recess began with united states versus jo morning my name is samantha q never present to lloyd jones i'm going to begin the argument today by explaining why this is a structural error the error that was raised in this appeal is structural and mourns automatic reversal this case is not about an isolated erroneous jury instruction it's about an entire trial that was focused on proving that ryder dying was a criminal enterprise and that they conducted all kinds of unlawful activity in furtherance of that enterprise you'd be swimming against most of the other circuits on that issue wouldn't you about structural or i don't believe so because i think all of the circuits have addressed this issue while some of them have found that certain types of errors would not cause a fire structural none of them have created some kind of blanket prohibition where if it is a situation like this and there's two competing predicates and one's unvalidated that automatically makes it a nonstructural jury instruction error how do you distinguish heads versus  o in the lido that he is actually did not specifically make a blanket prohibition and police i believe the situation there was that that was a specific alternative theory instruction where the court said look there's these two different factual findings and factual circumstances that would support the jury verdict in the st place and one of them has been invalidated and does is a broader due process violation that infected the in chop entire proceedings because the entire case was built on this rico conspiracy and tying every single charge in every single aspect of the conduct that was alleged to the rico conspiracy so in this situation we have to to predicate as one overarching rico conspiracy and then we have a sub conspiracy basically that's falling within that rico conspiracy as the jury recognized but they're not coextensive with each other and they're not completely separate alternative bases for conviction twenty four right i understand and get we have not argued that there needs to be a full recency for all of the other convictions but i do believe that big because sentencing is done as kind of a packaging doctrine it would more than having a new pre sentence report prepared i'm so that the district court could address in the st instance i mean and if there are any valid sentences that are long long sentences why do you need to have the the trouble of the you know the effort of it is or some due process concern or why would you need to go back i mean i believe that just for issues in your judgment it would warn their sentencing but i don't have a specific case that that's based on that's just the procedure that i would believe as appropriate and in this case the indictment the evidence and the government's arguments all tied everything to this rico conspiracy and if you look at the indictment every single substantive charge was tied into that rico conspiracy with the exception that one drug trafficking conspiracy in count interesting that the jury verdict form itself when the jury issued its verdict its own verdict decisions mirror the same way where they found something was done to the aid of racketeering they also found that the nine hundred and twenty four dollars conviction was guilty beyond the reasonable doubt but similarly if they didn't find that certain conduct was done in the end of racketeering they acquitted on that nine hundred and twenty four dollars conviction which i think supports the argument that the jury was viewing these things as the record shows as being within the overarching rico conspiracy and focusing on that element of whether it was in furtherance of that is there someone else going to argue that plane error satisfied people have another another attorney are arguing about the plane or issue so but as far as the structural issue goes you know the supreme court has revived guidance on what constitutes a structural air i mean in addition to some of the other areas that have permanently been recognized as structural they've said that if an error is affects or too hard to measure oriel inevitably signal signal fundamental unfairness those are reasons to categorize something as a structural error and here i think there is a variety of things in the record that show that both of those are met here one of them being not only does the record show that everything was focused on the rico conspiracy rather than tying everything to a drug trafficking spear see that defense counsel was also deprived of opportunities that they could have had to try to distinguish conduct and highlight motives and purposes of certain conduct if they had no the drug trafficking that subset of the rico conspiracy was the morning to please the court autumn town on behalf of sydney patterson i will be addressing that even should this court determined that this is not a structural error we still would argue that it is plainer the government has contended essentially that they would agree that it is an error and that it is a clear and obvious error but that the substantial rights are not affected in this case and that would that's where we would obviously dispute that issue we would argue that there is in fact a substantial right that is affected here by the vagueness of the statute which would include not only the fair notice issue that has come up whether or not it's making fair notice of conduct is in fact criminal but it essentially goes back to the issue of there was no clear determination that the jury made that they found the facts relative to the dollars convictions based on a valid theory the it was argued throughout the case both the rico conspiracy and the drug conspiracy and there was nothing specific found by the jury as to whether or well i believe what the court would have to do is consider the fact that in the charging document it was given as rico and the drug conspiracy and then throughout the trial and then also in jury instructions it was argued as and or it was argued in the judge disjunctive so this court would have to consider an error there as far as which predicate the jury based their findings on and through the one hundred and six pages of jury instructions as well as the questions submitted by the jury it's clear that they were interested in these specific predicates and they had questions  about certain elements of the offense is your best case howard or what's