if time is a way out starting with the rico conspiracy conviction going to fail to prove a pattern of racketeering activity in this case it had to prove that you did that there were two acts of extortion prostitute thousand and three until his release in march of two thousand and ten and there was one act of extortion that was proven through the admission of the wiretap evidence in a particular call well actually wasn't a wiretap call it was a intercepted prison call between the defendant and his brother in law were established that there were an extortion funds that were delivered or an attempted delivery was made to defense ex wife who was the brother of the other party to the call and so we can see that one act of extortion this is the delivery where there was a specific reference to the money being from the swap meet there was something about the swap meet in shape wasn't specifically a came from the swap meet but it was the money there was something in the conversation about the swap meet and we're not contesting the fact that there was proof that one that one predicate extortion the problem here before i get to conspiracy to commit murder the problem is to the proof of the second extortion act is that any proof that there may have been which beast based on hearsay alone and under the tilley decision that was cited by the government because of that fact the evidence had to show the defense participation in that second act of extortion  have that was the testimony of detective trujillo if you can recall he is the one that we have a problem with in terms of the absence of the dual role instruction he was called and as part of his later opinion testimony he discussed what he believed to be proof of a second act of extortion and i will get to that momentarily turning to the conspiracy to commit murder you can recall any evidence that there were a number of factions that made up the thirty eight street gang and so you had this one faction that  recall that that faction or clique was a competing clique to the one that the government claimed the defendant was possibly a part group now it was the eros co gonzales al risk group that had received the green light from bustamante jr and there was also grandpa the father  had received the green light to murder rascal and shot a boy now supposedly rascal and shy boy were part of the other faction the harpies faction and so as we argued in our previous it didn't make any sense first of all for the defendant to have been part of a conspiracy to commit murder or to have agreed because this was a conspiracy to commit rick rico to have agreed to that to that particular murder in fact bustamante jr put the green light on the defendant later in the in the later in the case so we don't think that there was any proof of that a predicate this as a result the government had to prove two acts of extortion already indicated that there was one act of extortion the problem with the second act extortion relates to the same arguments that we made concerning the conspiracy to commit murder under those two second circuit cases of tell you a gigantic if you can recall of those cases stand for the proposition that when you have hearsay testimony like the testimony that was received by alvarez about the green light hit on shy boy and rascal that if there was fear say testimony that was gleaned from the from what the detective said on the stand that that would be insufficient to establish that second predicate without some corroboration something beyond the hearsay which we didn't have in this case now as far as that dual role instruction is concerned our position is is that detective true trujillo had unmerited credibility in providing lay opinion testimony in any number of areas and i think that it would be very important to conduct a close to his testimony i would start out to make reference to the testimony that your sheo gave concerning two older murders that occurred in this case the victims i'm just going to use the monikers for these two individuals clown and crook as you can recall from the testimony of the ex wife a crook was supposedly a good friend of the defendant sponsor instructing the jury that this witness war two halfs and that depending on the nature of the testimony he could either rely upon hearsay or he couldn't you could rely upon hearsay and right and it's their particular area detective trios testimony that's particularly prejudicial yes yeah but i understand that i understand that like the very case because that was a plain eric a plain era the solution is well and the government has argued this that we have to show prejudice in the prejudices follows in the course of interpret in these wiretap calls detective trujillo was allowed to discuss the past murders of cloud and corrupt after he did that he discussed their roles as members of the get he discussed the fact that crook was actually in charge of collection of extortion payments at the swa me he also discussed the role of another gang member by the name of largo where i get he talked about the role of largo in the gangs now this  got nothing to do with interpreter calls this is not expert testimony now what this is is trujillo's relies upon hearsay under crawford based upon either conversations with fellow officers  reports of investigation in the briefings of informants or some other source of information to render lay opinions as to the roles of these two key individuals and the reason why it turns out that this appears to be very important now to establish the prejudice is that in describing the roles of those two individuals and in particular crook who at one time was in charge of the swap meet before he was detective to opine as a lay witness that the defendant was there by the heir apparent to taking over the swat me himself upon his release from prison and therefore in his opinion he was involved in extortion activities at the swat me but if you can recall there was no evidence as to what the defendant was was involved was doing when he was in  prison the government's witness testified that they did not investigate him in prison they indicated that there was nothing in the c d c file to show that he was actively involved in the gangs activities while he was in prison unlike some of the other individuals in the case like another guy named crazy who was on an intercepted call with a smuggled cellular phone or any of the law m a members who are a pelican bay that they they explained