certain evidence to the defendant oh i know that's one of the smaller aspects i'm not going to address the other isn't the waitress's the contact information it is your honor thank you  honor a fundamental precept in our system is that the defendant has an opportunity to take a look  review and contest have again evidence against him and her what happened here and let me let me step back a little bit there's no question mr levy was guilty of something typically this would be a state prosecution we're talking about is illegal gambling in the  vietnamese community and in san jose that's not what happened here what happened here is that the f b i was contacted to find and the f b i had a cooperating witnesses and informants and it turns out that those individuals that call the two sisters if i may who ran the illegal gambling cafe at least one of them could correct me if i'm misunderstanding the facts on this certainly my understanding is the court ordered certain documents produced the court later found that the defense forgive me to the state of taken upon itself to redact contact information which is these witnesses names the waitresses names just concerned about that for sure and so so here's my concern as a former top court judge i think the record but i want to be corrected if i'm wrong is that this issue was not raised during trial at a time when the court could have done something about it and i and then my second concern is whether or not there's really a showing of prejudice on this concerning issue but me if i may your honor just addressed the second concern first you know on the issue of the identity of these witnesses is central was central to mr lee's defense not because mr lee was engaging in criminal activity but whether or not he violated  according to this court and the only case cited by the government so the question is how many people were involved in this enterprise during what period of time and all of the evidence or the only  evidence as far as i can tell came from the sisters so the question is would the evidence of someone else who was there was would that be  understand it this was the only enterprise that there were involved with not true the waitresses as i understand it work for them in another enterprise doing precisely the same thing so there's impeachment but it has to do with the number of  district rejected the motion on the basis that it was speculative but did and given what was on the table before the district court why was the district court right well the district court could could be right exculpatory for purposes of guilt or certainly they have something to say in terms of the credibility of the only witnesses going back to the court's question about all of these individuals who purportedly were  involved and the issue then really gets to well why wasn't it brought up before was or a waiver and i don't know what the answer is to that other than to say the issue  the motion was made after the trial in judge white did find that first of all he ordered this information to be turned over he wasn't aware that it wasn't turned over but then he said in the order denying the motion for new trial that well it sounds like it speculative and the question of course is well how would we know that without getting a hold of these witnesses to find out what they have to other judge white says when he's addressing this well the police officers testified you could i asked them in front of the jury the names of the of the witnesses it doesn't sound to me like that's a practical solution because he also says in the order denying the motion for due trial well who's to say you would have found them who's to say what they would have said  so i don't believe that there was a waiver there certainly would be an inference that would be drawn i suspect that it couldn't be that important if issue wasn't taken before the trial but my understanding is that the materials were turned over redacted unbeknownst to the judge and counsel didn't immediately say i don't know you know we can't get a hold of these people then there was the trial then the motion for a new trial i don't believe that a waiver argument holds a great deal of weight in connection with what we consider to be a basic due process issue and the question becomes who is responsible for articulating what these witnesses would have said or not said the best we can do is if they were there they in all likelihood would have addressed the five persons within thirty days element they were there as much as the sisters and the sister's testimony in that regard as far as i can tell was an rebutted and that is the basis of the conviction based upon that we believe that mr lee deserves a trial with all of the witnesses who have something to say about that element in order to make a determination as to whether or not he violated a federal statute or perhaps something else i believe my thang cou possibility of separate conspiracies and second mr tran's inability to pay the fifty five hundred dollars fine but if the court has questions about any of the other arguments i'd be happy to answer them first the jury could have found mr tran wasn't involved in a broad conspiracy that included multiple cafes but was only involved in a separate conspiracy at homei the district court therefore plainly erred by not giving  instruction the district court should have instructed that the evidence was susceptible of separately operating conspiracies if you the jury find separate conspiracies you have to be unanimous that the elements of the federal offense were met for any conspiracy you found one or the other defendant or both we participated and were looking for any substantial showing that there would that was a real possibility of jury confusion yes you're right to me that that wiretap where where these two call clients were talking to each other is pretty tough evidence for you do you want to go to that sure there's thank you and there's no question that mr lee found out about what his buddy mr tran had separately been doing in other words mr tran was involved with a person that mr lee knew nothing about he was already doing some gambling operation there but mostly was calling tran and telling him about this and found was reporting back nobody got it i'm going to take care of this really sounds like they were had a joint objective there they did and they may have worked worked together in the past but it doesn't show that mr tran had anything to do with the south cafe or a broader