not the one was alleged in the indictment against mr camaro as alleged in the indictment the scheme that he was involved in was a complex scheme of obtaining cars luxury cars through means of identity theft maina is alleged coconspirator would submit fraudulent financing applications to dealerships up and down the east coast get various luxury cars the financing outlook agents were fraudulent because he didn't put his name on them but rather the names of wealthy doctors at george washington university hospital who had good credit ratings this was the scheme that was alleged in the indictment and consistent with that in the manner and means of the conspiracy mr after man his name is mentioned eight times over six paragraphs in the overt acts of the conspiracy as alleged in the indictment mr goodman his name is mentioned fourteen times for a total of twenty two times in the indictment against my client mr camaro by comparison mr compare mr comerica name is mentioned only twenty seven times in the same indictment including the caption and notice  the court later instructed the jury the conspiracy at issue here didn't have to be with mr ackerman when when when this issue first came up in the context of the jury's note we argued that given the  and to the government's case he was the only coconspirator that the government call that this conspiracy necessarily had to be with mr you know i did not get that from the colloquy and i understand that it was very you know the jury question comes out everybody's confused but i thought that when you guys were talking about it then it seemed like the emphasis was very much not on who had to be in the conspiracy but whether you needed to charge specific offenses and the emphasis was on do  conspire specifically and not generally and that's more what you were talking about when you were talking to the judge certainly will be for the courts reading the joint appendix as we understood it at the time the complaint about the question about whether the conspiracy was motivated by the jury's doubts about whether that conspiracy existed in light of the fact that mr bennett made numerous concessions during the course of his cross examination about things that my client didn't know so you actually see someone said to the judge the question doesn't go to who it goes to about ouat and then you argue for an instruction that says you have to conspire on a specific matter but that's my understand that was the defense's position in that colloquy this doesn't this isn't about who it's conspiracy and whether the conspiracy could involve other people just on that point after the judge made the answer to the to the question and said the conspiracy could be with mr khamenei or other known or unknown co question of what is your theory of the distinct conspiracy that doesn't involve it could be enough for which this jury in light of the evidence a trial in the parties arguments might reasonably have thought it could convict your client and you know did you are you ever that there out of the jury's charge the as to your honor's point though one of the specific alternative conspirators urged by the government in response that question was a woman by the newseum be a jackson was the person in north carolina provided the temporary it still looks like it's all different problems of the same conspiracy it's not the same cars in the first place involved two of the cars were the same one of the cars was not right and the harm from that conspiracy would have been whatever harm occurs to the state of north carolina when a temporary dealer tag is taken and used for fraudulent purpose be that conspiracy with assuming it existed between ms jackson and my client mr camer know the a devotee of the conspirators is often a matter of dispute but that's that's not really of the point of the complete fungibility of the participants before it becomes a different conspiracy than the one that's alleged in the indictment and in this case here when you remove mr recommand and just by the way in the indictment there were no other  named but identified by position or role in the conspiracy other than the persons who provided mr recommand with the social security numbers and personal identifying information that he used to obtain the cars so as alleged he's the hub of the conspiracy there are no other participants interacting with my girl gets back to the point is very early you didn't request a multiple conspiracy what instruction that's correct and we did not because we understood from the indictment and from the discovery that we receive added that indictment would have been worded you wouldn't put on this defense which is that you were clueless you don't know what was going on that all the people do to you that was your defense and it would have been you would have been a swell of the word knew that indictments write it phrase is often used in indictments clearly but when there's no mention of the role of these other participants that at that point we're not fairly on notice just by the fact that they haven't but the burden is on the government to prove that two or more persons entered into an agreement and the defendant joined that agreement now the search judge wilkinson's point let's hypothetically evidence which others known and unknown so the grand jury or actually participate further the conspiracy isn't that enough to commit the i don't think not on the cameron bought mr khamenei more not challenging that is part of us calculations but for the other three cars we are given that mr ackerman a didn't have a role in obtaining them from the dealerships now on that point just in the time i have remaining i would determination on it but the district court did not make any factual findings on the record on this and even subject to that standard your honor we submit that this was a clearly erroneous finding if you're if the