good morning ladies and gentlemen will begin today's organs with united states against proves mr trump thank you your honor good morning i may please the court and opposing counsel i'm attorney christan and i represent crime without knowledge of its essential elements entering such a plead as that is violate rule eleven but violates q process and basically that's what occurred in this case there is really that two plea colloquy that took place and one the judge was talking about the indictment then the other mr henderson was talking about the information to which he was supposed to plead guilty but there was never filed so basically one conversation but two vastly different understandings and this confusion  don't believe it is the same crime i think that the supreme court's made clear that any fact that increases a mandatory minimum is an element of the crime and we know that different drug waits for different drugs right away the supreme court has to keep rush we call it the way to drugs is not powder and more than two hundred eighty grams of crack in either one raises the mandatory minimum so either one would be an element or don't think you understand the difference between an element something that is essential sure there are things he understand i believe that it goes to that whether he knew about the knowing intelligent voluntary nature of the plea i don't know how to respond i'm not familiar with what authority you're referencing because i think alan is clear and so here i think good but then he asked mr henderson if you are so the elements of count one not specifying which count and i think it would have been reasonable for mr henderson to assume he was referenced scene count one of the information which was just referenced by the judge moments before so again still not too far off at this point but after going through the rights that mr henderson waived by pleading guilty and the possible penalties he faced then the judge starts talking about the special verdict form that would have been had to be considered by the jury had mr henderson gone to trial and here's where we're hearing of course because i believe at that point mr henderson could have believed that the judge was referencing if you went to trial on the indictment and and not on the information because information was only felt as per the police that he was still talking about the correct charging documents everybody understood that he was pleading guilty to conspiracy to deal crime correct and the cocaine aspect of count one was sort of in addition to along with the marijuana part of the conspiracy charge in count one and so i don't understand what he didn't understand everyone was operating under the assumption that he was pleading guilty to trafficking in crack correct but what he didn't understand was that he was also pleading to five or more kilograms of powder and that's what he did by entering the plea to the indictment will take time from a shock that i don't know that that's going to cure the error first off i don't think prejudice has either bradley and this court's decision bradley another mccarthy there's the supreme court i don't think prejudice has to be shown but i think there could be prejudice in this case down the road if a future court for some reason was looking back at the change of plea colloquy transcript instead of the amended judgment or anything else that happened so for example if congress in the future lowers the penalties or eliminates the penalties for example for crack offenses believes in tax powder offenses and a future court looks back and says well you play to the indictment the had both power hasn't been convicted of a powder offense i don't know that they could only have a crack offense i don't know that the court or many of the judgment after all of this happened fixes that error and we don't know what a future court might look back to to decide whether or not he would be litigated it's the judgment that his legal force i mean if that's the only thing the court would look at that i would agree that there might not be prejudice but again i don't know that that matters because in both bradley emma carthy i don't think just has to be shown and i think that what we're really looking at is what did mr henderson understand at the time you know his plea i don't think he understood that he was entering the plea to both the track and the cocaine offense and so therefore i think at that point in time is when his plea was no longer knowing intelligent voluntary that's when due process was violated and i think that that's what this court has to look at to then decide it has to go back and he has to be given the opportunity to withdraw his plea if there's no other questions i see i'm close to the behalf mr cruz may please the court the evidence presented at trial consisted of testimony about one to one arm's length transactions between mr cruise and a few government witnesses crucial quest to the buyer seller instruction to distinguish b sell what remains from the agreement that constitutes conspiracy his request was denied the district court's niall's cruisers request an instruction requires reversal for two basic reasons first the evidence supported the instruction second one t buyer seller evidence crossed a threshold met here by the extensive testimony about arm's length one to one by cell interactions cruiser's entitle to the instruction notwithstanding any countervailing evidence once that threshold was crossed cruiser's entitle to  quest an instruction because a reasonable jury could entertain reasonable doubt on that basis sufficient evidence supported the instructions first the evidence at trial was of transactions four point five ounces at cousin sub shop with winters one ounce with mathis at this other location one to one second cruise was always alone it was always cruise selling to someone else as an adversary in the transaction trying to get the best deal for himself the person on the other side trying to get the best deal for himself he was always on the opposite side of a transaction there was no evidence that he was side by side with anyone trying to get drugs or trying to sell drugs third there were no shared profits there were no discounts cruz always paid a market price