what was the nature of what it came up while we were just killing time i was driving means told me about it now there's nothing add opposite of that for example i want to read from a case this is a case united states versus snyder it's cited in my brief this is a case we're dealing with a two hundred forty acre farm where there are parma marijuana this court ruled that there was nothing in the record suggesting that yost description to this female of the operation and the duties of the participants in any way further the objection of the conspiracy now that's a much greater involvement or statement about the conspiracy that while we have all he used to be my driver but we had a falling out we don't rely on i don't use him anymore now miss williams and  during the hearing we had at the conclusion of the evidence we have this bell procedure here in the united states versus bell missed ms williams did provide some additional information that was not actually a part of the testimony but she makes the argument that he was saying basically here are the people i used to work with but i don't work with them anymore so i don't want to work with them now that was said by the witness that was all at imputed to the witness by ms williams during an argument now one of the things that's interesting is miss williams states in her brief that there is no case law to suggest that whether the statement was made in furtherance is measured by the listener's viewpoint and that's an interesting statement and frankly i couldn't find any case law either however what we have by the very nature of the way the evidence comes in we don't have anything maybe the court new stuff consider this problem that there is no case law the suggesting the recipient of the information you would want to go on is relevant because what you end up with is nothing do anything he did tell me don't deal with that you don't say anything so maybe the court needs to look at that question and consider whether there should be some case law on the question of whether t recipient's understanding or view of what that was about is relevant otherwise what you're dealing with is some evidence here no evidence here but according to the government we ought to go where the no evidence is well that's contrary to everything we do in court you know at the very minimum we go to the probable cause and court generally is in a civil case where it probably a preponderance but what they're saying is we've got some evidence over here say what you exactly read but we have this case on snyder which is clearly beyond what we've got in our case here i mean he takes around a two hundred forty acre farm have you know claims to confuse the argument but that's where we're at with that so the court should consider this question should we be should there be some case law on this issue now i couldn't find it i admit that appeared to have a question judgment no no oh absolutely went away good all right so that's our argument we think that the court should consider that because there's a lot of cases that say now even in even on insider let's see snyder quoted cases from the fifth circuit two cases from the second circuit there's another case from the ninth circuit that say as clearly that they must further the common objectives of the conspiracy that is not a ball player house saying hey that's a guy in the past idea where he's not even a part of the conspiracy and more my mind how's that for the conspiracy argument it just it does not believe i've reserved two minutes for me model if any one has question be glad to answer very well you may reserve the balance thank you for your argument mr taylor will hear from you is the admission of the wiretap evidence in this case the there is wiretaps but the the wiretap on the phone that was using evidence in this case was leaks of the investigating agent with no facts supporting those conclusions or beliefs the government of course says the other were facts but if you read the affidavit the facts that are there concern other six other suspects other actions that don't really connect phone what about the fact that the affidavit incorporates ten previous affidavits isn't that enough when you put it all together i knew you'd ask me to you know ok i think that the problem there is that the facts in the other affidavits were not really set out in this affidavit and meet they don't make the connection and although in this case judge reed had issued most of the prior affidavit or not most of the prior orders and that he issued this one i think you have to look at this affidavit within the four corners of this affidavit and in fact as i recall i think judge jarvey might have issued a couple of those previous orders so and that seems to take those affidavits at least out of the  construct that judge read did all of the affidavit and therefore she knew the facts but still there have to be if there are incorporated by still does not bolster the the current affidavit and that's totally different question than whether or not this affidavit has to be considered on the four corners of itself well if you're knowledge of the officer in making certain inferences from the facts i took that the holding from thompson back to where it first originated in the circuit and that was  driving while barred which in iowa are aggravated misdemeanors but the possible sentence is two years and the argument the government makes is that under their sentencing guideline application note if the maximum sentence is a year or more that's a felony and does not come within the exception for a driving offense is not being counted however twenty one u s c eight zero two subsection thirteen which is definitions relating to google fences says that you go by what the offense is a designated in the state law and