argument blends into the other two arguments about sufficiency and the prejudicial evidence that was brought it think the main complaint that mr worker has is simply that he has a right to be tried on what the grand jury indicted him for the the prosecutor i think did a good job of setting out again in the brief what he was indicted for and he was tried on things that were other were other than the things that were in the indictment the indictment stated the overt acts and the overt acts basically come down to this about four or five laundry list of statements that he made about doing nothing but there is a conversation where he's the scuffing with the lead defendant robert adams a case that adams has concerning drug dealing in the state court and his conversations with his attorney about that case doesn't have anything to do wit brief about about specific instances of about mr wicker discussing with adams talking about past exploits about having shot to the point these were not the overt acts that he was that he was indicted these were not anything relative relevant to the enterprise the enterprise was proven not only with discussing these other things had nothing to do with the enterprise and all they were the only the only fact they had was to basically inform the jury that he's he's he's a bad guy  permissable that's not what he was indicted on and it made the jury believe that he was somebody that had done things things in the past i guess not what he was indicted for and that he wants to kill somebody so why is that evidence insufficient to demonstrate an intention to kill because he doesn't have to be shown to want to do all of those things that  government's made the point that all they have to do is prove an agreement but i think that the government has to do more than prove an agreement to do something they have to show that they've made that mr wickham in agreement to kill a person someone here all they have proven are the alleged and you know i have to submit that they prove that to a jury but that's what we're here for is that they alleged that he was going to kill a rival gang  member are you arguing that they have to identify the specific individual in order to convict oh i think that they have to identify somebody i think that they have died but let me be sure i'm clear on this so if if he had been fast clearly to eleven people i'm a part of this and tomorrow i'm going to use this gun that's in my hand to go out and kill a member of a rival gang but i haven't decided who that's going to be so is that insufficient because you can identify a intends to kill a person a person or do they have to are down a fine who the person is i think that has to be something more than some unknown rival gang member i think if you were to say tomorrow there's victim correct i think that that that is missing from from the proof that the government had there there wasn't any temporal element at all when it was new you should ask this is if you had to write the rule we would apply on what would it be here to determine what needs to be the scope of the threat in order for there to be a claim to overcome the sufficiency of the evidence some specificity be a temporal or to a person if he could have said you know jackson is somebody that i want to kill and i'm going to wait for him and i know the things out of this place and whenever i see him there i'm going to go y court i'm not here to tell the court that there is no such thing as the bloods but here that wasn't proven it was that there was the in fact in fact i'm going back to the point i was i was about to make there wasn't any even any any murder by the west coast crips proven there was talk of it but there was nothing proven the only murder that was involved in this case was a crypt that was supposedly killed by a bl right it's a conspiracy charge the agreement but in a conspiracy charge second and that goes to the cases that were cited concerning the variance in a conspiracy charge that gives the prosecutor so much power because all they have to do is prove you know an agreement but agreement to do what and that's that's what i'm trying to get to here is just an agreement to kill someone someday i don't think it's sufficient i think it has to be some some there has to be some specificity to it it can't be simply a rival an unknown rival gang member it can't be simply an allegation by him but you know i i i was walking down the street and i came up behind this guy good morning your arse tim scott on behalf of mr wells you're on as i'd like to start by discussing the statements that were tributed to mr wells in state court and then circling around and starting with where i began to brief with mr winter and then hopefully  some of the wiretap calls admitted against mr wells as to the confession that was attributed to him in state courts and it's a matter of constitutional law under crane versus kentucky that if the government attributes statements to the accused then they must then the district court must allow the jury to consider all of the circumstances surrounding that statement in order to afford whatever weight to it it should be afforded in the jury's view that's a matter of crane versus kentucky that's a matter of well i think dickerson makes it even more important it's a matter of constitutional law i would think if i understand the court's question thirty five to one it once for scribed basically was an attempt to pull back on miranda but at the same time there's some other things in terms of a kind of statutory safe harbor and also some procedural protections that were in place and i think frankly the state of the law post dickerson is that both miranda exists as a matter of  federal constitutional law but statutorily thirty five or one exists as well so i think that both have to be complied with frankly more importantly though i think constitutional law alone undertrained versus kentucky ensures that the jury has to understand in evalu of the circumstances surrounding the statement that is attributed to the accused in this case