the trial court refused to include all the elements of a conspiracy under michigan law and the jury instructions when the indictment charged a violation of michigan conspiracy law the jury instruction asked of mr johnson intended that at least one other would commit a racketeering act of robbery the indictment however charged mr jones with violating michigan conspiracy law which has two elements that go to that intent it's first that defendant and someone else knowingly agreed to commit the crime and second that the defendant specifically intended to commit or helped commit that crime the michigan model instructions that i was just quoting from cite back to people the attlee which describes conspiracy as a two fold specific intent crime the jury instructions however in this case only had a one fold specific intent instruction they said that they had the intent that somebody else would commit the crime but not that mr johnson would himself commit or help to commit the crime so the jury instruction language plainly modified both the mens rea in the conduct elements of the crime and that constitutes a constructive amendment you can also look at it as a pretty violation but whatever was brought  to judge cleveland's attention it was there is remedy for the for that to address the objection was what was overruled just didn't by  think because the the evidence here was so different from the normal case it was it was mostly these facebook messages i think that that his intent to help commit record hearing was something that the jury should actually was thinking about and interested in and so i think they're even even though i don't think you need to prove harm i think that harm can be shown and in fact the jury i think i hope i'm not missing the point of the argument about that instruction there was a substantial amount of bad evidence by all these witnesses to lay of two different sets of evidence of the trial the first was the general evidence that talked about how the beginning working there was lots of talk about how going leadership worked about how how crimes were committed and then there was the evidence that was specific to m johnson which was mostly divorced from that evidence most of that was there and so interesting lee the jury found that mr johnson was not in fact responsible for the murders that were the focus of of the trial it what it did convict him of was the robbery conspiracy and i think looking at the evidence that may have been a compromise between the reliance on facebook messages and the prosecutions on one hand and the prosecution's in e on the other you know we don't we don't speculate about the rationale for the jury verdict right but what we have to do in i'm turning to the argument that the alias uncle murd should have been excluded from trial what we have to do is we have to determine whether the evidence was overwhelming and if the evidence was overwhelming then it did it doesn't matter whether the alias was proper or whether it was improper but if it was a it was a closer case than that if if the and it was really limited it was mentioned a limited number of todd's during the trial you disagree with that characterization i disagree with the characterization and i think that i think what's important it was a long trial and you know and he brought it out it was brought out a number of times not as many as some of the cases that we cite but more than others but i think what was important is in the closing argument when it was mentioned you know four or five times to  great effect they did a wonderful job of painting him as a godfather type uncle who was directing murders from the shadows and the jury didn't buy they didn't but what i what i think you have to find is that the jury didn't buy that he was doing that but it did convict him of the robbery conspiracy and my argument that the robbery conspiracy evidence is an overwhelming that it would be possible point here you're targeting the his gang name murder yes you're targeting that and as judge given sports out it was that you can't say with certainty that the jury wouldn't have acquitted him on that count as well if it wasn't for this unfairly prejudicial evidence i'd like to move on real quick i had the i have one minute left to nine twenty four see it held that there was a nine twenty four c violation when the government proved that there was an illegally possessed little short barreled shotgun in the living room of the crack house easily accessible to the fan and and located near the scales and razor blades used to do the drugs  in this case we have four facebook messages with identified people about guns that the prosecution never found discussing crimes that the prosecution never identified as being actually committed in fact the facebook messages john in those messages mr johnson says that someone else had the gun it was either black my bro or some niggas had the gun so and mr johnson also mentions prices he's these are guns he controls these are can see knows about and i think under so that's what you would infer the evidence but that perhaps another inference is permitted by the evidence i would get here is to be offering them for  sale which implies constructive at least if not actual possession he is i think the difference i would say is he's pointing to somebody and he's pointing and i realize that the distinction is is kind of what he's saying is here's where you can get guns but he but the cases require there i think bailey's important says access isn't enough it has to be either exclusive access or actual control doesn't say i don't actually have these they are in the possession of