p c p distribution in the st like to address the issue one we can see that this court's review is quite deferential but the court does review the evidence to know bowen though i most favorable to the government although the government is given the benefit of all reasonable inferences it is not given the benefit of all conceivable and princes and princes must be supported by a sufficient evidence or a basis for conjecture is not enough a couple of things i'd like the court to keep in mind as the court approaches this issue and that is primarily the government's case was circumstantial there's no dispute that mister word thems conviction or both of these offenses involves aiding and abetting liability and in with with regard to that liability the evidence that he committed an act to facilitate the dance and evidence that he intended to commit that offense is primarily circumstantial this challenge the testimony of any of the victims or the police officers we don't ask this court we weigh the evidence despite the deferential standard we believe the evidence was sufficient because it must a conviction must be supported by substantial evidence and we do not believe the government's satisfied that burden in this case as i noted earlier rosemont requires davis is still good law in two thousand and fifteen and why this court resolved that controversy and held that davis and the equivocation theory applies exclusively to the evaluation of the government's evidence and that is what we challenge in this case as well essentially what mister mister word thems position is is that the evidence presented by the government was sufficient to establish his aiding and abetting the kidnapping as well as the robbery convictions but we can to and there's no additional evidence that distinguishes evidence standard or view is deferential there's simply no direct evidence that mister word intended or participate committed an act to facilitate the carjacking of fads or to facilitate the distribution of p c p a fests what about mister worth the actions we got with regards to the carjacking his actions after the other two had taken over the car  those actions are what the jury is looking at would that be enough for them too and st sort of with hindsight what his intent and then were judged kelly we do acknowledge that based on rosemont that the jury was d intitled to rely upon his actions and conduct following the carjacking certainly that is relevant to establish his intent so we do can see that part and that is some of the evidence don't to consider however two things st of all we do not believe that would rise to the level of establishing substantial evidence that he was in this from the get go that it was something that he wished to bring about and secondly i would go back to the equivocation theory of davis there is nothing necessarily about his actions that distinguish his involvement in a carjacking probably his involvement and attempted robbery so we believe the evidence is basically the court can review it either way you could you it in terms of well it looks like he was involved in a kidnapping the evidence was sufficient to establish that but the other inference is the court the government ask you to draw those are not inconsistent with mister word thems argument that the evidence that those only show his involvement for the kidnapping and the robbery with regard to the nd issue a couple of things i'd like to point out just as an overview there is no question in this circuit that  recipient of the p c p distribution is a required element of the offense that's ahu mada instruction number thirty nine in this case only required good jury to find that p c p was distributed or in quote to another that instruction did not specify the actual person more importantly the court in this case did not provide the standard unanimity instruction it wasn't given instead the jury was instructed and this is quote unquote specifically that it should quote should try to reach agreement if you can do this without going against what you believe to be the truth because all the jurors have to agree on the verdicts in don't quote but that's important for two reasons number one it doesn't even mention the word unanimous and secondly if you look at the language of that particular instruction it very easily could be unanimously a robbery against this person or this person or both so the s were yes they were jointly ringback submitted and i understand the government has argued that mister word them waived that waive this court review that issue now we would argue that waiver does not apply in this case for a couple of reasons st of all the one that was actually submitted it was not given by the court the proposed instruction was not given the language yes it was included in the submitted obstruction but the court gave a different instruction with regard to that specific language yes judge arnold we can see that the language is the same despite that however we still don't believe waiver applies for a couple of reasons in addition to that st of all the  duplicity that was problematic in this case was not apparent on the face of the instructions instead it was created by the evidence presented at trial that's he trying tonio a two thousand and eleven case talks about that the fact that in your last point about the face of the document why does that avoid waiver if you submit the proposal and then never said anything further what difference does it make quote whether or and you have the evidence came in well because it wasn't apparent at that time that that in structure was submitted that there would be a duplicitous problem that the government would present