for his drugs if anything he paid a high price riley's testimony was about how much money he was making off each sale to mr cru fourth most of the most of the transactions were cash by a far far away most of the transactions were for cash late in the alleged conspiracy there were some transactions on credit there was no evidence of consignment contrary to what the government states what was the evidence about his involvement in the west line that was equivocal your honor mr winters testified that he was not in the gang no it was his answer to the question of whether he was in was he grew up there he was known as this court has noted on other occasions to engage in illegal transaction you need to have some familiarity you can't just walk up to someone on the street so he was a known person but that does not mean that he was in the gang there was no testimony about him participating in any initiation rites that was testified to by some of the other witnesses or having any tattoos or any other indicator that he was quote a gang member fifth the government characterizes cruise as a customer of winters and seymour for example as a customer of cruise in talking about the transactions believe that was judge renders point i think with respect i believe that his point was if you choose to put on a case at that point mr cruise had not put on a case and chose not to testify or put on an affirmative case so i the import of judge randall statement i believe was if you choose to put additional evidence you may get to the point where i would be willing to give this instruction right now i see no evidence supporting the buyer seller instruction of course i believe that is wrong considering that all of the evidence or ninety nine percent of the evidence was of one to one arm's length transactions what stage of the trial is that  asked defendant cruz and defended mclean if they wish to testify so that had to be closed first and they had decided one way or the other having stated conclusively one where the other whether or not they were put on an affirmative case so judge randall left it open if they did i suppose maybe judge aranda could we could believe that if cruz got up there and said yes i engaged in transactions but this was honor your honor may please the court my name is suzanne grant and i along with my colleague martin gold represent appellant daniel mclean now as you're likely aware we also meet a buyer seller argument in our brief and i don't want to repeat anything that mr kaplan has said but i just want to reiterate that in this case the evidence presented at trial supported that theory of defense and that's the standard in the circuit in order to give the jury instruction on buyer or seller and when the evidence of conspiracy is then the instruction is even more warranted as the court said in the united states versus gee in cases where such evidence presented at trial is so weak they should sponsor given that instruction in this case specific to mclean and there was no testimony concerted concerning the claim distributing drugs with anybody there was no testimony about any sort of drug network in fact  witness corey winters testify that there was just a buyer seller relationship based on the instruction given by the court after rejecting the claims proposed instruction the jury basically had no option but to find defendant mclane guilty because there was no distinction between conspiracy to distribute drugs and distribution itself i thought there was extensive testimony from the co conspirators that on the clean was using  middlemen for these transactions i believe that there was testimony from the witness says about middleman but there was nothing to say that mclean knew that these individuals were a middleman he merely sold drugs to people  there was nothing to no one ever stated that mclean knew that these people with that go in distribute drugs with somebody else he merely salta ma'am if that also at the end of the instruction the court state that  association it's not sufficient to find a conspiracy implying that possibly would you be happy if we just order the district court to change the conviction from conspiracy to substantive drug distribution no i don't believe you mean you mean the conviction itself yeah i mean that that seems to be your argument that the government prove substantive drug distribution so my client should be convicted of substantive offenses rather than conspiracy as far as i can tell  punishment for the two is identical so i wonder why you care well i don't i am not saying that he was guilty of subset of drug dealing i'm stating that the evidence at trial i could not have convicted on either your theory or the prosecutors without finding that your client did indeed distribute drugs we don't know the whole premise for a buyer or seller instruction is what my client did was engage in spot transactions in drugs rather than agree to a future transaction in drug right so the whole premise of this buy or sell or argument is the jury could find a jury couldn't on don't really did believe your client guilty of distributing drugs and so that should be the conviction rather than conspiracy and since the punishment for the two convictions is identical who cares because your honor he was not charged with distribution he was charged with conspiracy well why isn't the lesser included offense well the that the government should have chose to charge him than with judgment on the whole idea of lesser included offenses that you don't have to put it in the indictment if in order to find somebody guilty you have to find the substantive crime there it is government's evidence the only question in this case is what was the right thing to convict of when the jury believed the government savings that's cracked but the charge was conspiracy and that's chaos and what the jury whether the jury believed or not it was a drug dealer i will you you just seem to fundamentally disagree with the idea that there can be a conviction for something that is necessarily found by the jury even though not charged in the indictment that's a pretty you will rule th convicted your client of conspiracy without believing that your client bought her sold drugs that's the question on this record with