divide our time subject to the court's approval mr bustos here who has filed his own brief individually on behalf of mr hung like if the court please and i would like to address the rico issues that are the argument number one in the opening brief there's no question your honour's in this case that there was evidence in this long trial of substantial criminal conduct but the charging decisions of the government here  went far beyond what we think of in the king the interest involved in some robberies and wound up with a rather byzantine monster of an indictment which included rico charges rico conspiracy numerous  court to vacate most of these convictions and remand the case because the defendants below in this case were charged in a rico case that was not proven by the government i think there's nothing more important in enterprise liability than that the defendants shared a common purpose a common purpose to make money by the stated violations of the law in this case the government charged broadly a rico and a rico conspiracy the featured a common purpose and alleged common purpose to rob computer chip companies and to engage in heroin dealing the proof however showed that both of those things occurred there were allegations of computer chip robberies and evidence to support some of those or many of those there was also allegations that my client john long maintained a heroin business but we suggest your honor and submit strongly that the evidence did not show  heroin business was part of the common purpose that motivated and animated these defendants and in forming this alleged enterprise and we think that's an extreme importance because the first several weeks i believe of this trial were taken up with heroin evidence and it was only one other defendant mr hahn lady mr vice i was client who had any involvement in that many chan had no involvement with heroin and with barely any suggestion that ricci lawn did either but there was evidence of heroin transacting that took a lot of time up and was alleged to be part of the enterprise that could have happened we say in a joint trial on the on the on the conspiracy charges  government points inevitably there's a little bit of crossover but there isn't very much the government points to a number of people that they say were engaged in john's business john long and also in the computer chip robberies but only one of those hong lately was really featured in both of those hong lay is one of the defendants and one of the appellant's here and his both his drug dealing and his and his computer chip robberies were rather peripheral and not that was not discussion of heroin at all at that time as a later justification the government says you used some of the heroin money to baby bail people out and get them lawyers but there's no evidence that any discussion of that happened until nearly the end of the use some money from an impending heroin transaction to try to help those people so he wouldn't turn on him and on others but at the same time throughout that the evidence is replete with people trying to use whatever resources they have in  five and i think august ninety tran talks of selling a lot of appeal to bill somebody out of jail so they won't turn that that's the goal is not that is part of the structure of enterprise we're going to take you know as part of our joint purpose that we do heroin transactions and then we'll use the proceeds that way that came up after the fact and so i don't think the government established that there was any really advantage from the from the from the heroin transaction that went into this robbery the other thing they point to is that they say manpower they discussed the growth meeting in one thousand nine hundred five in february march john will bring his manpower implying that that's from the heroin his her own activities but that's not not any evidence the government witness who was at that meeting testified it wasn't about heroin john had people that he could bring in but there's no showing they were heroin people and except for hawkeye langley none of them really had any heroin connection you don't get robberies but he only did one heroin case and that was in february of ninety six near the end of the thing and had no connection one with the other the thai chan  another principle player and a government witness he dealt with a guy in the old days before the enterprise ever started and guy was a heroin partner of john huang everything was separate everything was separate and i think that you look at this record that's what we come across and now the government is attempting i think to go back after the fact as we sometimes do and say well look you know there was this discussion sometime and i think six on october nine hundred ninety five they never came to pass but there is no showing that the heroin money was shared among these leaders of the enterprise which robbed computer chip companies there was no showing that it was dependent one was dependent upon the other and that it isn't shown to know anything about it so i submit your honor that that's a critical failing and i would like if your honour's would permit me in the time remaining there for you get to that there was evidence that the agreement was that thirty criminal acts now apparently that was so with regard to the computer robberies was that almost was an agreement also made with regard to the heroin end of it business that's right record had no evidence of that record is no evidence of that the closest we get is later in ninety six near the end of the enterprise period where john goes i'm going to try to use them i'm doing heroin deal maybe i can use the proceeds to bail people out  individual argument i think a very important argument that the the evidence is completely insufficient that he had anything to do with the robbery or mr kraft anything he didn't speak about it on the wiretap calls he didn't share in the proceeds he didn't try to fence the product he didn't know about it he was apparently kept in the dark about it the gentleman who did the robbery has been to charlie rath he's talking on the wiretaps on august eighteenth the day of the restaurant robbery