doesn't are philips case say that you can count these very iowa aggravated misdemeanors in that case the there was no challenge made that the guideline conflicts with the statute it was  definition of statutory provision preempts or overcomes definition in the guidelines and i guess that's the situation we have here  well you say the statute here which statute are your friend twenty one u s c eight zero two subsection thirteen which is the definition in the drug chapter for the felony and if says a felony is whatever of a felony or misdemeanor is whatever it is classified as under state law but does that definition purport to govern the sentencing guidelines like the definition and labonte did well the montaigne's and spin from both and they were not addressed to this specific issue obviously but but but they do make clear that the the same thing guidelines have to give way to conflicting statute that he is in conflict with the guideline i see my time is up unless you have some more questions you may reserve the balance for gravel thank you thank  you hear from ms williams for the government don't think i've ever quite heard an argument that the title twenty one definitions should be applied to guideline sections when the guidelines sections contain very but i think that the that argument is foreclosed by our circuit precedent in philips and that those convictions were properly scored and that there was no error in calculating her criminal history category and then with respect to the issue of the wiretap i think that we got to the point in argument where mr taylor did concede that you could reference or incorporate by reference prior affidavits into one affidavit when you look at al section it talks about being up on his phone to target telephone nine and target telephone fifteen and that he was identified through the title three wiretaps on those two phones and that's how agents covered that he was and it is because it's so wordy and so lengthy that it's hard to get that the p c is so clear because the p c here is that they had intercepted him on target telephone sixteen on other people's phones in drug related calls they have recorded telephone calls of him setting up drug deals on the telephone that the government sought to get the t three order on and so that's p c right there you hear the guy using the phone trying to do a drug deal most of the attack from the defendant comes on the fact that officers fermina makers can't reach these concludes atory statements but what that overlooks is that the beginning of every affidavit is a detailed description of their training and experience these are not people who are working a checkout lane in a grocery store saying hey i think these are drug related conversations these are experienced drug enforcement agents who have been trained who have experience and have rely on their education in reaching these conclusions they have participated in controlled by they have participated in drug investigations and so when they hear a phone call that says hey can i get an eight ball they know based on their training and experience that that refers to an eight ball of methamphetamine which is commonly referred to as three point five grams and so they are allowed to reach these opinions and believes because it's based on  ntial training and experience the and so i would submit that there is ample probable cause for the wires and then the other side of that coin is the necessity and these affidavits detailed in excruciating detail i believe it's something like paragraph forty five to one hundred eight of all of the things that the government tried to do before seeking an application for this t three wiretap they detailed the control bias the attempts to get people to cooperate trash trips money laundering investigation grand jury it's all there in the affidavit and it reaches it lays out to the district core why necessity exists and i would also like to mention that the government doesn't have to prove that it had no other option necessity is not that strict of a standard but it does have to prove that it recently exhausted other options which the government did in this case and so i don't think that i don't think that the district court erred in denying the motion to suppress the wire argument i think one of the more interesting arguments before the court is mr bill's argument regarding the coconspirator testimony and the standard because that there is no i agree that and i was unable to find it whether or not this is an objective or subjective standard on whether the statement is furthering the conspiracy but the government said that it has to be an objective standard and at trial a lot of questioning went to these witnesses by the defense of why was he telling you th why do you think he wanted you to know this information and the witness didn't say i have no idea one right witness rachael brown says we spent a lot of time in the car and we had to talk about something and this is what he wanted to talk about but in response to that i said well are you a mind reader you know do you know why he was telling you know i don't know and it doesn't matter what the listener thinks is the reason that the information is being imparted what matters is does th information being in part or further the conspiracy can it move the conspiracy along and as i argued before the district court there are many ways that this these type of information furthers the conspiracy enable relate to driving not driving real oh no because at the time that plunkett and florists were dealing with each other morello had lost his sources supplying kind of dropped out of the picture and flores has risen up to one of those supply levels the driving was relevant because that came from sanchez and that is mr milosevic cousin and what he says