someone because the usual scenario is a search warrant in the question of probable cause or nexus or good faith with regard to the search of the residence even the pepper case which mr katz has brought to this court's attention particularly last friday is one that justice roberts said in riley purses california about four years ago that a search of a cell phone is different than the search of almost anything else because it would expose more to the government than the most exhaustive search of the house it contains in digital form sensitive records but also a broad array of private information never found in a home in any form and once a cell phone is found in the home and it is that distinguishing characteristic i think that sets the issues in this case apart from the cases that deal with the search of a residence the search warrant in this case was issued on april search of the cell phone is past the case from this court which is one where the probable cause set forth in the affidavit relied upon evidence that was obtained during the investigation that leading up to that a davit in which it was specifically set forth that the co conspirators in that case you cell phones in addition it described the agent's observation that at the time of the defendant's arrest he was punching information into his cell phone apparently for the purpose of polluting coconspirators of what was going on the only other case quite frankly that i've been able to locate that concerns these issues particularly examination of a cell phone and the court concluded that in that case that what effectively was white upon was inference a point inference upon inference similar to what occurred here and that's the case because in th circumstance the affidavit prepared by each another about over thirty days after the arrest after the issuance of the enticement in this case a perk left nine only sets forth that the defendants in this case nine of them were charged with offenses that list them it says nothing about the details of those offenses there is no reference to the content of the indictment it was not attached to refer to by reference none of which refer to any particular use that cell phone by mr jefferson it does not explain why he was in the house where he was arrested it doesn't say it was his house it says it was the house of another person identified as mr sent to affidavit that even though about twenty days had gone by between the date of his arrest of mr jefferson and seizing the saw found that he had done no additional investigation that he knew to no facts from the investigation concerning the use of cell phones mean you're right he doesn't tie it to any particular it didn't seem to me that he did didn't tied to any particular activity of this scale or your client that's the sage and seem to be just so familiar with  the operations and the routine for this kind of this kind of endeavor well he does say based upon his training and experience that's when all the introductory paragraphs essentially refer to he talks about this particular gang and there was a marijuana growing operation fail there and three faroe are more importantly perhaps mr jefferson had it that had been probable cause to think that that you know i mean the there's a lot of the evidence of cell phone activity or computer generated a i think cell phone reasons one one is the description of the entitlement in progress nine and says that nine defendants had been charged in the case it doesn't say which ones were charged and which comes it doesn't say it in this case there are no objective facts set forth in the affidavit upon which this officer could reasonably rely upon the reasons i've just outlined he didn't do any investigation after the date of his arrest or after the date of the indictment which is referred to in his affidavit and he learned all there is no reference to the use of the cell phone there's no indication except that mr of life that are contained within this minicomputer i think that it's clear that no other should have known in didn't exercise reasonable judgment thank you thank you mr get may please the court into guts for the united states i'll start with the last issue first the district court here properly held that the search warrant for my jefferson cellphone contained probable cause or at the very least satisfied the good faith doctrine judge took in answer to your previous question to mr gurlitz this affidavit actually did not rely only on the agent's experience with gangs generally included three paragraphs describing his investigation of this particular the bounty hunters and i'm referring to paragraph six seven and eight paragraph six describe how that gang had started and how it expanded to detroit paragraph seven describe how the gang operated how the gang made money from dealing drugs and armed robberies and to describe some of the other racketeering activity to paragraph eight then explain that the gang members use cell phones as part of that racketeering activity they used it to track and plan their crimes tracked the gangs activity of the use of not only for direct communication via the phone function but also through the internet function for social media so it didn't rely just on experience with the world or experience generally with gangs it talked about this particular gang combine that judge givens with your question yes they were indicted of a rico conspiracy now that only gets part of the way there we recognize that probable cause to arrest is different than probable cause to search but it gets most of the way there and the reason it gets most of the way to it most of the way there is