drug trafficking because the core arguments with respect to both of those counts of conviction are essentially the same this case arose out of the agent rojas is hopes to infiltrate a global drug trafficking and or money laundering conspiracy apparently he was unsuccessful with that in south america and in amsterdam and he focused attention back home and constructed something of a drug and money laundering conspiracy in his conversations with the number one defendant in this case moshi monsters those fictions formed a great deal of what was charge in the indictment and what the  charged in both contexts what were global conspiracies involving countless countries and four continents unknown numbers of financial institutions hundreds of thousands of dollars of transactions tens of kilos cocaine most of this constructed from whole cloth but all that charge in the indictment in the simple reason that there's insufficient evidence to convict mr mr pinera on both of those counts is that there was no evidence whatsoever that he had any inkling that there was such an agreement that there was such a conspiracy this these broad global conspiracies and that alone is reason to reverse those convictions an order judgment of acquittal enter the government doesn't respond to that argument that's the primary argument raised with respect to both of those counts instead it responds to fall back argument which could be characterized as a rhetorical f the briefs which is look even if the indictments had been more modestly drawn to just focus on what mr pirie actually was involved in there still would be insufficient evidence to convict on the case because there is no evidence that he believed he was involved in a drug trafficking conspiracy or money laundering conspiracy and i think what makes that point better than anything is to look at the four cash drops that mr pirie was involved in that are the bulk of the government's evidence against him two of those cast traps occurred in december two thousand and twelve in february two thousand and thirteen the government says well those two those demonstrated his involvement in money laundering another guy which occurred in may of two thousand and thirteen the government as well those two are his involvement in the drug conspiracy and there's zero evidence to distinguish between those past drugs well say well one of them was demonstrators involvement in terrorism another one demonstrated his involvement in trafficking in endangered species pretty much make it up to throw two into one bucket and two in the other bug with no evidence to distinguish what he believed those cash crops involved know i would suggest it's doubtful that you could ever have that sort of transfer of criminal intent and non individualized guilt in any circumstance maybe there is a circumstance we could be shown that two defendants were so close and so regularly traded core information that that inference would fly in a specific context but in this context the evidence in this case the evidence surely does not support it what the evidence shows is that on four occasions mr pinn essentially making decisions on behalf of this alleged organization doing things on his own he's being kept closely under control and what's interesting too is that when asked during trial a was asked what was in nature the relationship between these two as far as the criminality that was going on he said i don't know so how the jury is supposed to make these inferences about the relationship that would allow them to shoot all of each criminal intent criminal knowledge criminal bleeds to mr canary when the d a case agent at the center of the case can't do so is a mystery that's unexplained by the government but the reality is in these meetings amongst matsuri the d a agent the montevallo police department officer that was a central undercover in this case and to a lesser degree mr garratt or defendant number two mr peri's name is mentioned not once not falls well now there are other reasons that the substantive counts fail for example and the money the two money laundering subsidy accounts require that there have been a representation to mr pirie by a law enforcement officer that the funds involved were the proceeds of drug trafficking activity was never such a representation in the other substance count with respect to the attempt to distribute drugs involving the driving the car to utah there is no indication that mr panetta believed that car contained drugs specifically said he never interacted with this theory and it's evidence from the trial evidence that mr pirie was not at the location when the car was wrapped up so the one piece of evidence that the government really tries to hang its hat on with respect to the temp chart they just misrepresent what the trial evidence was counts and my briefs i focused on the government focused on whether or not the events in this case showed in effect on interstate commerce and in reviewing the charges yesterday in preparing for the argument i realize that that was an erroneous focus because the charge is actually in the indictment let allege a conspiracy to affect commerce and attempt in fact commerce and it's  the actual jury instructions at three fifty ninety three sixty the only sensible way to read those instructions is that the government's theory at trial was that there was a conspiracy or an agreement to try and get this when he was allegedly extorting him he was actually just here on a cell phone and he wasn't does a cell phone sufficient for interstate commerce now i mean i don't think so because there's no indication even that there was any sort  of that the cell phone signal crossed state lines but there's really no indication that mr premiering knows anything about any of that the only indication that is that he knows that he's making a threat to collect a debt no indication is what the debt is owed for how much the debt is cetera but what's really interesting is if you look at the jury instructions what the government's theory is is that they tried to collect this debt and if the debt were collected commerce from one state to another would have been affected