that there was an exclusion of african americans on the jury such that the new trial is warranted the first issue if your real variance the defendants argue that the conspiracy that was proved  trial was not included in the superseding indictment there were two indictments there was an original indictment filed on october eighth two thousand and fourteen and mr willis was part of that indictment and there were eight other named defendants were those eight defendants pled out to some sort of conspiracy charge or charges related to the conduct and then on may fourteenth two thousand and fifteen two hundred eighteen days after the original indictment superseding indictment came but not in the eagle correct confederated in agreed and had it it just been that language conspire combined conspired confederated agreed  to deal heroin in the northern district of indiana we wouldn't be here today except the government added additional language that modified those for four actions and they added with others known in unknown in the northern district of indiana and that combined with the original indictment where willis was were alleged to have conspired with eight other defendants created the confusion that it had to be mr willis and some other unnamed defendants and that a reading of count one was not that willis and eric simmons conspired together mr willis cited in his brief three believe that the jury instructions followed the indictment your honor and i don't have that for me in our brief but the defend it at trial moved for a directed verdict on this issue and the court denied that finding that there was sufficient evidence that willis and simmons conspired together you mean that there's some debate concerning with each other as opposed to others that there was definitely evidence presented at trial and we don't know and we can see that that conspired together there was testimony from the some of the original eight defendants that they would call willis to buy heroin and that they would go to the location and erica simmons would be there but that was not  in any of the overt acts in the superseding indictment and again if you read the indictment you're pretty sure sense that he does use it because hers was more a contract he had a broader three cases u s p paul but the indictment alleges the defendants combined conspired and agreed with each other and with others u s p rosenblum seven circuit case allege the name defendants unlawfully knowingly willfully and feloniously conspired together with each other and with other persons and then finally us the carson indictment alleged the name defendants did knowingly combine conspire in the three together with each other and with other persons and so in that when the superseding indictment includes the with others language there modifying conspired agreed combined in confederated such that antwan will list could only have been guilty of the conspiracy if you combined with others unnamed in the indictment and so if you look at the overt acts alleged in the indictment it's certainly not clear that there was a in the overt acts allegations that they conspired together oh these other people you're saying are just customers users well that is that is certainly part of our argument those those other people would have been the original name defendants in the original indictment those are the individuals that testified at trial and it is our position that that's all they were was buyers that there was not a conspiracy between willis and those individuals to then go and resell to other individuals that they were just the end users of the heroin the jury was told that based on the indictment that mr willis could be found guilty based off of a conspiracy with miss simmons or with others named or on named in the ind but there was no evidence about seven percent there was evidence that mr willis sold heroin to other unnamed defendants who were the name defendants in the original indictment those individuals came and testified that they  where they were they would they would drive to illinois drive to hammond indiana pick up the heroin off and immediately start using it while they're driving home all of them admitted that they used nearly one hundred percent of it some of them said ninety nine percent some of them said ninety five percent but they testified that these were quick quick transactions willis never gave them instructions to resell and willis had no idea that they would have been reselling but there was some evidence that they sold a very very small forth but the testimony was that these these were extremely fast transactions usually under a minute they would pull up next to each other in a parking lot at a grocery store home improvement store roll down the windows one would up the user would usually put money in a cigarette container through it through and then the parent to be exchanged these boilermakers and i guess they know what they are but they seem to have some kind of a you know mail delivery or something correct they it was the testimony of britney lamond and then i believe her boyfriend both of whom were would travel throughout the midwest for their work that occasionally here one would be mailed to them correct and that money would be wire transfer but again going back to the main point of that first argument there the superseding indictment does not allege that willis and simmons conspired together but rather that willis had in order to be guilty  i this is this refers to well first of all whoever wrote what these instructions come from i believe most if not all are from the pattern instructions well don't they don't the people who write these instructions know that proven is an adjective it is not a verb i don't know the answer to that your honor government has proven this proven pierced three times so what this says is the amount of heroin includes the amount of heroin that the defendants coconspirators distributed in furtherance of and it's a reasonably foreseeable consequence of the conspiracy while the defendant was a member names nothing how on earth can the jury make a finding about coconspirators well your honor the jury heard evidence of multiple witnesses who pled guilty to conspiracy to distribute have pled guilty so what we could include to do it sure we could have included them in there what we were trying to do is we're trying to simplify the charge in this case you know you weren't simplifying it because the instructions say  or on the ground that that would drag their names through the mud and they had no right to defend themselves against grand jury charges if they were not then criminal defendants and show here and in many o circuits prosecutors were forbidden to include the name of coconspirators now we may be finding out that that wasn't such a great idea but i assume that that's where your offices practice came from you and i i actually can't attest as to why they were excluded from the second conspiracy or from the second superseding indictment what i can say is that the superseding indictment alleges that wilson simmons the chew named co defendants in this case conspired to sell heroin mr wilson's position on a dreamily bothered by the fact that you allowed you you allow others this ridiculous instruction to go to the jury don't make any complaint about it it doesn't make any sense to ask the jury to figure out the amount of heroin that was sold with the aid of these unnamed conspirators have your honor if your honor does have earlier where individuals boilermakers from out of state would call mr willis and say send us here with he would say ok put it in the simmons his name and the simmons would go in pick up the money transfer then she would to willis willis would send the hair when to the buyers out of state this instruction has to get the jury above the one hundred gram threshold those transactions exceeded two hundred grams that's a problem i dollars a would you say those two people will listen similar to the makers correct wilson simmons where the distributors for those money grant transactions there were thirty eight of those they totaled over eighteen thousand dollars based on one tenth of a gram for seven dollars which is what willis was selling in this case wilson simmons that gets you over two hundred grams almost two years for those two got less than half the same time he i believe he was held responsible in terms of sentencing not in terms of the conviction he was held responsible for seventeen kilograms of heroin she was held responsible for five  waived neither defendants raised at the issues that mr wilson's raises whether the indictment includes a conspiracy between him and simmons now yes i did other cases the talk include the language that the name defendants conspired together in with each other but that's not legally required language to be in there to put the defendants on notice that they conspired together if i say judge a man and i conspired to sell heroin we're on notice that we conspired to sell heroin together his position is the indictment doesn't say that and doesn't put the defendants on notice that because of that there was a variance in this case that's just an unreasonable reading of the indictment your honour's and what he then says if i understood his argument correctly just now is that there's no reference in the overt acts to any conspiracy between simmons and willis the name co defendants that's not correct your honor if you look at midway we didn't need to include the overt acts in this case but we did overt acts twelve through sixteen all reference simmons and willis including reference to these money grand transactions so they were on doe to us that they were charged with conspiring together to distribute heroin beyond her particular coconspirator agreement with mr willis but the instruction limits it to the time when she was involved in the conspiracy and to the extent that this court as does does have concerns again the money gram transactions with just willis and just simmons doubled the statutory threshold that we had to meet in this case so any air is harmless through conviction for the conviction that's correct your honor we're not dealing with the drug quantity at sentencing no one is challenge that  will be brief to judge easterbrook point about not dragging a name to co defendants through the mud that point is well taken except for the fact in this case the unnamed co defendants were individuals that had previously pled guilty  conspiracy and so they would not be dragged through the mud additionally the hypothetical pointed out by the u s attorney or judge mannion in the u s attorney conspired to sell heroin  i guess english speaking wise that's different than what is in the superseding indictment that says willis and simmons conspired with others and so it's on that basis that we that we believe that the conspiracy that they were found guilty for was not contained in the indictment it was a material variance and so therefore that conviction should be reversed thank you ok well thank you very much