the morning your honour's may it please the court record jones appearing on behalf of ricardo rubio garcia i'd like to reserve two minutes for a bar at this stage in the proceedings that particularly in view of the supplemental briefing requested by this court of this court nor myself has any idea what exactly is on the table here it's either a trial on a very large conspiracy that failed to connect mr rubio garcia to a thirty defendant scheme covering the years two thousand and seven to two thousand and twelve if you are involved in a subset of activities which is part of a broader conspiracy you are guilty of the broader conspiracy and that may have something implications but i buy them a try understanding i mean if you engage in intentional conduct which is linked to a larger conspiracy i mean you have to know that the amount of drugs i'm all for sentencing and things of that nature but i don't i don't understand that it seems to me that the smaller conspiracy was part of  is quite a long time ago and does apply to maryland that when you have a hub and spokes type of conspiracy like that alleged here you have to connect the spokes with a ramp and if you don't connect the spokes with a ram then if the government who has the charging discretion in a particular case like this if they say we're not going to just charge him with one level load we're going to charge him as being part of a larger conspiracy if they don't connect the spokes with a hug it's a not guilty and i invite to the court to look at not now and that's not what i'm arguing what i'm arguing is that there has to be something rather than one little hub doing little individual things here and there there has to be a reason that the people who are on the outer parts of the rims have some reason to know that there's other people out there for example you know if i am dealing methamphetamine and i always go to a particular house in los angeles to pick up my stuff and i see people coming and going and i have no idea who they are but they certainly aren't just like friendly neighbors bringing over macaroni and cheese for dinner i have reason to believe that there is other careers or other sellers coming and going out of that house and therefore i could conceivably be connected to the wealthy and so on are looking at the ind t wasn't a matter but there was evidence of the broader conspiracy if you object to it i'm on this indictment issued there was no traction on the indictment issue so it was about the gun wasn't submitted but wasn't there evidence from the agent that about the broader conspiracy there was the evidence problems that are set forth in my brief i mean one of them is that the agent was allowed to give all this testimony again on objected to i realize we're dealing in in plain error territory here about you know we knew that nel was a drug dealer we knew that this was a drug deal going on we knew blah blah blah and the jurors had no way of measuring the validity of those opinions or the accuracy of those opinions and we have a great case in california if you want to look at some california law called people versus  jelly which is again case but it talks about and i'm sure there's a similar concept in federal law that an opinion built on a house of sand is is worthless ok if the jurors actually have to hear some kind of basis for the opinion that's why we don't let law enforcement officers just walk into court and say hi i rested and i know he's guilty ok he has to actually provide some facts that support these opinions and there's no facts supporting the opinions that cavalier gave regarding the just certain aspects of this larger drug conspiracy and so what happened in this case is you know the government only connected my client to one single load in very very tenuous ways and then was able to say oh but there's this huge conspiracy and we were on all these thousands of wire taps and we knew there were these all these drugs being crossed and by the way after mr rubio's involvement we have three other loads are another excuse me there's two  ask him so i would have objected it but again this could that doesn't preclude this court from reviewing the errors and particularly when you're looking at the quantity and quality of errors that happened in this case and the confusion that's created because the government is allowed to come in a closing ok and say he was involved in a drug deal he's guilty you must convict which is not what he was charged with he was not charged with being involved in one drug deal he was charged with participating in a larger conspiracy what which version of the conspiracy should we look at at this point for your argument that there's a lack of evidence to support the conviction the charge conspiracy which is the gigantic conspiracy but if the jury it seems like you're arguing things that are in conflict and i'm really struggling with how we can do this so if the jury believed that all it needed to do was find that he had participated in a conspiracy to engage in a single drug deal if that's what the jury believed then shouldn't we evaluate whether there's substantial evidence to support that now because the jury has to the jury is supposed to be passing on the charge conduct and if you look at the the indictment he's not charged with conspiring to participate in one load he's charged with conspiring to participate in a wide ranging conspiracy that i think i mean is that that's not really what happened at trial i mean if  what really happened at trial is that everything with the jury was told would lead the jury to believe that all they needed to do was find a single agreement to engage in a single drug transaction then why isn't the sufficiency of the evidence question about that it's so odd to me to say that part of the error is that the jury could find this narrower thing and so there is for there is a variance or there can start of amendment or something to say that and at the same time say but what we're trying to figure out of the jury had enough evidence we look at this other thing i'm just i'm not sure what to do with this