conspiracy alleged conspiracy to conduct gambling at multiple establishment that he knew of or agreed to assist in a broad multi cafe operation plainer because the standard is a genuine possibility of juror disagreement the court has a sort of sponte duty at that point to instruct on unanimity and that genuine possibility exists here mr tran had his own thing going at home i before mr lee ever tried to get involved showing that he was not just a colleague in mr lee's operation there was no evidence that mr tran knew about or agreed to support mr lee's activities elsewhere and there was also no evidence that mr trans benefits were dependent on the success of the entire venture mr tran was getting a cut only of what was going on at the home a cafe nothing to do with which virtually all of the government's evidence was about including the critical elements that the operation lasted for at least thirty days or made two thousand dollars in a single day none of that was proven as to anything that mr tra was apparently involved in your client's defense at trial actually this is my question on appeal your client's defense is that he was involved in illegal gambling gambling operation but it was a different one right and i didn't have all five people within thirty days or th government didn't show that i think and i'm trying to figure out how expressly that was articulated before the jury in terms of the argument to the jury right because you're going to draw confusion i'm trying to figure out what the jury what picture was painted to the jury trial short so the defense counsel argued that mr tran was only involved itself but the difficulty there is a jury findings you know the verdict doesn't show that the jury unanimously found an issue that it was never instructed it could find a jury findings are only as good as the instructions on which they're based and here the jury wasn't alerted to the possibility that it could find separate conspiracies separately operating operations gambling operations and then it had to be unanimous that the federal elements were met as to any that it found one of the other defendant participated in the defense request that special verdict question and that's why we have the pla in terms of the fifty five hundred dollars fine despite that mr tran is indigent all of you know what evidence and that was there on the record that he was indigent i think your honor all of the evidence in the pre sentence report shows that mr tran was he dropped out of high school there was no lawful employment history of any kind he was a convicted felon had no credit history owed eight thousand dollars in child support and had to have a court appointed counsel for both his trial and his appeal so it all of the evidence in the record contradicts the probation officers conclusion that he could support afford to pay a fifty five hundred dollars fine and  makes this plain error here at a minimum this court should remain in the matter because mr tran was denied his right to the district court's finding that he had the ability to pay that's a statutory requirement under the united states code that the judge must make a finding of ability to pay before levying a fine and here again all of the evidence in the pre sentence report contradicted a finding of ability to pay  so what about that what strikes me about this is i think what the record shows is that your client hadn't didn't have didn't have a record of ever earning an honest paycheck to any lawful income and that the judge chose the very low end of the fine what prevents the judge from taking a look at this person and saying you know if nothing else you're able bodied you can flip burgers you can you can get a minimum wage job and over this period of time you should be able to come up with the low end of the fine what's wrong with that to your honor's point about no lawful employment history that is going to affect mr trans ability to get a job and certainly the court was doesn't get rewarded for having a criminal past so it's some point that the argument gets to be a little crazy when i take a step back from  seen your honest point that he shouldn't be rewarded for having a criminal past but the fact was that this man had no money in the united states code doesn't permit levying a hefty fine on a person who is indigent so well this goes back to judge thomas question judge thomas question which is the one i share there isn't a record of income there's no record of assets but but if nothing else as i said because it's body i think it is and he's how old or young i don't recall i'm just not sure what's what violates the spirit of the rule that we have in ordering the very minimum amount on the basis that if nothing else he can do well i'm afraid that those are some since there's not any affirmative evidence in the record that he is able bodied that he does have skills or any kind of ability to earn a living and certainly being a convicted felon he's in debt right but here's what you know and in the pre sentence report it says he committed this if ounce is part of a pattern of criminal  he was getting income through a criminal activity how does that meet the burden in order to have a court appointed counsel for his trial and his appeal he had to go through a financial evaluation and that show that he had no income but at some point you know there's the old turnip truck kind of argument right it to say that he qualified for a public defender because he didn't have any lawful income is one thing and it's quite another to say he was incapable of know there was this trial there was nothing but hearsay to suggest that he was a loan shark for example of that wasn't part of this trial no one ever testified to that i'm not certain i wasn't his agent based last night i forgive me for interrupting but i understood his defense at trial and certainly on appeal is yes i was involved in a criminal ambling operation just not involved in this conspiracy over here but that's what i did for a living isn't that right yes and we operation i'm not sure i can answer that your honor but i can say that at a minimum the trial court was required to make a finding of ability to pay and state facts in support of that ruling and here it didn't do that and the statute but it would have allowed the court to impose a fine of up to two hundred  v in gaming or any other game as i read united states versus vegas we can read into such conditions a knowledge we quietly why can't we read into the basis two problems