is look i was using math and i needed money and so my cousin said hey you can come work for me and i'll pay if someone you drive me around kind of be my errand boy and he said that during the course of that relationship morello said oh well flores he used to drive me around  florist didn't work for him anymore that and that's which also goes into the harmless error argument because when you look at a defendant who's on a t three setting up drug deals doesn't have is it prejudicial to admit think it and i was sanchez was the end of fourteen through fifteen and i believe his testimony was that he saw a low in flores together once when they went to the trailer that we're going to buy a trailer behind this hearsay exception and the bell procedures and whether the information furthers the conspiracy really means that it should be read as an objective standard that we shouldn't be in the business of trying to get into the minds of people to parse out why they think they were being told certain pieces of these the folks that had to make the agreement right we get the agreement from them for their minds correct or their guilty pleas or i mean these are folks that all said that they were in the agreement yes percy but why is that the purpose behind the rule with the statement doesn't actually further the conspiracy why should it be admissible called john and john says oh i think he told me this because it helps move the conspiracy along but the statement no fair reading of that you know we went to mcdonald's yesterday or the sky is blue no fair reading of that statement could further a conspiracy along it doesn't matter what the guy thinks the amiss ability of that statement should be governed in the information that's being conveyed by the speaker and that should be analyzed as an objective standard but i thought you were arguing even if this was idle chatter that didn't actually further the conspiracy if you can make an argument that object and we have should have for the conspiracy then it's admissable conspiracy it's still admissible because as an objective matter i think you're saying it should have or could have is that the argument is that what you think the law should be i think i don't think i'm making such a strong argument but i'm in the argument that i'm making is in assessing whether the information furthers the conspiracy we should not be getting into the minds of the listener it doesn't matter what they thought ok so it doesn't matter at all what the speaker means it doesn't matter at all what the listener hears it matters only that it white in some world further the conspiracy even if nobody ever intended it to have any relationship to the conspirators it might matter what speaker means your honor but in terms of the listener and what information why they think they're being told the information that i don't think is relevant to the analysis i think the core issue is what information was conv the court has been maybe not conjuring is the right word but i think that the case law before this that's what the court has been doing is when the l a statement identifying other coconspirators and then you look at the analysis of why that furthers the conspiracy that is that laws based on inferences about the information that was transmitted not a witness testify he told me this so i would know not who not to deal with and so in a way i think that's why i think really what's important is what information is conveyed and does that fit into what we understand from past president  information that furthers a conspiracy at not just what the statements are but what they are in the context of the entire trial and how they fit that snyder is distinguishable and snyder again didn't imply error and impart a subjective standard but it objectively looked at the information that was conveyed and said we don't see how this furthers the conspiracy you know you're so over that same kind of objective standard the you're describing of the court said nothing in the record in that case suggests that the statements further the objectives of the conspiracy that sounds like a fact these determinations as to whether conspiracy was for i don't know who have to look at it carefully that the florida highway patrol was supposed to inventory all articles in the vehicle that's correct your honor i think was one says something about all contents of the vehicle but it doesn't address containers the vehicles and all of its compartment public safety your honor this one notably did not have a public safety purpose but the the cooler and there were pictures of it all although i apologize that i can't imagine what the quality of the pictures are one speech the a circuit because i know that they weren't good for the district court but this is not a small cooler this is this is a large sized cooler that any number of items could be being stored in and if the purpose is to to make sure that a thorough inventory of all potential valuable items has been taken in the vehicle then certainly the cooler needs to be searched in order to comply with that well it's a it's a thorough inventory of the vehicle and its compartment well the cuckoo you know saying the cooler was a compartment or you i'm not it is a container within the vehicle and the policy doesn't specifically address containers but the policy doesn't need to specifically address containers if it is applied in a uniform way and then to get into trouble with a no open closed container policy there also has to be some sort of finding of pretext investigatory pretext on the part of the officers a finding that the district court specifically said and its opinion did not exist that she found no evidence whatsoever that this was a potential search and then she added maybe two sentences about why it wasn't a pretextual