case because those things that you're saying seem to be in tension i don't think their intention maybe i'm not articulating them correctly and what he was charged with was a big conspiracy ok so every criminal defendant who comes into court is supposed to know what am i charged with a charge i mean like if that's what he's charged with then it's not error to introduce out of evidence of that right your argument that's right right ok so i get the court's point now right so the admission of this other stuff is only error when the when the actual crime and when i was doing which i'm kind of with you maybe that is true but then we should look at the smaller one when we're thinking about whether there was evidence to support that conviction right so here's what i think that  maybe this can clarify everything because i tried to clarify i was preparing for it i believe that if we are looking at is he connected to the drug in a conspiracy it's close to a no brainer just withstanding you know under cody acos there's there's it's not even close there's no connection between if you look at the indictment you can't even really figure out the structure of the conspiracy that's alleged now is the closest human being  a as a hub but it's really just a bunch of random drug deals that are thrown together in the in the same indictment in the the proof at trial did not establish any kind of rhyme or reason or structure to the organization that was being alleged so i think if you're looking at but what if we think that's not the question i mean i don't have any reason looking at this record to think that the jury thought what it job was was to figure out whether he was part of this big conspiracy it seems like the jury probably thought they just had to decide whether he committed that drug right right so what i'd still step one is if he's really charged with which is what the indictment says giant conspiracy there's no room he's acquitted want to get out of prison and go home evolved as it went along its it was about what was really being what he was really trying to pick you could stuff which just kind of stinks it's just very smelly and it's very very smelly to that affecting his substantial rights and his rights to due process and a fair trial i mean i have identified other errors in the record again that the case agent opining on my client's guilt no matter which concern which charges you're looking at you can't do that you can't have a case agent come in and say we decided he was guilty we decided he was involved in one word where in the record of usually we decided he was guilty well he didn't use the word guilty but that was the insinuation i have it's like i have the sites very specific in my believe it's argument number three about the improper opinion saying these are the statements he made that were equivalent to rubio was guilty he said we decided there was a drug deal  these phone calls i mean rubio and u m two were involved in the drug deal you know that's beyond the pale similarly although i realize it's a little bit far afield but it's really problematic that the improper cross examined which cross examination of the defense expert stunk to high heaven and then put a stink on the entire defense case and even the government has conceded that some of that cross examination was inappropriate so again it's not it's not whether it's just discredited this particular witness who's whose testimony wasn't that powerful in the first place this doesn't discredit the entire defense case and does that help render as a piece of the building blocks that go into a pla analysis i mean that the trial was fundamentally unfair in what way did this shift so that you're saying it really was unfair that seems to have happened at trial about what was charged worse as what seemed to ultimately be an issue  how did it affect the defense strategy to prejudice the defense strategy it certainly could have but the problem is when it happens right there that that sort of an extra record question because you don't know how defense counsel would have tried the case differently had he understood that all i'm defending against is a tiny little conspiracy on december fourth and fifth i mean if you look at his closing argument he said things like they didn't provide any evidence that he that mr rubio's on the tapes before december fourth or after december fifth they didn't prove that he was connected to the larger conspiracy so clearly he thought as i thought when i was writing my briefs in this case hey they didn't prove the ram goes i walk that's it so there's no way of knowing how defense counsel would have defended differently and obviously he had a sort of a parallel defense which is it's not even my client on the phone call ok which didn't go very far unfortunately but you know you try these cases differently down in the southern district they do lots and lots of border busts i'm sure in the central district as much but you try them quite differently than you would try a big conspiracy and if i was looking at this case again when i look at the case on appeal mike they didn't do the ram done but it's an entirely different defense to say oh no i'm only charged with conspiring a one tiny little load that maybe i need to put on maybe i need to try to bring in more evidence to explain how he got brought into this and look for some of these witnesses about the testimony earlier in the unknowing you know he didn't use the word mule and he didn't use the blind mule word but he pretty said everything but and he said in my experience these organizations never new use people who don't know that they're involved in a drug deal is there a difference between knowing where the stash l c is known not knowing that there is no contacts in the car when you cross the border there potentially is  i mean in terms of who knows what i mean i mean it's not is it unreasonable say in my experience i've never known somebody who is unknowing to know where the didn't they say both here though that in their experience you don't use someone who doesn't know where they stash houses and you don't