there your honor first is that mr tran is arguing this in this appeal that vigor was wrongly decided that leaving a defendant's rights merely to implication is insufficient protection  if it's not stated in the condition it doesn't protect him from for example wrongful arrest from being arrested and jailed for someone reading that condition as not having knowledge requirement in other words not every probation officer police officer is familiar with vega and knows that requirement and that's why there really is no legitimate reason for not adding an explicit knowledge requirement into these conditions as far as the propriety of the condition itself gang colors as the authorities in the brief show is a very nebulous concept and in other words there's a very good case showing that  facts those case get punitive again colors were actually the same colors at the local high school so you can certainly imagine that running into trouble at a football game and particularly in this case where there was  evidence that mr tran was a gang member literally zero there was some hearsay suggestion from on and hon when the sisters in this case that they believed that mr lee and mr tran were associated with the v and gang that was admitted only for the purpose of showing their fear because fear was an element of the extortion crime that was a so that's a different that's the government standard practice your honor it's to look after the interests of third parties and i think that's appropriate especially in this case given concerns about the violent nature of this gang of course the evidence of the fear of these individuals didn't come into trial so much because it's probably inappropriate to tell the jury about that but there's plenty of evidence about these being accused me all right so while you're taking a drink of water it seemed to me that with the judge felt that that was a surprise and i think he used the phrase that the government took it upon himself how is it typically done is there some when appropriate to get the court's permission first or perhaps given the way this played out that court had ordered the production of those materials i suppose the government could have alerted the court about it standard practice but of course the defense could have done that with the defense was concerned a simple remedy was to raise it with excuse will you say standard practice i take it it's not the standard practice the government to reject the names of exculpatory witnesses as a because i would violate brady of course and i think that's the other interesting dynamic y was really no information to suggest that these would be sure well i didn't understand that to be the government's brief that if it is i think we're going to use a lot more of your time frankly well i think this goes to the prejudice issue i think the government argued below it argues here that the defense has not shown any reason to think that these waitresses had any relevant information and again i think even the defendant during trial behaved that way because he could have raised raise this with the the court if you truly thought look these are important witnesses to keep those times this question to be quite different and i just want to be clear whether the the government's argument here is that there wasn't a problem with a brady plot problem with redacting those names absolutely we if we  when the owners were alleging that they were basically being you know knuckle under so they would have right and i think what you're going to tell me in a minute about about what you think is the greatest showing of five participants within a thirty day defense well i think i think they're a good argument is that the only evidence that there were five people involved came from the sisters and they that these witnesses motivate either impeach their testimony or contradicted and five we do it and so two responses to that one it is not true that the only evidence of five people involved came from the sister's far from it there were the wire taps there were surveillance two f b i agents testified about their surveillance activities until then perhaps we could do it this way what is your very best shot at showing that there was evidence of five people within thirty days what's the what's the strongest example of that please sure i think it didn't sound like a thirty day period to me so i'm looking for a thirty day period five people sure in the month of may two thousand and twelve mr lay coordinates installing the machines at the home may with done then mr day and he's always the person that puts the machines in at the cafs mr trannies involved in that defendant tran and an individual named tam knew when i believed him to when is the individual who's indicted but then commit suicide so he's never convicted to a new in a different mr new when is collecting money during that time from the south caf i believe mr levy maybe also collecting money from the south caf that's five right there so that trans involved in an overarching conspiracy right yes and that's an important point i do want to address your honor i think the defense is repeatedly trying to divide them up and that's simply not consistent with the evidence mr loughner or lou both lou the sort of kingpin of this whole thing says right at the out said to the no in sisters he says my goal is to have machines in every vietnamese cafe in san jose that's his objective and then sure enough consistent with that you see mr levy or les not sure how it's pronounced later speaking with mr tran in that intercepted phone call that key phone call mr lay says after learning that someone has put machines in a cafe someone else someone outside his organization he says no no no no no if i allow them to do it there then it's going to happen to me all over town so that's consistent with this idea that their objective the objective of this conspiracy is not to run machines at a single cafe or to divide up the cafes that doesn't make any sense the objective of the conspiracy is illegal gambling in vietnamese cafes across san jose and you see it in mr lay's own words you could hear it if we had the audio in his own voice talking about that very issue so we think there's a bunch of evidence i could go through more but there is abundant evidence that this is one conspiracy and i simply do not see how these waitresses at one of the cafe's could have said otherwise moreover i don't think the defense saw it either because they never raised it this would have been