evidence of distribution actually to two separate victims and that's why trent tonio in two thousand and eleven the court talks about that and ah if the government waiver argument and again waiver  justice so while we would concede that we were in error we're in clean air repeat you we we were for the reasons we are taking late in the brief we do think this court has authority to review that issue and i would like to reserve the few minutes i have left very well you may mister johnson record appreciates your willingness to accept the point of the criminal justice act and we'll hear from you next really was kind of more a rowing instruction that they were able to just say somebody did it and i don't think that is correct as was forward on this matter addressing this issue that just came up which is that y c did not actually and ingest drugs i agree that ingestion is not required but her testimony was a quote i also refused however was forced to take the drug so in case there's any doubt about whether she actually and ingested the drugs i think her testimony shows very clearly that she did and that was on page sixteen of value three of the trial transcript to turn into the issue of waiver and it's the government's position in this case that the challenge to the jury instruction on p c p distribution was waived because it was jointly proposed by the defendant and by the government and there's been some question instead we're arguing that the defendants waive their right to appeal that your instruction there's a difference between those two things i would direct the court to the case of the united states versus jackson in united states versus only in the cited in the government's that explained that what's being waived is the right to challenge the instruction we're not arguing that the underlying right that the defendants argue make the instructions eroni it is waive we're arguing that the right to appeal the instruction is what's being wait all i think because the essentially what the defendants did here is that they invited what they now claim to be error with the district court because they asked the district court to give this instruction if they had questions about the accuracy of that instruction after the trial distribution of drugs in the car went to the two women mister monsignors argued that that was a surprise and therefore they couldn't have waived with dave now because they didn't even know it was an issue judge cause and i'm sorry i do not know the answer to that question one way or  another i do think though that regardless of whether the distribution to both women was shown in the pretrial discovery the defendants still were given a clear opportunity by the district court to raise any and objections that they states versus mariano i believe judge collison wrote the opinion and it makes the point that even if the right to challenge an instruction in the waves there is no miscarriage of justice when the district court has an instruction instruction that the defendants jointly requested that would apply in this case even if the court were to go so far as to find a waiver under plainer review the fact that the defendant invited the district court to give the instructions and t actually erroneous much less plainly erroneous which is the standard of review that the defendant gets concedes a prize in this case a grant you that is stated in the government's brief this is a close question in our view  this this issue implicates the appropriate quote unquote unit of prosecutions for drug distribution crime and as the cases cited in the briefs show generally each separate transfer of drugs is a separate offense but the cases also show that when the flying this rule all the cases involve separate transfers of additional quantities of drugs as i think time in this case of course the defendants transferred the same  which they asserted had been dipped in two people writing in the same car at effectively the same time because of the unique circumstances of the case was not erroneous to charge an instructor as one  much less would it wouldn't that would you then agree one does that series that you do run the risk of a conviction that is split by the jury say eight people think it was a distribution by one of the defendants victim one and four think it's too big to do is that a reasonable possible result of your theory not in this case i don't believe it is and that's because the exact same is your view i thought as i understood the testimony there was some confusion one of the victims maybe was not it was a blast high but another one thought it was a blond you're saying that those kinds of differences in the victim's testimony just i guess i'm struggling to see how how will the proposal of the verdict would be possible given the different kinds of testimony that was introduced about the smoking by the two victims she was waiting for a new birth and them of course was intoxicated at the time he she admitted that she probably lost consciousness for part of the time she's the one that testified that she remembered smoking something like the glass and that isn't that is as you point out different than what t j and y c testified about but both he did n y c were not intoxicated at the time and had clear and consistent memories of the night's events they both testified specifically that y c and were forced to smoke so i think the jury is looking at that testimony i grant you it's hard to sort of hard to explain what m m was remembering but she was she was not in complete control of her faculties at the time and it wasn't her fault that she was kidnapped the point  time when she was particularly susceptible in the