with mr long and never mentioning that a week before he did another robbery which they kept john along in the dark on we know that from the testimony in the case and sell that that alone probably has about thirty years to the refused to admit evidence or from louth wiretap evidence that would have further we say helped exonerate him if you'll wind up right now i would like a line and it would be willing to give your co counsel ten minutes each if you want to keep going you're going to eat into their principally the combined issue of single versus multiple conspiracy and its effect on the country arches and then a couple of brief comments on an instructional issue and its specific relationship to my client  the instructions in this case occupy sixty five pages i think it's fair to say that they are as complex and lengthly as in any case this court has or will review the reason that they are so long and complicated is that the government rather than charging a series of hubs up robberies giving rather straightforward either aiding and abetting or conspiracy instructions as mr oster has mentioned combined charges of distribution and conspiracy of to distribute drugs which had little or nothing to do with the robberies with individual robbery and conspiracy and firearm charges wrapped all of that together in a rico charge wrapped all of that together once more in a rico conspiracy charge adding as well overarching bar exam and asked aspirants to the bar to ask answer some fundamental questions about what they they meant we have many fewer lawyers practicing in california today the government gains an advantage by this sovan multiple overlapping of charges in the sense that a jury looking at sixty five pages of charges and and thirty pages it's sixty five pages of instructions all of these charges would certainly think that something wrong went on here but we have to now see if the overcharging created problems based on the jury verdicts and the contents of the instructions themselves and what the demonstrate that there was a single overarching hogback and spirity here if there was any conspiracy at all and therefore that the four individual conspiracies are invalid under braverman and the easy way its way to make that point clear and to make it equally clear that this argument has nothing to do with this the long decision issued in an in atory appeal out of the eastern district which i believe two members of this panel sat on that it has nothing to do with that claim which was basically if we've been convicted of a rico and a rico conspiracy we can't be convicted of the individual components of the rico conspiracy is to hypothetically strip this indictment of everything strip it of rico strip it of of rico conspiracy we're not relying on the convictions of a stop a little or say we had an indictment that charged five conspiracies which this one did an overarching hard zakk conspiracy and for individual conspiracies to commit hub robberies every one of those robberies of which are included in the overarching count indictment under braverman the jury could find that that single unified conspiracy to commit those four hundred direct robbery was indeed did exist and it was a single conspiracy you could find that if it did it would have to acquit under four individual eyes one if it found that there was not an overarching umbrella conspiracy then it would have to quit on that overarching conspiracy and would be free to convict on as many of the individual conspiracies as the evidence bridge i submit that it is not your honor because the holding in braverman was not that the the all seven convictions remain valid but you could only be sentenced for one they set aside the convictions so in this situation the jury made a finding we know that because of the multiple charging here that there was an overarching conspiracy charge and predicate at one once they did that then we know under braverman it's either one conspiracy or it's multiple conspiracies it can't be both we have to set aside the conspiracy convictions as braverman ever been applied to rico case rico case because let us assume that there were no only the four individual charge conspiracies were charged if they found a single unified conspiracy you could only have one conviction for conspiracy so rico is relevant here only to the extent that because there was a rico charge the government put this overarching conspiracy in it and it permitted us to know that the jury found this to be a single overarching conspiracy so we have in the rico context it isn't important it is in the rico cause that's where the point is that it's a jury finding that it's a single overarching conspiracy on the one hand and the four individual eyes conspiracy on the other of course the reason that this becomes a very critical issue there are so many convictions floating around here and there are so redundant one could say what difference does it make the reason it becomes important is the government does not dispute the rule that if there is a single conspiracy no matter how many it objects it has and amana how many times of firearms is used during that conspiracy then there can only be one nine twenty four seek conviction attached to that conspiracy and because the only theory of liability for gun because all it has to do in this case or in the future cases say ok we're going to charge you with robberies which they did here and we're going to charge you with the news on a theory that you ate in  the gun use and that would require a finding that the person who was engaged in the conspiracy intended that gun be used i think the government wanted to avoid that evidence for a hurdle which which requires an intent to use a gun by using a pick or ten instruction connected to the conspiracy charges but if the four individual conspiracy charges go then that leaves you with one conspiracy one picture ten instruction and one gun use charge i have responsibility for the two instructional arguments they're complicated i'm sure the court has looked at them closely i will simply say this at the end of the day i think the government would have to say there are deficiencies in the instruction that is that