the type of crime these are racketeering offenses yes mr gurr which is correct that it did not specifically say mr jefferson had been indicted for the racketeering conspiracy as opposed to the violent crimes in aid of racketeering offenses and the related one twenty four c crimes listed in there but all of those rely on the same nucleus of elements and facts the existence of iraq a conspiracy or existence of the rectory enterprise excuse me and that enterprise is committing racketeering activity paragraph nine in ten are specific that mr jefferson was among those indicted arrested as part of that indictment that those charges dealt with the gang not some disparate set of charges and those charges were i believe this is a direct quote in connection with their role in the gang so once we have that once we have the grand jury is conclusive finding on probable cause that jefferson and these other defendants had committed these crimes it's not a difficult inference to say that these crimes by the nature by their very nature would have been committed using phones this is a conspiracy or record enterprise it necessarily involves this level of communication between coconspirators and that was true in pepper to the case we cited in our twenty eight jail letter on for if the court recalls the probable cause was that the defendant had sent computer generated false mailings the officers didn't know for sure that the defendant had a computer or suspect in that case that he had a computer they didn't know for sure that would be in his home it was a reasonable inference from the inherent nature of the charges from the inherent nature of the crime that he would have a computer that it would be in his home and that evidence would be on it that was just common sense it was equally common sense here that is particularly true when we combine it with the description of how the gang operated that this game use cell phones in the paragraphs seven eight to commit these crimes combine that again with paragraph fifteen describing how the phone was seized from reminded jefferson when he was arrested in that paragraph i believe judge givens you asked this question affidavit explained that reminded jefferson was arrested with this phone and he admitted it was his and he was arrested in a house with a marijuana grow the very type of activity referred to in paragraph seven that the game used for to make its money distributing narcotics so we knew from just the circumstances of the the arrest that he was still pretty active with the gang and that he had that phone in that house and therefore it's another fair inference that he was likely using that was involved in a criminal conspiracy in that case identity theft and fraud that conspiracy use phones and that when the officers arrived to arrest him he was texting on the phone now yes mr jefferson was not texting on the phone when they arrived but is reasonable different than for because that's the phone he had that he was using it in connection with his gang activities and the marijuana that's right there in two bedrooms of the house along with the three guns it's especially interesting that defense counsel cites riley riley only require a warrant in fact that was the money line from the supreme court's opinion that agents need to do with the fourth member requires and that's get a warrant the agents did that here they got a warrant they complied with reilly while mr gurr was talking about is whether or not something's a search in the first place we don't contest that this was a search they got a warrant didn't know for sure that the defendant had a phone unlike here they didn't know for sure that he had a phone and indeed had reason to think that he didn't he had been incarcerated for the year between the suspected crime and when they searched for his phone and one of his other gang members on a recorded phone call had actually said he didn't have a phone so their own like in most circumstances unlike peffer unlike here the agents had no reason to think he even owned a phone secondly in griffith the shooting occurred  earlier and he had been incarcerated in the mean time it would have been odd for the defended their to have evidence on his phone been incarcerated and then gone and picked up that phone again after being incarcerated and still have had evidence on the phone here in contrast we have an ongoing rico conspiracy where he is arrested on an indictment at the end of it and judge guy getting to your question on good faith with actually split two to one on those facts on good faith here at the district court found probable cause the magistrate judge probably cause and the district court also found good faith this is precisely the type of case where the good faith doctrine at the very least should apply i'm happy to answer any further questions on the language of the jury special verdict and the language of the indictment and let's start as we always do with the language of the statute and i'm referring to section one thousand nine hundred sixty three of the rico statute that section increases the defendant's statutory maximum for life for a violation of one nine hundred sixty two one nine hundred sixty two which is the rico statute if the violation is based on a record tearing activity for which the maximum defendant committed any activity at all that any completely conduct happened whatsoever so selena's forecloses their argument that the government had to prove completed conduct here at all we know from this court's decision and will said that the government doesn't have to verdict form the verdict form said did the defendant agree and intend that