continue to run the mafia operations from prison there was no evidence of any of that as far as this defendant was concerned and in fact trivial himself testified that they did start the  was released from prison which was in mid march so trujillo's opinion testimony can cerny the defendant's role in collecting extortion payments beyond the one verifiable collection  murder there was only one proof there was only proof of want to extortion and act now as i've indicated all of this went way beyond interpret  words that's where he was allowed to testify as an expert and to rely upon him up his past training experience and any hearsay for example deep briefings of informants who would have explained to him what the meaning of certain code words were so everything he taught and that he discussed as far as the crowd crook was concerned as far as what largo was concerned was beyond the ambit of interprets another call involving another again a lil homie a member of the gaming nescio who is collecting extortion payments at large does request and there was some mention in that call that  there was speculation that nescio was picking up for the same people that the defendant was picking up for which meant that somehow there were multiple extortionate acts that the defendant agreed with to be committed a trujillo was allowed to get to render his opinion that that meant that the defendant was not just politicking to get to assume that role but was actually involved in the collection of more than one extortionate payment during that very small window of time when he was out of custody because you just recall he was released on march fifteenth two thousand and ten he went down to mexico for a period of time there were discussions of telephone calls between him and other gang members after his release and then his return to the newton division that the area of the swap meet and the territory of the thirty eighth street gang it ever at ever collected in the extortion payments survived as had testified that in talking to other gang members and vendors at the swap meet that no one could verify that he was ever actually no written reports of extortion all note no mention reports of extortion at all there were other examples of lay opinion testimony that was intermingled with expert testimony that caused that should have caused the court klausner never spelled out the dangers of self representation to the defendant at most what he discussed was what those dangers might be in the abstract in the way that he gave the admonition to the defendant what danger what if distal dangers with you happens out ok what he would have what we think he should have spelled out or what it what that were known for function saw counsel participate in selecting the jury he sought the direct examination cross examination in other words he wasn't somebody who just walked into a courtroom for the first time we're not exactly sure what he did because if you remember in this case at the close of the government's case he asked to leave the courtroom so we don't know exactly what he did in the previous trials but we know like the defendant in below blue who had tried one case pro se prior to  coming going up on review as to on the parada question they found that that was enough the wasn't enough the only case that appears to be the outlier the exception is the gerritsen case which is a situation where the defendant actually tried the case of self on six separate occasions and i think there's a big risk distinction between doing that and sitting in a courtroom when somebody else is conducting the truth doesn't matter for the referenda claim that  he actually was represented by counsel at trial now because some of the other cases cited in the brief indicate that the fretted banishment applies to all critical critical stages of good morning to please the court just inroads on behalf of united states i think the issues in the same order that was raised by defense counsel on the issue of sufficiency of the evidence the defendant has completely confused the standard the standard is whether or not defend was a member of the enterprise and agreed that there were the enterprise would conduct attacks if it is through a pattern of racketeering and that means that at least two racketeering acts be committed by any member of the conspiracy or members of the conspiracy during the relevant time it doesn't mean that he has to do two record touring acts it doesn't mean that he has to know who is going to do that to rack touring acts only that the gang itself will do that the evidence of that in this trial was legion first  isaac alvarez testified that extortion was collected on a weekly basis for many years mr alvarez himself said he and other gang members would go out on saturdays and sundays and collect it and pay it up to more senior gang members in addition there was video evidence alvarez actually collecting distortion from vendors outside the swat me this is not hearsay evidence this takes this case entirely outside of the scope of the second circuit cases that the defendant has cited in his reply brief in addition there are then multiple calls about who is who's taking over who's doing the extortion of the swap the defendant is mentioned by name defendant who had just gotten out of prison a month or so before people say defendant just got out and he's trying to get the whole news together and he's trying to take over the swap meet then the defendant was seen at the swap meet on the very day that a call was recorded saying defendant and the same people that he was seen with were at the swat me what is the tenant do when he's at the swap meet he threatens the security guard who's trying to keep the gang from acting at the at the swap meet and then finally as the defendant is forced to concede someone delivered a swap meet extortion money to his house and on a phone call his brother in law says we dropped off the stuff in the swap meet and the defendant says don't talk about this watch me on a telephone call the evidence the defendant knew and participated in the conspiracy and knew that the conspiracy engaged in multiple acts of extortion is unquestioned and we shouldn't be looking at which whether he knew that this one act happened in versus this other act with respect to the conspiracy to commit murder again it's not hearsay evidence officer cooney who patrolled the neighborhood the gang said that the gang goes out and engages in shootings all the time