fact that her memory was not as clear as the other two i don't think would have way the durian into thinking that there is a discrepancy in the testimony well mister wagner if we're on plain error of you wouldn't the question be whether there's a reasonable probability that the jury would have acquitted if it had been given the unanimity instruction that the defendant now s absolutely and not only that it's the defendant's burden to show that reasonable probability and that's a different question isn't it then speculating about what the jury might have been thinking under this instruction in other words even if the jury might have been thinking of two different people under this instruction the question of plain error of you is whether they've been given a different instruction what are they likely to have done so as you press that is there a reasonable probability that they would not have agreed unanimously that there was a distribution do one particular victim absolutely not i don't see any possibility reasonable or otherwise that the jury would have found it we unanimously found frankly doctor arnold i'm not entirely sure what we know is that the recipient of drugs the identity of the recipient of drugs is not an element of the crime this court made that point way back in the i think cause crosby are probably and i'm sorry the exact names of any case so given that the recipient the identity of the recipient is not an element i think it's a very hard question about whether a jury  of the jury could find it was given to one woman half of the jury could find it was given to the other but the verdict still be unanimous as to all the essential elements of the i think at the very least what i can say is that would not be plainly erroneous given given the state of the given the state of the law i hesitate to tell you to tell you it would have been correct if the jury had had as well that way but i don't think it would have been clearly  quite frankly i i struggle with the issue so i hesitate to be dogmatic one where the other i don't i don't want to i don't want to say for certain when i'm on  given the day aiding and abetting theory that the lingering out there in the in the count no i think i think it's important to separate those two issues whether the jury instruction was correct to apply the same to both defendants and the court to look separate for one than the other given the nature of the evidence the testimony described and the jury questions that were asked of the corn i don't believe so i think the evidence about who got the p c p was the same regardless you know regardless of in about in charge just to address that very question though the jury was specifically asking and explicitly asking about fourteen which of course specifically reference count fourteen which was the possession of the facts and it did not reference count thirteen which is the distribution charge on this issue of duplicity one thing i would like to point the co is the court's previous decision in the united states versus smith from twenty eight in that case it was somewhat different in different issues the case involves child pornography receipt and possession and whether the jury was unanimous about attempts or pleaded offenses but the court made the point that the duplicity doctrine is concerned about fairness we're concerned about the fairness to a descendent of happy the jurors not being unanimous in a conviction i would suggest that there was no unfairness of the defendants in this case but we know is that all the jurors agreed that the district distributed p p p i don't think it was clearly wrong much wrong or much less clearly wrong to charge as one crime and i don't think it was unfair we pointed out in our brief that even if there was plainer it did not affect the defendant substantial rights i mentioned several minutes ago that i think  the waiver issue applies to the forefront of player view in there's no miscarriage of justice here so unless there are the further questions on the jury instruction issue i'd like to turn in my remaining time to the sufficiency of the evidence p distribution crimes and has the requisite intent intended to further those crimes and had the advance knowledge that the crimes occur mister wortham is pointed out that his conviction rests on circumstantial evidence and that's true but this court has said time and time again that circus that a verdict can rest solely on circumstantial evidence i don't think there's any question that he took the axe to further the the car the distribution crime i mean just by virtue of the fact that he supplied the shotgun he was the one who the evidence showed how the shock and before the crimes took place that the defendant used to intimidate the women both to steal the car and to force him to take is long as there's sufficient evidence for the carjacking and distribution crimes the fact that evidence also supports other crimes it seems to me does not matter and perhaps i interrupted you before you got here can't because i guess i was because my understood that you were saying that that alone was enough just the fact that he had the gun was enough and then and perhaps they just did too quickly so i'll let you get to your next next point on intent my point my point was that the gun was enough for the for the action so i want to specifically focus on intent and with respect to the carjacking crime there's there's numerous support intent to commit the carjacking number already driving a car that the defendant said dolan that even defendants were going to see that car and drive away because otherwise why would you hold up directly behind it it would not make a