overall agreement existed amongst all the trial on mr nigh mr ferrara when we asked for phone calls or two phone calls i think there are seventy five and seventy six that's correct where in the records you know whether they've been supplied i believe mr d yeah yeah come to the attention of the people who are investigating this leads to the undercover officers involved in the transactions three distributions to the undercover officer in november and december  first three transactions involve only the or even a conspiracy the source of the of the methamphetamine for these three transactions being after the march thirtieth telephone conversations fall into that time frame i'll get back to those there's a march twenty second transaction and once again this goes back and involves only the and vice versa the fact that they had no knowledge of him which is illustrated by mr leave us may not carry the day as it was showing no connection but certainly evidence that there was no connection there was one incident for example  there were others involved in this overall and here's you get whatever amount is void required to the wire well i don't know that naive was not aware that mr herrera may have it and may have had other supplier s i don't know that he was i don't know that there's there's evidence and in the record makes it clear that he was aware of that but once again even if he was aware of that if he was not connected to those other suppliers in any way if there was no mutual defense for success or benefit merely knowing that there's another conspiracy out there doing the same thing that has the same generic goal and that's to sell methamphetamine and make money does not establish the commonality that's needed in order to make sure  are going through her heart all of whom were going through her or their herrera was involved in deliveries both for your rebate and for at least a couple of that obviously if you're procuring drugs they're coming from somewhere but that that alone and that somewhere you may know it's not actually your supplier because he has to get it from somewhere but that that alone his benefits on the success or benefits them maybe derive from the or even a conspiracy and vice versa but mr rare so he's relying on on supplying from these two sources not a member of an overall single conspiracy that includes the your rebate people and mr nigh mr herrera certainly it's a member of two different groups but there are two distinct groups not one for the benefits and success of their group and there was no evidence in the record that mr nigh was dependent in any way on the your rebate people for the success and benefits of the distributions in which he was involved they were they were simply like two nigh went back to your rebate to him and that's when those things so certainly mr herrera has some plot not a connection but he's he's a person who's mutually involved in tonight purchasing from her air we're well and i don't i don't doubt and i think those those telephone calls candidly are probably indicative of some ongoing at least i could say it's just talk because there's no transaction the support that they did anything but certainly the talk suggests that they were considering further transactions between them through the between themselves between the two of them but i really think that this just kind of helps to define the distinction between these two groups because you have an i related transaction on our or in the phone call when they're talking about something that happened about three weeks ago between the the transaction of march fifth you have the transaction of march twenty second and this is this is such forth in the indictment including the overt acts and then supported by the testimony of of a number of people and it's very clear from the from the the cumulative testimony that mr nigh was in no way of participants in the march twenty second transaction so while mr herrera and mr and i are continuing to have discussions at least during this timeframe that your rebate conspiracy including mr herrera's involvement continues to go forward with its own separate conduct then you have the march thirtieth conversations there's no evidence of any transaction nothing of that appears to have occurred but very shortly following this march thirtieth telephone conversation you have another transaction on april fifth which i believe is for four pounds and this once again is distinctly your rebate this is mr o leave us twenty second and april fifth when you have two significant friends all really lonely you really don't have any discussion between mr nigh and mr herrera about what's going on with this transaction or that transaction you don't have mr nigh suggesting that he should be getting a tape from either one of these and then you go forward to the last transaction and these two april transactions are not overt acts are scuse me they're not substance counts in the indictment but you go then delivered and paid for in that fashion once again there's no evidence despite the wire taps and the surveillance and and other investigative procedure certainly evidence that mr nigh is involved in any way in these in these april transactions with mr leave us so you have this you have this conversation sandwiched in between very significant one pound for pound transactions of the your rebate conspiracy there's no benefit no connection no knowledge nothing there that that suggests a connection between mr knight and anybody through herrera that you guys could be responsible so that the amounts of drugs and that's really what drives this whole issue because you're not even challenging at five and six so it's really whether basically whether th ninth circuit when and how and what's required but i thought you would be ending this argument now are you oh ok yeah i've been looking back and sentencing that i realize that maybe i could have taken some additional steps but i still believe the steps we took for suppression and that they did provide a disclosure and offer to make mr nigh available i can't force the single versus multiple conspiracy argument of mr herrera was the integral part of the conspiracy in a way the government presented the case for the grand jury indictment as well as trial presentation the government would going to the undercover officer however the thing that the government found to be significant and we presented the