court my name is of a right of rodriguez i am an assistant united states attorney in the western district of new york in rochester new york i was lead counsel in the investigation in the trials of this case at the district court level  issue before the court today is whether the district court erred by setting aside the jury unanimous and evidentially supported verdict finding jeanine plus appears guilty of conspiracy to possess with intent to distribute and to distribute drugs charge and count one of the conspiracy of the indictment we respectfully submit that the district court did care that the jury's general verdict should be respected and given effect notwithstanding the jury subsequent special findings with respect to drug type and drug quantity what special findings were included in the verdict sheet only for purposes of determining what the maximum and the minimum penalties would we did not ask that the jury be instructed that the findings were limited to for purposes of sentencing normally the jury as the court knows doesn't address sentencing but you could have said the reason the in the rocketeer is that there is we do want to know which quantity which drug and which quantity well the jury instructions your honor did specifically tell the jury that only if they find the defendant guilty of count one can they consider the special findings the court judge jury see further distracted the jury that quoted the the quantity of drugs in question is irrelevant to whether or not the defendant is guilty of the conspiracy charge was that they have these enron well your honor ultimately it was my responsibility i was lead trial the government submitted the jury instructions and the proposed jury instruction and the special verdict proposed a special verdict of the court and the court dot that without objection from the defense against whatever is in the charge or not in the charge we can attribute to you because you submitted whatever instructions you thought were needed to deal with these and derogatory i think that's fair you are ok now when the jury came back with when aren't leads facially inconsistent answers if you have any suggestion to the judges to what to do about  judge initially i suggested to the judge that the jury be kept and be made to clarify what was an apparent inconsistency you did initially i did later on after having an opportunity i think i  request made that request immediately after the jury came back with a diverted the next day during argument of the issue after i had a chance to review the matter a bit more closely and consult with some of the folks at the office we determined that the vote in the special findings were in fact not inconsistent with the guilty verdict the jury was discharged day before the day before when they came back to their they were go missional the day before the afternoon or evening before they were still in the box or they were in the jury room when you made your argument to the judge when i initially requested that the judge not let them go they were still in the jury box the judge overruled me and let them go what was the judge's response he just said no the judge as i recall correctly if i recall correctly the judge determined that trying to get the jury to go back in and clarify what the court or the parties would tell the jury was an inconsistency would be improper because in my dull too deeply into the deliberations of the jury so they let them go w request that the jury explain it or just reconsider to check and says i don't remember what my request was initially in fact i asked the court to hold up a bit so that the parties would have a chance to consider the issue the court disagreed with me and let the jury go when we came back the next day the position of the government was and is today that the verdict of guilty is not inconsistent with the special findings and it is not inconsistent with the special findings because this court another courts have consistently found that drug quantities are not an element of the offense for drug conspiracy and that even drug type are not an element of the offense for a drug conspiracy cocaine cocaine heroin marijuana you say they found her verdict shows found her guilty of the conspiracy to do all four possess with intent to distribute and to distribute those for drugs then the next one says we the jury find the allegation that the defendant peers conspired to possess with intent to distribute one of those drugs cocaine and they say not proven correct tell me how that's consistent with the st one because your honor someone can be a member of a conspiracy without necessarily having been involved or touched drugs for example mr rodriguez the indictment speaks of her intent to sell for specific drugs  you that the verdict came back saying she had that intent but then the interoperate tori's speak of her intent to possess or sell each one of those specific drugs so you're indictment ties the type of drug to what the special interrupted tory found there are the indictment in count one charges a conspiracy to possess with intent to distribute the four drugs the elements of the of a conspiracy is one that the conspiracy exists in the jury had to find beyond a reasonable doubt that there was a conspiracy to possess with intent to distribute these four drugs and secondly that this defendant was a member and he knowingly became a member of this conspiracy and participated in what they had to find for counsel for the general one is what did they have to find to say no to the nd one which also says conspired to possess with intent to