whole lot of sense course he didn't drive away when he saw the carjacking begin follow the camry it drove away from the a t m s after his co defendants had stolen the car he drove the camry himself for much of the rest of the night the very car that they saw which he says the evidence was insufficient to show he intended that he personally drove that car for most of the in the other to do the other two men work together as a team throughout the night just very briefly there were them driving the entire time during the distribution to the two women wh driver of the car he was he was the driver of the car for as far as i can tell all of the night until they divided up into two cars in the morning is there any is there any evidence of him smoking as well or anything that court has any further questions i would ask the court to affirm very well thank you for your argument mister moss we'll hear from you in republic thank you could you could i inquire how much time i i'm not able to see that doesn't look right to me i believe you were down at three minutes and change but the clock is showing five something maybe the clerk can clarify what's going on with see how that factors into an advance that he or sed either of the two victims to the c p either it is undisputed he was driving a vehicle and really the government's evidence here  is it is speculative now granted there was an objection to that but that doesn't change the fact that it is speculative evidence when the government asked so did they appear are comfortable and the and the victim say yeah that they  on aiding and abetting liability i'd like to also clarify and there was a question regarding the victim in them who had no recollection whatsoever of smoking from a want he did recall smoking high but that occurred later in the evening after mr word and mister williams had separated and they don't often separate cars and i believe mister worthy was already apprehended at the time that that particular distribution or provided or delivered to a person now cause me says the government doesn't have to prove the identity of that person but that's not the same thing as saying that it's not required that the drug be delivered to a person there it is not a distribution and less those drugs are given to a person that is an essential element of the offense so the instructions failure to specify that definitely constitute an error under this court's case law additionally it were all a point you see it's obvious they're on their case law but what about in the fact pattern where you have two people in a car and the blunt is handed two of them are you saying that the government could charge two counts and stack the penalties on a defendant in that situation when the defendant just hands the drugs to the two people in the back see i think that's kind of more of a gray area judge colleton but i don't think that you're that was mister wagner's point that it's a be one distribution those are not the facts we have here we have here force distribution sequentially to two separate big jobs what if you are saying turns around and hands it to the person on the back right and then hands some to the person on the back cases talking about the intent of the controlled substance act cell and they do it in terms of sales sell a product to one person and then to another person those are two separate sales so our position is that  verdict so i don't know how we can separate those particular issues technically it's correct we're challenging the instruction but in the context of it allowing a nine unanimous verdict and if the court  procedures followed well the waiver or whether it was informed involuntary decision and if you're poor looks at a law no and yes in the context of understanding waiver is a intentional for pitcher i don't believe these facts support that especially considering the importance of the right it's that one question of now your time has expired what in the record shows that it was a complete surprise to the defense that the evidence when shown that the drugs were given to two or three of the women in the car i don't think i would concede the evidence doesn't show the record does not establish a complete surprise of the defense but we raise that issue simply to point out if you're talking about waiver which has to be an intentional relinquishment of rights there's been no basis for at least at that time two days before trial no basis for defense counsel d d to presume that based on the record much less much less mister og mister wortham and i think i would ask the court to to really consider this in the context of mister one of them and his ability to waive that right as well because well thomas don't b s this for a defense counsel to the know about it then why wasn't it a surprise no you just there isn't a basis to say it was a surprise well i don't what i'm arguing judge is the instruction is at the time the instructions were submitted defense counsel it was not of the record does not suggest or it does not establish that they were talking about two separate victims so i  attorney's office in most cases they do and i believe that was that was the case that was the case here so when that of the learned counsel that the evidence was likely to show that drugs were distributed to multiple people or i can't speak directly to that i would point out it leads to mister word them statement to police the only person he had knowledge i believe his statement is limited to him now he talks about mister williams forcing  to a smoke from the plot he does not say anything about why i see so i think it's it's definitely qualls of all that that was defense counsel thinking but i can't