the government argues that the evidence showed one conspiracy it is our position that that is not correct we argue that there is no evidence that sanders knew about any conspiratorial agreement in or its scope at most he knew that the drugs would be distributed but that is not sufficient for this work to find that there was a common goal between the participants and that's clear from direct sales but it has is also should be clear because otherwise every middleman drug distributor all the way and all the way back to an afghan poppy farmer would be liable for conspiracy so here there was no common goal there was no interdependence between the participants and there was no overlap of participants joseph and sanders was indifferent to their sources of supply and their other buyers there was no evidence that sanders knew anything about joseph's activit pardons and there was no evidence of shared trust and no warnings of least presence or other type of that effort to protect each other what about the on the question of his knowledge about joseph activity in the grounds i would have to check that and i don't have it in front of me but i believe the said the indictment in the indictment said a drug dealing in the district of columbia leak was arrested we had some drugs in two thousand and ten demonstrates that lee had no idea before that who this person joseph works this is the first time that he has learned recently that there is somebody named fat somebody who doesn't even know his nickname doing well in the time of cards he wants to purchase and and that we don't we don't find a problem with a verdict form and with the instruction and then i guess there's a good advantage in the jury telling you which that that's not a separate conspiracy that if the first time the jury asked that question they obviously could not find  o grams there was no reason for them not to fight it and grams with respect to just sales to sandra sales if it was so that the only reason they would have asked that question is if some jurors at that point at least early in the proceedings did not instruction assume you lose your argument at this instruction isn't good enough just so we separate which my arguments are then they found one hundred gram heroin conspiracy which they couldn't have found just between the consumers that being the case your argument into evidence that was on the cd that went into the jury room in which sleep does describe describe the government says all the things on the cd were admitted into evidence they just weren't all played this out wrong i think that's wrong based on the stipulation which said that they were only  subject to objection and it merely sanders did not object when they went into the jury room but that does not mean that they cannot be prejudicial if the jury listen to them and if that call is what if there is no if there seller or at least the offer of extension by the seller of credit but otherwise they the buyer keeps his business  that enough for conspiracy i think c d s of looking around for some magical extra little bit that in substance makes no difference or should make no difference i think it does make a difference and i think of credit i think one thing to note about that is that the actual payment for that was one hundred dollars per gram and that there was no with respect to the later sales for fifteen and twenty five dollars per twenty fifteen twenty five grams  necessary for purposes of making sure that conspiracy is limited to people who you know basically what they're doing and have an ongoing purpose of  details then how was a jury to distinguish by cell agreements between somebody who really is indifferent to their buyers and their sellers to people who simply engage in a very transaction from disinterested players who are independent from a conspiracy a conspiracy should you know if all the government need to make a conspiracy sound like a sports team really want them working together i  in order to distribute it requires in some cases the dealing with the money it would choirs all that is inherent in the crime of distribution itself what is more probable about that just because six grams out of several hundred were fronted i don't know i don't see that that is susceptible or deserving of increase punishment over the crime of distribution itself is for congress and congress has decided that and i think that that's that's clear but i do think that it requires an agreement of the something more than the underlying crime with pliers and that we don't have here in my view i think that all we have is dealing between two independent parties and the fact that there is no evidence that sanders knew anything about sacking cocaine runners lieutenants well beyond our that he knew that that was happening you just don't know he doesn't know the specifics if you could he so thirty six thousand three hundred fifty dollars worth of heroin so he certainly didn't think that joseph was taking all that heroin himself that it couldn't just be reselling it to another middleman in san francisco or that extend does that extend forever how many middlemen can the chain conspiracy drawn in all that it's a good question but it's not this question that this conspiracy is not drawn that that large this conspiracy has a specific number of people involved relatively specific relatively small geographic area it doesn't extend forever but they they don't the fact that they don't know each other i recognize is not a consideration but they don't know what each other  that that is not right i would submit that when they know nothing about each other's activities and don't even know of each or know each other enough and when the evidence is so thin that they all have joined together in a plan that they're not protecting each other there's no evidence of that there's no evidence but there's a discussion about there's people watching me can certainly take that to be protecting with respect to the bad is a fear for himself it's not an expression to joseph be careful for yourself it's not an expression him people might be watching you it's an expression of fear that he might well that's one way to take it another way to take it is we're in this together people are watching me that's sort of for the jury to decide and sit and sit joseph said that he might just be saying guys in the neighborhood he's not necessarily talking about some snow distinct you know evidence that that was a reference to he not convinced that the government has presented independent evidence of a conspiracy aside from leaks statements i think the admission of it was i think what the government really did here was long two other cases began on sanders that drudge williams just discussed with you or even for fewer of those and even for the larger amount of the repeated sales that that alone is sufficient that's a conspiracy then all we have is as cross at all we have a variance problem we'll read that that's sufficient like think  work whether it can be confident that a properly instructed jury without all this extremist evidence kanan runners and lieutenants and the league conversations which were terribly prejudicial cannot be confident that a jury would not have convicted of by selling not conspiracy