bates versus leon all my accounts my pronouncing the client's name properly united states versus lee all case number eighteen dash two zero eight three you may proceed may it please the court counsel your honour's my name is jason bowles i'm from albuquerque new mexico and i submit to this court that mr lee all under the district court's decision is being asked to run the f had a confidential informant may fifth of twenty sixteen who approached my client for the purpose of trying to conduct methamphetamine drug deals in the mexico the confidential informant then began a series of contacts with mr lee all through other and through other parties to try to accomplish those methamphetamine drug deals it began with a man named pete the c i then did not feel like he got enough methamphetamine from pete he went back to mr lee all mr lee all been through a cell mate in jail was able to arrange a deal with the toppy is and that was the going to call the first indictment the tapi indictment july twenty first it's july twenty fifth that time frame there was a deal with daniel with carmona and that is the second indictment the carmona and i missed something when was the date on the top yeah deal the top reason i believe to go to the core of it the district who are erred in this determination that these were not interdependent and i believe that is the standard under sasser of this court sasser case where there was a common unlawful goal or purpose and a interdependence is the district court took the confidential informant out of the equation in his reasoning and what he said was you cannot have a a conspiracy between only a defendant any informant so when the district court takes the confidential informant out of that analysis he does so completely and then he defines the objectives to be two separate essentially distribution networks the tapi at this tribute network and the card own a distribution network but what that ignores is the factual reality of what happened the big confidential informant was pushing to set up methamphetamine deals with multiple people and that's exactly what happened in a chain that occurred from may have twenty sixteen to august of two thousand and sixteen it did involve different people on the backend but those people were all united in one common purpose and that was the confidential informant was asking mr lee all to set up methamphetamine deals in the district of new mexico so yes they were disparate carmona as were disparate from the top is but it was all one united scheme created by the government by the confidential informant who asked to set up these deals the next factual problem if the cia was just a random third party then you'd have a single conspiracy i think it's absolutely a single conspiracy and i don't think the c i status changes that the terminations when you put it into the context of what is interdependent i realize you cannot only conspire with the cia under this or was it e and i guess you go wagon wheel but you had two separate lines of people selling methamphetamine but they were all generated from the confidential informant and mr leo so it was one coordinated the defense didn't ask for an evidentiary hearing that's correct on this i guess it did but then withdrew the requests so you're not contesting any of the facts that the district court relied on i am not and i don't think any of them are clearly erroneous all right and the government says the standard of review is clear error what is your position on the standard of review for interdependence i think that's incorrect i think with all due respect to the government i think the factual finding determination is subject to clear review the determination whether something was interdependent i think is it the no post entered and it's a legal application so it's either a mixed application of lot of fact or a street legal determination so i think the government does talk about clear but i think that has to be a dyno post entered where this court looks a new at whether these facts create an interdependent so i think that's a legal determination and your honor the other let me ask you this do you  think whenever you have a common c i but different producers you always have a chain conspiracy i'm not sure if you would always have been i think the factors of time of scope of i know there was the court's ments case there was actually two conspiracies in two different states in the jones case this court had there was a c p conspiracy in a pharmaceutical drug conspiracy in the course at that those were different objectives so i think you have to determine whether there was a common united objective and what kind of drugs were being sold what was the purpose of that organization and i think here there was a come united objective in it was to sell methamphetamine using that c i the other problem your honor but i think you know i actually don't need some engagement or communication or interchange between the various distributors in order to have been interviewed and i don't think you do because in fact the reality that really unusual to have the lower level distributors talking to each other fact drug organizations do not they don't want to do that what they do is they get desperate people and they never know who the top person is so the middlemen they don't have every communicating because that takes away the secrecy of the whole thing what had he established interdependent well i think the interdependence comes through the shared common goal which is to tame methamphetamine for the confidential informant so this court's conspiracy law doesn't make it to where everybody has to know everything in fact i think the law says people do not have to know every detail understand but but as you go on it sounds like you're i guess the only they i would say is if the conspiracy was broader and there was another state another line of drugs involved like your jones case then it might not be a shared come objective is all i'm saying and your hon or the other thing i would say that i think is a problem judge browning does find below there is no overlap of these conspiracies and he characterizes the carmona indictment as beginning july twenty sixt seen the problem with that the indictment was charged as a conspiracy beginning no later than at a data unknown but no later than july twenty first two thousand and sixty in other words the way the conspiracy charge is written it covers time a time frame before july twenty first which is unknown next problem with that in the government presented and one reason i didn't ask for an evidentiary are we withdrew it we had all the evidence they're going to produce the government presented a power point of its opening in which and i tried the underlying tapia case it's the same proof it's the same confidential informants the same day it's the same exact witnesses is virtually identical witnesses and exhibits what the government is now saying is we're going to use that is for a for b evidence in this case and present the same case but that's for a for b the other person issue is a problem of the well counsel is it really presenting the same case or is it using a rule for all four b for a proper purpose under four or b which could be any one of the laundry list of items and the rule including a comma and modus operandi