a very simple matter for the defense to go to the court and say you know what judge you ordered the government to give us those police reports that we wanted that the government gave them to us but they blacked out the names of the waitresses those are defense witnesses at trial we need that information and if the court agreed it would have said our government turn it over right now it would protective order if you feel there are safety issues but that could have been resolved before trial the defense never raised it and we think that's because the defense didn't actually think these waitresses had anything important to say and this comes up for the very first time in the rule thirty three after trial and that's too late if i may i want to talk about this issue of separate conspiracies we already talked about that a little bit talking about the evidence but your honor you asked a question about playing air and i think that's critical here if the defense had requested a jury instruction on multiple conspiracies or one on specific unanimity and the governor and the different district court rejected that requested instruction then we might be having a different discussion because there are some cases sometimes this is looked at as a variance sometimes is more like just a sufficiency of the evidence issue this is analyzed by this court in different ways in past cases but bottom line is the standard is somewhat  when the defense wants an instruction and asked for it they have long their favor from this court but the defense did not ask for one here so they cite a number of cases particularly in reply reply about supposedly the standard for giving a defense instruction the problem is in every one of those cases it's the the defendant asking for it and the district court says no you can't have it so for example one will for the the defendant wanted to destruction on justification for having a gun the defendant says i need to have a gun because i believe my life is in jeopardy that's the facts of will for district court denied it said no i'm refusing to instruct the jury on justification and then this court considers that here what would have to be different is the court the district court would have had to without any prompting just look at this evidence and say on its own i'm going to give the jury a specific unanimity instruction  and there's simply no basis in this court's case law to say that the district court had to do that and so do you agree with opposing counsel's response to my question about whether in the trial court mr tran's defense was as  clearly articulated as it is here in other words i understand his defense to be yes i was involved in a different gambling operation but not involved in this conspiracy i think that's right yeah i think that's basically his defense that your goes to the jury and i think in a way lapierre decision that's a relevant consideration to confusion the potential for confusion so too with the government's argument so is it your position then that while the government sorry the evidence could have supported the specific unanimity instruction that the problem is that the defendant didn't request it my position is actually stronger than i really don't think the evidence is there to support multiple conspiracies i think that key call between mr tran and mr  i think the evidence we think the evidence is crystal clear that particularly if you zero in on the call the way they talk to one another the way it's immediately understood what the calls about before anyone's even said anything at all where mr john says i've got this covered i've already taken care that says exactly mr trons immediate response upon hearing the name of this individual who we never found out who that is home map i don't know who that is but mr trying to mediate lee says yeah yeah don't worry i took care of that he knows what they're talking about already before you things even said at any rate even if the evidence were more equivocal  the argument was not the government's argument the defense argument it was crystal clear the government told the jury that it was one conspiracy there's a quote i have in my brief it's that the how cafe i'm sorry the the home a and the sour cafe the two key cafes at issue a trial the government said it's one and the same conspiracy so the jury could not have somehow misunderstood what the government was charging in this case it could not have somehow fahed it should convict mr tran even if it found some other conspiracy he was involved in it was crystal clear from the evidence and the argument of counsel what the allegation was what the charge conspiracy was and so the jury convicted understanding that and we think for that reason mr trans right to a unanimous jury simply was not in jeopardy if i may all briefly address the issue of the fine the sentencing guidelines could not be more clear it is the in ability to pay a fine that requires a finding from the district court not the ability to pay mr tran repeatedly tells this court it is the ability to pay that is not correct he cites the robinson case of this court robinson is not to the contrary whether a defendant has established by a preponderance of evidence that he is unlikely to become able to pay any fine in the future it is crystal clear it is the in a billet to pay and whether the defendant has  the defendant here or mr trey and did not establish that the p s r has some of his say so he claims to the probation officer that he has some back child support obligations for example verify that's not really evidence in the traditional sense that's just to say so he also says he has his ged that's on the other side of the equation because his ged suggests he has some future earnings capacity that's not verified either so the district court looks at all that in the courts says well i really don't have any information about the defendant's financial situation through statement mr court got that right the one thing the district court is that of course mr tran did have appointed counsel and that's an important factor but in the absence of anything else from mr tran  did not meet his burden and so the district court in light of other factors the defendant's very disturbing criminal history of the district court's words twenty two adult criminal convictions that mr tran was only forty two years old at the time  yes that's the robinson case your honor and i think that supports our position because the district court here did exactly that the district