the st charges a drug conspiracy it was a conspiracy to distribute and possessed with the intent to distribute a mixture substance containing at least fifty grams of methamphetamine and then there are three ended in charges that all rise from the unlawful transportation receipt use of an explosive device mr denham was convicted of all four charges  trial and he's currently serving a sentence of three hundred and sixty months on the drug charge he's also serving a concurrent sentences of one hundred and twenty months on the three charges related to the explosive device dunn raised on appeal to issues that both relate to the drug charge the methamphetamine conspiracy and specifically both of those issues relate to the mandatory minimum quantity that mr denton raises and again it relates to the drug quantity on count five and so i'm going to treat those two issues together the nd issue relates to a jury instruction relates to mr denton's contention incorporated a pinkerton foreseeability you have to find that he was either involved or it's foreseeable to him and the district court in scheme told the jury that they had to find what the defendant denton conspired which seems to be an arab or standard in other words had they seen had they told she told the jury everything that's foreseeable to him it would have been a broader range of evidence but they said what he personally conspired to distribute and i don't see how you benefit from anything to get a broader involvement what's credit to him and so forth and i thought you got a benefit but answer that that's ok i think your honor the district court's instruction which was that if the jury found mr dent guilty of the conspiracy it should then find the drug quantity that the defendant conspired to distribute or possess and distribute on which is foreseeability and that was used in columns and so your honor on the issue of whether that instruction is near or i think it depends on how the jury interpreted the instruction if the jury interpreted the defendant conspired with or by reference to the instruction that the co gave and so the question was how much did this defendant conspire to sell and that's the way the district judge presented to the that then district judges instruction about conspiracy the more general instruction about conspiracy and what the elements are generally just tracking burgos what has to be proven for any forty six conspiracy i think inform that instruction then the defendant conspired to distribute or conspiring to distribute or possess with the intent to distribute what amount and so if the jury looks at that and understands that to me exactly what substantive offense conduct is which is did the defendant join in that conspiracy and the conspiracy of course involved the government's allegation is at least fifty grams of the mixture  given the instruction that would apply to the lesser included offense and just a conspiracy to distribute a quantity of a controlled substance and then when explaining the verdict form  they look like a favor do any will and your honor and that's that's the point right i think it really i'm i don't think it was a favor to mr debt because there was evidence at trial and his crack mr kent was the only defendant who went to trial but he was charged with four other  mr marcus williams who testified and gave and estimate and the government i think appropriately in its response brief on appeal interpreted that as a conservative estimate and came up with i think twenty six grams based on that witness and another gram based on another witness for a total of twenty seven grams that the government contends are directly attributable to mr denton under any set of circumstances because he was personally involved in those transactions and so the rest of that drug quantity has to be made up by reference to the acts of his coconspirators but the jury wasn't given any direction about how to determine what drug quantity that was generally part of the conspiracy may or may not have been attributed yes your honor and then the jury wasn't given direction about how to consider what what additional drug quantity on top of whatever kleinian directly attributed to mr denton may be attributed to him for purposes of making that fifty gram finding and so mr then does contend that the evidence insufficient on that but in addition under the plane air standard of review and  the the fairness integrity or public reputation of the proceedings that what the standard that this court has applied when there is a collings error is to look at the other dents and ask the question is there since the overwhelming in instructed to determine the quantity of methamphetamine the defendant conspired to distribute and or possess with intent to distribute you choose only one drug wait there's a blank next to  drug way there is a blank next to fifty grams or more of a mixture substance and it's utter and there's one for us and tell us if you move and if they find him guilty they have to make one of those determinations more or less but the key counter in the house when all these transactions are going on i mean i think and and under this instruction the jury was more restricted than  the foreseeability is broader than just direct evidence of what he conspired to do and i'm sorry it foreseeability is certainly broader than the direct evidence of what he participated in in terms of a direct transaction direct evidence of what he conspired to do i think when the word conspire is introduced it pulls then the conspiracy instruction and the general conspiracy instruction that the court gave and doesn't limit the jury's grams of crack cocaine or other members of the conspiracy were involved in that amount and those actions of the coconspirators were both reasonably foreseeable and for further incident jointly