the jury was explicitly told to disregard what may have happened in a prior state court proceeding and that's an e r page to thirteen into fourteen and the prosecutor argued and successfully argued to the district court that it's irrelevant what his motivations were in pleading guilty or in making those statements well of course it's not irrelevant what his motivations were that is the heart of the argument in the heart of what the jury had to understand now i'm not going outside of the record here i'm citing simply two black letter california statutory law premeditated attempted murder under penal code section one eighty nine carries a life top it 's a potential life without parole sentence to say nothing of a gun enhanced meant under california penal code twelve or twenty two point five which potentially adds ten years to a sentence the import of this is that mr wells was facing decades if not a life with parole sentence for attempted murder and had the opportunity to resolve his case for the effect of one year in custody i say that because it was a four year deal at half time for two years and he'd already served nearly year in custody my simple proposition is that when the jury is evaluating statements attributed to him and incriminating statements they should know whether or not he made those statements for the benefit for the inducement of getting out of custody in one year with a potentially life sentence hanging over his head if the jury simply ought to know that to carry out their charge of evaluating how much weight to give to the evidence briefly to touch on if if there was harmlessness because the government doesn't really argue as a matter of law that that was properly excluded those those that kind of evidence was excluded they simply say well the jury did know some of those facts with the jury never heard was how much time was involved the specific inducement he was given to make those statements and accordingly the jury requested and received a read back of only that first testimony mr wells colloquy in state court and after they got that read back they convicted him in short order i add that to the to the proposition  is in the record that his state court case ended in a tend to deadlock for acquittal and use the fatality to argue that certainly the government can argue beyond a reasonable doubt that this was harmless error as to m the district court made specific findings of fact and this is page fifty six of the e r that there were distinct conspiracies here the government doesn't allege and the evidence certainly never showed that mr wells and mr wicker towards a particular criminal act there's no allegation that they participated in any common crime so the concern is that if they have to participate in a common current to be part of the same conspiracy they have to be part of the same conspiracy correct that's why i ask the question right they don't have to think that the government doesn't have to prove a thing jointly participated in a single car the lot of the conspiracy itself etc the fact that they might go out individually and commit crimes along in furtherance of that wouldn't disqualify them from conviction but probably not necessarily if again assuming it's part of the same thing again conspiracy what different than that and what was charged in this case was simply the statutory definition that they were alleged to have participated or alleged to claim membership in an enterprise which is a different thing than a conspiracy they just said they're both west coast press which i would know factually the record was clear consists of some five hundred members and that the expert that the government employed was candid that it's sort of a very fluid membership members come members go there's different varying levels of involvement so to say that because anyone is a feeling that are alleged to be affiliated with the statutory definition of an enterprise that's a different proposition and then saying that someone who is actually alleged to participate in the same conspiracy can be probably just a killer of conspiracy correct if the membership is the predicate that that's what the government has to rely on but but there are no cases that i'm familiar with that they construe it that broadly i mean we'd be left in a position frankly by simply saying you're both crips someone's bank enterprise that is a dramatic broadening of a joint of rules about taking a point for the purpose of going forward that these are two separate conspiracies not charged overlapping conspiracies there are two separate conspiracies the commonality really that was brought to bear against mr wells mr torricelli described somewhat and i set out in my briefs the exact nature of some of this evidence and it's it's disturbing beyond anything that i've seen and case law in terms of blowing people's brains out in terms of going on a shooting spree inside of the wiretaps i'm sorry you're talking about the wire i'm talking about the wiretaps i'm also talking about live with this testimony talking about finding shocking runs in nine millimeter weapons involved proof  let me speak to limiting instructions because the government i think relies heavily on the getting instructions to say this is an error i need to point out that the government on page thirty of their brief sets out a string site of different meeting instructions and what i want to say is if you look at page thirty of the government's brief and look up those sites i think it tells a different story i'm not accusing the government of anything other than making an error but each of the remaining instructions if they start on pages one twenty three one thirty seven eight one forty two one forty five one forty nine of the e are those limiting instructions say you can use this evidence only as enterprise but that's to mr wells and mr wicker those they're not limiting instructions that say you can't use it against mr wells  matter of the record as a cited in the government's brief and i respectfully urge the court to please take the government