the constructive event in the indictment and the sufficiency of evidence and look the court has questions regarding the other conditions the original indictment in this case as we pointed out in our briefs charge the conspiracy from a date and we proceeded on that basis that we were trying a conspiracy case that began or occurred on or about march fifth of two thousand and three shortly before trial approximately seven days before trial the prosecution disclosed that it wanted to bring in evidence of events in november of two thousand and two and in january of two thousand and three we've got to do that arguing that that that was outside of the scope of the  of the conspiracy that was charged in the indictment but our gesture was overruled by the court and the court allowed the prosecution to bring in evidence that mr abuse and your had been stopped with a felony and then you'll sign just about two months prior to the arrest on march the fifth framed with the conspiracy as i understand how the grand jury or initially returned that occurred on march the fifth that the government would be limited in its proof to only events that occurred on march five they would not even be allowed to introduce evidence as to who rented the storage locker to three months before if the charge that the conspiracy occurred on or about march the fifth we submit that the evidence would have been certainly there's certainly some as you mentioned some relevancy to that but there's a certain limits to relevancy as well i mean if you want to go back for five months or even four or five years to show that they that they had no knowledge of each other that they knew each other then i think you run into the objection that that evidence may be irrelevant because you don't know what the facts or circumstances are that they were together or or how it is that they knew each other the issue here is whether or not they were conspiring to possess with an intent distribute on or about march the fifth there's no evidence at all that in november of two thousand and two when mr sanchez rented this warehouse that they were together that they knew each other that the associated with each other and even the evidence of somebody else that you conspired with well and that brings me to the second point of whether or not that is sufficient evidence to show a conspiracy let's assume we can see that they were in the same vehicle in january of two thousand and three  gentleman and so again we come back to how is that relevant to show that they are engaged in a conspiracy other than that they know each other the mere fact that people know each other we submit to the court without more does it prove a conspiracy on or your variance argument i think i may have got this analyzed incorrectly your variance argument really goes to a challenge to the elements of the offense and surprise that the defendant claims to have suffered to his prejudice by not being earlier put on notice by a broader and guy that would tell him what he would have to face evidence of prior associations before march that well the indictment charge that mr b s when you and mr piscator conspired with each other and other unknown persons we're not arguing that there was a variance here if it were a mere variance we would argue we would say we probably lose on that what were are you mean is it that the prosecution brings in its evidence and then asked that the court by jury instruction amend the indictment instead of charging on or about march the fifth now say from  as i say i think there's there's a difference and maybe it's just a matter of degree between variance and constructive and constructive amendment of the indictment isn't there was an element well on or about march the fifth because as you may have noticed in fact the in the superseding indictment charges march the fourth and without objection from us the prosecution asked the court to correct the indictment because that was a clerical  november of two thousand and two and in january of two thousand and three and now they're saying that that's part of the conspiracy and they're also saying that daniel sanchez the person with rented this place back in november of two thousand and two was an unindicted coconspirator for the first time  the day before trial that materially changes the indictment we submit and puts mr going to see a lot of difficult charging language that names some of the members of the conspiracy and says and others  known to the grand jury well here's the problem with that i think and that is that such disclosure if it's made early on in the case at least allows the defendant to be able to know what he's going to be facing here on the day a complaint that you know we didn't get our discovery until just before trial well under the jencks that they're not even required to disclose statements until after the witnesses testified in the in the district of arizona there's a practice custody since march that if we were early part of december and we were of we were prepared to go to trial we were we wanted to go to trial he'd now you're saying your you were prepared to go to trial as against the evidence of sanchez in november in january two thousand and three we were we weren't prepared in the sense that that that material had not been disclosed to us but you were prepared to go to trial with what had been disclosed and when you learned about sanchez you did make the most you continually grounds that you had more time to investigate n constricted or restricted to x which just occurred on march fifth two thousand if you charge it that way i mean it doesn't perform books a beginning in the time a known but continuing into on or about march five two thousand and three and touching on what mr leone two thousand and three the superseding indictment which was handed up in june and i've included the minutes from the grand jury report with regard to that superseding indictment the only effect of the superseding indictment was to add a count three with respect to the pretrial hearings defense attorney even stated i know the indictment charges from a time unknown to our about march fifth two thousand and three so i think we were all proceeding under the presumption or acting with the thought that the indictment still read from a time unknown until on or about march fifth two thousand and three the defense attorney was also on notice that not only from the disclosure which comes to me in waves i wish that the second i open the file the case agent popped out and said here's everything you're ever going to need on this case but on these of there's new discovery there's new disclosure and as soon as i get it i review and i give it to defense counsel the connection between the