obviously there's a very significant booker and likely issue in this case we're all aware that aniline is still pending so i wasn't because i wasn't planning on  pretty sympathetic with your argument that consecutive sentences for the three conspiracies whether you approach it many of several ways is problematic but in view of the complexity of this case i have trouble saying that any error is plain frankly i with apple i'm trying to put myself in the shoes of the project and without the lawyers to hold my hand it would be a hard swap way through well i don't know that i have to with respect to the multiplicity demonstrate that this was plain error it's i believe that the standard is simply demonstrate that are attacked is not on the list of the nature of the indictment being multiplicities however it is that we have a double jeopardy problem here a multiplicity problem here because the way the sentences which is that right or wrong well actually it was raised below that what were argument there is that the defense that the jury instruction conference requested of the district court judge we want a multiple conspiracy instruction and the district violation of multiplicity the government says no these were multiple conspiracies you can go ahead you said to the crowd we want to multiple conspiracies instruction and that the jury can decide we're guilty of some wire fraud conspiracy and a money money laundering conspiracy throughout the course of pretrial litigation during the trial and in closing argument the government expressly urged this is all one ball of wax in fact if the defense here's my problem offering crowd the government is saying it's one volley it's just one conspiracy to do a lot of bad things that the fence is saying oh it's much more complicated than that it's multiple conspiracies this one may be involved in that conspiracy and this person may be involved in that one and they don't overlap and it may affect admissibility of evidence after this conspiracy or that and lead to admonitions all through you're saying things but they don't say that they lied in the weeds so my question is can they come forward now and say oh it was all wrong from the get go it should have been multiple conspiracy's well counsel for m it but nevertheless the core point here is that we have to look at this court just look at it independently i mean somebody says i don't like the sentence the traffic is inclined  what's the matter with it and it's a big help that someone can tell him i agree your honor i agree with that i see that my time's up and i'll reserve the balance ok thank you think one of the attorneys or witnesses attractive and giving a letter to the agent and this is the main government case agent who was present during m trial who presented the summary testimony interviewed most of the government's other witnesses i did a after the verdict and said that if you have this case nature has a special kind of aura that thought the pride of the ability to talk to her during the trial and that the other the other jurors noticed the interaction sufficiently i think tease me about it for days after journal and a government witness or government agent but at least potentially present we know what the interaction was it was not a communication of information it was at most an elevator style we position to be able to evaluate that letter and determine whether or not it's potentially presidential or it may have influenced the verdict so that you're entitled to an evidentiary hearing i think would be would be and gave it to the prosecutor prosecutor then gave it to the court and defense counsel and how soon the letter came one day after the trial the jury's verdict was on march twentieth that's what it reveals and then it reveals the person's feelings about that and how they sort of took that to heart but the only fact that we now is the things found at each other in a crowded place talk to him without being teased about it for days afterwards i think they weren't allowed to converse members but that she understood that they didn't converse it seems like what you want to have a hearing about conversation to potentially find out the witnesses phone number and address during the trial how concerned how distracted he was during the trial but i'll say let me give you a hypothetical really   it looked like the f b i was just picking out its movie star looks kind of agents and framing them to testify a lot let's say one of those handsome f b i agents testifies and a juror falls in love with them and if you were to have a hearing you would find out she fell head over heels in love with him when he testified on the witness stand she could think of nothing else through the rest of the trial except how much she  this guy and there was no way in the world that she was going to deliver a verdict for to the position urged by this agent it seems to me that under the rule that prohibits a juror from impeaching his own verdict that evidence could not come in it could not be heard and it could not be used to impeach the birth i don't agree i believe that under rules to be the jury would be prohibited from saying that suggesting the fact that they have a state of mind that either infatuated with or detached nobody fast flashed a warning to the judge about it but it's still kind of problem that they get sentenced for three crimes one after the other when it was all one conspiracy well these at the sentencing the count twenty five which was the wire and mail fraud conspiracy and count sixty four which is the money laundering conspiracy those were both grouped for sentencing purposes and it was then there was a multiple count adjustments because of the count one conspiracy the klein conspiracy which was not treated as part of the same group i wanted to go through because of the guidelines  telling the courts that when there's different conduct different harm different different conspiracies involved the court is supposed to treat them as separate and i have real trouble with the that they invest in the phony tax shelter scheme and it looks like everything was directed toward this this one coherent fraud for your honor there is some difference in timing they tried from a fee to steal their money as i recall meant to say as to the other two charges she was not charged and that's a decision based on the the nature of the evidence the volume of the evidence to show her involvement in the other aspects base down to the cayman islands to set up these accounts and nationally and he was involved in these you know the oldest i don't understand where this argument about other people matters i'm thinking suppose my friend and i tide just steal a lot of money for a lot of people and we involve some other people in various phases to often one of them does the mailing force but that person is not involved the some other aspects one person got some other things for isn't involved in the mailing so they may not be guilty of all the different overt acts or conspiracy stuff and how they're charged but we are yes your honor and the reason that the government went into it is because it is one of the