know you someone who doesn't know that there are drugs in the cart and that can get you that both of those things although obviously the driver i mean the government's theory was that the driver didn't know where the sta so they were clearly already trying you know that the government's theory was that there were levels of knowingness in the case and people were compartmentalize and i don't think it's a stretch at all the think that somebody may have just put mr rubio in that car and said tell me how to get to chili's house and kept him isolated from the fact that there's drugs involved which would protect that protects the load more than telling people you know saying hey we're going to you're driving you're going to give directions to our house is full of cocaine especially when you have somebody who's not involved in the rest of this conspiracy and has you know no track record of being a reliable foot soldier and i am near will get them into rebuttal after the government speaks thank you very with intent to distribute count does not rise or fall with count one in this tease and that's because even if the government failed to prove defendant knew more than existence of this one time deal which is assuredly not our position the possession count is f supported on an aiding and abetting theory under boykin and united states versus smith and it's also supported under the joint venture analysis for constructive possession so i just want to make clear at the outset that count one and count eleven do not rise and fall together and as set forth based on the phone calls to the defendants giving to know of directions about how to get from mexico lee which specially encounters testified to was a hub for eleven stands on its own in regards to count one i think at its core the dispute here is centering on whether proof of defendant's participation in one transaction was several per se insufficient to establish not why wasn't god all that was charged and then why was there all this evidence offered by the government about the larger conspiracy well so that's a two part question and i think the government is well within its rights when it's constructing an indictment to be not parcel out sixty separate indictments for purposes of efficiency for purposes of joint trials it just so happened that this defendant proceeded to trial by himself which actually your honor is most likely protected him from all types of for a second thought can you point to any case where this court or through court has upheld a change from what was charged to what happened at trial as significant as this so i know we have cases where it's about a subset of the indictment is what ends up being charged and we said that's approach you know permissible it's just a variance it's permissible but it's when there are like two things and so one gets charged or three and it's two this is like sixty five and it goes to one i mean the ratio is way different than any of the cases i could find and say you mean like sixty five defendants and sixty five defendants in actions and years and days i mean i mean that's a huge amount of time with a huge amount of people with a huge amount of transactions in the indictment and you get this poor guy with one phone call and one day where he's involved and that's it so the ratio of what the indictment looks like compared to what actually this guy was arguably shown to have done at trial is so different than any of the cases i could find where a variance was found to be ok and i'm wondering if you know of any others or can help me with any precedent that says this kind of change is fair to the defendant well i think we sort of have to go to guiding principles here and and a lot of what's driving the constructive amendment and is a broadening of the indictment and i i mean it's clear that is not what happened here and that would be black letter constructive amendment that would be black letter law variance what's happening here is a narrowing but it is a narrowing in which the government still put the defendant completely on notice of the charges that were levied against him the defendant his counsel conceded the existence of the sentence ramirez organization in his opening statement and in his closing he conceded the existence of the was going to be there was no rhythm didn't know about the rest of this conspiracy he could have come to trial thinking that that was going to be a winning defense and the government shifts from charging him with this big thing that he very well had a lot of reason to say you have no evidence i knew about it too telling the jury at the end of the day that all they have to find is a single agreement which that's true if that had been i mean that would have been ok if that had been what he knew he was going on trial for but he shows up to trial with the defense about the big and i don't understand how it's ok to switch midstream like this well i dispute the underlying premise in your question i don't think the government switched midstream i think what the government did in this case was evaluated this large indictment that it had with sixty defendants and over two hundred overt acts the fact that it was proceeding to trial on one defendant and thought what is the the the least prejudicial way we can present this case for this defendant to show his intent to show not only his participation in this december fifth two thousand and nine deal but to show what else was in the record that evidence to his knowledge that there was a broader conspiracy going on that's why evidence of now and so what was that i mean i let you talk about the a single count without interrupting but what evidence do we have about any intent or any knowledge that he had about anything larger and anything beyond that one day ok you're out of t facts in the record that i can point to to support that his knowledge extended beyond that the first is in his phone call with mel so originally you and two introduces defendant team now as the guy who knows all about introduction so defendant gets on the call with mel and he explains this is the route he