case as a single conspiracy is that this one pound transaction took place on march twenty second of two thousand and three however approximately one week after that takes place we have these two telephone calls on march thirtieth two thousand and three where it is fair to scott and it does appear to be that mr herrera is offering to sel case law particularly the county case of the ninth circuit talks about that there has to be some type of rims to bind the spokes of the wheel together and it talks further that the circumstances lead to an inference to some form of overall agreement exists showing mr herrera one week prior to this phone conversation taking place and we have a four pound transaction taking place one week after those two phone calls with mr my mr not mr herrera so the government's position is that mr nigh was well aware that there were so the government's position is this this ring is the inference that we're trying to show that this ring shows a single drug conspiracy taking place or playing the facts the timing we have the sensually conspiracy that's taking place  about a nine month period of time the locations are taking place primarily the transactions in the district of nevada northern district you know that there is the one transaction that takes place in truckee which is geographically not far from reno nevada area where the other transactions took place the persons involved essentially six individuals are alleged or named as the conspirators in this single conspiracy and then the government laid out the twenty four overt acts in that the grand jury indictment richard we presented evidence to support each and every one of those acts out of those twenty four x eight of the acts mr nigh was directly involved in the in the conspiracy and it wasn't just simply starting in january and ending on march fifth we had him going on and then the four pound transaction taking place on on april third tell me what's wrong with this scenario that herrera is is selling herrera and his girlfriend their drug costs are selling and they get they get it from  are inconsistent with that scenario because on the thirtieth the calls are about herrera selling a pound quantity or well selling methamphetamine to nine and then as well how much would a pound so an all the rest of the case is pitching in as a supplier to herrera when herrera doesn't get it from anyplace else and then her airballs ny happens as well do you want some yourself so doesn't that show or that shows a relationship between i and herrera but how does that show that ny has anything to do with the other people you're out of the government's position is that shows there any other evidence that not purchased from herrera i don't believe any of the because nine with this sort of a it's kind of reminds me that when you you know you want to go to your favorite chinese restaurant and they're closed you go to another one and you get chinese food but that doesn't mean that the two chinese restaurants are in the in a conspiracy that to keep me filled up on chinese food i can understand that analogy however in my my biggest concern is if you're right and answer this if you're right  f the menace sells a thousand tons of methamphetamine i mean to make it the biggest methamphetamine transaction than ever doesn't i go to jail forever because that's part of the conspiracy at some point i think you you can you can draw the analogy or create it to a preposterous level in this case however if you consider just taking a snapshot and the thirtieth starting march twenty second march thirtieth april fifth that's that's the the difference i have on the the evidence and how it's interpreted in the juries was instructed on defendants multiple conspiracies argument as well as the government's single conspiracy i can understand having to consider the evidence to prove each and every you're right in this five c one point two letter he says that you know he told them where to get that methamphetamine but that the jury did another week we did present evidence of we didn't have the wiretap up to that point but we did have phone tolls for mr rare on multiple calls going back and forth between the two nine but i don't know that day yet but none of those calls indicated that they that number one they were connected or number two the length of the calls because they asked the agent who was testifying about the call records and he didn't have the information about how long the but you have actually it isn't until february twentieth that you actually have a night in a transaction that was presented to the jury is that right where we well in the actual transaction other than we have raising the inference through the phone records between him and isn't here so i can't tell when i do it i have to make an actual finding on the verdict sheet but if the conspiracy count doesn't stand you're right if he's if you take those three transactions take the actual weight of them that the felony would put him over the mandatory minimum to ten but there's no finding by the jury on that well one of the elements one of the elements of the conspiracy count was proved in excess of fifty grams of pure methamphetamine that was one of the elements well but but then they get back if you lose on count one on the if there's not enough evidence for the jury to convict on count one then he's on liable for counts five and six the jury never made a determination as to the total weight of the math and fed him in that he was involved with  to bump up the sentence the issue of prejudice if there was prejudiced that was taking place and some of the the case that i provided to the court in the twenty eight year a letter the already case out of the eleventh circuit that talked about a considered some factors in the already opinion where they talk about well if the defendant in that case was concerned about some type of prejudice or some type of spillover effect of the evidence that there was no motion to try to sever these other defendants out in this case there you're in the hall but i'm so as we went over there we'll give you about another man and one minute i'll rest a couple of things and generally speaking frankly if if the government could have proven a attempt to connect the march thirtieth conversation with the march twenty second transaction there was abundant evidence that only mr m and as and mr herrera were involved in that delivery