morning ladies and gentlemen today a judge on and i are very very pleased to be joined with the honorable fortune out of benevides from the fifth circuit court of appeals pete thanks so much for coming here taking time out of your busy schedule to help us out and i'm certain that we'll start with the cases the oral argument calendar the first case is united states versus moreno joint or rule eight was properly observed and i think it's important to set the meaning and the requirement of that rule that rule is a must it has a must in it in other words there must be a showing that two or more defendants participated in the same acts or so series of acts or transactions and that is brings me to an analysis of what actually happened t counts two conspiracies so in other words what we're looking for are either the same conspiracy which by almost by definition here didn't appen two different conspiracies then we look for the alternative is there an indication that conspiracy number one which is count six is tied in in some way with conspiracy number six in which mr marino is involved the analysis starts then with the idea or the time frame first conspiracy involving mr bork as i'll call him romona romano rather occurred in two thousand and ten and it lasted for just a few days in two thousand and ten the issue was heroin in two thousand and ten the common people who were involved were mr bork as him self mr pett dia who drops out and the shah who happens to be a confidential informant but not at that time mr marino wasn't involved so a period of almost nine months goes by nothing happens one could say there was attenuation but in any event that portion of this case was over with somewhere around perhaps in the spring two thousand and eleven the f b i turns mashad into a confidential informant meanwhile mr bork has a moan or roman rather he has been disciplined by the prison authorities so in effect he's more or less out of the loop although there is some kind of connection between he and ms shaw nonetheless now that the f b i is in the case they are concerned because they want to fire a source of supply of not heroin but something else methamphetamine so the new focus here is after they have flipped to the confidential informant let's see if they can find that source of supply so the next conspiracy runs between july the eighth of two thousand and eleven and august twenty two of two thousand and eleven and your honour's i'm really going to divide that into two different time sequences because it's important to realize how different this conspiracy was from the earlier one and therefore they were different there was no series of transactions of any kind of similar nature first on july the eighth mr co informant mr florrie's who is considered to be a source of supply and then its last name unknown become involved in this case at this point in time mr marino is not involved there is no indication that he has been contacted by mr florrie's at the request of mish who makes up a story to get mr to get harvey are involved in this case because ramon is out of the picture so he's dropped out a few days goes by and apparently florrie's contacts this vince apparently is the source of supply because we know that meth showed up that math was alternately confiscated at the post office there's a break in the action there the f b i still concerned still concerned to find the source of supply that leads to august the twenty second of two thousand and eleven at that time ms shaw florrie's still hobby are the brother are involved flores tries to call vince cording to the testimony that came out at trial vince was nowhere to be found now for the first time marino comes into the picture and on that day as the record clearly shows mr marino was involved in a trance actually transacting methamphetamine we don't deny that nonetheless that was one day occurrence and when i say he was involved i acknowledge the fact that the proof showed that there was involvement of mr moreno but here's the problem since that is atten once because it's a year later but twice because it's the tail end if you will of what the government calls conspiracy number two then there was no commonality there was no participation if you will in these two conspiracies hence there should have been severance and so precisely the argument that was made to the district court wasn't no your honor in fact i think the argument made to the district court was merely we join in the motion for severance but if the rule is the rule and certainly defense counsel at that time was relying on that will as was counsel for the codefendant then it appears that the rule was not waived  end the rule was addressed and even the district court judge recognized that there were two different conspiracies because that's how the government got shot at star that's how the government charged the case interestingly enough the connection or the similarity right that is part of my own javier seems to be an employee and an underling of his brother who isn't in the penitentiary who's in charge who's operating who operates in th country with due respect your honor i don't think that javier was working for his brother the second time around at that point ms shaw made up a story because she knew she had to get to harvey r because javier was connected to floors so she calls and she says something to the effect of i'm not i need to do this one more time and because that i'm going to be getting out of the industry if you will and that's what led to javier then coming back on to the scene but i do not believe that harvey i was really working for his brother at that at that point in time the government would say the commonality here besides what your honor has just mentioned is the fact that prison games which i haven't really discussed up until now is that is the link and that you have to show the background in the depth of how all this got started in