please the court good morning donna mcpherson on behalf of the defendant helen starr this is a case the first impression there's no reported case no unreported case that i've seen no pinkerton instruction that i've ever seen that appears like the one in this case that pinkerton instruction resulted in a number of problems for the government we have instructions inconsistent with the indictment and with the law we have a result one of the results added counts to the indictment which constitutes constructive amendment of the indictment we have added counts because under the pink and pinkerton instructions you could find for example the jury can find the defendant guilty of hostage taking by being a member of the conspiracy to harbor and vice versa on it if the court is going toward the plain areas to thinking well we've got evidence that that applies to both and therefore we're not not really affecting substantial rights i think charged with interfering the instructions were on assault and this court held that the government and the court can do that you cannot change horses midstream you cannot fight someone with one charge and then give the instructions to the jury which permits the jury to conclude from those instructions something entirely different and here we have even a more complex situation i think than what we had and hasn't some of the other cases are referenced because are seven seventy two permutations seventy two different possibilities with respect to a single a single pinkerton instruction and how in the world can we know from the jury's verdict which which of those seventy two they selected the government says all this is the same instruction is the course approved in a nice sort of pattern structure and that's not true at all fact i included that presumably and the government wants to know how do you how do you share this problem how should have been done correctly i think it's obvious if you have a pinkerton instruction you make clear that that instruction applies to a certain conspiracy and think the second conspiracy was the lead is a little confusing because typically have conspiracy stuff an account conspiracy something count we have conspiracy as the sixth count in this case that there is with respect to harboring which is the first being a member of the conspiracy to harbor but that's a different that's a different kind of conspiracy than the one charge that the conspiracy charge is harboring has to be met we know all the elements of conspiracy has to be the same conspiracy and in fact there's there are several elements in pinkerton that that's why we have so many permutations there's the membership element there's the the crime has to be committed in furtherance of that conspiracy not some other conspiracy by the coconspirator and it has to be within the scope and under force the ability of that particular conspiracy not some other conspiracy now i think the easiest although i don't find it easy personally i think the easiest issue for the court to hang its hat on is the pinkerton problem there are additional problems  must find that there was a plan to commit at least one of the crimes alleged in the superseding indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit well there's there's three different crimes and the indictment there is harboring hostage taking but there's also the firearm charge so from the face of this conspiracy instruction they could they could agree that this bennett was guilty of conspiring to commit firearm possession which was not even  the other the other issues as i say are related and i'd like to reserve some time for rebuttal almost the court as any other questions at this time least the court i'm tracy bart officer united states attorney represent the italians matter united states first there was no error in this case there was no constructive amendment of the indictment the indictment charges to conspiracies conspiracy to take hostages and the conspiracy to harbor illegal aliens the group was added on to conspiracies and the jury was charged with two conspiracy again the conspiracy to take hostages in the conspiracy to harbor think some of  the confusion is coming from the fact that it's confusing acting further and with the object the jury was explicitly instructed they need to agree on the object of the conspiracy and it needed to conform with the conspiracy instructions that were given to the jury in this case but it was instructions one and three explicitly instructed the jury they needed to find the object of the conspiracy and their options for instruction number one they could find that the object was hostage taking and instruction number three they could find that the object was harboring so they could not find under either of those instructions that there was a conspiracy to possess a firearm number five gave the unanimity instruction to the object from which they had choices again those words were instructions number one and three the pinkertons direction is a separate instruction that goes to the substantive conduct crime the third possibility of finding liability the first way to find liability was direct conduct the second was aiding and abetting and the third was through the pinkerton right liability putting aside for a moment whether the jury found that the defendant had actually  jury found aiding and abetting excuse me aiding and abetting theory of liability then the pinkerton charge doesn't even come into issue so the only question is whether the pinkerton charges and somehow infirm as counsel has pointed out that was modeled on the pattern one circuit instructions for a coconspirator committed the crime as alleged in count one count one is the harboring charge so we can substitute harboring for count one second the person was a member of any one of the conspiracy is charged in four or si the person has to refer to a coconspirator in one of the the pinkerton charges in this case they act as a funnel they don't provide seventy two choices what they provide is a choice in one and then your result in one becomes the antecedent determined in the third question the conspiracies of which the harbor was a number so let's say they found that he was a member of the harboring conspiracy ok just to walk through it once when we get to the fourth section we know th was a member of the same conspiracy because the defendant was found guilty on the two conspiracy charges so the jury must have found he was a member of both of those conspiracies the same holds true if you went through this matrix and you found that the harboring w crime of harboring was in furtherance of the hostage taking conspiracy we come down to the fourth defendant was a member of at least one of the same conspiracies i e the same conspiracy that was furthered by the harboring in question three and keeps reopening but in reality the realm of choices keeps narrowing as we get result on each one of these questions it continues to funnel down instruction on the act in furtherance it's unanimity instruction requires that the jury determine the members the agreement and the object of the conspiracy so everything that required unanimity was instructed for unanimity and the jury coming back to pinkerton on the conspiracy instructions themselves the government's right as far as they were as far as she read that as she read from the conspiracy instruction as to harboring the conspiracy instruction as the hostage taking she didn't read from what i'll read from which is instruction number eleven are you your seventeen and that was the general inspires the construction or instruction and said that that you could find but i read from previously from my foot in the you must find that there was a plan to commit at least one of the crimes alleged in the superseding indictment as an object of the conspiracy all of you a green to the particular crime which the conspirators agreed to commit it says one of the crimes alleged in the superseding indictment there's more than hostage taking and a harboring the indictment there's firearm possession so under this instruction what instruction i'm referring to instruction number ten  the jury could have found and were not permitted to speculate or hypothecate but they could have found that the crime was firearms possession by  again say this court is not free to hypothesize it's not free to speculate we have to take these instructions at face value and then ask the question was it possible for the jury to do such and such i think the government assumes too much in the end and her analysis and recent walk through lunch answer the question you're so you're dodging the question i think clarify we have the pinkerton instructions and they apply the substantive counts they cause problems with respect the stuff in the council what i just addressed a few moments ago was a problem caused with respect to the conspiracy counts not the substantive counts that firearm charge that send their presents a problem and instruction number ten for the conspiracy counts not for the substantive counts the problem caused for the subset of the counts is caused by the pinkerton instruction and i was just about to say that the government assumes too much they assume that the jury first found the defendant guilty of both conspiracies and after they found guilty of both conspiracies they went to the can then they they picked up the an instruction and read it and now knowing that they found him guilty everything is in place in the pinkerton instructions we can't speculate on that maybe they maybe they looked at the substantive counts first therefore they went to the pinkerton instruction they could find that the coconspirator was a member not of the hostage taking conspiracy but of the harboring conspiracy under the literal reading of this instruction likewise not we go to number three the person committed the hostage taking under the face we have to look at the instructions on their face and then think what could they have done and if it's possible for them to do something that's illegal that is it doesn't follow the law as to the required elements of the crime then we must reverse for if the defendant was a member of at least one of the same conspiracies but we don't know which one because there's two of them so you could have and there's other seventy two permutations i'm not going to belabor the court with with other examples but the simple example i came up with was  that could be guilty of hostage taking by being a member of the conspiracy to harbor and vice versa and i think i think the government makes that too simple they're saying oh well we know what they must have done it was all funneled down because they first found him guilty of both conspiracies and after they did that they proceeded to go to the pinkerton instruction and now that they knew which conspiracy had been found guilty of we know how to fill in the blanks and that is overly simplistic we can't love worth and that we can speculate that way