arnold factors and and let's say you were to lose on that is it clear that if you lose on that you lose because of the double jeopardy issue cannot be waived no your honor because we also have the fifth arnold factor which legally distinguishes the conspiracies and you've got differences in the ways they're the crimes were committed and charged and each charge states and that's why it's treated differently mean if if we have charged for example one overarching conspiracy that included counts two one twenty five and sixty four then the defendants would have argued that our indictment in the district court at their motion to dismiss and at the julian struction conference were that count one charged multiple conspiracies within it all the different tax payers and similarly count multiple victims and they didn't make this argument that they're making it through today before the district court and so that's why the government is arguing that a plane error analysis should should be invoked because of the forfeiture and waiver applies in situations such as when the defendant enters a guilty plea and has thereby given up arguments that he could have otherwise raised if he had gone to trial here of course they went to trial but these arguments were not raised at trial they were not raised on a motion to dismiss and the government's admits that they were also not raised exceptions by the reply brief attempts to make an effort to show how the if that adequately raised the issue then the government's position is they still haven't met the standard of showing that that that was a double jeopardy that they've got consecutive sentences and that's the court to impose even if it were charged almost one conspiracy the guidelines require the court to separate them out if there's different conduct involved so applying the arnolds factors again would have nancy that the client conspiracy would have been treated as a separate count then the recounts that were the money laundering and the the wire and mail fraud conspiracies and so there would have still been a multiple count adjustment applying the guidelines form if you would be if you would be inclined to see that at any rate the supreme court has said that the ex post facto clause does not apply to judicial decision making it says that in the rogers versus due process argument to the extent that it has adequately done raised here actually guarded notice does not help the defendants because at no time did they have a right to be sentenced to that up to the maximum of the guideline range booker of course throughout the guidelines as a mandatory set of rules and now they are only advisory which leaves the court the discretion which was that the sentencing court believed that the guidelines were mandatory and that there is also a point however it is the defendant's burden to show prejudice to a substantial right and that they haven't done that and cannot do that here because the court did consider the guidelines and the court found a pre sentence report that recommended that both herbert bates and larry smith be sentenced to the middle of the guideline guideline range of hundred thirty six months you know it may make a lot more satisfying to notice that your opponent did not argue this issue in the open and so one extent or another were all stabbing in the jurors are expected to follow such instructions and that they are presumed to have followed them absent any indication to the contrary and here so the next step would be to consider well how did this juror vault and when you that he would have voted to convict on all of those charges and that defendant and that we would have had a mistrial on on those issues and on that defendant rather than unanimous acquittal on those charges and you're supposed to reach a decision based on your own judgment that you should listen to each other usual thing in this case the judge doesn't hear about it till after the verdict has been delivered it's all over at let's suppose hypothetically that the jurors vote did not show that the juror made an independent judgment and let's say that the juror wrote a letter a month after the trial saying i fell in love with the government's to wrap up witnesses summary with us and that i really wasn't thinking about the evidence at all just that i loved it and that's why i voted to convict with the letter be admissible just don't want to talk about my hypothetical give me case well i don't i don't have a case the understand i have to take i do understand your hypothetical i think i got now is the supreme court decision but maybe i'm confused about it and i can't quite remember i thought there was a supreme court submitted to them and in this result they talk about the lawyers the with this is what they think about them interesting that maybe judge hopkins that maybe and i don't have an answer for you the point you raised about the defense put the judge the district court judge in a tough situation by not squarely raising this multiplicity issue below i did point out of my briefing  sentencing the attorney for mr vaile did say the following quote the government's case against mr bates was one set of facts for a common purpose and he should be sentenced accordingly rather than for multiple reasons so again though he didn't utter the magical words double jeopardy or multiplicity i think that fairly squarely presents the issue when he was making that argument in the context of i don't want you to impose multiple consecutive sentences your honor for these conspiracy convictions now counsel for the government raised this grouping issue i don't think that that is even germane to the multiplicity issue because mr bates and mr smith were both convicted of eighteen  then with respect to the standard of review i cited in my briefing this court's decision in mckittrick which makes clear that this multiplicity type of issue with respect to sentencing is volatile conspiracy jury instruction with with respect to back to the jury vice issue two points i want to make first of all i don't think you could take much out of the jury's verdict if they found not guilty in some conversely to test a witness it seems to me that that is almost the definition of the jury deliberation process even if it's an irrational like or  about the of fact that that contact had on their thinkings and how they thought about that contact that that's somewhat like the rather for the case with the i r s agents in the different type of contact but we're in the in the about the case where the higher ups agents ross sitting right there right and they're glaring at the jurors and the jurors are thinking gee if i come to the wrong result does that mean i get audited right and and the court reversed in saying that the evidence you're hearing wasn't sufficiently complete and he should be able to get into more of the fact that that had on the individual jurors and their thinking not that what whether that is influence their decision directly to say guilty or not guilty or what happened in the jury deliberation room and i acknowledge that that's somewhat of a fine line and maybe somewhat of a artificial line