order to get up to mr marino one year later i want to pose is that first of all the prison gang issue was terribly divisive if you will was a very bad mark against him with respect to the case i understand about clarifying instructions and so forth with the which the judge did give but nonetheless in the atmosphere of the courtroom and the dynamics of a trial when that cat is out of the bag it's out of the bag  and limiting instructions being what they being what they are and i respect i don't believe that that was was the way that this case should have gone obviously but getting back to the commonality year and the use of all of that background it really wouldn't have had much of a let me back up had the government merely gone ahead and decided to charge mr marino separately they had  they had florrie's they had plenty of evidence without the first conspiracy to have been able to carry forward certainly they would have had a probable cause basis to indict and they wouldn't have needed anything that had to do ok thank you the forfeiture argument i would indicate to the court or say to the court the rule is very clear rule thirty two point two and it's subsections there must be a policeman ery order of forfeiture there must be notice in indictment is not noticed an indictment is something that the government seeks the court is obviously separate from the government the notice must come from the court how are you pledged how was your client prejudiced counsel by the lack of a preliminary order because he didn't have an opportunity at the time to contest with didn't he contested at sentencing didn't he file in his sentencing papers in opposition to force or my libel leave your honor that that money was my wife's and partly mine and here's the proof with respect to it but he never had the opportunity to do that so as far as we're concerned it's this case is not unlike  shock or the fact that it's very clear that chuck who are really is based very clearly on the parameters of that rule and shock or jury comes back returns guilty verdicts the indictment charge some  i forget now in one thousand different items to be forfeited the eighth circuit i believe in that case went through and looked at the rule and decided that the rule really allowed for  hearing at which the defendant would have the opportunity to challenge the order of forfeiture excuse me there was no pool in the near plenary order forfeiture just like in this case there was none in that case the defendant was asked through his attorney at the time of the jury verdicts came back do you want to hearing in front of the jury his attorney at that time waived it and said we're not going to contest forfeiture later on counsel was fired defendant himself said something with respect to those casino winnings and that he indicated at least on his own when he allocute to the court those winning should be mine and the winnings were connected to the  good morning may please the court rachel hernandez on behalf of the united states scuse me this is a case of overwhelming evidence the defendant while under surveillance and as corroborated by phone records sold over four hundred grams of pure methamphetamine he had seventy thousand dollars cash hidden in his closet despite having previously declared bankruptcy and he possessed two firearms despite his status as a prohibited possessor is one how about to keep the about the kind there's no doubt that there  so there was no nothing to show that the defendant here was involved in any of those other transactions all right so let's correct what we so what we have is the government wanting to find out who the source is ostensibly want to go to the source for the last transaction which definitely involved the guy proven or here but he doesn't have anything so they go to in the record other than his dealing with shaw and shaw's intermediary to connect him up with the activities that are being controlled and directed by what appears to me to be the main guy who's who's the person who is not correct well i would say this there were two conspiracies charge a heroin conspiracy and the methamphetamine conspiracy the heroin conspiracy involved shaw and rome on and the meth amphetamine conspiracy was set up by roman and i disagree with my colleague as to  the timing of that first methamphetamine transaction that was part of a discussion that roman and shaw had had over time and that first deal and getting in touch with  roman roman directed shot to use javier javier knew to call flores flores had connections one was vince the next time it was his cousin mr moreno from whom he had bought drugs in the past and mr moreno admitted on the stand he had sold drugs to flores in the past and so the first deal with cooper set up by romano where f b i was aware and f b i took off the drugs before they got to hawaii was on july eighth july twenty eighth twenty days later is when the next deal get set up and more mr moran knows the supplier that day so you have a conspiracy here  where roman set it up he set up the structure he set the price he told shaw how much to pay how much to excuse me to charge and there's nothing to show that anything had changed in those weeks other than i was now more involved but that doesn't change the nature of the conspiracy and when you look at this what the case law says is if if in addition to there being great discretion to the district court if there's going to be the same evidence and if there are sufficient limiting instructions to the jury the joinder is proper and here if there were a separate trial where the government had to disprove  sale that one sale involving mr marino we would have miss shaw on the stand we would be able to get into how she became an informant what her knowledge of the drug business is how did the price come to be set the price was set by what she learned from room on as to how much a pound of methamphetamine is but arguably