the robbery instruction given here was really an extortion instruction and did not contain all the elements of robbery they haven't contested that but there the in defining a conspiracy to run the court gave all of the elements of robbery even though when giving specific robbery instructions on the robbery it did not give all the elements of robbery and gave an extortion type of instruction which is really a variance they say look at the whole thing and we would say given these rather impenetrable sixty five pages of instructions and this court's decision last week and laurie versus ryan the court said look if you've got a flawed theory and a correct theory you have to be absolutely certain that the government that the jury relied on the correct theory or if you can't tell you have to set the convictions aside i submit no certainty that the jury sifted through these and found the correct rubbery instruction is possible in a case that's so complicated i think seventeen seconds left i thank you for the ten minutes and i'll save those fifteen seconds thank you thank you mister next morning your honor carries you coffee on behalf of a pal mattie chan it's my responsibility to address the wiretap issues there are four of them and i'll try and get through the four in the time allotted even here in the midst of two thousand and six wire extraordinary investigative device and again in zero donnel the court said these wiretaps are to be used with restraint courts are supposed to demand the other quote from a panel of this court in united states versus were the background principles that the district court was supposed to have applied to the wiretap issues that confronted below and repeated lead time after time and ignore those principles gave the government the benefit of every doubt every time troubling facts were presented to it regarding mistakes made by the government or act of misrepresentations by the government the district court repeatedly ruled in favor of the government which which my contention is that if these background principles had been properly applied should not have been ruled upon that way you know the exclusionary rule still exists it may exist by one vote it may not be with us much longer but it's still the law of the land and it ought to be enforced and my suggestion to this court is it's exactly in a case like this where unfortunately needing something where the government is invest did a great deal of resources where the defendants are clearly of the case the first issue was reported misrepresentations and omissions regarding this yesterday and of course we know that the government was responsible to present a full and complete statement regarding necessity and one principle we all agree on is that the court is supposed to take a common sense and practical approach to the application of the necessity requirement my argument is that there was no way that the court the issuing court could have ruled intelligently on th yesterday because the government itself had no idea whether it needed this wiretap at the time it so i applied for it and the reason that is is because it was just in on the in the virtual eve of the application that a veritable treasure trove of new leads had had been uncovered and instead of doing what the government ought to have done which is to see what these leads mean and what we can do with them they instead rushed in with this application so this is not a case where we're asking the government to have pursued every lead to the bitter end or to have exhausted every investigative technique we understand there's no requirement on the government to have done that and we're not arguing that what we're saying is that they just have this this whole series of movies that they did absolutely nothing with and i would just point out and made and has been making correct me if i'm wrong all of these facts are undisputed it's undisputed about these new leads and i'll just run through through you know how how powerful they were and how how how they carry the potential for great investigative development and also  to the application for additional aircraft and i were just i understand the question here and that's certainly the state of the case law that you look at the government as a whole and not just you know the if b and c knowledge but i'm not i'm not asking the court to just you know look anywhere in some distant branch of the government it's the people involved in this investigation that knew these facts whether or not it was the if the argument is the new most if not all of these facts but even putting that point aside it's the people directly involved in the long investigation that knew all of this and i don't think it's a quite a close question that they made a conscious purposeful decision to withhold all of these facts from the issue in court and just to get the timeline straight on the  july twenty first and july twenty third so just you know the days right before the submission of the draft there was a surveilled under cover by in new york the confidential informant who was making kingpin is personally willing to travel with and deal with this confidential informant was omitted then the surveillance takes place between july twenty first and july twenty third and they learn  identities their residences the license plate numbers and the phone numbers of close relatives of a fellow named to be in the each end and if you look at the indictment he's the fourth individual listed after the three  t and that was not told to the issue in court and then that was at about the same time on july twelfth some nine or ten days earlier this unbelievable development on the on the robbery submission of the draft the f b i had developed a incredibly pression organizational chart the wangs group that turned out to be exactly consistent with the evidence submitted years later at trial and they did that based only on the review of five or six phone calls from one of the arrest these and this is all in in the in the memorandum an f b i right memorandum that was authored in minnesota and sent to the long investigators prior to it would not be unreasonable for a court as part of that assess with