takes he takes the ted now immediately them references are routes suggesting that there are other routes that he takes i think there that that puts the defendant on notice that there are others participating in this broader conspiracy beyond him beyond the exact people he's dealing with a reference to our roots by now i mean the couldn't so that could be you know my family takes these different areas of your i mean i agree with you but i think we've got to do this under the novels framework and the problem with all of defendant sufficiency cases is that there prenup cases in fact one of them cited in her reply to na those is explicitly called out in novels for taking the wrong analysis which is at the outset asking whether or not we there's an innocent explanation for that that's not how the novels analysis proceeds we've got to construe all reasonable inferences in favor of the government asked then only then if and distributing the drugs have knowledge about where the stash houses so this is a defendant who has that high level type of knowledge number one which is indicative that he is aware of the broader narcotics distribution scheme going on here which this court said in brown we could specifically dealing with in this december fourth this period of time it was in that sort of inference upon inference though right i mean maybe we can give you the fact that he knows his way around this town means he knows this is a stash house but how do we know that he knows the people at the  and his role the crucial importance of his role to the final transaction do combine to support the existence of that connection and i would argue if this port faithfully applies the novels an that it was sufficient here there was no prejudicial variance to the defendant in terms of how he presented his defense there was no effect on his sentence the government  about my point in terms of arguing that the president's and get cody acos which is a multiple conspiracies case is that we didn't have any of that here and i do want to push back on the idea that the government was overreaching in its presentation of its case or or unfairly narrowing the case during the course of the proceedings i just don't think that happened i think it was presenting this sub agreement from which the jurors could infer that the defendant knew about a larger conspiracy why didn't the government ask for the jury instructions to give dates of the conspiracy at issue or describe the conspiracy issue in the model of jury instructions provide for that and that wasn't done right i don't know why the date of the conspiracy wasn't inserted in there i mean it's not an element in the statute and as i pointed out in the supplemental brief the jury through the trial testimony and the opening statements was was aware that the time period that that was being presented wasn't two thousand and seven to two thousand and twelve it was this two thousand and nine time period and in fact defense counsel did what i thought to be upon reading the record a very good job of saying look the government is focusing on the sub agreement in two thousand and nine you don't see my counsel before you don't see my client before the december fifteenth you don't see him afterwards and he's very aware of the defenses that were available here and argued them persuasively the jury just didn't believe it could you speak to the blind mule issue and explain why the government didn't put on false testimony in this case sure so statement has to be actually falls what he said was and you're right and i said this before there are sort of two statements they get us into this territory in my experience in drug trafficking organizations do not use people unfamiliar with the trafficking in transporting drugs that that's accurate that is not in fact but certainly so i mean you can just put in my experience before any false statement and make it not false i don't think so your honor i think generally speaking this is true general but the this that is the same as saying they never do this i don't know what the difference is between do not and never i mean there's no most of the time or sometimes it's a statement not you know not as they don't do it i don't understand what you're arguing unless what you're arguing is that by saying in my experience it makes it not false but that would be just a complete way around i mean every expert could just get up and say in my experience and the reason they're there is because they're an expert about this subject that can't possibly mean that experts can just get up and say in my experience and say false things testimony that could be actually proven to be false so as the court said in august you know so if the testimony was that drug traffickers do not and would not ever utilized blind mules to import large quantities of drugs that would be false and  i submit that the testimony here did not in any way rise to that level more over the second prong of his statement was that it's not typical for drug organizations have people who are unfamiliar with drug trafficking go to their stash house locations i think that's totally outside of the ambit of this blind it's the first day i mean that one has typical so there's some wiggle room but when you say they do not do this it's really hard for me to understand what saying you do not do this and then saying they do not do this and they do not ever do this i mean that's the same logically there is no difference in the logic of those statements it's just an emphasis there's no wiggle room and they do not do this it's not like they sometimes don't do this or they twice by our court already and i mean it we've twice to not do this anymore and then after those warnings comes in it does this again it's sort of shocking to me your honor or i would i would argue initially that i mean and doesn't it doesn't matter but the government's intent or actual knowledge isn't at issue here but i'm i'm not in no way suggesting that this was purposefully done that in order to get out from whatever the court had said before but i do i hear the court's concern in my