and murders think alvarez who is a cooperating witness who testified at trial said that he personally hidden gauged in at least fifteen shootings he then said that he had been tasked by two senior gang members to go out and kill the people who were then collecting or in charge of collecting because they were authorized and then detector trujillo and an a t f agent both testified about the firearms that were found on alvarez when he went out to do that mission and then there was a record call from another leader of the gang saying i think alvarez got a little boy got arrested at the swap meet with two guns and the evidence that began in gauged in murders and conspiracy to commit murder was again legion all the jury had to do was agree on any two of these and i submit to you that it could have been the specific murder described the other murders or the weekly collections of extortion and the defendant who is a well let's also point out a deep longstanding member of the gang what he did or didn't do in prison is irrelevant he is tattooed from head to toe with thirty eight street gang and i would encourage you to look at the photos starting it g e r seventy teen that show his allegiance to the gang including the word smoggy tattooed on the side of his head so the moment he got out of prison he was deported came back to the united states and the call start happening between senior leaders of the gang saying smog is out and he wants to take over extortion he was in for this he knew what this gang was about and he knew exactly what he wanted to happen it's it's it's crazy to assume that the defendant wants to take over the swap meet and doesn't acknowledge that there's a pattern of racketeering activity he wouldn't take over the swap meet if he knew he was there is going to be one extortion and one extortion only and on that basis the sufficiency evidence falls away the jury instruction issue government agrees that a dual purpose instruction should have been given however the the evidence that was presented shows that there was absolutely no plain error here  defense counsel got up and said that we should conduct a close study of detectives for his testimony find that should have been done in the brief there is nothing specifically pointed to in the brief about where detective trujillo's testimony veered off of what was permissible and here at oral argument defense counsel start talking about the crook in clown murders those are not mentioned in the brief i'm happy to talk about them but again if it was so obvious the detective trujillo was not following his role as an expert these should have been identified sites in the brief so the one thing that we are talking about now that detective trio should not have talked about was the attempted murder or the conspiracy to commit murder of two senior gang members named clown and crook that is not relevant to the jury's determination that was provided as background for how the swap meet works and it did provide evidence to the jury about conspiracy to commit murder because isaac alvarez said i went to the swap meet with two firearms to kill co crook but that's not what the defendant was convicted of the defendant was convicted of a pattern of nine hundred sixty two d which is a conspiracy to commit racketeering activity his desire or his beef with crown and crown clown and crook or whether or not they were the same faction or whether or not it didn't make any sense that he would want to go after them is not relevant what's relevant is did the jury have enough evidence putting aside entirely detective trujillo's testimony to convict him of being a part of that record conspiracy and i submit to you that there absolutely was again he is he's a senior member of the game he's talked about on calls between senior members of the gang he shows up with a swat team he threaten a security guard he goes gets goes to jail and while he's in jail he has money delivered to him less we also forget that while he was in jail he approaches isaac alvarez another member the thirtieth street gang and what does he ask he doesn't say how is the gang doing he doesn't say that even without detective trios testimony there was a wealth of evidence and that's what distinguishes this case from vera vera again let's recall was remanded only for the specific issue of drug quantity finding because the court pointed out the only evidence on drug quantity in that case was one sale of twenty eight grams and then the experts testimony here the expert did decode some calls and those are very valid decoding i would point out he said that the word cracked means arrested that picking up candy means collecting store play stations and straps for firearms that the warehouse is the alameda swap meet that when a defendant said he was posted on third not to defend this defendant another defendant said he was posted on third that means he's standing guard on the corner of thirty third street and they had nicknames for the rival gang members all things that he had learned because he had spent hours and hours on this case and others he had listened to over two thousand intercepted calls on this case alone he had interviewed cooperating sources he had participated in the search warrants he'd been out on surveillance i submit to you your honour's that detective trujillo was the person in this world most qualified to testify about how these gang members conducted their their their communications so he was allowed to testify as he did but if the court felt that he you know overstepped his bounds and in place and again those bounds are not set forth in the brief but if he has questions about what we talked about so far i think when captured a big part of this is that all of the other cases that we've talked about the talked about in this in the brief involve a defendant who waived his right and the as i would be tovar says in the supreme court case there are different the defendant needs different understandings about the core functions of attorney depending on what stage of the proceedings we're at and for a defense to that the the admonition that judge klausner gave mirrors nearly identical the admission that judge klausner gave the same judge in the garrets in case and let me point out some of the state the similarities he told both defendants that you're held to the same standard as other turnings told both of them that no one else can help you he told both of them that it's dangerous because you don't