a burden to have to ask the government to least review you know these these these leads that had already produced enormous results before they rushed in  arrests in minnesota and they also say they did and a search warrant that was executed in southern california that there was a second confidential informant who corroborated what that first informant had told them and that also opposition to the motion to suppress i'm running out of time i see so i've only covered the first issue but there's the mystery patients are that they did the f b i didn't know the identity of the informant that gave them the information about minnesota which was clearly not  and that was proven at the evidence rehearing and this is to show you how how how bad it got they were claiming that the ice thing which isn't john the ones nickname was identified in a minnesota memorandum that was sent to the long investigation group in san francisco can see that if the evidence was a sufficient for substantive that's sufficient for conspiracy well i'd have to think about not asking you to concede that it is for sure but you make the argument in your brief that that it's all or nothing or nothing both ways or well you know i had obviously i want to concede something you know that my client's going to regret that i conceded and i haven't thought about that question but it's different elements and so you know i just don't know an answer off the top of my head racketeering conspiracy this case on behalf of mr lee went to trial on the on the allegation and the evidence presented before the grand jury presumably that he was indeed a middle man that he had some that he was in charge of management in this racketeering enterprise and that was the allegation presented before the grand jury and that was count one and count two now the evidence the time of trial did not support that allegation in fact he wasn't the middle man he was at most a crew member on on one robbery and and at argue below with the fact that he because of the constructive amendment of the indictment he was prejudiced because the that there was insufficient evidence that he had control management over the racketeering enterprise but this is this is applicable to count two also if he's not a middleman then he should have been indicted and the government  constructively amended the indictment to his prejudice well good and he got his rule twenty nine motion me because at that time you needed to be a manager or something of the enterprise and and the government has argued that it's surplus and i argue that it's not it's a critical element critical allegation presented by the government and presented to the grand jury and not proven by the by the the government in this particular case i mean we a the element is knowingly agreed to facilitate a scheme which includes the operator management of our racketeering enterprise now included in that definition of the element that needs approval reckons concern racketeering conspiracy is system asian robbery there's no evidence to suggest that they would have because as presented before the grand jury day they presented evidence or something or at least the is a proper that this person played important role in both the racketeering enterprise and the racketeering conspiracy and because of that important role that person should be indicted on counts one count two and and when the government puts on evidence  different then we have a constructive amendment and also if you also are tied into that you have a prejudicial variance that they simply have shown something different and the the government wanted to prove that he what considering all the evidence in this case said no he's not a management and an operator of this racketeering enterprise i'm granting the motion for rule twenty nine because of insufficiency of the evidence so i submit to the courts that if we look at the the case law and the applicable case law regarding construct a memon then prejudicial variances that's what we have for this case and in fact because of that that the conviction for count two should be dismissed by this court honor and can i can can i speak my time to my co counsel that we had agreed to certain things in this case and through both we can give what time is remaining for the  good morning i mean a good man i represent the united states i'd like to talk about the firearms counts first the government strongly strongly dispute that a single conspiracy could not give rise to the pinkerton liability for all of the firearms counts the firearms counts were charged each had a separate predicate robbery the jury was instructed that the defendants were defendants were charged with using and carrying a firearm during in relation to a crime of violence specifically in this case armed robbery the fact even if the court concludes that there was only one conspiracy that does not affect the defendant's liability for separate towns of using and carrying firearms during in relation to separate robbery counts in for a penny and rico well and for each penny separately or honor because they were each supported by a separate robbery count now turning back to the conspirators this case i'm on that well the case spree where there were separate nine twenty four c counts then each was supported by a separate predicate count in some of those cases there was only one conspiracy for example there could be one drug conspiracy so after a drug transactions and a firearm used in each of the separate stops into deals and as long as it's charged and proved in that way as it violence that will support separate nine twenty four c convictions in kasten ada for example the court says if the elements of two predicate offenses are different each may form the basis i have  not sure which of these cases had only one conspiracy count but i think when i looked over them there were several you may have found to need andrews the cases that are cited in the government's brief about multiple section nine twenty four c charges there's not a requirement that each be based on a separate some separate conspiracy often they'll just be one conspiracy turning back to the conspiracy count the real question in this case i