your best case for this for the argument that these should be reversed davis davis and so i mean that's the this court found that the residual clause in there was inappropriate in the in that case and we believe that these are the same same set of facts and that in this matter that those convictions need to be ultimately all of this ties back to the rico conspiracy which was the overarching and as my colleague indicated you had the overarching rico conspiracy and then the what was essentially considered a soap conspiracy the drug conspiracy  and that was what the government argued throughout the trial based on that there is no clear determination what the jury found their facts on based on those particular verdicts can't th giving a specific jury instruction relative to that i assume that they would be tried correctly on retrial i suppose they could you on that you're not arguing that well i thought you argued in your brief that they  would argue st and foremost that it does judgment should be vacated given the pervasive error in it however i'm aware that argument has been made in some additional cases since then in the like and especially in the davis or arguments that potentially retrial in the best case on point is skilling versus united states where the indictment alleged three objects of a conspiracy and on a service is wire fraud money or property wire fraud and securities fraud and they found that the jury returned a general verdict that could have been based on one invalid theory and so that's that's the situation that we have here which is that the jury could have in this case and suggest that they did return a verdict based on the invalid rico conspiracy as being a predicate under the nine hundred and twenty four dollars statutes so it is plain air i believe the plane air is the proper analysis that there is plane error here the government has conceded that the air was clear and obvious it obviously affected the substantial rights of the defendants they were sentenced to additional albeit concurrent time a conceited problem for two i think they did i believe they did there's not much that we're in disagreement about and to your questions i do think that vacating the convictions for the nine hundred and twenty four charges without and we haven't actually challenge any of the other convictions or sentences this is our nd go round to this court so i think that would be the appropriate remedy whether or not the defendants could be retried i don't know is a question for this court i believe that it's possibly a subject of a motion aquash down the road but for purposes of today we believe that they the judgment should just be taking when we give instructions for what the proper proceeding next i think that those that those judgments would be v ted and and to say nothing and just say nothing and just say proceed with with i don't know that this square is in a position to determine whether or not those i don't believe it's structural there i'm not i'm not conceding that it's not structural error but i think most of the case on this point indicates that it's playing air i think the arguments in favor of it being structural are the fact that in this case this was the rider die case a rico conspiracy was the on the browser under which everything else did in the rico conspiracy comprised of drug trafficking it comprised of violent crimes but it also comprised of things that had nothing to do with either drug trafficking or violent crimes and that's where the problem is is that the rico conspiracy over arched and incorporated the drug trafficking but included nonviolent and non drug trafficking activity so without conceding that it's not structural air i think we have to obviously address the plane air precedent in this and other circuits and i think that the government has conceded most of all of the problems in the and where we come down is whether or not this affected the substantial rights of the defendants and i think there's no doubt that it did based on the fact that additional sentences were meted out and there was a real danger as it is and precedent suggest just the opposite when the th circuit held that alternative theory or was structural in the political race the supreme court said no and in fact if you take a look at the lido before it even came to the supreme court all counsel said yes that's an error it is not structural the supreme court sent it back when skilling went up to the supreme court and the supreme court found the honest services theory of the case was overly broad and could not stand it didn't reverse the conviction it remanded to this court with instructions to conduct a heartlessness review and when it came back to the score in skilling to that's exactly what th it conducted a harmlessness review and affirm the convictions because the evidence was overwhelmingly in favor of finding a verdict of guilty on the valid theory here this court does not need to branch out into any new realm and be what i believe would be the  st court in the country to hold this era to be structural all the court needs to do is employ the precedents that's already out there from police to skilling to and by doing that conduct the problem harnesses review in this case now opposing counsel have mention its structural because the entire case was predicated on a rico conspiracy they've used words like that same big us verdict possibility of an incorrect verdict just unclear that's not the test and none of those are the tests that came down from the supreme court or that used here it you don't need absolute certainty that the valid theory was what the court relied on to have a conviction think you want to say something else about structure no that's actually where i'm going where i think you can find that this air is harmless is through that through the view of plane or review and so i do think the burden for the for the harnesses kong is on the defense  substantial right yes yes absolutely and the way you look at that your honor i think is the two questions that came out of skilling two finding two ways to do that the st is if in victory on the invalid theory the jury necessarily found facts that would support a conviction on the ballot theory then we are is harmless but the nd one is what i like to talk about a little more and that's the basic if after reviewing the record the court is convinced that the error is