undertaking criminal to direct only that when which he was directly involved as opposed to the foreseeable aspect but that's just my take on it now if you it is another part of the instructions i read the whole instructions and i didn't see the is the only one your honor hasn't missed some other instruction and it's an explanation of what's on the verdict form and it's it's what the defendant conspired to distribute or possess of intent to distribute t charge and that if he had a shot in a kitchen with the other coconspirators and said let's go and buy fifty kilograms of so and so and they said amen we'll do it tomorrow crimes in that circumstance i agree and if i've applied as a number of time if i can just complete the the back half of that answer it's the jeffers case where the court gave what i think is a similar instruction in reference to to the verdict forms the verdict form is much like this one and the instructions pacifically says what the defendant conspired with the amount the defendant conspired to distribute and the court did decide this court to decide in jeffers that that instruction was not consistent with collins was plain focus more clearly as to what it is college requirements of foreseeability but you also have to think it's an element that too but is all attributable words of columns as opposed to foreseeable in foster but you need to look at the cases of good morning your honor the court evan riki on behalf of the united states government is here today your honour's respectfully asking this court to affirm the judgment of the district court in the matter of the united states versus james  these two issues of the sufficiency of the evidence and the jury instruction are tied together very closely and there is one fact or series of facts that were brought out before the jury that i think  ingredient in order to make methamphetamine you have evidence from the national precursor log that showed that mr denton purchased sixty six boxes and you had another number i believe was twelve instances where he attempted to buy pharmacies and those were blocked because he'd been buying too much you had evidence that he was trading other controlled substances such as on with other people reasonable foreseeability type standard on under collins when you talk about more general conspiracy principles he was the one providing the evidence that the jury heard was that he was the one providing a large amount of and you have to keep in mind that is to math what fuel is to a race car what bullets are to a gun you can't make meth unless you have sued efren and he's the guy  not in there and how to make it i guess you'd have to watch breaking bad in order to figure that out but your honor i think in terms of we the conservative estimate that we had in our in our brief was sixty seven grams well so there were a number of different a number of different transactions that we highlighted there was of course the purchases by mr denton from marcus williams and we had drugs in the conspiracy and this indeed and what the what the jury instructions did in this case was talk about specifically what the defendant conspired and you also had the superseding indictment which was sent back to the jury which talked again specifically about the defendants what he conspired to and then on top of that you have the jury instructions which ask the jury if he's guilty of conspiracy under count five is an individualized terminations so this ties back to the issue of the sufficiency of the evidence because here the evidence showed that mr denton was part of this conspiracy almost for the entire length of the conspiracy he was at the home of marcus williams one of the witness testified several times a week we have witnesses testifying that he's not on bringing that he's purchasing large amounts of suit after her and bringing that to mr marcus williams he's trading meth would that make that was not part of the that was not part of the evidence that wasn't part of the trial but in terms of getting to that sixty seven gram figure that we have we have the purchases that mr denton himself mean but we also have the held that the verdict sheet that asked for an individualized determination that satisfied the requirement and collins and this goes even if you were to find an error we certainly believe that there you can't say there's a error because you do have this howard decision and unseated by by this court and then you go to the four step in terms of the fairness and the reputation of the just the usual proceedings our view is that the evidence that was presented to the jury was overwhelming it was largely uncontroverted you had forty five dollars members of the conspiracy testifying against mr dutton so we believe there is ample evidence evidence so even if you were to get to that th prong of the plain error test  that you find you can find those which those facts fit as in daniels daniels seems to be this case but then reached this additional step as to whether it seriously affected the fairness integrity a public reputation is proceed case we're dealing with here and comparing those facts again if you compare the facts the facts here aren't that mr denton was at marcus williams home several times a week over a two year period she is think that's maybe the most important point is that is that the one defendant on trial the jury had a copy of the indictment they were instructed about what the defendant was specifically responsible for they had a verdict form which asked them if you is guilty of conspiracy to possess with intention distribute methamphetamine was it more than fifty milligrams was it less than fifty milligrams so they grams beg your pardon your hon grams so the jury was properly instructed and so we don't believe there was any error much less plainer and certainly