commission of a violent offense including the indictment issue which was a supplemental issue here the problem with this case to start with the indictment is the green jury indicted him for a five year mandatory minimum  it's unquestioned that that's an element under alain the problem is is the judge heard the testimony it becomes clear that the judges well you know the conduct of mr hackett is such it's really more it looks like he's brandishing there was a shooting of mr perkins back and forth so in the jury instructions the judge instructed kind of a conglomeration of things he didn't  the jury wasn't given specific findings if you will is do you find this is a position do you find this is a brandishing or do you find if this is an actual shooting the judge essentially gave all of those elements into of the verdict form itself just says fine guilty of nine twenty four eight in doesn't the linear eight which section five seven or ten that it is so we have a situation where there is a variance from what the grand jury found for whatever reason the grand jury findings were limited to the five year mandatory minimum defense counsel and the reason i came in supplementals defense counsel did not object to the instruction you know clearly what should have been requested just is i object to anything more than the five year mandatory minimum that's what the green jury phone down the objection sentencing when the pre sentence report came back with the ten year mandatory minimum at that point defense counsel objected to the judge the indictment only says the five year the the  government argues well this is you know really harmless error because in this situation there is no question there was a shooting both mr perkins in hackett in a going to a hospital for rooms but the question here and the reason it was raised as kind of three it's a kin to a situation let's say that mr hackett was charged with a possession of drugs during the trial it came out he's moving these drugs he's distributing these drugs it's clear it was part of discovery everybody knew saying is it's a completely different offense but frankly higher penalties such as this case there are two problems here yes one is that it's a completely different offense to is if i understand correctly if even that offense was not properly instructed that's right because then you haven't unanimity issue your net because there was no finding no union was fined by the jury as to a five a seven or eight ten kind of shot versus arizona situation in which you could have had some jurors believed for whatever reason that you know look there's only enough here for a five year element in others think there is a ten year old but the way the instruction was where they combined them all twelve agreed there were some one twenty four violation so i think you have multiple problems because of the improper and the second aspect of this case is and this is difficulty again cases  clearly mr hackett was a member of this conspiracy clearly mr hackett was guilty we're not arguing that the issue is as a gay member it almost creates a presumption of guilt as to any offense that gang member does and i think that it's required that the evidence establish that whatever additional offense happened was in furtherance of the conspiracy example i'd like to give us if mr hackett walked into a subway in was hungry and walked out in didn't pay for it is that in furtherance of the gang will obviously know this situation of course is closer than that but we have a situation where what he was angry about was that he was accused of this shooting two weeks before in that heat in the woman that he believed who had been spreading that he was part of somebody had shot at her he stopped to confront her i think it's important he did not have a gun at that time in they got into this argument and he's saying i didn't do this i didn't do this she knew that he did it at some point somebody went in got a man who came down with a gun to chase him away it was at that point that mr hackett stopped a friend maybe even a gang member although didn't really establish that tried to get a gun which is interesting about is the person in the car didn't want to give him the gun you know so clearly whoever was in the car did not want to be part of this and he the point is he's acting on his own at some point he wrestled the gun away they had a shoot out but they didn't ask for self defense but clearly that was the implication but and then after this happen they're both injured what if it's a retaliatory situation  didn't come out that way because the evidence is that mr hackett tried to go make amends if you will after this all happen we partner with debbie new on the person the victim's family in this case so that it seemed  that this was in action of mr hackett on his own because he believed he had been falsely accused of this two week shooting the government's position is a position of finer stand it was well they'd like to do acts of intimidation because if they do acts of intimidation that kind of furthers our purpose you know almost like a mafia type situation like don't screw with us and so clearly this act would further the reputation of l s p so therefore it comes with it i don't think that's sufficient in this case that particularly in this case when there is evidence to the contrary that this was i didn't do this not the don't mess with me i did it i didn't do this how dare you falsely accuse this oh he came by with a weapon on that day he only went to get the weapon after he was kind of done stuck into his chest but i sherman perkins whatever crime happened at that point it was not in further so the conspiracy let me make a couple points back to you on this i mean first a legal point as i understand this vi car statute it's not that his action had to be furthering the conspiracy it could be merely that he was he was maintaining or increasing his position in the enterprise correct so and he's the leader were arguably his finest argue i don't mean understood but i seems that he had a significant role in this and and i understand how you could argue to a jury this is self defense and i think you know i mean this is not a slam dunk case necessarily but but why isn't it true that a mean couldn't a jury conclude that this guy gets challenge on his own turf by perkins who runs out with a pistol and you know he's got a couple choices he can withdraw or he can try to stand up to rape and but if he withdraws with the code of conduct that these