had they been instructed with myself and had all this other evidence not yet and i think you know this court talks about that recorded call suggests that the jury can distinguish between the various leaked that makes very prejudicial statements in that event i think that this is sanders league conversation so seriously conversations are very prejudicial to the senators whether whether this conspiracy  was sufficient for the town joined that conspiracy the second point i'd like to get to then is that this work can be assured that that's in fact with the jury found not only because that's where the argument and the evidence was focused but also because of the special finding of one hundred grams on the first question and going to judge williams questions of opponents counsel about the nature of the conspiracy this was not a case where the government was advancing the conspiracy theory that would have held a farmer in afghanistan liable for the conspiracy apparent lived at the time apparent prior to sale there is testimony that we have these specific sales which total your honor gave the valid the dollar value i'd move that as the quantity which was four hundred eighty one grams of heroin total but we also testimony that aside from the sales and part of the sale relationship and contemplate a relationship where the heroin that's purchased by joseph is going to be redistributed for sale i think pounds council just and see that the quantity alone demonstrates that but the testers also go to that effect and there's other calls supply in the area you know the prospects that palin has for resupply that show the kind of relationship between these two people and it's not in your arm's length relationship it's a relationship where they continue to discuss the prospects for a palin attaining more classic sort of chain conspiracy that this court considered in that parenting a decision the government viewed at the government prove that there was a network distributed on the ground at the time of guarding the joseph was on top of that network and then went  that the success of joseph's distribution ring was essential to those of continuing to buy from seniors and if you couldn't distributed you couldn't buy any well i think the wiretap next vision will come from so joseph is constantly present and in fact sanders is also having a conversation with lee about where's the hell i'm going to come from so i don't think that's an explicit admission of the kind your honour's contemplated but it does show that conspiratorial relationship between them which is not the same or part of the senator's there's a relationship now that would seem to fit under the language that we use and i should say that i used similar language focus on is that that's not what happened here and i'd like to get into why but first in terms of the more theoretical question about whether there are those there are views of the evidence and how that should work in terms of the siding with a given multiple conspiracy instruction i think knowledge that there is could be an analytical difference between the question about whether to give them all forms receive instruction and question about sufficiency or very absolutely and i think sometimes the cases have cited one in the context of the other right but that's because in both cases it's the same sort of question about whether there's multiple conspiracies and about prejudice it's true that the filter of review might be different in terms of drawing on offenses in favor of the government or credit in the right instead of the money but in this case that wasn't a problem in this case because there was no evidence from the defense that suggested multiple conspiracy and that there's no real risk in this case that the jury would've made any sort of selective credibility so that's one of the kind that you're honest reply what you're saying is the court both the district court when it's happening and and the court of appeals and before the jury to look at the opening statement by the government started off by saying this is a case about an on the street distribution network in the time of gardens and it's a case where we're going to show a little cross to join in that matter is i'm not sure how that helps the recourse the government put it that way helps because the there's no concern based on the arguments and evidence that were presented to the jury and of course the jury's special unit special finding of one hundred grams which i want to get through it says that the jury in fact determined that opponent was part of that distribution network at the time of gardens which is what the government's theory was the idea that the jury would credit some part of the testimony that is that there was some relationship between sanders and lee or between joseph and richardson and then hold the part responsible for that as opposed to holding a part responsible for his already but we don't we don't have any quantity or money coming in from the leak relationship right and i think i suppose suppose the jury cars out of a leak sanders and i think that's the transfer can look to see to the extent that there's a chain relationship or a hub and spoke relationship with the court can look to see whether there is a credibility dispute or any meaningful evidence that suggests an interpretation that would show multiple  supreme court case i believe it's public to say that if you charge nine people in a conspiracy and seven of them are quoted that that doesn't affect the verdict between the two who are guilty of course that's not what happened here but if we if we charge a conspiracy and happen to have a failure to some members of that conspiracy that doesn't negate the government's case against those people who were a member of the conspiracy so even if it was as just random ones out there the other members pled guilty in this case but even if there was some doubt as to whether or not someone else was a member occurred in maryland so that's one one aspect of it but that at sentencing in this case there was a discussion of the quantity that opponent was held responsible for and he was held responsible for four hundred eighty one grams which is his direct healing with joseph so this isn't the kind of case which i think has conspiracy charges in a case like this would be very confusing to the jury at least could be unless they were very carefully worded well i think another point i would make is this court's recognition here it's very unclear to me what what the jury was supposed to do with this case and how they were supposed to decide when when then when he asked for a multiple conspiracies construct instruction to say what the mobile conspiracies he was alleging w what those and if there were multiple conspiracies try instruction that just says if you find multiple conspiracies you've got to find in the name of god which one would god have been confusing without identifying what the potential multiple conspiracies were well i think that's a that's a jury question defendant not have to advise the court as to what other conspiracies street thinks are there was sufficient evidence of to require instruction i don't think to preserve the air or to preserve a request from all conspiracy instruction in the