at least one other conspirator would commit ereka tiering an act of robbery so it required a finding on types robbery just like indeed if this court looks at the decision in rio and i'm talking about pages four eleven and pages four thirty four to thirty five that case actually involved a very similar type drug dealing  there was for drug dealing over five kilograms of cocaine over a twenty year period it's tough to imagine that that would have required a specific act that was a twenty year period so it's quite similar to what we have here so third part of that analysis and that's the indictment and we should start here with the body of the indictment not the notice at the end but the body of the indictment and that's it page four seventy six the body of the indictment charged the racketeering conspiracy and charge that as part of that conspiracy the defendant agreed to acts involving robbery acts involving robbery and those acts included armed robbery assault with inten drug charges one twenty four c charges towards this court typically sees where for instance drug type in quantity or in the body of the charge in brandishing or just charging for one twenty four c counts are included in the body of the chart it suffice to put it in the body of the chart but it actually went a step further in included an extra notice on one hand sentence to put the defendants on notice that yes this is going to have an increased maximum now that actually wasn't required at all the indictment would have been sufficient without it but that notice provided will additional notice that this defendant's would have an increased maximum and contra to mr paulson's contention that notice i'm talking about in the middle of the paragraph page four ninety five said did conspire to commit acts involving robbery it's not a specific robbery acts involving robbery it's included at the end of count one acts most naturally refers to racketeering acts and the citations at the end don't just refer to conspiracy they refer to the statute for armed robbery and that's seven fifty five twenty nine now so even th e surplusage at the end the notice that didn't have to be included sufficiently included what was in this final verdict form and i note that because this was surplusage because this didn't have to be included at all the defendants really have to demonstrate some sort of prejudice if they claim they're confused by the notice that's pretty settled where they're surplusage the defendant has to demonstrate prejudice they can't do that everything at the trial would have happened exactly the same because of the body of the rico conspiracy charge and that's why they're trying to move this case into structural air land make it a constructive amendment they can't do that because it's in the body of the charge we know the grand jury had a finding on the charge it's not constructive amendment it as a final point it would be odd to say that their confusion which they don't claim prejudice them at all about it unnecessary notice that the government included to put them on notice that they had a higher statutory maximum somehow  structural error recording per se reversal that's not how structural errors usually work i'm happy to answer any further questions on that issue otherwise i will move to the gang name with my remaining time the district court here properly allowed the government to introduce limited evidence of evan johnson's gang name for to the independent but overlapping reasons one is because it was necessary to identify him the evidence and several of the exhibits we cited in our brief and to this because it was an element of the offense that mr johnson associated with the game this case is not like a felon in possession case or a drug case where gaining information is only limited to serve a specific purpose it's an element of the offense here that this court looks at its decision in a rios court made the same point that where something is an element he spelled it with a k and there's testimony on this point because this was a bloods gang they say replace c in every word with k x be a letter to signify their disrespect for the crips so this name by itself referred to his role his association with this enterprise getting back to reels if this court looks at no five of its real decision i directed to even where the defendant wants to stipulate to an element the government is entitle to prove its case with the exception of the status of the defendant's prior conviction here mr paulson's actually trying to have it stretched even further th argument that the supreme court rejected an old chief in this court rejecting a real because he was never offered in the still not offering to stipulate that he was associated with this gang in fact he contests quite strongly that he was associated with this guy so he's trying to have it both ways he's trying to on the one hand you can't show that i was associated with this gang but on the other you should be precluded from introducing this evidence showing i was associated with the gang can't do that and i note that even under old chief under old ch defendants in far worse positions to mr johnson have tried to stipulate to elements of the offense and this court has said time and again no under old chief except for prior conviction the government is entitle to prove its case child pornography cases are one very strong example of that defendants often in child pornography cases want to stipulate that they had child pornography i'm sure they'd like to redact some of it to this court has said no the government is entitle to prove its case it was appropriate here with the ga too