the gang evidence would not come in the gang evidence would not have came in but there was a limiting instruction that specifically sad  specifically it is not alleged that ralph moreno is or was a member of a prisoner street gang further it is not alleged that ralph moreno participated with others in the prior methamphetamine transactions that preceded the charge indictment in this case so there was sufficient limiting instruction i would also point out to the court that as was mentioned earlier there was no argument before the district court that gave the district or any basis to sever mr maraniss charges he joined with romance motion which said hey it's too prejudicial for me remonde to be with mr moreno secondly they did not raise the issue of severance again if the close of evidence they raised at the close of the government's case and the case was clear that that's not to the discussion of the forfeiture and i want to correct something that i think was said earlier the defendant at sentencing his sentencing memorandum specifically said wife and then a certain portion belonged to him and he explained how he got it and in other words when you say he said it wasn't his he wasn't saying all the money is my watch he said it was about seventy four thousand but why do you make these statements of these he didn't saying that he said that some of it a certain amount of it was his wife's that's true but didn't he also say that a certain amount of it was his and it didn't come from drug sales or came from some other thing that he and he mentioned how he got it and at trial he testified that there were there were other explanations for how he got it however by the time of sentencing as to seventy thousand dollars of it district court saying none of it that this isn't mine is disingenuous say would say to you to represent to the court give this to my wife it's not mine and then and then claim half of it on the back and i think i think that is it the government's obligation to actually move for the preliminary order i know cases have discussed that and i look at the text of the rule it doesn't i don't see anything saying it's the government's requirement to actually move force that's my first question for you his forfeiture and and that was not the case there's a fifth circuit case that the government cited in its briefs that discusses when a defendant it's mark has where a defendant fails to object to deficiencies in the rule thirty two point two procedures that it is reviewed for plain error and in that case the court found that there was no play in error because although it clearly the court hadn't followed thirty point thirty two point two there was error that was plain but it did not affect substantial rights because there was no expectation no proof that the result would have been any different and that's the same here there is no prejudice of the defendant because there is  through the gambling expertly explanations and the car repair explanations the government proved at trial that those were it were not valid that there was no other explanation for that money other than drug proceeds so whether there had been a preliminary order of forfeiture or not the result is a timely one i should say the result would have been the same i'm trying to see if there's a difference between a trial i guess you're trying to show that all that money is typical of a drug dealer he would have money around right the issue there isn't whether his wife whether it's his wife's money but you have a separate proceeding going on for that don't you well there are cases the martin case from the fourth circuit says although you missing the thirty two point two deadline does not deprive the district court of jurisdiction to enter orders of forfeiture as long as the sentence in court made the forfeiture clear that's a fourth circuit case and i would say that that applies here again the point of the preliminary order forfeiture is to allow third parties to have notice of the pending forfeiture so while i would agree it should have been done in the order laid out at thirty two point two the fact that it was done later at least gave third parties notice and provided them an it didn't apply to the defendant there didn't ask for a hearing like like this case i mean he he may have made some mention of but he didn't before sentencing asked for a hearing on that is correct and he also wasn't advise was he that there would be a forfeiture determination at that at the sentencing was in the fifth circuit case and i mean in this case he was advised at sentencing the court it was part of the court's ruling and judgment and conviction that you used up your time on the first go around but i'll give you one minute for a bottle ok with respect to the severance issue i believe the evidence showed that when michelle was on the witness stand she said with respect to the two thousand and eleven occurrence in july i don't remember if i called them on or not and then she went on to say so i made up a story and the story was i'm going to reach out for you harvey are because i'm trying i need one to the court this case should have been chopped in half and i mean attorney for my client and mr parker has should have gone to trial on the case he has and we should have gone to trial on the case that we have so i believe that it was raised and then finally your honour's with respect to what mr marino said at sentencing this goes to the issue of whether he wanted to raise forfeiture it's a little bit difficult to understand it in the context but the quote has to do with him saying he has an issue about privacy being invaded but then he says and he refers to things that he felt were private bank statements phone records because seen no winnings or losses whatever i had and the theory here is the bulk of the seventy three thousand dollars was casino winnings and some settlement from i think an accident that his w