harmless and in doing that the court according to skilling to ask the question is there is the record contain evidence that could rationally lead to an acquittal on the valid theory and the point of the controlled substance it would not in fact the record here would support the conviction and to find that your honor the it i don't and it seems to me that you're putting putting in the harmless error in depriving three but really doesn't affect their substantial rice on the face of it because it's extra life sentences and that's how we would normally look at that you did you get in more sentences i mean that's our normal we have that you know five days a month we have those kind of cases and so and harmless as does usually been the government has to come back and say it didn't matter i understand but i think there's a slight distinction and i'm using the term harmless error and i understand it but i think the question is a better way of saying it is did the error affect the verdict whether weeks and i'm saying harm the verdict but it still is the burden as we know substantial rights and harmless error two sides of the same coin it really is a burden issue so the burden here because we are on plain error is for the defendants to show that at harm effect it's a substantial rights and looking at the harm in the  that the error did affect their sin that the harm that the verdict was harmful not just that resulted in conviction but in light of the test there are several other cases and i did not put them in by the reviews i just research and so i don't feel comfortable extra life sentences and so that definitely affected our substantial rights and then you say no but it was harmless and then you would bear the burden on that idea don't think it's just that simple if we go the error affected it in the i think the way you look at whether the other affected it was under that one guy nice guys or skilling but either way i think we can show that it was harmless beyond a reasonable doubt but as you pointed out it we are still looking at two sides of the same coin but whether it's their burden or ours i still think when you look at the record you look at the evidence you can affirm on this because it didn't and again you can look at the no further than this court opinion in this case and yes the evidence here  delve a rico conspiracy it was the ryder guy case but there was also a count one rico conspiracy that's not in question here it's a valid count but there was also a count two drugs and speakers that the jury found guilty on and rather than look at conspiracy but the other nine hundred and twenty four c count your honor all revolve around three murders the murder of travis arnold the murder of devon hutton and the murder of corey bloom and is this court pointed out all those murders can something to do with the drug testimony included that male ride or die members used guns which are necessary to protect the rico and drug therapy conspiracies without them right or die would not have been able to defend or expand its operation and this is all you and ninety one the page four hundred and ninety four the prior opinion relating to the murder of travis arnold before travis arnold died right or die could not sell drugs in a certain area of the city after he died after he was murdered they were able to sell drugs in that part of the city this court stated there is evidence that byron jones murdered arnold in furtherance of the rico and drug conspiracies when corey blew was killed corey blue was a drug dealer who  two defendants patterson and the lloyd jones he short of them they call blew up and blue said come on over and i'll fix it jones and patterson then punished blue by killing this court said the evidence which included that defendants punish blue in relation to ryder dies drug trade supported the jury's conclusion that they murdered blue in furtherance of the rico and drug conspiracy and when it came to the murder of devon hutton the assailants to go into another drug dealer's house kooky and they saw someone outside and asked him you're selling drugs for kooky but he was just a user so they busted their way into the apartment saying where's the money where's the drugs they killed devon hutton and yell to the people on the side tell pooky the riders came through in relation to that this court stated it is obvious that the murder had something to do with ryder guys and drug operations so yes while there was evidence about violence whether was evidence that in some situations may have just been to rico and not drugs this court when dealing with the murders that affected the county before you today found that there was a definite obvious connection to the drug operations and in that line looking at the opening statement and closing arguments suggested that the rico conspiracy offense encompass conduct beyond the controlled substance conspiracy emphasize them if they see the whole in this is west this is a case about violence in fact it's a case about violent shooting that those are you know quotes it's a case about murders it's a case about violence shooting those are very powerful statements and are we to assume that the jury drug conspiracy so that's the st thing it was a nd yes there was violence and there was drugs and evidence did overlap because that was the nature of this game they sold drugs and they were violent in this court noted a lot of times they were together the rd thing i would say is i know in a way it's what the jury do what the jury do and i will not presume to even attempt to speculate what the jury thought but i can only say when you look at the test on how we determine whether this error affected substantial some some of the actions were because of gang affiliations and not because of drug moving and also didn't another witness testified that moving guns was for a different reason than distribution of drugs so to two instances where the witnesses don't match up with the idea that you have absolutely there was certainly other names and i would say if nothing else a lot of that evidence went right to the rico count one conspiracy which is not at issue here  sir there was definitely governance to that that some things were just about increasing the brand of the ride or die name some were affiliation with gangs and i can also argue that they could support drug trafficking as well but i but i agree entirely that was