that i'm not sure that they're that they're that they're really presenting that case to prove now and beyond that maybe you would have been successful in keeping it out but but but it that it seems to me you're trying to use that for a for the evidence to establish an interdependent conspiracy when the government may have been using it simply as uses for for be evidence in any one and that's my whole point your honor is that normally what happens in this type situation when they're so close in time and they have overlapping facts and players and the government calls this an extra completely intertwined evidence and they say it's the heart of the issue which is i just don't see how that gets you to an injured and then conspiracy i understand your other arguments at that one i'm having trouble in and i understand you're on a completely mildly point is trying to sit suggest to this court that it's the same course of conduct in this conspiracy same shared common goal and chain same enterprise through the confidential informant of mr lee all that produces the only difference are the people who sold the methamphetamine on the two distribution dates that's that's really the only difference but it was the core of it is the same your honor the other issue that i think is that was an essay is pernicious about if this is permitted  you look at a case like el chapo that's been tried now you get cases that have the number of different disparate acts as you go the government then can file can do what they did in this case try the first case file an eight fifty one  meant which is in the record docket sheet which they fifty one has meant doubles the penalties then they tried the next case which in my opinion is really part and parcel of the first one a conspiracy but you get that out of penalty so if you do this in a nice chop up a conspiracy in the three cases fall to a fifty one and has once you get a life sentence and there's really nothing to prevent the government if they really want to carefully word the indictment and chop up conspiracies there's another to prevent the sentencing result from occurring and here my clients going to be facing a added eight fifty one penalty merely because they decided we're going to chop the conspiracy up between july and june  even on the diet but the charges conduct occurring before july so if we if we find that judge browning was right to throw out the cia's participation do you lose everything i think it makes the analysis much tougher the question then is whether lialda himself and the other people in jail with the making these calls unite everybody in a common scheme and i think that judge browning then has a point you almost have to some other questions of save a little bit of time thank you they c may have please the court counsel my name is just wised up on behalf of the united states today the court should affirm the district court decision in this case the main issue before the court is whether the defendant met his burden to show a double jeopardy jeopardy violation that ultimate legal to do plantagenet the right way to characterize it because i in his brief that if you makes a non frivolous double jeopardy argument the burden shifts to you correct if you look at the ten circuits decision and daniels it doesn't talk about any burden shifting it puts it specifically on defendant to raise that defendant does cite some out of circuit law concerning where birding shifting might be appropriate again out of circuit law and again even if you have that type of situation where at some point the burden did shifts first we're not saying that there's enough of a facially legitimate claim necessarily to shift the burden and even if you do have that here you don't have any evidence people that's what you want to prevent correct or aren't but i mean as far as there still needs to be some evidence of some interdependence between the conspiracies you don't have that here at all i mean for example if you you could cite to for example watson which talked about grand scope and defendant cites this in his opening brief but again this is a factual determination this is a factual question and that the and the scope of  to complete a conspiracy no you can't do that so you have that is a relevant factor to have the c i in taken place in both not to the extent that the c i is present in both but there could be instances where that shows interdependence yes here you don't have that if you take the cia and we'll outside of each conspiracy there's no interrelation there's no interdependence you have those two standing separately well let me let me ask you about that you're posing councils that the goal the common goal here under these facts to to make these drug transactions happen so that seems like a goal and why isn't it a common goal and if it's a common goal why don't we have the same conspiracy well i think you often have a conspiracy where you have a cia working on multiple cases involving multiple people in meth transactions and that's i think part of the reason why this court in domestic minimize the role of a cia because if you have a cia who's involved in say fifty different drug trafficking transactions and those are all melded together then you have a real practical problem that's a little different though than what we're talking about here because you have one cia and mr al that are common to all of them and so i mean you're there's no evidence here that your cia was out working all these other people as well i mean what we have is evidence that your cia is working with al and then there are ranging for these details correct your honor and again but i i think that if she was talked about with whether you can conspire with a certain certain c i so again if you have the cia you had legal you had other types of interdependence you have to have more than just the goal of making money off of meth trafficking because then that would in a relate to a little bit let's talk about that so i mean  in your scenario because because we have a c i the government can actually set up mr lay all for higher penalties because they can say well they can't count liao as part of the conspiracy so they're not going to be able to prove an ongoing conspiracy so we're going to have work with r c i we're going to charge him all separately we're going to try him one at a time and every time we go we're going to ratchet up the penalties i mean what you're arguing opens the door for as mr bowles put it purred mischa's conduct i understand what you're saying around but i mean do you agree w just because the cia was involved in multiple ones that doesn't necessarily mean that there's not going to be some overlap people besides the conspiracies in other instances so that's the the issue as far as like how it lays that out as far as conspiracies and success of conspiracy what if what if the cia was a was a private citizen not a c i and and he was actually working with mr lee under the factual scenario here you have two and independent deals or do you have because you have the same people working on them do you have the a conspiracy i think that would look more like a conspiracy but that's putting me too much more in the fact finder role as far as like what what other areas of interdependence exist what if you ask a lot of different