i mean is the type of comment they can also cannot also be raised by limiting instruction in this particular change the judge even violated his then he says at this time at this time you're to do should be guard units destruction we know that is to begin with that is an insufficient limiting instruction particular conviction was made reference to no it wasn't i submit the general instruction given is worse and if a particular instruction had been given and or jury seen what we're being asked to take into account something that happened forty four years ago so it's even worse what happened is worse than if the complete instruction with the limiting instruction that they're supposed to give that he said he was  involved no explanation as to what was her involvement was with that he didn't mention something about him being interested in working and she said well maybe you should because it is now as if he was working and it went against the idea that he was in gays in drug trafficking the so there was no objection from the government it was the heart had an inflexible rules out that is been admitted in their standish form and there was still a conviction nevertheless there was still a conviction and we were arguing this point here we would have spanish documents that seems and he said the persons that pled guilty yes and wanted the court say we don't care about the other people who planned guilty i don't want to hear that yeah that was the question in th activities of one which is why i submit to the court now in a constructive amendment should be found because they actually included on murder that is income parents buy in forty years within fact i can i just ask you one question i didn't see any discussion in your brief case of figaro or our case from two thousand which seems to be directly on point and runs against your position is there anything you want to say about i don't testimony about his involvement in drug task force do you recall here the nineteen years working for the police you never want to fight himself as being hot while having experience identifying drugs and that's that i would like to and by mr flow about who were the members of the association who were for whom because there were very there were different brands different owners who are working together but each one had their in these drugs or guns zation so here here's my question dear juries are permitted to render compromise verdicts we don't know what happened in the jury i think on one take it could be exactly as you say that the jury did not find that he possessed with the intent to distribute any cocaine but there was certainly testimony that he did why isn't it just plausible to assume that the jury couldn't agree on the amount which is why there was a specific request for a mountain so they said no amount because they couldn't agree but they but but they still nevertheless convicted him of possession with in nevertheless decided not to why isn't it just possible that that means they couldn't reach unanimity on that point so the unanimity that they came up with is we're not going to we're not going to list and i'm out and just take it as a default position what what's different days different hours where you could see some people going in to buy you could see twenty or maybe thirty people selling drugs there so they had you please the court william placer for the united states i'd like to briefly begin with defendant result of protests and then move on and address the other defendants in the order that they were addressed the evidence does not show the mr rezai it was convicted only because of the evidence of his flight from trial now the government's position is that the district court actually did not need to strike the evidence of that flight because it was admissible however in any event the district court did strike it and specifically told the jury that the evidence was not to be can taken into consideration at this time the court said that at age twenty one eighty seven eighty bendix very soon before giving the jury instructions and again when giving the jury instructions of page twenty two hundred of the annex specifically said that evidence that i have stricken from the record is not to be considered so the jury was twice instructed that it was not to consider that five and so although we believe it was admissible it was not considered by the jury if the jury prejudice of flight evidence the evidence showed that in order to sell drugs within will you had to be connected in some way with the organization the leaders in the drug conspiracy were able to control the conduct of all of the sellers at the la vega drug point for example if they cross the line they could be told to get back across the line and even face punishment by the conspirators flow one of the key testifying coconspirators testified that in order to be a seller within you couldn't just walk in but rather you had to be someone who developed a relationship with someone within the drug organization so all the mysteries are you know posits that he possibly could have been operating on his own the evidence overwhelmingly demonstrates that cool their money in order to hire the lookouts so there is evidence that in any event mr rosario if he's one of those people who is willing his money to pay for the lookouts is conspiring with other members of the organization for the purpose of distributing drugs if the prosecutor at closing emphasize the point that judge who i asked about that is that there was a monopoly and you had to in order to be selling you had to be allowed in by  those your honor i don't recall if the prosecutor in full size that with respect to mr rosario harris specifically but the point was made be that the the way this conspiracy worked was that there were the big shots who controlled everything that went on and that you couldn't just walk in and sold drugs in the evidence establish that overwhelmingly was there evidence that there were any independent sellers or rival distribution networks and look your honor to the best of my recollection there was some evidence that from casco tell you that he was concerned about some arrivals from outside of what we're trying to come in in compete and i don't know that evidence was really flushed out  extent but i do recall that's the one thing i do recall is that he mentioned that there was some tension with outside groups that were trying to compete but there wasn't any evidence that any of the seller specifically a lot of aid were associated with a conspiracy if i may now turn to the issues raised by the other defendants and starting with four for b issue as counsel did the district court instructed the jury not to consider a four four  and santiago hernandez rosa committed similar acts acts similar to those charged in this case previously committed acts as a star as the district court got because there was an interruption and the government decided later not to pursue that evidence and the district court then instructed the jury later the instruction which i began is to be disregarded at this time it should not be considered at this time helen points out that the district court said at this time however again as i mentioned earlier page twenty two hundred of you hendricks the district court specifically said that i don't mean that had been stricken or excluded from evidence should not be considered so there's no evidence that the jury considered this sort of it wasn't even for for be evidence it was sort of the the the hint for for be evidence was coming but in any event the evidence against the defendants was overwhelming to the extent that any potential error was harmless  drug seizures aside from mr anonymous rosa's search of his house which again he challenges that evidence as well but aside from those drugs there weren't drug seizures specifically related to those men however if you look at the summary of the evidence of the credit that that has the money and convict them regardless of any potential prejudice from the former for be evidence but never really came to fruition was there a contemporaneous objection with respect to the aborted for a for b in struction your honor there was and there was an objection to the four or four b evidence to begin with after the district court said it was going to admit it and then the government withdrew it and the court gave a corrective instruction there was no further objection there was no motion for mistrial saying the jury