even if you were to say go as far as the court did in jeffers and say ok there was a plane of the judicial proceedings because it was very very strong evidence as to as to the methamphetamines as to mr denton's involvement at every step of the conspiracy now you know there are cases where you have people involved maybe a certain parts of the conspiracy but not in the entire scope of the conspiracy you have other factual scenarios where perhaps one member of the conspiracies engaging in drug transactions with some unrelated person that where you are at the stature a maximum on the explosive charges ten years the stature a minimum or maximum on the drug conspiracy is minimum five maximum of forty well i'm not assigning blame to anyone just saying that was  that that's that's how the guidelines are that's how congress has written the statute so that that's what we're dealing with i think one perhaps one factor that weighed into all this is that there was no injury with the attempted bombing i don't know promise and i think that the in terms of the content of the instruction and i think i think i've said this the it's most similar to in wording it's most similar to jefferson where the jury was asked to find on the special verdict form that the defendant conspired to distribute the quantity the mantra minimum quantity in so have that seem phraseology defendant conspired in terms of the what distinguishes mr denton's case from those cases so three of them were not reversed on planar review daniels was reversed but what distinguishes mr get its case from from foster and from jeff st and from promise  might be a little too mechanical it seems to me a the problem with conspiracies you have a spoken will conspiracy you have a different wings of the conspiracy doing different things  or you have a timing issue a person comes in late in the conspiracy and theoretically he could be charged with the full scope of the conspiracy that he's  in he doesn't have to know everything that's happening and the the prophylactic that's provided by collins is that you have to link up the drugs to this particular defense and and whether and not only that you have to link it up or say it's reasonable or see up to him which is a pretty relaxed tendered but let's just say that that's what it's designed for in this case you had the defendant basically operating coterminous lee he was working at the house two or three times a week over a period two years the district court instructed the jury in this is what the court said the government must prove beyond a reasonable doubt that the defendant intended to distribute the controlled substance alleged and it then went back and focused on the defendant also when it did the form the fifty grams form so it was not confronted with a situation where drugs would be imputed able to this defendant in areas where he was not involved he was the only defendant all the evidence was presented with respect to him and the judge said directly find out how much this defendant conspired to do it would have broadened the scope of the government's reach if it said not only what this guy conspired to do but was foreseeable to him and in the conspiracy which would have allowed the government to go into things he never was even involved in or didn't see or didn't know about and so i  think the government makes an argument and it seems to have some weight to it that you don't need the foreseeable aspect of collins in this case so that there was no error in what the court actually said in this case the court tailored to this case now it did not discuss collins and of course and did not use that language that we've quoted from from collins but the question is is it needed in the even under even under collins he doesn't have to be involved in the sale this is a conspiracy charge and if he send in there next to his coconspirator his coconspirator to selling it to a customer i mean he is charged with that to even under cars so the the evidence in this case really focused on this way i'm so house right where they went regularly and brought stuff in boxes of sudafed my time again may i respond briefly i think the the where this case differs from jeffers as the the evidence in jeffers was ever wanting and it was that the defendant of course that the underlying conduct that they conspired to commit his distribution in possession with intent to distribute but that the overwhelming evidence in the jeffers case and so why the court explained that it was not going to notice the plane error even though it affected the defendant substantial rights was there was actually evidence that the defendant was personally involved and for multiple witness was personally involved in distributing a and someone else but transactions among and between coconspirators in fact the two witnesses that the government noted in its argument mr mr coggins and mr adams they never bought or they didn't testify about buying anything from or selling anything to mr dutton it was all with marcus williams and so yes there was evidence of them there in the room as has been done on on some occasions there was evidence that he may have been there on some occasions he was also incarcerated for part of the conspiracy period so absent some direction to the jury to consider how much drug quantity could be attributed to mr dent under those conspiracy principles there was no way for the jury to get to that fifty grams unlike in jeffers where the jury could get to the fifty grams just based on what passed right through the defendant's hands they can do that in mr denton's case like being  honor thank you is that i notice your court appointed and i want to recognize that service it's important you know it's only way we function and it works well thank you very much we'll come down and counsel and then proceed on