mind there is there is a distinction because that officer statement was not actually false and it's not to imply that officers can use gamesmanship to get around it by saying in my experience but i his experience they don't do this he did and and i think we do have to narrow the focus on to the blind little context because that's where all of this stems from the existence of the chavez complaint in the blind your contact reynoso makes clear it's not that they do not do this it's also that they would not ever do this and there's a certainty there in that type of testimony that i just believe is absent here especially on clean air review  could answer for the court or cavaliers testimony no i think we're going to thank you for your arguments i won't give we took you way over so why don't we give you two minutes for abo page five hundred fifty and she didn't give it the full context so now calls this an identified person says how are you been fine you and yourself just here all right look i need to i wanted to ask you a question to get over there which freeway is closer for me then the guy says i'm going to let you talk to a cousin because he knows all about that that's where he knows all about that comes from how to get from mexico to the to l a not large drug conspiracy and if you look at the phone calls that are included there's nothing on the calls that mr rubio is on the talks about anything except directions second of all i wanted to point out that as to for cody acos to argue i want to be really clear your honor i am not saying he has to know any of the other conspirators or any of the other spokes he has to have reason to know that they exist and that his success depends on the set of the entire venture and i know i've quoted that in some of my briefs and i believe kenney is one of the cases that are it's in my brief the talks about it we are not talking about a bright line you have to know every other person but you have to know that you're involved in more than one load that the involvement of this load is somehow or another pushing the goals of the of an organization further along for something and that was absent here third i recognize that that you know the proof for the possession charge is or can be different than the proof for the conspiracy charge my view is that it's actually more difficult because for conspiracy all you have to show is an agreement for the possession you actually have to show that he knew about it and he either possessed it or aided and abetted the possession with intent to distribute and there's no evidence that he did anything to assist this person who was already the toilet under special circumstances there's no evidence there's no evidence about what he was doing in the car i mean look we're not here to tell the court what i think might have happened right that's not what to appeal we say what was the evidence the government had a burden the government's burden was to prove knowledge and dominion and control over the drugs and they didn't prove what he was doing inside the vehicle to me that's insufficient evidence to try to take control of the vehicle after the fact they had to have to stop while there was evidence that he didn't have a way to get home and that he lived in washington there is evidence on the record that shows that so you know he asked in fact he asked one of the local officer if he could use his cell phone to call for a ride because he didn't have a way to get anywhere else and he then went to the police station with the police officers but then walked away is that is that what happened yeah i think they left him sitting on the sidewalk or something i think i mean i do have a suspicion that they didn't really know what to do with him i think they were waiting for directions from the da or whatever but yet he just wandered away and nobody did anything with him for several years after but he actually voluntarily got in the police car and went to the police station i believe so to make a phone call at least initially i believe so so if the court doesn't have any other questions i just wanted to  things i have one more question actually about the issue of the dual role testimony is did the jury have any reason to know that cavalier was testifying in an expert capacity at any point because the issue about dual role is that you use the expert testimony to give an imprimatur to the fact testimony but i can't really tell from reading this whether the jury would have had any reason to think of that guy is giving expert testimony i believe they probably didn't go through the colloquy that you sometimes see saying i'd like to have someone so recognized or designated as an expert but he did persistently through first of all he talked about his experience at the very beginning right fact witness though to write because he was one of the investigators so that's hard to separate but you don't need to explain your i mean you have people you have civilian witnesses all the time who are allowed to testify to facts without explaining their background if any he actually observed stuff he didn't need to say i'm this well trained person who's been involved in x number of drug investigations and i listened to the zillions of of wire taps and things like that so i think his training experience actually does tend to portray him differently than a typical civilian fact witness second of all i believe he said can tell exactly how many times but certainly it's been conceded by the government he did this at least a couple of times that he was making statements based on his training and experience and that's the of thing the experts do meaning i have this fund of knowledge inside of my head that i have built up over time in years that allows me to give you this information that puts me in a different position than the lay a witness who comes in like like them the officers who stopped the car i saw the car i pulled the car over it made an illegal turn and i stopped it and the other question ok thank you both for the very helpful arguments the cases submitted and we're adjourned for the week have a great