search you know the court commented that never once did they ask consent to search the vehicle that the officer said that he didn't think he was going to find eve really thought he was just doing an inventory search of the vehicle and so there is a finding by the district court that this is not a pretext search and so without that even if there are food wells involve a finding of pretext i thought wells just said thought wells was a case where there was a search of a container the policy didn't address open and closed containers and the court said the evidence was properly suppressed because there was no cabin on the discretion of the officers and there w anything in there about a pretext finding that that is correct your honor ok you think there's absolutely no pretext in wells when the court talks about turning something into a purposeful  finding that these particular officers were engaged in a pretextual search were the wells was saying there's a danger if there's no policy that the searches could be used for that purpose and that's why we have require the policies how the inventory search was completed and in analyzing that putting aside the first problem was there a problem with the search what this court also has to find to overturn this search is that it was a pretext search and so rather than get into a big debate about the first prong of course as the government i would like to turn to the problem where there's absolutely no evidence that there's a pretext search and in fact a finding by the district court that it was not and given the standard of review and the fact that these findings are on the record i don't think there's i don't think that the district court erred in refusing to suppress the of it and we look at the record how clear is the record about the characteristics of the container itself because that that's one of the big determinant of the latitude to be given to the officer so there is the photograph of the cooler sitting exactly in the car where it was that's in the record that's attached to the trial suppression here in exhibit  trooper or the oklahoma trooper describe the cooler but it it is to give reference to the court it's just one of those standard white coolers with the blue lid very and that's in the record that is in there because i'm still wondering why wells doesn't say if there's no policy govern the discretion of the officers on containers  the searches impermissible so it's the roland case from the circuit your honor the two thousand and three and what it says is even if the officer fails to conduct a search according to standardized procedures this does not mandate suppression of the evidence disclosed as a result of that what did you want to say about probable cause i do want to dispute the weight now the government on appeal has not argued probable cause but we argued it before the magistrate court in the district court and both the r and r in the opinions from those judges drop a footnote that say that they are not going to address the government's probable cause argument because they're going to uphold the search on an inventory basis and so i would also note that when you decided to abandon that on appeal or not to pursue it further i would say not to pursue it further your honor but i'd didn't want to leave the court the impression that the government had never once argued probable cause that was in fact one of our very strong arguments before the court when the motion w the district court give a reason for declining to address it yes they did they dropped a footnote your honor in both written and they just said we do not have to reach the issue because we uphold the search on an inventory  nancy that's all i was going to say about the inventory search and then i was going to turn to the multiple conspiracy jury instruction and sufficien of the evidence issue unless the court wanted to discuss inventory any more so there's a few problems that the government has with the argument today a few things that i just wanted to point out i know that the court issued a twenty page opinion order denying his motion for judgment of acquittal and so i think that the district court laid out in twenty pages its reasoning about why it did not believe that there were he should have been there i would argue and that my guy was maybe a drug dealer but in that with a different agreement and that's what the bench asked him today why couldn't you argue that at closing without this instruction and i don't think that there's any reason why he could not have argued that he could have stood up before the jury and made the same argument the court case the fair you really think that's realistic i mean as a person who sat on the trial bench a long time when you declined to give instruction and no one's ever asked are you free am i still going to be free to make the argument judge and the judge doesn't say for fine aren't you it risk that the judge is going to come off the bench unglued on the happy and bad things going to happen in your case i think that if you misstate the law you bear that you've run that risk but but the judge has already said that there is no basis for a multiple conspiracies instruction right isn't that what she said yes your honor it once she said that if you argue multiple conspiracies isn't she going to feel like you've invaded the problems with the law no in fact i think just the opposite so the court gives a pretty standard a circuit conspiracy jury instruction which which has to in my opinion a lot of ways that a defendant can attack a conspiracy case the jury has to find that he's member of this conspiracy and you can stand up and put that i use power point in closing but you could put that jury instruction on the power point behind you and point to it and say you have to find that