represents wendy moore this case has to do with the convictions of mr latham and miss moore in a murder for hire case that came out of charleston south carolina mr life them was convicted of travellin or use of interstate commerce or murder for hire the jury deadlocked as to him and on the conspiracy and bar on charges he received a senate one hundred twenty months the indictment in this case alleged only that the defendant's call was to another to travel in interstate commerce so the issue the first issue in a case is whether the district court constructively amended the indictment by charging the jury that the government made us burden of proof if it proved it if in its cause another to travel in interstate commerce or if they used or caused another person to use a facility of interstate commerce and whether this was error per se the other two issues in the case which will be handled by mr brown if it pleases the core are whether the district court erred in admitting here's a statement of a deceased coconspirator which recent years we haven't held that than that right has been the holding of the court was my understanding that in in united states versus wakefield that the the court i believe is judge king  but as far as a grand jury indictment that drives of course from the fifth amendment has been it has a right to be tried only on charges that are set by the grand jury destructive amendment occurs when the government through its presentation of the evidence or its argument to the jury or the court through its instructions to the jury or both the government and the court are all the devices for conviction of course the key to it is whether the defendant has been tried on charges other than what's in the indictment it's really a matter of whether the elements of the charge have changed a mere variance would not consider constitute a construct of a member of a i mean or variance a situation where there's a difference between the indictment what is proved at trial or difference between what's in the indictment and what is charged to the jury but that doesn't broaden basis for a conviction in this case we are operating under eighteen title eighteen one nine hundred fifty eight the rudder for hire statute which can be committed by travel in or in interstate commerce or use of interstate commerce they are not the same thing they're also in it manes of committing the offense a person can travel without using interstate commerce a person can use interstate commerce or facilities of you know interstate commerce without traveling interstate commerce each requires proof of something that the other does not the indictment in this case in counts one and three alleged travel but not use the caption o those counts in the indictment said use but the caption does not control the charging paragraph is what counts there is for circuit authority on that it's cited in the brief it's interesting to note in this case what was charged by judge gurgled the trial judge at the beginning of the trial at the beginning of the trial before the evidence was proof presented judge gurgel told the jury that these two to finish are charged with inducing others to travel and interstate commerce he said nothing about use and that charge by judge girl was correct that was exactly right at that point in the trial the constructive amendment of the indictment had not yet occurred and the government certainly presented evidence in the trial that began to whine and wilkinson traveled in interstate commerce but the government presented no evidence that life from or more traveled in interstate commerce and then the government presented no evidence that mr latham cost anybody to travel interstate commerce the the evidence against mr lighton went to use  you're right they offered evidence circumstantial evidence that he used phones and computers but there was no someone else to travel but but there was no proof that his use of the phones and computers cause anybody to travel they were saying that he used the phones and computers to contribute to the hit package that was presented to the coconspirators but that wasn't presented to them until they were already in charleston or in sullivan's island which is right outside of charleston i totally understand that you don't think the evidence is particularly overwhelming or anything like that but i just think it may be too strong to say whether it's at all as to the travel  really any evidence that his use of interstate the silkies caused anybody to travel so i mean are you trying to say that you think there's evidence of the second the thing after the or yes no you're not there but not the first that travel is that what you're saying that's exactly right and this goes to the constructive amendment of the indictment only less traveled but the evidence against life and went to use i talked about the phone and and computers over several witnesses this contributed to the constructive amendment big government  his brief that this was substantial evidence against the defendants in question did anyone define for the jury that phones and computers would count as facilities of interstate commerce no they did not your honor and i respectfully take the position that that is obvious in this day and age that you know that the jurors are told that you know everybody's got a computer in their pocket and they're told at the beginning of the trial that you've got to turn off your phones and  communicated with the one codefendant more there was no allegation that he traveled i don't believe there was any allegation that he caused anybody to travel as we said the governor did allege that he's phones and computers but i don't know that there was any evidence that he times civically in a murder for hire that there's another burger case or king in the background it chips away simply it is presumption of innocence because we do characterize people in our lives we do it politics and sports and everything like and in this case we've got reference to a murder in orson in kentucky we know that the government's done the most you can to affiliate miss moore with mr you know wine because he's the bad guy here and so the references that go to mr you know wine may actually not only be proper but it may have been proper for that character evidence to come out on cross examination of let's say mr tudor if the defendants would want to would moore being involved there side in my brief there are no other two references that are in mr tutor's testimony not sight and contrary with respect to my able adversary with the u s attorney's office propensity evidence both in their first close and rebuttal and in fact i think it goes along these lines that mr you know one is the one who really led this plan because he's the most experienced criminal miss moore is just not that experienced which certainly absolutely bring his in some criminal experience and again we've got reference repeated reference at least five times in this moore's involvement in that is brought criminal he's a