have legal expertise he told both of them that there's numerous pitfalls he said that stand by counsel cannot advise you but would only take over if needed in this case he said it's like doing heart surgery on yourself whereas in gerritsen he said it's like doing brain surgery on yourself and that in this case he said he doubts that the defendant would do a good job versus gerritsen where he said i always gerritsen he did try the case in this case he didn't and it wasn't that some new lawyer was just given to him on the day of trial when he decided he didn't want to go pro se it was the same attorney who had been rep buying several issues one yes and and on that point i don't think there is a substantial difference between being pro se and trying cases and sitting through three criminal trials note also he had been deported several times so he did know i mean he's not a rookie to the there i don't think there's a case that specifically says that but i would also say the judge closer had been with this defendant for several hearing several hearings where he had talked about firing his attorney talked about strategies he wanted to employ talked about the frustrations of what he wanted to do versus what his attorneys wanted to do and in that process judge klausner was able to look at listen to and understand the defendant and begin to read what his perceptions and what and that's what it comes down to what is the defendant's understanding about you know the purposes and  perfectly competent to be a lawyer you are i hear you are saying what i'm saying is that there's also a plus factor in this case it wasn't just that he had been to three trials that judge closer had had lengthy discussions with a defendant who was speaking pro se at the time seeking to fire two separate sets of counsel talking about the strategies the defendant wanted to employ in such class or had an understanding of who christian giri was and what he understood about the process and so those clubs were being in the best position then said let me give you the advisors the same ones i had given in gerritsen and based on the fact that and he acknowledged you've been in several trials and i've talked to you that you now understand and the defendant did understand and then when i submit to you when his strategies that he wanted to employ himself didn't work on the morning of trial he said ok i'll take my lawyer back you think you would have been capable of it i think you would have with me i don't think you would have done well but i think he would have  unless you have further questions about briefly touched on the the continuance he he was given seventy six days from the date of his first appearance to when he pled guilty in his rico count which under the is is statutorily sufficient he after he went pro se he did not ask for a continuance of the immigration case and that's notable he did ask for one in the rico case but did not in the immigration case he litigated the one motion that he know i don't mean to make light of it i was only pointing out that what he identified he did not say i need more time on the racketeering case he was given fifty four days from the date that he went pro se till the day that he  went to trial which may not seem like a long time for racketeering case but lest we forget the day he went pro se was over two years from the date of indictment and he'd had attorneys working for him during that time so there was no i wanted to save time for together that was the contemplation what happened was the he was indicted with fifty other defendants in two thousand and eleven as part of racketeering case he was not charged with the illegal reentry at that time he was charge of that in april of two thousand thirteen as the record shows there was communications about resolving that case which he said no the government sought to consolidate them for trial he opposed the court denied the consolidation so the game was left with two separate tracks although the ferretti hearing happened that just cause i started doing consolidated hearings for the purpose of the fraud hearing and firings counsel and so that happened at one hearing but then after that they were on their separate tattoos for thirty years street gang at the time he was testifying for the government as its cooperate witness he was no longer part of the gang at that point and i just i just beg the question to tattoo of an old girlfriend insinuate that there's a continuing relationship i don't think so i think you have to have some evidence that the defendant was actively involved in the affairs of the dad at the time he was in prison the testimony was that he was trying to get away from gang life before he went to prison when he was up in delano living with his ex ex wife and working as a cop picker now as far as the  to specific causes of testimony on the part of detector hero i respectfully asked the court to take a look at footnoted of the reply brief which identifies all of the e r sites that relate to that testimony and the forever finding the fred at issue was briefed in the immigration case as well the problem with that case and the continuance of the denali continuous at that case was you can recall as you may recall the judge said to the defendant look i'm not going to give you another continued some i mean you can follow a motion but i'm not only going to frown upon it i'm just going to give you three alternate dates and you pick one and the defendant said well i'm not going to do that your honor you pick one  the judge picked the date now when that conversation occurred in regard to the immigration case the defendant had been in quarantine for chicken pox for over forty five days that's in the sealed excerpts of record sixteen he had not been representing himself prior to the to the korean team being lifted so he did now he had not had any contact with his lawyer prior prior to that a appearance but he wasn't running the show his usual is appointed counsel is running the show and so i don't think you can conflate the time that the judge was allowed was giving to him to prepare for that case with the amount of time the counsel had prior to him going into court and team in fact what you had was an appearance on the twentieth of june where he then requests to go pro s guilty the court just chooses the mid date of july second for trial which is twelve days after the freddie hearing took place and the time prior to that obviously as i said he was in