think the way council defines he said let's take a hypothetical the hypothetical completely changed the issue in this case the critical fact is what they are pointing to as the single overarching conspiracy charge was a racketeering act the crime the defendants were charged with and convicted in that count in count t stately even a single conspiracy if there are different statutes they are not just it doesn't matter you can have separate sentences what the defendants were convicted of in count two the rico conspiracy regardless of what racketeering acts were charged or found was a conspiracy to violate rico and that's a separate conspiracy from a hot second spirity it violates a different statute now that's how the government at least reads the earlier long distance even apart and leaving any rico charges completely out of the case if you're if you're looking at four hijacked conspiracies yes the defendants can still raise the question were there really four conspiracies or was there only one conspiracy well your honor as i understand their argument here what they're saying is we don't get any sense for the hoppe second spirit sees because obviously the rico that's that separate i mean the sentence and then what they're trying to say is even though we receive no punishment you aren't punished for the racketeering actually punished for the rico conspiracy we can't be punished at all for any of the then only the single penalty prescribed by the statute can be imposed the defense are saying we don't get a single penalty we get not all our hobbs act conspiracy's have to just go because the jury found a racketeering act even though we weren't punished for course for that record tearing act we were so well in fall back position they might be willing to say all right we can only be punished for one one of the three and they might say that your honor they haven't made that argument that if they did i mean that would be a case where the court would apply the starter test the test that the court has developed and in that case we have to look at were different people charged in each count yes did they involve different conspiracies to commit different conduct yes were they different time periods yes and so we would say that if they had made that argument and haven't we would respond and say well those are different the court could find i mean i've seen a thing that's have the burden and those are different conspiracies even worst case one read one all the three three composite conspiracies would merge for purposes of sentencing and  sentenced on only one even if the court found that what the court has said is a pretty heavy burden under the starter test that's still not to repeat myself that still would not affect their liability for committing separate right yes the second then second one twenty four c is imposed consecutively that's right and that permits double as long as there are separate predicates that can be separately charged and separately prove which there were in this case i'd like to go back now to the the rico conspiracy issues oh there's one other thing i wanted to mention that in response to counsel's argument on the wiretaps if i could just briefly say the government does strongly dispute most of the facts they were contrary to the district court's findings the district court very carefully looked at the wiretaps in this case had extensive hearings comment to the defendant you called every witness you could you didn't get what you were looking for and made very extensive findings which they have not shown are clearly erroneous and the issue here is whether there was no necessity for a drug a wiretap to investigate drug application with everything and as that the defendant say should have been put in the first one was again issued according to an found necessity or simply even if they're fine even if the court's findings were on the whether there was deception were completely wrong which they're not we submit they're clearly correct and well supported by the record there's no showing of materiality here as long as you're on mart what's the government's position with respect to switch district is the appropriate district word interception as all the courts have found is defined as it is in the statute to include oral or all our other acquisition meaning where oral meaning where it is first heard and particularly in the day of cell phones this case is obviously even sort of at the very beginning of cell phones but it becomes less and less obvious where a phone is located i mean was supervised out of and where much of the criminal conduct took place and where the phone was off and used and so we think those courts are correct and they're just even more correct it's more reasonable to interpret the fact that way  seems clear that the the rico enterprise included both the drugs and the and the robberies when the evidence is viewed in the light as it has to be obviously for sufficiency claims in the light most favorable to the government matty chan directly brought the longs into the enterprise into the robbery into the robbery business more directly because he realized he had a problem his people there was evidence about the trial the people he had working for him were stealing him blind they were hiding stuff they were taking and putting and taking the so he wasn't getting the profit from the business that he needed to make this business successful they needed manpower that they could control and manpower is the word used by john won on the wiretaps he tells other people i have manpower you don't have to go out and get it on the street i have people who've worked for me for a long time and so the defendants have this meeting and they decide we're going to take we're going to use the manpower that the lungs have you can say well how do we know it was drug manpower we know because immediately after that people who are involved in the drug dealing including hong i believe star working on the robberies wrong i believe is involved immediately after that shortly after that in the hawkins robbery which occurred very in march right after the meeting they also began to use drug money for example as early as july