criminal and she's not that good at being a criminal so those there they would be subject to introduction of her for a for b i don't think that they would be admissible under four of four b but that procedure did not happen because as the courts have talked about is this court in a bride and mcbride cites johnson both of those cases talk about the procedure there for is a safety mechanism which requires notice  requires a limiting instructional that you use and a point that out because we had neither one of those here but we again had it clearly argued at the end is propensity evidence if it had been somehow limited to some other purpose that might be different again if it were to go alone through the crucible of four of four b i don't believe it did this will that way and in this case i don't believe this can be harmless error given the fact that the evidence circumstantial evidence about ms moore misled them are closely tot we're talking about joint efforts to print documents and things of that nature whatever the ultimate purpose is it's still a joint effort nonetheless she's convicted on two other counts that mr lat is not convicted on he's not charged in one of the four counts that she's convicted on and so i believe that actually demonstrates that it even more so into the prejudicial column because that evidence was considered that way how does it affect cleaning dirty money as in a criminal enterprise involving the lawyers that in steps into mr white into because he's the main person that begins the payment process for each other lawyers and so i believe that affects him because that's linked back in as being the same lawyers from kentucky that led this here and then also in turn and were involved in this prior murder case interestingly there may be other issues on the same evidence it's clearly hearsay because i don't believe there's anybody has firsthand knowledge of this more was charged with murder or so on and secondly it may not even be truthful testimony because in fact the u s attorney corrects that testimony at one point when he indicates that she was not in fact ever charged with a crime which makes all of that previous information faults which is another issue but i believe the biggest error is that the information that was given was character evidence  own first set and then the second one by mr latham's counsel and certainly mr white them could have argued that he didn't realize that that was what the purpose was mr smuts the trial lawyer firm is to let them actually might have been able to get into that information had it not been a joint trial and so there may have been a severance that should have happened had mr latham's attorneys to insisted on bringing out that previous murder for hire information to try to point miss more  is setting him up that wasn't explicitly argued but i do think that that would have presented a different problem your honor and but i would say this is not responsive to the questions because they ask whether or not there are some lawyers involved that's not responsible is not the question that was asked i would like briefly to reference the the second issue the here's a confrontation issue i can ask a panel overrule another panel i would say there's a split of authority i would suggest that there's a different way to deal with this i believe the authorities pretty clear pre crawford ironically crawford being the extra protection for criminal defendants free crawford i don't think this will come in britain and certainly post crawford ironically now it does come in and is non testimonial although i suggest that the statements regarding that outside of dargon or dicta from the supreme court can in fact bull coming  talks about talk about looking at things another way coming out thing as a footnote which only has four justices where it talks about there being a primary purpose and i would suggest that if you use that the primary purpose actually of mr tudor taking th primary purpose would be that and i'm at a time thank you  indictment and the evidence at trial focused on travel and interstate commerce and this is a tricky distinction but on the murder for hire statute in one hundred fifty eight there are too closely linked ways to prove  interstate commerce element two ways to prove one element can be proved by travel and interstate commerce or a facility of interstate commerce our position is not separate elements are just two ways to establish the interstate commerce element well you charged in the indictment just one right yes ma'am the indictment just won big back to judge harris's point is there any evidence that you are i understand that but even if you tell me that there are just two ways to proving the same thing and not elements so you think that you can just charge one in the indictment and it wouldn't matter if you had put in evidence totally of the other murder for hire plot affected interstate commerce that was simply a non issue so this case is it's not a constructive amendment because the elements were not changed where the defendants were convicted of a crime other than charg statute involving testimony at a court proceeding the jury instructions tars an entirely separate witness tampering statute involving communication to a lawful law enforcement officer two statues do two fluoroscope the same situation to us the randall the and i think i understand their position i don't want to use up all your time but let's take another case not this case and i just want to be sure i understand your position then you say that you can charge just travel in or cause another to travel in interstate commerce but you could put in to prove that only evidence of using facilities of interstate commerce is that what you're saying no ma'am i don't think i'd be that was where your argument when no ma'am if and forgive me if that's if that's if i misspoke that's not what i met i think yes but that's not the situation this case there was overwhelming and i know it's not that's why completely different than the end diamant and that would lean more toward a construct of a man and that situation that then this would be convicted of a crime differently charles i mean indictment but that's not what happened here you are there was there was overwhelming evidence i mean to travel chris late them himself travel no but we don't need to prove that hoping answer that question for you but it goes back to judge harris's point that you know when he created this hit package and he funded in or used a facility of interstate commerce it's really almost an identical situation as judge gurgles jury instructions in this case and the tenth circuit held that th those cases that were much much more serious than the alleged area here i mean johnson the jury instructions admitted an essential element of the crime the defense didn't object but the supreme court under  thing in cot and i'm sure judge traxler and judge much remembers that case it was a four circuit case but in that case the indictment and the jury instructions amid