that is their theory was not that there was an effect on interstate commerce and that's it page three sixty of the excerpts their theory was that if this threat had been successful in the death or paid that payment of the debt would have affected their stay confident  many from california i mean i think this because it involves nanny sure i think that for all the arguments i've made in my brief that even if it were they were proceeding on an actual completed effect on commerce that they would fail but what they really what they really argue with the jury instructions is that if the debt were paid that would affect commerce in given that mr pirie nothing about there's no evidence he won't do anything about what the debt was for how much it was that would mean that pretty much any time arguable way wrongful violated the hobbs act which would which would make the interstate commerce of the commerce element meaningless  well well sure accepting the point there but what's interesting is that the first two money drops in december two thousand and twelve and february two thousand and thirteen those are for the greatest sums of money those are for  seventy thousand and eighty five thousand dollars and those the government says were for money laundering not for drugs where is it says these two smaller drops in may of two thousand and thirteen for thirty and thirty five thousand oh those were for drugs but there's no there's no distinction between them and the other as for drug use if it was related to drugs or sort of everything involving drugs is interesting is this is coming back to the the extortion the object issue though taylor says if the person believes it's the defendant believes that they're robbing someone of drugs or drug proceeds because of rage  that necessarily stablish is the commerce element you know a lot of stuff can be sort of intellectually difficult to sort out as to what does that mean in an attempt in a conspiracy context but none of that's relevant here because there's no indication that few drugs you would not have an isp i think that's correct if the extortion was look we want your drugs or we're going to time and mess up your face or we want your drug proceeds or you have to pass a tax on your drug proceeds that under taylor i believe would satisfy that the commerce clause element but those are the facts here there's no indication the mr perry knows anything other than that he is making an effort to was at a wal mart parking lot in los angeles observing at the time a hand off of a vehicle that his boss codefendant moshi mastery new believed contained five  also the testimony at trial established that there was a communication that was given to the two co defendants spiro regarding what to say to the person picking up that vehicle and the evidence establish that the defendant mastery told the defendant just to tell who the to tell the spiro the identity of the driver because that was important the person delivering the car later that day the defendant followed that vehicle and there's evidence in the record contrary to what defense counsel said earlier that there was a black b m w at that wal mart parking lot the same black b m w that was seen in earlier transactions driven by the defendant was seen following the the green toyota all the way to st george utah where the its shape unary delivered the keys of that vehicle to another undercover ga agent after a forty five minute standoff in which he exchanged not one not two but three phone calls with mostly mastery regarding the hold up and the delivery and they discussed that the hold up in the delivery was the identity of the person delivering the vehicle after that and the successful drop the defendant and mostly mastery continued their conversations that day they talked about additional deliveries to utah and about how they had a special way to get there their drugs started sorry a special way to get the car there in fact masteries stated in one of the calls next week when he's talking to canary during one of the recorded phone calls next week i'm going to be with some other guys so don't make me a problem i'm going to i'm going to charge for everything here speaking with reference to the vehicle and the delivery of the vehicle so don't make me a problem i know what to tell them i know exactly what i'm doing and then at the end of that day on july ninth twenty thirteen the defendant in coordination close coordination with vodafone and mastery helped organize and execute an extortion attempt on a individual that had been represented to them to be baggage chatterley specifically to to mr masteries vegas chad and also to not represented to mr massey the biggest had was a drug traffic what appears to be as the violence is occurring to the vehicle back in ma the los angeles area that is that that is one day in the in the life of this defendant during this particular conspiracy and the evidence at trial that was on that issue defined it defense counsel is just noted there is no dispute that there was a drug trafficking conspiracy at issue here what is actually issue is the defendant's knowledge of that conspiracy and as judge wardlaw noted there is there is circumstantial evidence of the defendant's knowledge of the drug trafficking conspiracy the first what some strong one of the first issue is for the first fact that suggest knowledge is his participation in multiple drug transactions he's not involved in just one cash drop in may twenty thirteen for that the ten kilograms deal not involved that it's just two he's also involved in the five kilograms transfer in july from los angeles to utah with regard to canaries role in the organization is also a key factor here there are more than twenty phone calls from two for over two month period between mr mastery and penury that the government admitted during the during the trial that they found i just recounted and there is evidence at trial that he acted as a conduit so in the may eighth twenty thirteen drop where he can communicate instructions from mr mastery to the individual who approached him deliver the testified that he that mr straw said that his girlfriend who was