defendant and the person who rented the warehouse and the s u v the traffic stop january third two thousand and three didn't come until a week before trial as a courtesy to the fence counsel i picked up the phone right away and i said listen this is going to be our intent i don't have the reports yet but the agent just told me that he's shown photo packs to various witnesses they've got your guy in a car in january with the guy who rented the warehouse using an alias i'll get those reports to you soon as i can november twenty seventh was thanksgiving november twenty eighth i made the reports available and defense counsel didn't pick them up until the monday before trial january of two thousand and three so you knew that the investigation was larger in scope in october at the hearing so you move for continuance and the defense objected so the court denied your motion correct we had that hearing in october we didn't get a report and  recommendation from the magistrate until november the magistrate judge had suppressed all my statements and a lot of my other evidence i filed a timely objection to that november twenty fourth we were still waiting for a decision from that from the district court judge the discourse judge decided that motion december first rejected the report recommendation said my statements were vetted and some of my other evidence was still out some of the other evidence was in and we're starting the trial tomorrow morning so under those circumstances i felt i felt a little pressed and i think we did the best that we could under those circumstances but clearly there was no fear the men violation there was no constructive amendment of the indictment and i think what the court touched on earlier on or about march fifth two thousand and three it's certainly fluid we're not talking about four or five years earlier we're talking about four or five months earlier and the net effect of what we did was very limited in scope in november of two thousand and two a guy named sanchez rented a warehouse we were able to put that individual in a car driven by the defendant on january third two thousand and three that is the same vehicle that the defense was driving on march fifth two thousand and three and i'd like to now turn to the sufficiency of the evidence argument with regard to for you that if the purpose of the indictment is threefold one of which is to protect from double jeopardy another is to know to give the defendant notice of the charges that he's facing and the third i guess is that you allow him to raise the bar  and what would the limitation be in terms of how far back you could reach in the face of the indictment as it was findings i mean could you have gone back to show that ten years before the the  person who later rented the unit know now when it's charged on or about march fifth two thousand and three i think that would be reaching too far back but i think that the four to five months is ok i think that that certainly puts them on notice especially when the complaint in the first indictment charge from the time a known and certainly you know in october he was cross examining a witness about these vehicles connection to a larger investigation he knew that the conspiracy we were talking about just march fifth two thousand and three  market sanchez using the alias daniel sanchez he paid cash upfront for a business called entrancing corporation which doesn't exist his stated purpose was to run a produce distribution business there was never any legal produce or produce whatsoever seen going in or out of that warehouse never saw any workers box trucks refrigerator trucks the only thing one of the neighbors who rented the nearby where i worked at a nearby warehouse ever saw there were two  year five times he sees those two vehicles there he smells a distinct odor he'd never smelled before and on the stand he was shown they all of marijuana he smelled and identified that smell as that same smell that he had never smelled before we have those march fifth two thousand and three we get a glimpse and swee finally going inside the warehouse there's fifty two bales of marijuana eight hundred forty three pounds it was not grown inside the warehouse so it got there somehow which again shows that there's other conspirators other people acting and doing things there's a sophisticated repackaging set up inside the warehouse there's a scale there's gloves there's markers there's spent cellophane and contact paper fourteen rolls of it actually and in fact it's the same exact contact paper that the defendant has on him when he's trying to enter the warehouse on march fifth two thousand and three and the agents testified in their experience almost every search warrant they've conducted they found that same contact paper that stretch wrap marijuana or cocaine typically is wrapped in the stretched breath first to keep it from drying out and then it's wrapped in the contact paper to conceal it's what's inside to conceal its identity from people that were looking at it large rolls i think you have close to seven eight hundred square feet of it that he could realign all the shelves in san francisco i think that it's fair for them to look at that and think there was something else going on and then exactly been quite successful in contact paper the same contact paper that the defendant was bringing to the warehouse counsel you briefly address if you if you're successful do you have any views as to what should be done about the sentence in this case i do your honor i think district court judge if you had known that the guidelines were advisory would have given the same exact sentence and it also would give us a chance to correct the supervised release portion of the amused interview you are in favor of to the district court to determine whether there should be a response when you're in you're taking the position if i understand you correctly which is to order a response and to throw no no no i think it should be mandated i think it's not a constitutional in your the first is that they were in a vehicle together in january of two thousand and three the second is that mr b s in your is that this warehouse which is securely locked with an industrial type lock in and he there's absolutely no evidence at all that he is that found in the premises where your client was trying to gain entry and link the contact paper that he bought at the home depot with its uses packaging material and by that premise if there was some evidence that he knew what doing that investigation but that's the first time well that's the first time that mr b s and you have seen in that vehicle a part in the january incident but that's basically what the evidence is to sustain this conviction for