court looked at the information and in the p s r had already said we don't think the defendant has met the burden so the probation officer said in the p s r we don't think the defendant has shown inability the district court looked at that and said we don't have any information have any information didn't didn't say i weighed all the factors i've concluded just the one sentence we don't have any information about mr trounce financial situation if we agree with you about the burden where's the fine well because i think there doesn't need to be it the finding would be if the defendant had an inability present or future that's the finding required by the guidelines and that's what robinson said the court would make a finding  inability and the court here did not do so so in the absence of a finding of inability to pay the guidelines say quote impose a fine in all cases that's that's five  point two so it is the in ability that requires the finding here not shown by mr tran and  i think the district court rightfully under thirty five seventy two as well as thirty five fifty three a then i went to what the district court saw was the more important a driving consideration at the sentencing which was the defendant's criminal history as i said a moment ago this defendant had twenty two criminal convictions as a forty two year old man and the district court right focused on that quote very disturbing criminal history that's entirely appropriate under thirty five seventy two to think about the defendant's criminal history as a factor in the imposing a fine frankly defined ends up being low in pretty modest and nonetheless it's a piece of the sentence that the court  we think the gang colors condition as well as several the other conditions that are challenged are appropriate and the answer to the defendant's concern is the vaca case your honor we think this court has said that already and unpublished decisions  and it's exactly right that that the speculation about being caught up on knowingly and wearing again colors the answer is the defendant has to act no really and my colleagues said something about the idea of like an arrest or police arresting him let's be clear that these are supervised release conditions they are not crimes you cannot be arrested the new crime for wearing gang colors this is a condition of supervised release and if the defendant no we mainly wears those collars he could be liable for a violation of supervised release but nothing more than that but defense counsels point was the pleas would not know when they but human for a violation of that he knowingly adopted those college in israel requirement either the police officer or the probation officer what's your response my court reads conditions of supervision that is an important case of this court on that issue again i don't even know so much that this is a concern for just a police officer on the street because i don't think it's typical that a police officer would arrest someone for a supervised release condition i don't think we have anything on the record on that either way my other point though here is i think mr tran's argument even if it has some appeal is for closed by the so there was an argument to be made before vegas decided that as mr trances don't leave this to implication don't read in we require the district court to put that word in the condition that's not what this court decided in vaga this court said nope it's fine we will just read we have we have acquired another cases i think i understand your position  charged the jury that that means there is no problem with the jury instructions here the point is that the evidence was susceptible of multiple conspiracies and because of that the trial court had an obligation to instruct the jury about that possibility they could because there was clear in title meant under the plain error standard and under the leap your case that when the evidence is susceptible of multiple conspiracies the jury has to be instructed on that and here is your honor pointed out this was part of the defendant's defense whether it was well articulated by counsel is another matter and that's why we're left here with the plain error standard but nonetheless this was part of mr trans defense which is why  it was needed to be given the legal underpinning to find that argument in other words you can't you can't find things that the court's jury instructions haven't allowed it to find the court didn't alert the jury to the to the issue that it could find multiple conspiracies and had to be unanimous also with regard to the government's point mr lee's saying you know if i allow this here it's going to happen to me all over town well that really proves mr trance point that mr tran had his own thing going at the home a caf mr lee heard about it he pushed it in he wanted mr tran to use his machines and that mr transit ok i took care for you but that doesn't prove that mr tran was part of a broad conspiracy only that he worked with mr lee in this case to install gambling machines at one location for which there was no proof of thirty days or two thousand dollars in a day  one point with regard to the find your honor there is some indication we have been frankly speculating about whether mr tran may have made money as a loan shark for example well how much money did he he successful and we're speculating about these possibilities and the reason why is because the trial court didn't make any findings that we can review here but it wasn't on the other hand there was no objection made and the burden is on the defendant  that's great but but all of that all the evidence in the pre sentence report shows i mean all of it points to mr trans indigence none of it points to some you know large bank account that he's holding somewhere well i mean a lot of time i think that's a matter of interpretation your honor i mean i i work on murder cases where the fines are much lower than fifty five hundred dollars so was it wasn't at the minimum under the guidelines for this for the sentence or so so the district court said i don't have any information i'm going to point you pose the minimum under the guidelines but as your honour's were highlighting the trial court made no findings of current or future ability to pay finally with regard to the gang colors i just want to point out that a person certainly can be arrested for a violation of supervised release that puts you in proceedings that then could send you back to prison thank you counsel thank you