a white woman would drive the vehicle but there is also held in trust of position within this organization this organization  e supervised the cast of the re on may eighteenth twenty thirteen he supervised the act of vandalism and further into the extortion and hand handled and delivered more than one hundred fifty thousand dollars and even u s currency as part of the money money laundering did so knowing that he was that mr canary was delivering money that belonged to a colombian drug cartel or believed belonged to a club and drug cartel there's also the evidence of the standoffs which was took forty five minutes for mr unary to deliver a vehicle where the only issue was the identity of the driver of the vehicle and there is coded language used throughout their conversation between mr penn area mr mastery throughout you something specific that shows that he knew it was a drug transaction context the the fact that it's a drug it's drug trafficking is at issue is sufficient to me interstate commerce and the government further argue that there is an imputation of knowledge here again given the extensive relationship between mr mastering mr perry and the collection efforts in this case  to the money laundering conspiracies the government's evidence in support of those particular conspiracies is not just that there are two cast drops in and december of twenty twelve and in one if every twenty thirteen is a government noted they were a government noted in the record the government did not have its the wire up at the time of the money laundering transactions involving mr perry and mister mastery it seems to please  repeated times that mr perry shows up at transactions involving our contacts all that is evidence to government from a strong from a circumstantial evidence of knowledge that he's involved in a drug trafficking conspiracy in terms of the money laundering there is the additional fact that the defendant doesn't seem at all uncomfortable at any point in it and dealing with any of these particular transactions he doesn't seem to not understand when mr could find him guilty of those offenses and like to turn briefly to the issue of the defendant raised the issue of plain error and a jury instruction on the drug one of the finding in his briefing and claim that the government waived its argument as to prongs of the plane air argument that the first point i would make is that the defendant's argument is that to get that the court had to give an instruction that mr perry believed there were five fewer grams involved in this transaction because of the fake transaction the cases however twenty actually yaar three thirty nine through three forty one and the record also indicates that prior to giving that instruction the court and the parties discuss cortez that l i'd like to begin with the coded language thing because that was mentioned a few times and it's sort of emblematic of a lot of what's going on in this case there was no coded language is needed to be decoded if there were a government agent would have come up and said that coded language refers to drug trafficking there conversations involving mr masry in which there is any sort of coded language deciphered that they say all of this relates to drugs which is nothing like that and i think this case demonstrates well to twenty two you know two perilous one is what can happen when the government can give rise to the inferences of green well sure but i think they're asked to be something more close coordination as to what and i think that's what when the problem of the manufactured criminality comes into play here because what are they coordinating they're coordinating a fiction when you're sent him out with these two cash drops in the money laundering and trusted him to make those cash strapped no he didn't he followed him and he observed him from a distance when he has cash strapped that doesn't indicate trust that indicates managing someone who you're using to insulate yourself from criminal liability and if you're using that person to insulate yourself from criminal liability do going i want everything you know about all your criminal conduct that you're cooking up with this other person doesn't make sense whatsoever but i think again it comes back to there's no distinction in the forecast for out as to what mr premier e thought he was doing how does the government just get to say oh well we want to claim to are drug trafficking into a money laundering there's no evidence to make that distinction they're making it out of  no coded language that supports that there's nothing that supports it extortion counts because government counsel was just talking about that on the related case there is no evidence in the record that even mr masri was told that this involved a drug debt collection i can point the court the extent of the evidence on the interstate commerce and on the extortion counts was for me are seven of six to seven fifteen seven twenty three seven thirty one and seven sixty six and that's what side in the government's answering brief judge reinhart question about taylor and whether it would have been enough for the defendants to know that this involved a drug debt collection is irrelevant for this case because first of all in taylor the defendants intentionally rob  dealers and went after drug proceeds what detective commute testified to at trial with respect to why this debt was being collected was that he told mr montgomery i provided him with a fictitious name and a vehicle description and an address of this person who owed me money that was on e r seven o seven so there's no evidence whatsoever that drugs were involved at all that chad was a drug trafficker a drug customer and all of the other reasons why the government gives interstate commerce was affected here a car being traveling interstate commerce manufactured in interstate commerce those are all inferences that the government asking moak trial as a result of the district court's failure to instruct on the dual role testimony of both agent rojas and detective come in now the government has conceded that there are seven categories of improper testimony improper