guys seem to have and there was a fair amount of testimony to that effect you know that might diminish his standing that you know he didn't take care  is business which is the term they used in yesterday's case but you know that's sort of i mean there isn't an analog here you can't just get pushed around on our turf and so he stands up to them and here's the problem here's the problem this is where it's almost this person it's almost the same this presumption in in the problem is it's a good theory as to motive as to why he did that but in this case i think to be sufficient there should be something he said i couldn't let that guy i would look bad that you know don't mess with any of the gang members during the shooting i'll teach you to miss with an ellis p member then you know that if you get in our way we will that there was nothing said like this every piece of evidence was that it was a personal thing no one including the woman came back you know the victim or the bystanders or even mr perkins said that he made any intimation that you know look do you know who i am i even said that do you know who i am you know what my status is around here then you have that leap from probably maybe it's reasonable that this was the reason to beyond reasonable doubt at this point in time it's a valid theory for the government to argue that this  his actions but they didn't prove it they didn't prove it a mere act because it's arguable if you want into the subway and you took the store and you didn't pay for it the reason is almost like the mafia you know you don't make me pay for food because of perkin shooting the government didn't have to show that hackett said i'm shooting you because i mean l s p and i'm i'm you know defending my turf or my reputation or anything else that and it's and it's you know the evidence is viewed in the light most favorable to us it's not it's viewing the evidence in the light most favorable to the government and heck it heck a perk in shootings doesn't happen except for the  newell son cheri jackson and and newell you know accused hackett of being there and there's some testimony that hackett was the driver of the car in the first shooting two people testified that hackett said that he was that he this but well let's put it in terms of you know i guess the statute you're maintaining or increasing his position ok how how does a jury find beyond a reasonable doubt that he wasn't just trying to defend himself when this guy right so he went there on norms do is no indication that he was initiating an altered haitian or anything like that and then somebody else injected the firearm i'm not saying he was defending himself but in what way does that show that he's trying to maintain their promote his position in the game the whole fight between the all these things and this was a this was an outgrowth of that and that's that's why they could find that this was part of just events inducing you do this again remember all the to require that it's somehow related to the gang or is there a requirement that you do some with the purpose of somehow promoting your position or maintaining it well this this was the i mean the feud which caused the first drive to the drive by shooting this was just a continuation of that three more incidents so this was an ongoing what about him or come for ok that's pretty interesting issue really heck it was charged with just use or carry small i the jury was instructed really user carry small i the district talked about when they were defining act of employment they talked about that use could also include firing a weapon but that was in the definition of active employment and then the judge really not until sentencing and there was don't talk about how maybe they should have been  because of maque because of the maccabees we honestly when we first start to look at this issue in our office we were considering just conceding this case and then we found mack and we saw that mack was a very similar  predicate here you're saying that you're on his own initiative and sentencing says this guy actually just charged right here right and the judge said so ease subject to a mandatory minimum he didn't you because in men since may never medically disputed the fact whether he was the perpetrator he never disputed the fact that you know meke was churched with here  the only way you could find a use using it was by brandishing it because that's how he used it in this case but this case seems different because they're well i mean in this case in order to say that and your argument is it's harmless because had the jury been instructed about this charge then obviously they would have found that right this is it wasn't even disputed that he discharged weapon right but i mean isn't the counter to that well they were instructed about this charge that would be a constructive amendment to the indictment which would be person reversible and so we can't theory of harmlessness leads to a constructive amendment we can't do that isn't  brandishing but the judge found brandy brandished and got seven years because of that i recall but is that a different offense or is that just some kind of a handsome or something mean this is just do you happen to recall whether the in the court opinion say whether the indictment in that case incompetency encompassed brandishing i think it did he that would be the difference i think it did he would not have a constructive well you know we can take it from there i mean yeah well whatever you can say whatever you want to say or not say ok i mean i spoke with a position still of it's harmless error only because he didn't dispute them for he never disputed th discharged the fire and if the jury would have been properly instructed they would have found it because it wasn't even an issue in fact he admitted it that's part of his other argument is that he shot perkins  only in for maybe a week so neither one was it was the gang still there let's be i don't think they are out in the in the man after this after these this prosecution and i mean there were about fifty ar so i don't think the gang is there in the form that it was before there might still be some remnant of it youngstown still has that issue that they have to deal with on pretty much a daily basis smart in the best argument in arguing with a smart move in a lot of cases thank you both and mr john thank you for your excellent representation pursuant to the criminal justice act we had a real good morning of arguments this morning thank you