these instructions i don't know what the jury believe question i believe that the jury could have found that he distributed drugs and in fact they were because they didn't understand the distinction between buying and selling drugs and conspiracy they thought it was a conspiracy so yes i mean they think they could have believed he was a drug dealer but your honor i don't know what they believe they could have based on the evidence we just don't we don't know i don't want to run out of time so i'd like to quickly go on to the confrontation clause argument that we make in our brief in this case krueger the government's first witness testified to out of court statements made by unidentified confidential informant directly in call painting defended mclean and drug distribution this was a clear violation of his rights under the constitution these informants were never identified no if the government never identified them to the district court and it was not until they were briefed in this matter on appeal that they stated that these informants were then later witnesses that testified at trial however in their brief they never cite to a record a record cite that says that this was the case that's because nowhere during their opening during the examination of these witnesses did they ever identify these witnesses as the same individuals who may be out of court statements to detective kruger use argument depends on a premise that i'm not sure is is present which is that the evidence was offered for the truth and this was in the in the context of an examination of the witness that pertained to connecting the dots in the investigation so it wasn't offered to for the truth it was offered to show what happened during the course of the investigation your honor i believe that it  these statements cannot be understated be defended mclean was not permitted the opportunity to cross examine these witnesses he was not permitted the opportunity to impeach them in fact the got this was very prejudicial because the government's first witness was attacked of kruger he laid out the entire theory of the case he's a dea agent with over thirteen years of experience investigating crimes making hundreds of arrests and by stating that these and identify confidential informants told him certain information that led to be a rat he was saying to the jury i believe these confidential informants i believe them and that is why i chose to arrest defendant mclean and this was very similar to as i said  to defendant cruz's arguments regarding the buyer seller agreement like her mind the court i think this comes out very clearly from the transcript that the buyer seller you want to take a dead bang can't lose cation converted into a difficult appellate issue no absolutely not and i definitely think that that is a legitimate concern fa prosecutors in cases such as this where conspiracy is the most appropriate charge and there are not going to enter into the most appropriate charge and under the guidelines only one above the statute in the guidelines the punishment for the substantive crime conspiracies identical nothing happens as a result of a conspiracy charge except the injection of the holy pointless ability i completely agree in this case i think it would have been possible to structure a substantial offense and charge of the indictment and then prove it in the same way that the conspiracy was proved in other words by testimony from the cooperate in defendants the best answer i can give you is thing to do well in this case your honor the evidence reflected that the defendants both mclean and crudes their involvement in this conspiracy was the most appropriate charge were there  other charges potentially sure i think there could have spent some that were what i thought up for example potentially there could have been a felon in possession charge there could have been a substantial offense it would have been proved however the same way government's view of this case is that it wasn't weak and in fact it survived a motion dismissed after the government's case and after the close of the defendant's case was  this comes up sometimes and long range in conspiracies but i believe that the subtle case law in this circuit is that when the conspiracy is charge and it stretches back past the statute of limitations as long as there have been and the statute of limitations that evidence can comment and it's particularly true and drug conspiracies where there is a long term relationship such as in this case somebody like cru and so when we look back at i mean this case was charged in two thousand and eleven and that's when the statute of limitations is a sas cracked and so i believe that the culture jane seizure from him just as an example was two thousand and seven or two thousand and eight might have been a little bit later but at any rate definitely within the five year satchel mutations as of the time the charging date which was two thousand and eleven i'd like to note that with respect to the argument that this is a case of individual sales of course the record demonstrates hundreds of individual sales between mr mclean and mr cruz but that is because the nature of these sales work important to your deliberate organ and about that of the instruction is that if the defendant denies everything then there can't be a buyer or seller instruction i wonder whether that position is consistent with the supreme court's decision in matthews about entrapment defenses which said that the defendant can deny everything and still demand an entrapment instruction why should the buyer and seller instruction be different if this case i'm not asking about this case i'm asking about the implications of the supreme court's decision in mat for buyer seller instructions the implications are consistent with this court's previous holdings which are that was which is that i know this court's decisions i am asking  to address your question i believe that i understand the holding of matthews and i believe that what the court would be concerned about in this case would be issuing a decision that said that if a defendant does not raise a certain claim there precluded from raising a defense and that's not what the government is asking in this case  only was the