expert testimony late she participated that's correct and we cited united states versus prang and our reply brief which was the first circuit case that saying the analysis is the same if the agent is involved in the conversation the question is still what is the agent basing his opinions on when he's giving those opinions to the jury and if the agent is basing his opinions on his knowledge of the investigation in this case then it would properly be considered lay testimony but he still has to give his reasons for the opinions so seven zero one would still require that his opinion is rationally based on his perception and if there needs objection made at trial there wasn't a lot of this testimony was was one objected to and that's why we're under playing our review but both but this court's decisions make it clear that it's the district court's role to serve that gatekeeping function and when the  testimony i think i think what your honor is also pointing out is that this case is unusual because there are no foundation given for whether this was a late testimony or whether this was expert some money and the government has conceded that there's certainly expert testimony and there s certainly times in the record where the agents are testifying based on the drug trafficking business for example one of the one of the terms that was interpreted was a hand that a hand meant five or other defendants are saying and the interpretation that's being given by either rojas or can move is based on those asians experience investigating prior cases or whether it's on it's based on this investigation itself and viera and then the fourth circuit case that we cited garcia make clear that it's that lack of foundation it's that lack of bases that makes it so problematic for the jury that the jury doesn't know whether they are listening to testimony that they can interpret they can evaluate based on things that are before them that they know that evidence has come in or whether it's just deferring to expert opinion and without instructing the jury on how to evaluate those two different types of testimony that's where the prejudices and i want to talk about prejudice given of course the government's concession that there are all of these categories that were improperly admitted the defense in this case was entra the defense in this case was that the government bore the burden to prove that mr masry was not predisposed to commit these offenses and that the government induced the government the burden was that they had to show that the government did not induce mr masry to take part in these offenses now just given the seven categories that we can agree on there were improperly admitted those went to the heart of that defense and as an example  large amounts of cash they would they would disperse and have smaller amounts of cash and within the whole circle of drug trafficking it's huge and whether this enables a drug trafficker to continue his or her business so that testimony alone is telling the jury that these defendants are acting in a way in line with experience to drug traffickers there's a another instance at our three ninety where   and there's so again there he's telling the jurors that these defendants are acting in a way consistent with experienced drug traffickers and your honour's even the fact that they are that the agents are up there on the stand and telling the jury that they are speaking in code that they're speaking in a way to mask their conversations isn't it is it shows that these defendants were predisposed because they are speaking like drug traffickers and the agents made that very clear or detective can move at the are six sixteen said that the defendants like drug traffickers took precautions to avoid law enforcement so again they are acting in a way they're predisposed it's not the government that made them do this they're acting in line with how these agents have seen other drug traffickers and other money launderers to have acted i can go through all of the examples that are there in the government's brief and there's seven such examples now i would say that what the government has done and it's answering brief is really minimize the role that these agents played during the trial the government basically says these things were scattered around the trial that nothing was relied on in closing and that there was overwhelming evidence as to mr matsuri without this improper testimony and that's just not true that's a misrepresentation of the record the agent's names were were named in the closing fifty one  times they were repeatedly emphasized and in fact during the rebuttal the government said that undercover officers infiltrated an organization and undercover officers posing as drug dealers were part of each and every one of the deals that we've discussed here today and that's it we are ten fifty eight the government's entire case was these agents there was about four to four and a half days of testimony total and these agents agent rojas and detective can testified for three days that's more than seventy five percent or seventy five percent of the trial testimony and that's what this court and other courts have looked at when looking at the prejudice when it when analyzing the prejudice of improper testimony the garcia case in the fourth circuit basically was all about one agent's testimony was an expert witness that came up six days over the course of twelve days about half the trial what this court said and zero was that the drug quantity amounts that were testified to improperly by expert by an expert and lay a government witness took up the primary evidence in that case during the trial and there is no evidence in this case like  as respect to mr penury that wasn't involving the government the government had its had its hand had its interpretation of every single one of the transactions in this case  again the government said that there was a centrally for different ways that they established the interstate commerce element was satisfied the first was that there was that the car that mr pirie was in when he spoke with mr mott free which doesn't reference anything about the