questions in regards to when there is overlap when there is some overlap between facts and participants that's not necessarily a conspiracy but it could be so what if you brought in what if in this case we brought in a third party a third person we have the top you line we have the carmona line and then we brought in a third line using mr  c i and then and we instead of having two we added another line i think again the fact finder would have to make determinations again on interdependence mutual goals things like that again factual determination that specific instance i mean don't when you when you're adding when you're adding more deals and more people to the to the group with with sort of a middleman and a top guy like mr lee al doesn't that ultimately i mean aren't you ultimately getting it every time you add one isn't that increasing the evidence of a conspiracy it could be your honor and that's what the court wants and said if you have a large scope and you have certain into that is i'm not saying the c completely irrelevant for the analysis but the c i on his own with leo on its own that's not enough you have certain instances though where yes the scope could be big enough where and again the court said and watson the fact finder could this was permissible for the fact finder to make that determination here you don't have that you have judge browning analyzing the facts very end up finding no any partly find no interdependence based on sort of a break in time that the that the toppy can transactions occurred at one time and then it seemed like there was a pretty good break in time before the kerman or there was there was about a month in between when he went in and the end of the tapia deal i think was about four weeks before and so what about the idea that that the car that the indictment said that the carmona transactions began no later than i think it was july twenty one right and i think the i mean does that does that sort of take the  into the time frame of the top is by using that language not necessarily your honor because again you're getting into a lot of speculation about not getting into what was what was said in the indictment but as far as like whether there's in a relation in the evidence necessary that that would be presented a trial and how in a related that is the indictment does best if i that and it is open ended in that respect but it doesn't necessarily state that it's going that evidence from the initial deal will be introduced so what if you took what if you took the case to trial on the carmona side and you did in you found some evidence and you wanted to use some evidence predating the july twenty one date could you could you do that i think you could yes based on just the language of the indictment and again it is very possible i mean it ended yeah i mean isn't that a problem for you i mean you're sort of reserving the right to use that pre date evidence but at the same time you're saying don't don't consider them to be a conspiracy because there's a break of four weeks not necessarily a again what we're looking at here though desa sara lee it's defendant burden to show the opinion that mr lee might be able to revisit that double jeopardy claim depending on what evidence is shown in the second trial i think that what was the what was the judge getting it there i think there were some practical considerations about rightness because necessarily if certain evidence was introduced during the trial that showed more interrelation then a double jeopardy claim might have more validity and there were issues with ripeness before the district court the government does not raise this before the court here because often the court has still considered double jeopardy claims even in instances such as this where there was it wasn't necessarily right there was still speculation as to how it would go if it wasn't ripe i would  even decide it it's not right i mean it was it was it was ripe enough to make this decision in her honor and i think or is it right correct her honor and i think again that was a question this court generally and why the government decided not to bring that up before this court is a court has generally reviewed such cases but brownie did say you know there obviously ripeness issues there's obviously issues with making a double jeopardy call before the actual trial has taken place could i maybe just try to restate and you tell me if i got it right well you're saying about the c i so if i understand that our case law says see i working for the government can't and that's where i'm having trouble with the argument if it could be relevant that suggest to me that it's relevant it could be relevant nuff for interdependent so why isn't it relevant enough for interdependence in this case well again that's a a factual determination that the district court judge would have to make and whether there's clear error or not so for example take you have a resin in is interdependence clear air it's clear air that's what we're saying your hon because it isn't out of the next questionable fact i would say it's actually a factual question once you get into double jeopardy which is the legal question you know the ideas of whether the district court judge actually considered independence things like that those would be the more legal elements whether there is and when i'm referring to interdependence i'm referring to whether there is actual factual interdependence where the district court judge is looking on the record to see actual interaction between the two different groups which is necessarily factually thank  will then based on that reasoning your honor anything that the defendant could be involved in with the c i a crossed any time span would necessarily be part of one conspiracy and i think that well that's not that's not true is it because there would be there could be cut offs in in time like you've argued and like the government argued before judge brown that one way to tell if they're not entered opinion is to see if there's a break in time so it's not over any span of time right correct or are there is definitely temporal limitations things like that and there are other questions as well as far as again and interdependence mutual benefit goals things like that but again a lot of this is the radical where again we don't have knowledge of that interdependence mutual goals the participant outside there is no evidence of the participants outside those two knew of each other had some common goal that type of type of thing if you're honest don't have any more questions or to sum up the defendant here failed to meet his beard burden to show a double jeopardy violation and the courts thus deny the appeal thank you thank you common goal is your honor said that united this whole scheme together i also want to address i do you have a case where c i isn't the second party but is the third party and evidence that i was a third party on page twenty four of the court's opinion the court did see a need did not need to wait to see us evidence a trial to determine whether there was a double jeopardy violation because he could look at the scope of the two indictments and i see my time is up but i wanted to make the point  thank you both for your arguments the case will be submitted counsel are excused