up on their offer a look at this i think limiting instructions did distinguish between late or later there were some instructions but they're not on the scale that they appear in the government's brief and they were sporadic and it was after hour upon hour and day after day of this prejudicial testimony i sent out a number of occasions and it's literally hundreds of pages of transcripts where there was evidence that  offered or and this will only gets mr wicker but that moment instruction accompanied so much like my point is that there was a lot of evidence that was not cross admissible it didn't have a limiting instructions most or if not all of the living instructions the of bank robbery charges and this court held squarely the living instructions didn't overcome the prejudice in that case because mr satterfield was forced to stand trial somebody who was improperly joined with another person who had participated in  different acts now in the satterfield case if you read the facts there is no talk about blowing people's brains out and shooting sprees and murders it's far less prejudicial factually then what mr wells jury and mr wells was subjected to so as a factual matter there's mr well yes and and there was a disturbed was a distinction about when the lack of evidence came in to prove as the judge found was appropriate in this case to prove evidence of the enterprise and that enterprise evidence was relevant to the case against weaker and well it was admissible for that now there was other wiretap evidence that was put on other days of the trial proceedings and those wiretap calls one specifically to mr whitaker and the court instructed the jury and i can you a couple occasions when the court told the jury this is not for use against mr wells one right after that or the other kids repeat that same living instruction every single time but he gives these too many distractions and then they go right into the series of ten or so calls that were only with respect to what ritter was doing at that time and i'm trying to put myself in the position of the jury as they're used to hearing this stuff trying to figure out are these guys somehow guilty of the other people's crimes quite quite quite did you join those these two defendants for trial where you wanted the overwhelming evidence that the government them yes now there are individual memberships as to why or how you know lead to one of those member i guess we're probably not common to both of them right they were they were documented separately at different times there was there's also the commonality of the existence of that have what else what other reason do you have for trying them for trying them together well you know these violent crimes that they were both committed work of being committed with a common coconspirator and when a relatively short period of time i mean the life or twenty five to life but he was tried with the attempted murder because nobody died i think i'm not an expert on state law that carries fifteen years to a greater and i don't know what the bassem is but and one of the reasons that was brought up about you know having the circumstances surrounding those statements first of all the admission of that statement is on it is an abuse of discretion standard which is not an overwhelming standard to meet and almost all the circumstances except for the fact and even mr leahy at some point conceded this the reason why the court said no you can't bring up the fact that there was a hung jury or what happened in state court because that's going to be an undue waste of time in the state court proceeding to have gone through explains all that that he's mr wells was only tried by himself he wasn't charged as part of a conspiracy it was just a small act that he attempted to kill two people he wasn't also charged with  gang people he in that case was tried differently than the government's case in the state court case they put on the tape recorded statements of wells post arrest statements in the federal side we didn't i did not do that i did not get on th pieces that the theories of how the case could be tried were completely different and to go through all that you know my new show of how they're used to sovereigns try their case would be an incredible waste of time and it would just be just to ask for some used solely for the enterprise and of course it relates to both of them and i correct then that basically for admission of those statements the government's theory is that you just have to show that there is this general agreement among the w c c members to retaliate to maintain their presence as an enterprise interest and to retaliate against some rival gang is that the  and that they're the motivation that's a very important factor when i think some of these enterprise calls show is that that there's a group of individuals that they agreed to be associated together they agree that they're going to commit violent crimes that this group of individuals have agreed that they're going to be conducting acts that are defined as racketeering acts i mean the goals of the west coast are to do drug dealing to do murders especially of rival gang members to protect their turf there's a hierarchy there are roles that you have within this organization and if you want to up your ante in this in this again then you're going to have to go out and prove yourself even to become a writer maybe after a bite or you can be a shock collar make decisions for the game you can be an o j if you're live long these general you know when you have testimony that you have the gang and there's going to be crimes and they're all bound together for basically the purpose of spinning out various crimes but at the end of that case it basically says you know that isn't enough because otherwise you've extended this way way too far you can basically any crime that occurs you know whether it's peddling with an illegal license would come into the gang conspiracy why doesn't that case restrict quickly come in here well i think you have to also look at the statute