avodah nce are the individual skills necessary to illustrate how conspiracy worked in this case the seventh circuit committee has noted that he buyer seller instruction should be given when there's no way that the jury could have found a conspiracy in other words where there's only a buyer seller instruction and as this quarter note it earlier this morning it would have been impossible in this case and that's for a couple of reasons first with respect to defending crudes although he's argued that there has been and i think you're misreading the instructions from the jury instruction committee that the committee has instructed courts to give this instruction if any evidence supports it in here particularly with respect to cruise there is evidence that supports it and the inconsistency of the buyer seller argument with the defense i didn't deal drugs at all is off the table  matthews so it seems to me that once you charge conspiracy to the exclusion of the distribution of offense the government should not be resisting the giving of this instruction if there's any evidence that supports it well and the government just generally giving this instruction but i think it's important to remember that there was a jury instruction conference in this case it didn't happen at the close of the government's case but i will refer you to the transcript where judge brandon noted that this was going to be this is a transcript one zero eight four that it was a standing objection basically that it could be revisited to any time and several days later after the weekend had passed that it was announced like a waiver argument i don't think the argument was waived or formulated no i don't think it was either but if i sense that there was a concern by the piano or other earlier this morning that the instruction was held at the end of the government's case as opposed to the end of the trial and i just wanted to note that that was a standing objection i was just trying to clarify the chronology based on the argument that was being made but the defendant doesn't have to take the stand and say hey look i'm just a dealer i wasn't a conspirator and that's not a predicate for the buyer seller instruction it's required if any evidence supports that there was evidence that supported here at least with respect to cruise well i mean it wasn't i mean i think a review of cruises the evidence against the defendant cruise is really important first of all the evidence starts back in the mid to late ninety's where i don't know fifteen year sold something that's kind of a slim lead in which to resist this instruction well erin seymour testified that later into between two thousand and three and two thousand and six when he would have changed half ounce quantities of cocaine every other day from cruise on consignment so there is evidence of fronting in this case there's also evidence of frontin with corey winters he testified in the mid to late ninety's he fronted cocaine to cruise for example he provided cruise with four and a half ounces of cocaine on consignment and he was paid later on delivery and that was that transcript two fifty three were the witnesses or yours yes your honor the government's theory is that all the witnesses were part of the conspiracy and that's how they had this firsthand detailed knowledge about defendant cruisin maclean's drug trafficking  activities i want to go back to my point about why it's necessary to discuss the individual sales because i really think that in this case that argument is a red herring and i just like to give a couple examples of why individual cells are so significant we'll start with like repeated individual sales between china one mathis and willing holmes well what's really important to remember is that and this is a transcript three sixty eight to seventy two transcript eight o one and other places in the record that mathis and my homes were buying cocaine from day one howard that you want howard obtained from daniel mclean and the reason that they knew that was because both of them testified that when their powder cocaine would not properly cook in a crack cocaine which was very important for them because that affected their bottom line they would call you on howard and dan mclane would come to them and he would fix it so it's important to talk about these individual sales to shy one mathis and william holmes to demonstrate the existence of the conspiracy with daniel mclean and to one howard theory of this case is that it was impossible to convict them only of a buyer seller comment and i understand that the government has a different perspective of what the seventh circuit committee meant when they said when this buyer seller instruction is appropriate articulated before the district court it seems like there has to be a theory presented as opposed to it wasn't me or a case of mistaken identity but in this case because of the examples of cru cooking teaching others how to cook crack cocaine getting sales on consignment for members of wasn't damn a clean using runners and damn a claim fronting other members of six trey those are clearly not buyer seller and even if you were to focus on if you were to focus on the entire evidence at trial there's no way to convict them only of the individual sales it's a conspiracy that it would be you know i guess i know judge easterbrook pointed out that it was a lesser included offense i think that's an interesting way to think about it because i think you do have to find the individual cells to get to the conspiracy but i think it would have been impossible to convict them only of buyer seller because it's one of the things they ar well it could they may be under different circumstances they could well i mean first of all i think it's important to remember that the jury is the fact finder in this case and they decided who to believe and they were advised ahead of time or i'm sorry they were advice before they deliberated that they were to first of all not convict of a conspiracy because the defendants associated it with members of the conspiracy they were advised to treat certain witnesses with special paasschen including those who had criminal convictions and they decided that they believe the jury that there was a conspiracy i think