distribute your honor the jury might very well have determined that the role of ms ploughs appears in this conspiracy did not necessarily directly involve the handling of drugs i would cite the court that's not what the  raga tory does pacifically say that she conspired with respect to the specific drugs i would cite the court their answer was that wasn't proof that was not the next drug and that wasn't proven we go on to the next drug and that wasn't proven were there any other drugs that were sort of floating out there that were part of the proof show up here no no there were no drugs the for the surgeries prudence pretty clear that you if you're going to be convicted of conspiring to distribute cocaine you are at least to have have to indicates as most recently set forth in the person decision it's a summary order no has limited jersey jurisprudential or a presidential value but in that case the defendant was charged with conspiring to possess with intent to distribute heroin and cocaine the indictment specifically charge those two drugs and the jury came back found the defendant guilty of the conspiracy and in the special findings found that the defendant was not involved with cocaine base or heroin so in the special findings that directly found that the defendant had not been involved with the drug do not mirror the guilty verdict on count one the interrupted tories do not contain the word guilty or not guilty the jury made one finding with respect to whether miss podder peers was guilty or not guilty of count one they found her to be guilty that's what they found that was the general verdict this court has been in another courts have indicated a general verdict a finding that anything the follows it can be so can be considered superfluous in this  what is absolutely but with respect with respect to the guilt of the defendant we would argue your honour's that the special findings were superfluous the special findings were not included for purposes of determining guilt they were included for purposes only for purposes of determining what the penalties would be what the what the quantities and types were so that the district court to determine the sent i don't think they knew we've got to reckon with what now on the chart judge would forgive me for interrupting but in that respect i would i agree with you i agree with you we have to reckon with what the jury did and was told the jury came back with a guilty conspired with respect to all four that anyone would charge cover that issue at all no your honor and i don't think legally it should have the elements of a conspiracy ar conspiracy charge in the indictment exist that it exists to conspiracy to distribute for ivans correct and i suppose your back there and i said well i'm sure she can try to distribute three of them but i don't think she i don't see anything in this proof about cocaine i see a lot of heroin marijuana and base but i don't see cocaine what should i do find guilty or not under the charge they may have gone through that analysis your honor but what would they do what would what are they entitled to do under the charge well under the charge they would have had to determine that the conspiracy exists in that she become a member someone can i guess i'm not my i'm sorry judge i don't mean to miss a point i probably received charges to distribute for substances that is that's when the center distributes for controlled substance correct and your things he distributed three of them did they find her guilty or not guilty did the charge make that clear that you don't have to find she intended all four i don't know if it did your honor  words from what i take it you drafted distribute four items that's what the jury was asked to say guilty or not guilty about they were asked to determine identified substances yes except that different people different members of the conspiracy can play different roles in the conspiracy and had the jury been told that you'd have a much better case if they were told that the jury the jury in the instructions respected different substances yes or just different roles so no different roles the jury the jury was instructed consistent with the pattern jury instructions of this court that it says conspiracy to possess with intent to distribute now there may be different rule role in a conspiracy to possess with intent to distribute i grant you that but if you count one says conspiracy to possessed with intent to distribute and then lists four different types of drugs and all of the in toronto taurus asked if she had intent with possessing to possess with intent to distribute then i don't see what difference the roles would make because all of the roles are covered under to possess with intent to distribute and they have answered no to her intent with to possess with intent to distribute for each of the four drugs so even intent to distribute so to me it seems like the different roles there may have does doesn't matter your honor i continue i appreciate the court's perspective and position what i would say what i would suggest is that in this court in person was confronted with a similar situation the wording of the wording of the in iraq atory was different i agree but in that case there was a guilty verdict and then there were special findings and in person the court specifically said that when there's that the court will try to interpret the special findings in a way to make them consistent assume quote in such circumstances we assume the jury acted in a consistent manner and followed the instructions of the district court i'm quoting from