which some of them happen to be under a my client was not really a part of that organization there's no factual there's nothing in the fact that say that he was actually doing this and that's why  one of the individuals was also a codefendant who asked him to basically spend time with two of the girls on a particular day and he in fact that so  if i was the actual problem for and so i cross examined these two females these two individuals and asked them if they actually lied to my client told them they were eighteen years old and they did and they even admitted that they s counts that brings us here today one of them there was acquitted one of them he was convicted on the the real issue with my client is the statute that he was charged under kwok is not i don't believe that the word knowingly is used in statute that that if i go back to running the government actually does a good job of laying out a chart about what language is necessary in there buried under the fact because it was a real notice paul our whole defense and this was manifest on the record was based on the idea that there was a knowing that if they were going to prove that up with the government was able to be able to relieve themselves that bur issue is the same as what mr helms issue with mr wood grown is that we believe our client should have been severed from each other i don't i'm not speaking out of turn on that but page seventeen of government briefs states that the objections to defect in the indictment are waived if not raised before trial or at the earliest property opportunity and the government was playing a shell game with the indictment that they amended the advice and i meant two days before trial and state that the motion to sever was untimely and it wasn't so the standard review for that is a no go but subject to harmless error review and the government stated on page nineteen of their brief that jointer is proper when facts underlying each of are so closely connected that proof of such facts is necessary to establish speech often however the government has provided no such facts the list of purported facts on page twenty of the government does not provide a single fact that must of been proven in both cases similar methods against the same victim are not such facts as an analogy many people commit tax fraud every year on april th against the same victim the us government by similar methods and means should i r s agents be able to fifteen or six tax fraud cases together so they can condone condense their trial loads how about if the same bank is robbed by two rival bank robbers on separate days by the those d and all of the additional evidence that came in that would have been litigated pretrial if the case was severed so the trial would be entirely different and it's possible they could have let many doubt even the existence of mr will grow there's there's no way of knowing for certain what evidence would and wouldn't have gotten in but the reputation of having so many victims mentioned and this other whole right before trial i think what that last minute on which my client was arraigned right before jury selection i think that was clearly caused because the government's theory throughout the tapes was that this was one giant conspiracy and i think when they started talking to their witnesses to get ready for trial all of a sudden they figured out it's not the way we thought it was and so then they're faced with this whether we do now we have a brady problem because we've got the facts all messed up our theory is messed up and we've got an indictment problem so i think what they tried to do is they tried to amend the indictment right before trial but sort of downplay the significance of it and as a result try and sort of slight by because by that point the district court said there's not going to be any continuances and so if they had completely forthcoming and said our theory of the case has been changed one hundred and eighty degrees that could result in the continuance and a very angry district court judge and i think that if they had realized that long before this would have been s judge the trial court judge and then the defense and arguably even one of the prosecutors didn't really realize what was happening until a full day in the phone when one of the prosecutors pe chambers and that's why that's why we're here i'd like to address judge jones question about actual prejudice first of all i think it's important to keep in mind when you're dealing with  review of rule eight the standard is not whether there was sufficient evidence for a conviction the standard is whether there is prejudice you can substitute patient the evidence to hold up on appeal for conviction and prejudice because a jury amended rule twenty says that you have to make it by the time the objection or the facts showing the objection are reasonably available i think the record shows stop and then  superseding indictment that that was changed and they didn't make it clear that there was no conspiracy until after there had been witness testimony so there was an actual factual change and even the court as we cited in the brief even the district court didn't seem to understand that because they didn't such a subtle way but so i think that it didn't become readily until trial because all up until that time they said these people factually are conspiring together and only with the rd superseding indictment today said they were actually not and that's why and it was the government not i think understanding the facts of their own case and that's why i say as a former prosecutor pretty sure what happened was they started interviewing the witnesses to get ready for trial and realized they didn't all conspire together they actually were separate and that's why