of how it's charged under you were not not and that is didn't come in as to anything other than to  in an enterprise you have to go with you in this case you had to prove the government had to prove that there were specific violent crimes not just any crime thank robbery for robbery is actually one of the  y the enterprise calls actually when i went to they describe their bibles how the rifles wear red and the crips have their blue bags they discuss how you know the motivation there's a specific on all these calls and why are they admitted to for mr wells is not participating in the conversations well this is all because there's still show the enterprise conspiracy that this is an you have to put in an extra effort evidence demonstrating specifically where else intentionally joined up and you could use this evidence to show what it was he joined up to do right what was the agreement what was the gang supposed to do what was he going to do when he became a member of that thing it wasn't a go sell that you go scout cookies it was to go out there and commit violent crimes to protect their turf to promote their game and these calls go in and they describe exactly you know what because this is how professional you were as gang members were professional this is how we should get it done so i think that those calls that still come in the calls that it would be i would say and you waste of time to go into the to the calls that as limiting instructions said when only to mr wicker with and i think this was an overwhelming case especially again as we must view the evidence the light most favorable to the government the government prove the elements of the case against him that the criminal organization organization engages in racketeering and apprise that he committed a violent crime and the purpose was to promote his position within the west coast crips the evidence was the testimony from detective carter about the game we  had testified about thinking i think if i could focus you a little bit more it seems to me that mr torrens was arguing that's a defect in the evidence was that there was no demonstration that mr worker had anybody particular in mind to kill and like your response to that argument thank you your honor there is a state court case i'm not familiar with the federal case to say that you don't have to actually name the person to conspiracy to commit murder and i don't have that i'm sorry to for state cases but in the federal case in this case the government only had to prove that there was an agreement that he intended that he wanted to go in kill someone  contract is more of a bargain for exchange of means you're going to do something then you're going to get something in return so you're saying that even if it's not a contract it can be an agreement i guess it could be i mean i don't really see the me a dollar i've gone to kill somebody someday and a contract ok in that instance i would say no but that's not the facts and that's not what mr wicker articulated in his in the phone calls with respect to who he wanted to kill he talked about there being a a crippen that he and he talked about it not in some far off time but he talks about it being in major gang war and it's coming on this summer and the current these calls are coming in during the summer time he's not talking about  by the end of the week and we believe that he did so i think that would you know show that he was at you know intended to carry it out it wasn't something that must be done at some unknown time i mean the call is not that  in if that had not come in if it was just charging what he was if you was just trying to what he was charged with it would have well down to dean hughes the man who was on dialysis and was served at it would not be and here's why the government's theory as well as other twelve calls was that they went quote unquote to show enterprise there is no to show inter process exception to the rules against hearsay there has to be a hearsay exception of some sort to get that information into evidence please recall that mr wells was in custody as of january two thousand and one and each and coconspirator exceptionless there is just to finish my factual but none of those calls came while he was on the street all of them happened after he was in jail and that and that particular conspiracy ended as to either one the two week in the trial court and this is memorialized on pages forty nine through fifty one and then later at one forty nine one sixty six and six forty three the district court did not in that those calls did not admit those calls ask coconspirator statements he said they quote unquote go to enterprise he never made any findings of fact under more jolly or under peralta he never made the factual record that you need to to suggest a coconspirator calls the reason is they couldn't be they don't meet that definition under the law i cited to the court and the judge got a case which aside from the flaw of the hailing from east of the mississippi it's a second circuit case number other than that it's directly on point and it's directly controlling it says general common membership in the mafia is not enough for in under the enterprise and he's part of the enterprise before are you saying that once he's in jail that unlike in the conspiracy cases  would respectfully quarrel just briefly about distinguishing he got today because much like their separate families within the mafia the government's gang expert confirmed that there are different cliques and subsets within the w c c in the earth and that it is fluid with that i cite on page fourteen of my reply brief that has to be the same distinct conspiracy and in this case as in this report again found as a matter of fact in denying motion to sever there are distinct conspiracies so sort of this um admissibility that anything that one co you know what one alleged member of the crips says in some context is admissible against any other member of the crips because of this large umbrella is not supported by law if it's some point the legislature