he's a member of this conspiracy that this judge take way that defendants theory of defense no i don't i think that mr cole could have stood up and made that argument there's a mere presence  part to that instruction this is merely present at the scene does not make mean that one is part of a conspiracy you can stand up and say that merely being present or even though there is no buy sell agreement as long as you properly  i think that it's fair game to stand up and say all he did was tell all she did was buy there is no evidence that they reached an agreement together with a common purpose and gave each other mutual assistance to go and distribute drugs you don't need a jury instruction to do that your honor the the ones the court gave get you there and so yeah i see m acosta and not to excuse me since arrows she got divorced halfway through the case and that's why we call it by different names so i apologize for that but she distributed to jessica sinister and called her up said i'm going to deliver have my guys deliver eight pounds a dope at your house let a man let him use your house he fronted that methamphetamine to her which creates a relationship where he knows she's going to go out and sell it and then return the proceeds to him he sold up oh and by the way if you want to start selling meth for me that would be good i got another girl just because she's working out really well he used ragan victor's house her basement to help jacket is a misstatement of the trial evidence to prove the existence of a conspiracy you have to have a common purpose and mutual assistance those are those are the two big buzz words that the government has to stablished and common purpose is here and those are the factors that the court has previously but the time the geographic location the type of drugs everything is the same and so then the question really is is there mutual assistance and i think that when the cases the prior cases look at multiple conspiracies what they get hung up on is that there is no mutual assistance between the  that's not the case here he is receiving assistance from the people who testified against him about how they helped further his drug conspiracy which was this large albeit loose conspiracy in marshalltown and purpose your honor i don't think that that's what quired that why didn't we consider you mean on the inventory on the other question of the inventory and i would agree to the extent that the government cites the eight circuit case that is not consistent with wells wells is directly on point and i think the entire purpose of the inventory as you would mentioned is to ensure that it doesn't become a wide ranging and that's to it's procedural safeguard to ensure that occurred when he began the inventory search warrant i thought he said as soon as he leaned inside the vehicle he smelled the odor of raw marijuana and i don't know if that was before he began the inventory search or not do the right thing where he began it ok so i  find the marijuana before he looked in the cooler then he wouldn't have had probable cause yet i think that's the issue here are you when did he find the meth covered dollar bill that i'm i believe that was the inventory  search that was not in the cooler though was it the meth covered dollar bill i thought he found that before he did the cooler i do not think it was your honor but i don't think that was justified to do the search go ahead if you want to say some a judge erickson i thought i interact well that just just the question of i think that's the whole concern is that did not address containers it addressed the compartments and if the entire purpose of this is to limit discretion and if there was and all those cases where there was not a written policy there was a description a description of the record where the officer gave a detailed oral description of what the policy was verbal ie and that's how those were justified just one last thing you know roland is obviously out there and it's got a predecessor mayfield that says essentially the same thing how do we get to the to the point where we just say well as a panel but that wells controls in the face of those two precedents why  the court constantly has to look at whether there's any previous case law and that started to psychosis you have to look to the supreme court i don't think you can reconcile those cases and i think this court to the extent of finds a conflict should make that bind miscible but in this case it wasn't because there's no further evidence that what was given to this eighty this woman was in furtherance now a conspiracy if the recipient of the information doesn't even know why has it that creates a whole different problem it seems to me but could every person conveniently say then that they know understand what that was all about well people anybody can say something conveniently sure i can't eliminate that possibility but this seemed to be i mean he was given an opportunity to explain why he thought he had the information and he didn't do that and didn't have all sorts of reasons including protecting your friends not they haven't answered that question right right i guess shortly i can't foreclose that possibility but i think i  example of relying on the officers experience by saying well i need ball that the officer knows he has an eighth of an ounce that's the classic drug lingo that that office certainly can can render an opinion on but you won't see anything like that in the affidavit in this case that they were relying on as being simply conclusions and beliefs that are not based on any facts or any or that the officer has all of the missed opportunities the things that the officers could and should have done prior to getting the wiretap thank you very well thank you thank you all for your arguments