heard something there was at that point no contemporaneous objection to the evidence having come in now granted the there was an objection to the evidence to begin with but after the court of take on now it's possible that i missed something and that there was a prior motion in limine to exclude that testimony however from reading the trial transcripts i know where saw an objection to that evidence coming in and even on appellants mr sharon has not raised the argument that it was not admissible as evidence in furtherance of the drug trafficking conspiracy so the issue of whether or not it was admissible is not really on the table and hasn't been eight and actually sought to be life imprisonment mandatory minimum and could not introduce evidence of murder if it's merely charged as an eight forty want to fence as the court pointed out that seems inconsistent with  and whether it's labeled a constructive amendment or variance the facts invader federal law in this case are centrally identical that there was an eight forty one charge in evidence of a murder committed in be must be such a statement that a person would not make it unless the person believed it to be true because it exposed that person to criminal liability now the there are many reasons why mr rivera melendez who was the hearsay declarant might have wanted to point the finger at asco today he might have been afraid that he was actually going to be held accountable for that murder he pleaded guilty at this point but he might have been concerned that that would be an issue it would be held against him and he also might have assumed that this closed door meeting with two defense attorneys was not something that was likely to be related prosecutors and he couldn't be there whether someone would not make it unless they believe it to be true in other words that there's the sort of no good incentive for lying and here there are many incentives many very likely incentives for lying and the discretion in excluding it additionally the second requirement is that there has to be corroboration and in this case the court was very concerned that mr rivera melendez was already pleaded the fifth so he was not going to be testifying and mr ramos the attorney was not able to testify about anything other than the those circumstances where mr rivera melinda's pointed a finger at asco today and so this report rightly concluded that it was difficult to test the credibility of the underlying hearsay statement because mr ramos couldn't testify to anything other than the fact that it took place in this attorney interview but in any event the error was harmless because before you get there i don't think the parties discuss williamson the supreme court you know for a case that seems to me to be somewhat on point here if not exactly and i don't expect that you should know the case because i don't know very well either but  that it seems to the point of that case is that what is not hearsay or is an exception to the hearsay rule is testimony that is inculpatory as opposed to testimony that you know it wasn't  present at the scene of a murder exactly your honor and arguably you could certainly make the argument that under a sort of pinkerton liability theory that saying that you were someone who was a part of the conspiracy that you joined committed a murder you could theoretically be held liable for that ok but in this case the government at no point sought to hold anyone liable for murders committed in furtherance of the conspiracy no with a statement this statement that statement that i thought we were talking about isn't it tory as to said a woman and i think williamson says that doesn't even come under the exception that's correct your honor i would certainly agree with that if this was not an williamson has anything to do with this issue you need more than a week simultaneous or would you prefer to do it in order in fact the supreme court has said that you don't have to allege every overt act that you prove again there there is an argument that it was unfairly prejudicial and a rule for all three however that argument was not made at trial and it isn't being made on appeal and the jury was never tasked with determining whether or not mr such yolland committed that murder so there was there can't be any prejudice to him with the fact that he wasn't able to bring in this testimony from from other  seems to me difficult this miss it as being a relevant which is what it sounds as though you know your honor it wasn't it wasn't relevant to the determination of the jury happened but the jury did not have to and again that's not something that's really before the court the only issue is this constructive amendment claim are you arguing that testimony of the conspiracy was  so overwhelming that any error in excluding the ramos test would be harmless your honor sort of but i'm primarily arguing that the jury wasn't tasked with making that determination so on admitted to him that he had killed tate on the evidence came from ortiz who heard from a junkie a member of the conspiracy immediately after the murder that had been committed by such a young one and it came from the victim's take ton mother who heard again from the sellers at a lot a lot of data point the very next day that the killing had been committed by such a young one so that was more than adequate evidence for the district court to make the determination for sentencing purposes an one committed the murder to make sure that i don't leave anything uncovered to briefly address the documents that were untranslated and were not admitted i think  counsel's understanding differs from mine on whether when the translation actually began to take place i certainly there does seem to be evidence that there was permission to conduct translations documents admitted untranslated initially the district court granted some leeway and actually delayed deliberations by six days after closing argument to allow the translations to continue taking place but the there was no request for further no your honor their request was that they be admitted in the spanish language not the english language and again v the supreme court has said in the taylor versus illinois case for example that the right to compulsory process is something that depends on the defense defense initiative and it's not the courts or the government's responsibility to ensure that the defendant's evidence is prepared before hand the defense counsel very easily could have sought to file a motion fourteen twenty nine counsel specifically said this is why when the court excluded some out and said this is why i don't see translation before hand because you might exclude it well that's that's not an adequate justification for not translating these  exhibits that could have been translated before hand to briefly address the testimony from officer sanchez who testified about the drugs that were seized in mr hernandez rosa's house the evidence the parties most likely believed that there was going to be later evidence actually showing the drug testing and in any event the notes to rule seven zero one say that and this court's move as well say that  experience law enforcement officer can testify as a lay witness to his recognition of controlled substances and i agree that there wasn't he didn't establish extensively his his basis for making that determination however he did testify your honor i don't believe it would make a difference this there it's there's still enough evidence of the other conspiracy there was testimony for example from castro today who said that i actually helped prepare heroin with mr hernandez rosa so it was direct mr hernandez rosa so it was he himself that's correct or yes there are other issues raised by the defense that i'm happy to address the courthouse for the questions organization there is testimony that he one witness saw i believe this was work tease had seen him receiving a bag containing sixty  he there was testimony that he had given out he had distributed heroin to junkies to sort of test the heroin before it was actually sold for profit and the there was evidence that he was someone who went through the law of made a point and when i would tell people that step back across the line and he would tell them to disappear when an important official was entering la perla so that's that's the primary evidence against mr gomes goes all this again the sufficiency hasn't been challenged but the evidence was more than