an example of where it would have been absolutely impossible to find a buyer seller was an example was with kendall burton he said twice per month he received  cruz when he is when court winters testified and michael reilly that cruise was really the catalyst for teaching others how to cook crack cocaine when it first came into vogue in the one nine hundred ninety s and last line he's giving business advice he's looking out for others they're distributing from the same house within this project i think it would be impossible to find a buyer seller there in fact was no cocaine nobody testified that in the course of cooking the crack cocaine there was a transaction between mr winters and mr cruz or mr reilly and mr cruz there was just business advice at that point combined with an agreement to look out for competitors who would come into us on an agreement to watch out for customers and all that other evidence this conspiracy functioned because the defendants are because the coconspirators knew each other so they knew who was in six tray and they knew who was in west lawn and knows where the individuals who were permitted to sell cocaine there did it later mor into individuals who knew each other who maybe would do drug transactions in other locations who were members of this conspiracy possibly but the cortland of the evidence in this case is that was the tie in that found everyone together which i think  is undermines the defense argument that there were multiple conspiracies in this case you know in a traditional hub and spoke you're going to have one person who knows all the coconspirators and he has individual grievance with all of them and without a rim it's a fatal variance in this case clearly the gang membership was the ram that held this hub and spoke conspiracy together if you want to call it that i know that the government has continually referred to this as a horizontal conspiracy i think that's the best analogy because you have these  individuals working in tandem or in parallel alongside each other to distribute cocaine as opposed to a traditional vertical conspiracy where the buyer seller really is implicated because you have a source of supply with a customer that they might not know  very well or the customer below them that they might know not know very well and this court has repeatedly expressed concern about that and urged prosecutors to tailor their evidence to the factors articulated  first of all not that case that's a horizontal but also some of those clone and can kind of factors were present and i know that i talked about them quite a bit but clearly there was the cells on consignment there was the advising each other on threats of law enforcement controlling an area for the purpose of distributing cocaine the joint venture really watch was to make money from selling powder cocaine crack cocaine a marijuana unless the court has any further questions i ask you to refer thank you kaplan and your honor the government is consistently conflating sufficiency of the evidence to convict for conspiracy with evidence sufficient to give the buyer seller instructions over and over again they're doing that there this case against mr cruz was by cell independent sales he acted alone just him buying and selling cocaine that was the testimony that is a buy sell case on the buy sell instruction should have been given the case needs to be reversed and remanded for a new trial just on a few factual points there were no sales there was nothing between mclean and cruz just to clarify the record in case that was unclear based on the government's argument there was no business advice as the court mentioned this cooking crack d lesson happened in seventh grade for mr winters so i think it's not much to rely on there was no consignment in our briefing repeatedly mr cruz does not dispute that there was evidence of sales on credit but there was not evidence of sales on consignment the word was used but to say on credit was descrive so to the extent that that distinction is important for this court and has been in some of the opinions i just want the court to note that  finally brown united states versus brown in last year clarified the content of the instruction and now i think there's no question along with the seven circuit pattern instructions there should be no more cases on what the proper content of the by style instruction is overrule our existing cases which may well be inconsistent with i don't ask you to over rule because i don't think i have to go that far in my interest as my client and having a court reversed remand for my client i  do not think that mr cruz needed to put forth an affirmative case and i say as much in the brief but what the court has said is usually what has happened in the cases is that you have  prejudice and saying this really wouldn't be fair to reverse the district or didn't really make a mistake the defendant didn't even bring this up i see that my time as it is finished playing your thank you is great  i just wanted based on the cases that these are different crimes and it is our position that the jury should have been aware of that distinction and i also wanted to clarify for the record that i believe the government cited to the wrong standard of when the jury instruction should be given i believe she stated that chili be given if it's absolute absolutely impossible for the jury to find a conspiracy but that's not the standard the standard is whether there is evidence in the record that it a rational juror could find that there was a  lastly i just wanted to state that all the arguments that the government me today concerning whether there was a sign matter whether there was middlemen or agents or runners that is all proper arguments for the jury the jury is the fact finder that evaluated the evidence and determine whether there was a conspiracy it should not be meets the court to determine whether a jury instruction is appropriate or not leave it to the fact finder to evaluate the evidence and to decide if there is sufficient evidence for a conspiracy and if you have no further questions that's all i have thank you thank you very much mr donovan kaplan grant and other counsel on the brief we very much appreciate your willingness to accept the