they mend but to your question about prejudice i set up what i believe is prejudice in the brief but i want to amplify the rd point to make which is the obstruction of justice and a hold over in that what happened about how there was pressure she felt being put on her to change her story or lie or something and the government tried to make it seem like it was all that and even the probation officer in the pre sentence report cooperates the nature of the facts you know becomes more apparent once we have an insider kind of explaining how things are working but even the st superseding indictment i'm going to that is on page players were at times in violent competition with each other over the kittens and that's exactly what you find in the rd superseding indictment with respect to the mark of davis in pierre the ground now that point is more specifically highlighted in the thirds superseding indictment and the reason for that is that by that point those are the last two men standing everybody else has pled guilty herman sanders was initially part of that conspiracy count he dropped off respect to the market status and the government proceeds against him only on a substantive count against change or number two but there's no change in the theory of the case as to b s two defendants this is just an evolution guilty he signed a factual resume that's also in the record and both of them were intending to cooperate with the government but changed their mind and did not plead guilty at the last minute so i mean this isn't an issue of the government i mean what mr holmes was saying is not accurate th the government didn't figure this case out until the last minute in addition is also not correct that anyone learned about that after trial began superseding indictment of the rd superseding indictment was  fact outside the record with respect to what the notice was i mean the government happy to address that point they're working with communications outside the record that would show but that it was this is not a surprise that happened at the end of trial  i don't think we need to go beyond the record to see that they had notice of this before trial and one other point i would make about that is that there was no there wasn't  vince and the ground it's the civic uncompelling prejudice that is not cannot be carried through anything else including jury instructions which is just that showing hasn't been made here so  walker a copy of the pattern jury charge the same thing that the jury was instructed on in january that the two thousand eight hundred before mr say decided to plead guilty so that showing you know the exact way that the jury was charged here there are multiple communications have multiple emails showing that it was clear that the government was intending to proceed with charges as charging the pattern there was no surprise before trial circulated amongst all the parties received i mean there was a agreed to propose a green jury charge so there was no surprise notify defense counsel repeatedly and i mean to the extent that that is the course but i just concerns that he had no notice that he never had notice that this is how the jury would be instructed we would be permitted to apply knowledge requirement to to the victims ages and that the idea that there was some kind of surprise about this to go to the defense that that the government was not you your honor the government's case is that they start to say that this is not a constructive amendments are on page forty five of their greed and they mentioned them here today and it's very important to point out that he's traces pertain to time i thought they made a mistake it was clear that they were playing loose and fast and kind of changing things on the fly and i don't think they realized that that was in there and it should have been a good defense attorney i'm  going to bring it to their attention i'm going to go to trial and make them meet their burden and then they were able to just change their burden like that because they realize they have a problem and it's true if i may one thing mean thing i did get an e mail mid trial that told that i proposed jury charge and he took out the word knowingly after you realized it was a problem and we immediately brought it to the court's attention and yes we had conferences on this issue before the jury got charged it is soon as i knew that they realized their problem and were changing their whole mens rea and their whole burden of proof i brought it to the court's  he's basically you know it's just the the fact that they were able to talk about all of this other conspiracy that he had no part of was how to throw over a fact that i believe greatly damaged his  change right before trial it's clear that there was although frankly after listening to the government's argument i'm not sure where whether the government's appellate counsel claims that the marcus davis and peerless groom were in a conspiracy or not but up until the morning of trial they were and then there was this new indictment and that new indictment made a change but as is clear from the record even the district court and one of the assess my response is that the overall conspiracy involves the same victim meaning jane doe two so she's saying right there in trial she's arguing to the district court that they d are in a part of the conspiracy protg no one in the government says and this is p j michael the lead prosecutor he says there is no conspiracy your honor this is evidence against mr davis we have no problem with  instructions of the jury at this point so far truly they were making they had completely changed their theory and they were not conspiring together they were separate and they only did like before trial and wasn't even with the parents of the