particularly given that several of the exhibits either didn't make sense if the game name was included or the jury didn't know it or had a different or less strong meaning then with that game included so of that in trying to persuade the jury in final argument that's a little closer to the line is it not counsel it can be but it wasn't here and i think this gets to your question just given this is not like farmer where the government farmer if you read that case the government used the defendants name virtually every line gratuitously they use that thirty times there in rebuttal closing alone thirty times hear the government used it six times during during initial closing not once during rebuttal not once during opening of those six times three were direct quotes from trial exhibits that has to be proper were allowed to quote the exhibits in evidence one was at the end where the government summarized all of the defendant's games not just have been johnson's but all of them so the jury could track the evidence and two of the others were emphasizing his leadership status that hardly seems like it so gratuitous or over the top that it would require reversing a four week rico conspiracy trial where the evidence i'd like to start with the idea that we're still contesting or that it was really ever contested gang membership that was never in dispute i think our brief is very clear about that i don't know where he got the idea that we're claiming he wasn't a member of the gang i i don't think that something tells us that your client is a college student just his own business know my brief so he ended up as a college student he was in  gang and he was a member and he was messaging everyone at the time with our brief is trying to distinguish is that there's a tween being a member and directing people to go commit crimes and that's that's the that's the distinction i making here but i think what's really know he's not delight in denying leadership in general but he's denying leadership of the c v s carjacking that the district court found the sentencing han and it had to tie him to a specific item and that's our last argument i think that's in the briefs but argument is that he wasn't he didn't direct the two murders that the trial was about and  be admissible because it's relevant to membership and of course it is relevant membership that's why it was in a lot of the trial because the district court's decision was striking from the indictment but as long as there's some relevance go ahead and the reason i discouraged in the circuit is because they're so prejudicial well when they're like this that name anyway they're so prejudicial and the rule shouldn't be that as long as they can show gang membership which every alias by definition in a gang will show gang membership that can't be the rule there are ever all if you look at the facebook message all of them also used a gaffe where they could've they could have used that or they could have just taken away the murda and just called them uncle moment was not necessary that they didn't need to include they included it as a nice notice but it wasn't necessary and therefore if they didn't if they didn't follow it it was your client that but if they don't even follow it i don't see it doesn't work the one last issue is is to look back on the forty four seventy six the indictment and look at their lodging michigan michigan conspiracy law why do that if we're not going to use it elements of michigan conspiracy law to you know in the jury instructions it's it becomes surplusage and misleading it's god do you have anything further i  say that a search warrant for the contents of a cell phone can be based upon a peer inference i suggest that that is what the facts come down to in this case the government i think mischaracterizes it put the reference in the search warrant affidavit a paragraph nine describing what it is that is alleged there about the indictment it says in the last sentence these charges in others were filed in connection with various offenses by members of the b h j it doesn't say that this is a rico enterprise focused upon the ph d and that these activities were carried out in furtherance of that it would be approved the search warrant to make that inference that inference like others adds up i think to the kind of problem that this court has so often identified in good faith that is what is he or the inference is that that would be necessary based upon the agent's references in order to find that those things identified specifically in attachment b to the search warrant list of customers for example they have nothing to do with gang activity and all would be required to say that there is an enterprise that is that the h g it's not specifically set forth in the indictment that jefferson in fact is charged in a gang offense that's not specifically alleged it i refer to indictment search warrant affidavit mr jefferson is not specifically identified in the affidavit as being charged in upon facts in all of these other cases where inferences have been relied upon such as in the peffer case recently and in the case for example which in which there is a search warrant authorized for examination the contents of the safe deposit box to present no facts similar to what is required based upon wryly for the examination of the contents of the cell phone here in the particular list of set forth an attachment  would invite the court to look at that in i think that you will conclude that the search warrant did not meet the exacting standards that this court has set forth in all these cases in the in brown the court said that there are many