part of the case but i would say also that with the convictions that you're dealing with today you're not we're not dealing with the count one overall rico conspiracy you've affirmed that now it's not in question but the murder was the counts that are the subject today are drug related and this court has said so and i think it's hard to get away from that and i think that's at least i understand that is part of the equation and we don't back down from that that was part of this case it was violent and it was drugs these murders are committed and i think that's judge would vacate that conviction and send it back for the opportunity for the government to retry it and i know there's some question about that but the reason we would say that is there is no doubt that the controlled substance part of the nine  is a valid way of convicting one hundred and twenty four c no one is challenge that so if we have one good in one bad way of doing it and the bad way is out of this we still have we still have a good way of producing a ninety four scene i think the right thing when other times when there's a mistake in a jury instruction that you find affects the right it doesn't vacate the conviction automatically all the time it but it sends it here back to what the government had the opportunity to try the case on the right not would you say for proceedings consistent or would it say or read trial because it could be that there were those they the other side would want the opportunity to argue to quasi that i agree and i think also the same reason the government would have to consider whether it want to proceed i think it would be for proceedings consistent with this opinion i also think that probably would probably be a good idea because of course the supreme court's decision in davis is probably coming out sometime the next two weeks which could land more impact on your decision as well as the ramifications exist and so i think that's how you would do it i don't think in another question you ask judge all right i don't think it affects any of the other sentences of this court affirmed the other sentences and when it for to hear in cases but should we wait the two weeks or so perhaps it might be or as you said it and recognizing your precedent we recommended that that might be something you want to consider only   there's no need for you to weigh i'm not a good seely's reader but i would expect before june is over we would have davis i don't think there's any prejudice in waiting the defendants are serving other of life sentences that are not affected by this so i don't think you have the danger of someone sitting in jail while you're waiting for someone but i think you could and i think it would make a difference in that situation so based on what we have your honor unless there are other any other questions i'll just point out that the three murders we're talking about here involve the murder of another drug dealer the murder of a drug dealer that shorted two of the defendants and the murder of someone whose murder allowed  died to expand its drug operations to an area couldn't sell drugs before looking at all that the record does not contain evidence of an acquittal on the ballot controlled substance around it contains evidence supporting a conviction and with that we w because just a couple of brief points the structural issue it's clear it's true that this specific scenario has not been addressed and found to be a structural error by other courts but i would argue that this error clearly affected the entire trial framework consistent with what mccoy has provided guidance on and if we look at the whole trial at least because it's impossible measure the actual effects on the jury verdict of this broad due process error and i think that's evident from the government's o arguments i mean the government acknowledges that the evidence could have gone either way there's conflicting evidence there's certain arguments that could been pursued by the jury in different ways i mean it's impossible to tell or know or are looking to the jury's verdict and know what they were thinking and what kind of motives they were seeing but then moving on to the issue of whether you know if it's nonstructural and if this court does have to look into a harmlessness or a substantial rights type issue with a plane error of you have i would argue that you know i know the government focuses on this court's previous decision this case but the language such as you know this clearly had something to do with drug operations within the gang or within right or die that does not that's not the same as concluding that it clearly and further is a further ends of the specific independent drug conspiracy those conspiracies because they are both valid predicates at the time of that decision those conspiracies were reasonably kind of treated as as one with the drug conspiracy being a subset within that rico conspiracy and as you know i still harmlessness i think there is evidence in the record that definitely could rationally lead a rational juror to come to a verdict of acquittal acquittal we now you card just took a couple of quick points with respect to the harmlessness analysis because i think that's logically possibly where we've come to in terms of the harmlessness of the case case and in that case they found that they could find that absent the air the jury verdict would have been the same but in that case that they found specifically that the government's opening statement never mentioned the invalid ground that they did the closing argument never mentioned the invalid ground this is an entirely different case than that obviously and with respect to not knowing what the jury is thinking this was sort of an unusual case where the jury was given a very specific kind of jury verdict form and on a lot of the specific subsets and predicates that they were asked to find they found bare and stiff and not guilty of things and found all of the defendants not guilty of the murders as predicates to the conspiracy to violate that attempt once and corrupt organization to act so as far as you know what could have been done in this case as far as the nine hundred and twenty four counts they could have given them an option to determine whether or not they were finding the drug conspiracy as a predicate or the rico conspiracy as a predicate and that is one area where they didn't