there's a wire transfer which was introduced at trial from the place where john long had a drug business up in massachusetts and he sending money when people were arrested in this minnesota a rast and he's sending money to be used for their bail or their legal fees and transferring a thousand dollars and and so the jury could easily infer that there is that the other defendants are benefiting from the from the drug money they're clearly benefiting from the manpower because that's what's making the enterprise work john long did have good control over its people there was a lot less the government conceded at trial that there was no evidence that he knew that it was drugs that that was the source of that power is he is he then a member of the enterprise or as a conspiracy if he doesn't have to know the details or the every component of that this is he has to know what the basic nature of the business is that it's engaged in a racket it's using a pattern  to operate the enterprise and he certainly knew that i mean he was the one who benefited most directly matty chan was from bringing this other component in because he was the one who had been complaining to kevin lew these guys are stealing from that's the evidence that regard lists of whether he knew exactly where john long was getting the manpower or what his you know he clearly knew we had some source of people who would do illegal work for him that that's sufficient to make him a part of the enterprise and so we believe that the jury could use in the light most favorable to the government the jury could clearly find the existence of the enterprise charged in the indictment but i also want to say that even if there a variance between the indictment in the proof this was not would not require reversal i mean there was no the the defendants were clearly on notice as a there does they could have been charged with a rico based it's not the government charting this it wasn't based on the fact that they could bring in the drugs it seems that that's what the enterprising compass clearly they could have been charged with a structured rico in a prize based just on the profit sharing the hierarchical nature of the robbery business so now in their reply brief they claim well what about the spillover we suffered spillover well i counted the pages in my notes on the transcript the drug evidence was five days of of a four month trial i mean that's what i counted when i went back to my notes and so the evidence was clearly compartmentalized but also you have to look at the weight the overwhelming weight of wiretap after wiretap the defendants directing and operating this huge rico enterprise with numerous robberies violence guns people ordered to lie on the floor with guns with their heads tied up and compare that to five days of yes i bought drugs from an informant and we exchanged a package that isn't the kind of spillover prejudice that the courts have found so overwhelming that it would that would mandate reversal where the defendants were clearly on notice and knew what they were facing and that the crime charged there was nothing in the in the proof that differed from what with the charge in the indictment even even assuming which we dispute that the government failed i'd like to talk to i guess the only other thing i really need to talk about is the instructional issues and i just want to say that we do think the robbery instruction was absolutely correct the court didn't just at some point in these pages start defining robbery is defined robbery clearly and correctly for the jury both in the contact right before day the first robbery predicate act in the rico it said here's what robbery needs the defendants are charged with robbery and then also mediately before gave the substantive robbery counts it says here again it's a robbery and this applies to these robbery count extortion instruction because it deals with forcing the people to to give up well your honor i read that it's looked to me like it was about half of an extortion instruction well your hon be with the person's consent there was no instruction about with consent nothing was said about that explore sion was not instructed on and instead robbery which also uses the force or fear language just like the extortion definition has to be from the person or the presence of another in the court was the jury was twice instructed on that there was no objection a trial to any of these instructions nothing was said about them this definitely wasn't playing there especially when you look at the number of times the court told the jurors these defendants are charged with robbery the correct definition of robbery the fact that the verdict in form said  it the fact that the closing arguments referred only to robbery to show plainer the defendants would have to show that somehow a jury that never heard a word about extortion during the entire trial and heard months of evidence about people being robbed with guns at their heads and was and was told to convict only on the charges in the indictment and was a liar you too about robbery and had a verdict form that said robbery somehow that jury decided they were going to convict these defendants fact that john long did not know about the aristocrat robbery and didn't seem to p yanetta that's the argument that's made in the briefs in here today and to what extent is john the wrong responsible for this aristocrat rob well your honor the evidence on the aristocrat robbery that the defendants point out and it's correct the word aristocrat isn't mentioned on the tapes that john longs taped on about this time but the government presented strong evidence that john juan was supervising and directly directing the activities of charlie who there's no dispute committed the robbery was direct and that people who were doing the robberies or at least the leader yes he him and long actually met with charlie two days before the robbery the surveillance photos were introduced at trial he told michael who was a confidant the same day that charlie was working for the company which is the word they used john long especially like to call it a company and that he had given charlie ten thousand dollars