store shown but that it was traveling in interstate commerce and there's just no evidence in the record that the car was traveling in interstate commerce i think there was a reference by mr penry to he had stopped to get married but certainly all of the cases that the government cite that involve the use of a vehicle to satisfy that element have actual evidence that was introduced at trial that the car was manufactured out of state or that it traveled out of state or between states there was i think the government oftentimes relies on the fact that they call in vegas chad and that somehow that shows that he lived out of state all of the testimony about who take place at those to luka lake apartments there's no evidence the government also talks about a phone call to a las vegas number unlike the cases at the sites there's no evidence that any interstate telephone system was used no evidence of cell towers or anything i think your honor pointing out that you know in the age of mobile phones and you're standing right next to each other the government certainly needs to point out some kind of effect on interstate telephone system or interstate commerce to satisf in one state was was hit and it bounced off that tower and hit another tower another state government and even try to introduce evidence during trial and i think i think what the government is doing is trying to say look we've got a  case here involving you know meeting that started off with agent rojas talking about an individual in miami and another individual in amsterdam and they kind of took for granted that interstate commerce would be satisfied as to extortion i think this court's decision in janus which involves the bank robbery statute and whether the government had set aside the f b i see element of the banks where they just argue to the jury these were large banks these were big financial institutions but similar here where they didn't actually submit any evidence they they simply are making arguments about be a cocaine customer of his and that's just testimony about who he was supposed to be but no evidence that he ever told that to mr mathari no evidence that mr mathari ever knew that this debt collection involved drugs and so the record group the money laundering and the drug trafficking counts under lopez i think that's a that's a straightforward issue this court's decision in lopez holds that under three d one point to be especially with the facts  here that all of these transactions involve the same individuals this was entirely government run staying all of the money laundering and drug trafficking transactions involve a general detective to move and lopez hold to that that the victim there for the societal interests that are harmed by those related transactions is the same it also involves the same common criminal objective i mean what the government used the their of their list of trafficking and have money to then go and buy more drugs and that's the common criminal objective that the government argued to the jury and then when it came to sentencing they tried to parse these two things out so finally that they wouldn't argument in an under seal submission that basically his efforts and cooperation for five years should be factored into the district court in its sentencing analysis under at least thirty five fifty three and the government came back and said oh no the district court considered that but he found it to be an aggravating factor the government site on that point which was thirteen fifty six of the record it's actually the prosecutor speaking the district court never addressed that whatsoever never addressed the yes yes seal argument i misquoted affection that was actually the prosecutor but i believe that the district court did consider the argument various places in the record it said thirteen forty seven and it had reviewed all the sentencing positions at e r one three five three the defendant then went on to argue about the under seal position obviously before the court and then the prosecutor also did the same thing i wanted to address first and says that vegas chad is a cocaine customer a customer of mine who owed a total of eighty thousand dollars so aside from the sort of drug evidence there's also evidence in the record that the codefendant mr pinera was actually traveling in interstate commerce while he was arranging this extortion with mr mastery so you know aside from whether or not the drug trafficking occurred actually there actually was an interstate commerce component to this transaction instructions to say that this should have happened the testimony here to not come close to what's normally considered expert testimony these were undercover agents not case agents as this court has previously said in gadson lay opinion that relies on experience is proper and that's what happened here they were simply describing telephone calls in which they had each taken part they often were describing their own words and what they meant not even what other people had said foundation issue that was just raised at the outset  they said that the two participants in the call have to know what the code means and so because they were persistent say of course you know with both men that's not to say that an expert witness couldn't have also come and testified about what the code words meant he could have he or she could have but they weren't required to so what i think happened here is that in the course of just describing all of the conduct that was at issue they were listening to phone calls and they would stop and say what is this what did you understand the word to mean and then they would say i understood it to mean x and they would move on there wasn't follow up and there weren't questions saying ok what does that mean that he's experienced drug trafficker what does that tell you so so there wasn't sort of expert opinion about what these code words meant and that they were consistent with the behavior of a drug traffic also because the testimony was incidental to an explanatory of the charge conduct and the jury was free to believe differently they didn't have to believe that the case agents were