court directs its attention at some time to page six fifty one of the joint appendix which is exhibit twenty of the trial of it that is the document by which that b m w that was later included in law scout elation was obtained on that document it shows that it was obtained in july bottle very well wire and you'll smith's the united states i think i want to push back on mr mcnichols suggestion that he did not have notice that there were other conspirators who were going to be a part of this case  a jackson the woman in north carolina who his client was texting to get the fraudulent tags and mr nick gaue one of the defendants friends who he set up a deal to get a stolen jeep from these were both people who were in the trial exhibits months before trial had given these text messages to the fence counsel and weeks before trial we provided them with twelve pages of excerpts of the text we intended to use this eventually became government's exhibit forty four which is in the j a six seventy seven eighty nine and it shows text messages between the defendant and ms jackson about getting stolen or getting fraudulent tags for three stolen cars and these are the exact same three stolen cars the mystery could be and i was the source so he's part of the conspiracy so is she so is the defendant there's also text mr nagai about a stolen jeep and defense counsel actually said a minute ago that had of an f b i interview with him months before trial he was also given a three o two of mr jackson's interview months before trial and he could have subpoenaed her there was also a motion in limine a before trial when defense counsel in the district court at the point in the head that the defense counsel has to show prejudice and i think this is actually a technical point but there's a shift in their opening brief there they're calling it a constructive amendment claim but then after we made the point that the conspiracy is broad enough to encompass other coconspirators the reply brief really shell a variance claim and the important difference is that variance claims require showing prejudice and this context prejudiced means that you're actually surprised by the evidence  argument and that you were inhibited in your belief to make a defense and there's a number of cases including united states versus kennedy that was written by judge well as i understand out i think it's more profitable if i ask the other members of the was some hypothetical distinct conspiracy on the table for which they could convict and so mr camera that didn't involve mr eko been but then the jury's question troubles me well it does sort of sound like and when the jury comes back and says was that ender or like maybe they thought differently maybe they really did think there were two conspiracies conspiracies here and one had mr ecan being in it and one didn't what am i supposed to make of the jury's question well your first point i think certainly a lot of people our office will try to speculate when we get jury notes about what the jury is thinking and that's something that that's kind of fun to do but the experienced trial lawyers always say you really can't draw anything for what they're thinking it's quite clear that they're confused where they say do we have to show a conspiracy like race it could be in a specifically or conspiring in general obviously conspiring in general is not a legal concept so i think one way to read it i think the best way to read it when they're saying do we have to show a conspiracy with it could be mr sufficiently or conspiring in general what they what they're asking is do we have to show us a civic agreement we could be in or just generally i mean it's quite possible they're using you could be in as jury found as did that he made a specific agreement with someone else in the conspiracy is long as it was the same conspiracy was really that it was a mystery could be as overt acts could still be used for venue and it would still be within the scope of the indictment had the title and tagging activity never occurred at all the dealership would still have been out that b m w and that's thirty four thousand dollars that would come off the total loss calculation taking my client down  fence level twenty to eighteen which wouldn't in turn would reduce his sentencing range from twenty seven months to thirty three months he's been sentenced for thirty six months for that so that's three months over the upper limit of the range that would apply if we eliminate this car that would have been lost whether or not this conspiracy with my client had ever existed that's why we submit that this is a clearly erroneous finding and moreover it's one that's prejudicial to my client because use during the course of discovery to alert for us who some of these other players work we submit through court that there is a profound difference between a person who is a victim of a conspiracy and a person who is a and also the g now clearly some of the same badges of fraud that the government pointed to in the trial are present on those transactions but on the face of this indictment as it's presented here the idea that concealing the that is one of the purposes of titles is consumed it's one potential purpose your honor certainly but the fact remains that that aspect of the conspiracy that is concealment through the use of fraudulent title temporary dealer tags tain from north carolina through a separate coconspirator was not present in this indictment and no mention of any such activity the indictment says in paragraph two or that my client submitted false tag but there's no mention of any other actor in there with whom he conspired for that purpose so clearly that is one of the underlying premises of the conspiracy alleged here right but nevertheless the factual foundation for that on the theory that zambia jackson is somehow wrapped up in this conspiracy is not