an entire element of drug quantity and supreme court an entire element is much much more prejudicial to a defendant judge by just putting an alternative plan to satisfy a single element i think we would all and that's a much much more serious  government enough for far stronger position in this case with both the evidence and the modern nature of the arrow and is another case i would like to bring to the court's attention we supplemented our defendant was charged with conspiring conspiring to defraud the united states district court charge just a general conspiracy that seems like a true construct of a mimic caged indictment or one crime the jury instructions of the play narrative they held that they couldn't prove that it affected substantial right so they didn't even go to the fourth prong that's a recent decision it seems like the rest goes a little bit of an outlier with the last twenty years of playing or supreme court cases since then i think you back to sleep to the sort of the special question about whether there was a constructive amendment in this case because i just want to make sure i understand your position because the thing about maybe they're not really different elements is tripping me up a little bit so are you conceding that if this jury in this case reasonably thought that it could convict just on the facilities that would be a constructive amendment right i took your argument in the brief to be the jury could not reasonably have you know there that that is but i would note for the record how isolated you know there were eight references and then jury instructions and the verdict form to a strictly travel in interstate commerce and to just isolated rap references just like the the verdict form reprinted the indictment exactly and if that only trail interstate commerce so you're relying on that not on the evidence that was presented i thought in response to my colleagues question you were saying there was the evidence here would not have permitted the jury to convict just on the facilities yes sure i don't think yes ma'am because to me it could have well i don't i didn't understand that argument well you know it seems like to me when both elements are overwhelming and undisputed it's difficult to parse it out that the defendant asked for all in the closing argument all conceded that if there was a murder for paro hot plot to hit men travel interstate commerce from such a crazy heinous crime that's what made it so hard the interstate element interstate commerce element was just not an issue in any way shape or form and everyone conceded that i think i asked my question imprecisely i didn't mean to be saying in light of the evidence presented walk with the jury reason we have convicted on i understood your argument in your brief to be looking at the full context of the case the verdict form the exact charge to the jury where the judge starts by saying look this is what they're charged with travel and then later goes on to say by the way here is everything that happens under the statute that when you look at the full context of the instruction the verdict form the arguments made a look at the record that is the argument is she phrases it still another way rs travel in interstate commerce and use of a facility interstate commerce or so closely linked and i would even know is amount or point that at trial one of the lawyers a lawyer for miss moore actually conflated travel and use of instrumentalities in their closing argument basically just said wilkinson you know travel interstate commerce and used facilities of interstate commerce when he brought the gun and the car from with go to charleston i guess our point is we agree with the character as we would know you are the defendant who had previously committed a murder and arson sam you know mom was dead he was not that it could not be prejudicial to him just gargle specifically were some confusing testimony about this more having a lawyer on that prior murder case just gargle instructed the jury that she was only a wit she was married to you know why the time she was never charged in the jury was told she was only a witness eat this court is held before or be evidence evidence is not for for be evidence if it's necessary to complete the story of the crime in this case given that you know one was dead it was important for the jury to hear that the alleged hit man who was not on trial was briefly convicted of murder and arson and it helped make it more believable of all you have as this rich banker and his beautiful mistress you know it kind of seems far fetched but you realize that you know the man that evidence out so you couldn't blame the government for that and there was no objection to it we take a position that it was it was not unfairly prejudicial ladies and gentlemen i have a minute and fifteen seconds if you have any more questions gonzales a decent case that the government decided in their briefs in that case you've got a situation where the one codefendant calls the other on the telephone and says where are you i'm in albuquerque i need you to get the telephone right away something like that for the purpose of distributing drugs but that's not what happened in this case in this case like them didn't call anybody he didn't text anybody didn't e mail anybody he was the theory against him was that he used the phones and computers to put help put together the hit package but the hit package was not deliver it didn't induce anybody or cause anybody to travel in interstate commerce it was delivered on you know after the the co defendants were already there and i don't know that there was any evidence that the a codefendant even knew anything about a hit package it was there was no evidence that he calls anybody to travel it was only as to him it was only evidence of travel or use or travel our us a few seconds left one thing i would point out about the case you thought about the government there is a common thread throughout all those cases johnson nader cotton conti all of those cases had to do with an admission an indictment error or an instructional air there where there was an admission of one of the elements in each one of those cases all the defendants were mostly convicted of what they were charged with there was not a broadening of the indictment and we're taking the position that that that's not what happened here  the court very briefly the issue of trial there is the u s attorney just indicated was whether the actions were for the purpose of having a murder for hire it's not that the big issue at court wasn't about whether it's my printed something it was whether or not this had some other innocuous purpose to it and idea that mr you know once passed completes the picture which may be true as to him if you don't reference mr moore more than loopback in the lawyer issue with mr light them it that may be fine but when you start to use it that way that is exactly programs of the evidence that clears up the picture because this is a murderer and his crew murder