and the generally what they did is they give people the bosses funded the crew chiefs like charlie to pay their people to conduct robberies so the fact that he had given him one being which means ten thousand dollars was significant and this was just two days before the aristocrat robbery took place immediately in the days preceding the robbery the truck charlie and john long had repeated telephone conversations and it was clear that they were not just looking at one target one target they were looking at they did mention by name was called future which was a computer company but it's clear that there are looking at multiple targets and when long talk to char to michael in the same conversation he said well we might as well do both jobs this week and he then when you talking to charlie there repeatedly you discussing the use of guns which they call a peace and the use of phones and it's so it's clear that they're they're planning robberies they're planning robberies in the bay area now there was another robbery i believe it actually occurred about a week after and that was in southern california and that for that robbery there was evidence that navy had told everyone left he had told kevin l don't let john long know we don't want to share the money with him that was what matty chance that there's no evidence like that in relating to the robberies that that john law of it to charlie was committing when he was working for john long in the robberies but by your theory of charging each of those in a separate conspiracy i guess well some of them weren't carried out your honor i mean they were clearly discussing what i'm saying is you're saying it's all one thing when you're trying to charge him with the aristocrat robbery but when we look in your conspiracy counts there really never well i don't think there were separate conspiracies to commit robbery that the robberies that there were charges conspiracies were robberies that actually occur the way that the way these people operated the way the defendants operated as they would they would clearly be considering many robberies at the same time they would identify a whole bunch of targets and they would drive around and look at these stores and sometimes charlie on one of the tapes that occurred around this time says to john you know you have to just go in with your heart you have to go when you feel like it and sometimes they would just decide we're going to hit this one today and it may be that that's what after john and charlie had discussed a number of these robberies in the guns and it may be that that charlie decided well i'm going to go and do a risk to crap today and we said that that although the evidence is circumstantial that it was strong enough for a jury in light most favorable for the government it was strong enough for the jury to conclude that john was directing charlie and that even if charlie said well today's the day of my heart telling me they had discussed you know different robberies the harts telling the aristocrats the one for today that he was acting at johns direction and with john's money john was fun john huang was funding this robbery he had given charlie ten thousand dollars two days before to hire to pay the crew members or to do it to get ready for the robbery and that that was enough for the jury to find that john long directed charlie to commit the robbery a common purpose it could have done that this would be a much simpler case it chose to frame an enterprise that included drug dealing with all the tremendous advantages that involved and the fact of the matter is that there just  it chose a larger enterprise it had an obligation of proving a common purpose as to that holding enterprise and it failed to do so and for that reason the rico should for the government says well there's no prejudice here and yet when the court raised the question when a judge thompson raised the question well where is the evidence of guilt of john along in aristocrat there there really isn't and in fact as mr osterhaus pointed out there also w indicate that his right to a fair trial on a charge such as a wrist a crack was prejudice by the government forceful joinder of these two different animals the drug dealing and the robbery so that it could get before the jury evidence of drug dealing and i submit that five days evidence of drug dealing is very likely to prejudice any jury's ability to fairly consider some underworld related charge  turning very quickly to the arguments that the government began with which which are in my valley where we are not agreeing that you can ever single conspiracy as agreed as occurred here you could get five intent that he use a gun that the perpetrator of use a gun boom jury finds that to be true guilty on four charges what you can't do is what the government did here choose to forgo those theories and link the gun charges soley to conspiracy at page in our argument we give the courts instruction on gun charges and it clearly says the only theory everybody agrees the defendant had nothing to do with gun judge patel said now you may be confused by this gun charge because they didn't use guns here's the picketing theory since the only theory was a picketing theory linked to conspiracy and there wasn't any finding  of linking the gun used to each robberies with the intent that they would be required if there is only one conspiracy there is one gun charge you have a case for now well anderson is the case and and all of the charge as for the argument that somehow led to posit this you have four separate conspiracies that all of us charged in the case a judge is troubled by the notion that there is only one really overarching he has for a special finding from the jury a convict on all four conspiracies but yes find that it's a single conspiracy well then the judge would be controlled by braverman it doesn't matter that it was within a rico context we had a jury finding that that was one conspiracy that controls the finding of four individual conspiracies as to the argument that there's no punishment then judge patel if this goes back and the rico charges are are upheld can give the defendants under book or whatever she feels