person the nd circuit decision person doing so the jury and i'm still quoting doing so the jury must have found that person was guilty of conspiracy to distribute and possess with intent to distribute the context because a jury is presumed to follow the instructions of the trial judge and the nature of the verdict with the jury is clear now the court then proceeded to point out that in the jury instructions the district court told the jury the different members of the conspiracy can play different roles here the jury was also properly and again i'm quoting here the jury was also properly instructed the person as participated in the conspiracy was equally culpable of conspiring even though she participated in the conspiracy to degree more limited than that of other coconspirators the jury makes us have concluded the person's actions was sufficient for conviction of the crime of the charge crime of conspiracy did not rise to the undefined and biggest level of her being held responsible for the drugs in comparison to her coconspirators being held responsible that's what that in assistant didn't do quite what you did well i was hoping it would judge but the well i think you got to agree and you know the language is different there's no question about it i think the point of person is that you try to interpret the special finding for example there was testimony about how she drove the members of the conspiracy to the cattle ragas indian reservation to participate in the murder of a disloyal worker there were there was testimony about how she allowed her sons to keep and store drugs excuse me to keep in store guns at her house that were that were used in further into the conspiracy so there are other things that the men and the members of the conspiracy can do that don't necessarily relate to the drugs that still allow them to conspiracy dr supposing she went to get them groceries that count no well i don't know if he was getting groceries to supply a drug house yes they could have county judge what happens for example if a if a drug worker is directed by by the leader of a drug conspiracy i want to take these drugs from here to there and get and get the money the drug worker has no clue what the drugs are not does that mean that the worker is somehow not guilty of the charge conspiracy because the jury cannot conclude which particular drug they were responsible for which can or which particular drug they conspired asked to that's why forgive me for something like a broken record that's why the elements are so important here the elements charge did this conspiracy exist yes the jury must have concluded yes and the nd element is did this defendant become a member in any way the government's effort to try to get the jury straightened out at the end of the day before the jury was charged the judge judge both mr rodriguez and myself while what we thought should happen my recollection from the record is that initially we were talking just about the facial inconsistency on the verdict sheet and then at some point mr a facial inconsistency go back and reconsider if you want to stay with these fine but if on reconsideration you want to change them change that's what judges do when they are confronted with inconsistent verdicts  that's not how it reads that's not how it reads unlike a like for example in person or in randolph where there were different questions asked from one judge glasser for example concluded that that might be a question directed at whether she personally intended to possess controlled substances in this case to track the special erotic very track the language of the statute conspired with intent to possess jurors say no i've just told you she conspired to possess four flings so i'm going to say no to just ok oh i see where you're coming from i never read it like that to be honest or they never read it like  read i don't know what a jury i don't know what the jury in this case we have an obligation if it is plausible to try to reconcile it along those lines i don't think it's plausible to read it like that i think it's tortured reading to be to be frank that yes we were cured about it it just says to distribute cocaine and they say no that's not what she did she did it all for well the statute lists all four and none in the jury found that she didn't intend to derogatory number one correct that's the only word correct and the finding to can reconcile it with the overall one which is for that's a way of reconciling them isn't i suppose judge if they had been instructed in that regard but my recollection is that they were not that they that they were not instructed in that one reason that normally they would be asked to go back and reconsider perhaps with some additional instruction but  findings is reconcilable with the general guilty verdict i would also note and i think it is relevant that this jury knew how to find not guilty it's not a jury who found guilty all the way across they acquitted misapplies appears with respect to the other two counts that shows and then the deliberation took several days of our member correct that shows that this jury took their time took their time and in fact the verdict she specifically says that they are only to consider the special findings if they find the defendant guilty beyond a reasonable doubt so we would argue in the court i think correctly pointed out that this that this court your isp encourages urges courts to try to reconcile a verdict and special findings and this jury knew how to find not guilty of a thought that way to simply disregard their verdict i would respect