correct they could have said knew what they were talking about and mr masters conduct in every instance simply corroborated what the undercover agents testified to the evidence at the trial against him was overwhelming it wasn't because i want agent testified to a code word and it wasn't because an agent testified about what red flags in a financial  institution are none of those things came out in closing and none of the things were necessary for a jury to reasonably believe that mr master master was guilty of  conduct i wanted to or not a handful of the questions so there were two in particular that were just raised about avoiding red flags in the financial system and then money laundering tactics employed by defendant were pretty much the standard system both of those were cumulative of expert testimony that was already offered by by platt and so you know any potential error jury confusion was mitigated by the fact that they were hearing it from a witness that they knew was an expert court has previously said that a dual role instruction isn't the only way in which a cherry can become aware of the different kinds of testimony before them it can come out through cross examination it can come out because other experts testify and that's what happened here any sort of improper opinion was not an error that was so clear or obvious that at them required the district court to suicide on the give the dual role instruction in addition the concerns that were contemplated by all of the decisions about expert testimony aren't really present here there's one about unmerited credibility and i mean that's obviously a very legitimate concern but that concern is that a notice expert which we don't have also testify as a lay witness and  that lay testimony will have some sort of unmerited credibility because of the expert nature of other testimony they just were not offered as experts in the first instance another concern is often whether or not expert testimony will somehow become a conduit for other improper hearsay testimony and that's also not the case here there's no suggestion that either a witness didn't have personal knowledge about everything that they were testifying to with the court has questions about that i will move on to the sentencing so there are two possible ways in which the drug trafficking and the money laundering offenses could have been grouped and those are under sentencing guidelines three d one point two b n one point two c and i'll address the first which i did not do in detail in my answer and very and it says that closely related counts are when one count embodies conduct that is treated as a specific offense characteristic in or other adjustment to the guidelines applicable to another  counts and presumably here that means because the money laundering drug proceeds that it couldn't that it should have been grouped with the drug trafficking but the application note itself makes clear which is no six to the money laundering sentencing guidelines that when laundered proceeds are actually derived from the underlying offense grouping under subsection c is therefore appropriate here the water proceeds were not related to the drug trafficking counts in any way there were two sets of transactions but occurred here the first one was the money laundering counts over the course of a few months and then a few months later separate drug offenses and in the money laundering counts they were laundering money that they believed to belong that they believed was proceeds from a drug offense from someone else it wasn't their own drugs it was someone else's and then later on they go on to commit these other drug trafficking offenses and so the money laundering that occurred in the first set of transactions really had nothing to do with the drug trafficking that happened later on not the drugs they were selling correct especially general hot came to them and said that he was this you know related to this colombian cartel and he needed to launder money from his own crack trafficking and so that's what they did in  from the witness detective camino during one of our meetings he offered me if i was ever in need of someone to collect a debt a drug debt for me that he would have the people to do it so there is there is nothing about vegas chad is nothing about vegas chad being a cocaine customer this particular debt being a drug debt and as to seventy seven the testimony was simply that vegas chad as i said earlier was supposed to be a cocaine customer of mine who owed a total of eighty thousand dollars but again nothing no evidence in the record of all that any of that was ever told to mr masry your honour's on the on the dual role testimony i think it's a family made that statement on seven o seven that's come over who made that statement on the dual role testimony i think it's a fairly simple straightforward issue this was a case where two agents testified agent rojas a detective can move seventy five percent of the evidence over the course of four days came in through them and when you have so clearly expert and lay testimony that's being given by the same witnesses that goes to the heart of an entrapment defense there are at least those seven categories of testimony but endless more that have been pointed out in our bruce that talk about these individuals as experienced drug traffickers as experienced money launder without some kind of instruction that this court has mandated to tell the jury how to evaluate those two different types of testimony the jury doesn't know how the counsel said that the jury could just disregard or believe their own interpretations they have law enforcement witnesses that are up there that are giving them interpretations that sometimes they say are based on their hundreds and hundreds of investigations that they've conducted previously other times they don't tell them at all what their interpretations are based on and so the jury has to assume that they're based on either those investigations or some other facts of a can't evaluate for themselves and i think when the testimony is so clearly when the evidence at trial is so clearly based on these two witnesses