wondering judges we sometimes struggle about these cases where the argument time is so broken that is really not a heck of a lot you can say in two minutes and that kind of thing but we have experience doing it so the point being we have read a whole lot of this we have not read the record from begin an eon but we know as fact intensive we've looked at a lot of it our law clerks in helping us of helped us get a good handle on a whole lot of facts that is here so we never really worry about you starting in genesis say and more going to us through revelation ok so you know we're hot in the sense that you know we know what the case is about and so now we have an interesting dichotomy on the one hand the argument is that this is just a mutual admiration society book and the only other hand decide who says this is the worst drug card tayo in gangstas this side of there are so we opine that the case is probably somewhere in between all of that so the point of that is to say we put the case an oil argument for you lawyers to help us win it down you know in this case and answer the questions and so forth so that is to say yours your time succ arguments that are best suited for the time you have allowed number two the red light will not interrupt you from manson the judge's questions of one of us ask questions you know the tone you now out ask and we want you to answer course and as a high probability that will have a lot of questions so that's just so you know it's as we've got so many faces on the zome don't choke on it but go for you know the most important you know arguments that's going to help us out so having said that we start with counsel for mr for share this road you're from the p d so you know how this goes so go for may please the court good government argued to the jury including for example oh well we proved that they full of drugs and we all know that you are not a state and therefore the interstate commerce connection has been proven of course we would argue out to you what they have done not that that was our main evidence not in the rock heard that this is an appellate argument the government is claiming that because they prove that they were drunk fail and that drug trafficking automatically then we can assume that this court can assume on appeal the market for illegal drugs this enterprise affected commerce over which the united states has jurisdiction the government is conflating the scope of federal jurisdiction congress's regulatory power with the required statutory element actually demonstrate interference with drug commerce and it doesn't matter where the stolen in from because be interstate effect is irrelevant you can still homegrown marijuana under the hope that it doesn't matter but under rico prosecutors you have to show an interstate or an express factual element of the event the jury find the question here isn't whether the government of congress has jurisdiction over the illegal drug market the question is whether the iraq related violence that i can address which is the better of the embedded i do want to there are several other issues that maybe your colleagues are going to talk about on this when you have a single authority that if we accept that commerce when the testimony is that it's daily for half a decade in the amounts get as high as two hundred and eighty dollars or do we do this efficiency arguments have to bleed into this it just to do we have to accept that there was no rules of that sort of continuity of trafficking so there's there's no authority in the drug trafficking circumstance i mean i think that this sort of gets a broader law about what are permitted what assumption after what's considered to be assume we are jones jones davis or given we are again i think wasn't preserved so ratification and keeping them one by one interstate commerce efficient the argument that was preserved by  each of the fish and the argument in turn finally reaching the argument that there are insufficient evidence of or conviction on count one because the government did not prove that ratified his involvement in the conspiracy and judge gannett of the general dorsey and boyd for example stated that the white house him was a violent at least that was their testimony so for us to believe that we'd have to say that's incredible it's a matter of law is that the direction of this interstate commerce that even if it was the government only prove localized and it cannot assume on appeal at the government urging that that's not in the record which is that local drug activity their due the testimony of the bullies there walford two co defendants and their testimony to lay the factual basis even if the government failed the way it normally might in a words they didn't put it on affirmatively as you argue but because you've got co defendants who testified here into play it is the evidence there before the government that way you're going to be a about proof the facts then we all know we you know you can prove facts a lot of different ways and i get to be mansome of course you know ok if they didn't good some i did straight up to do it but because the mixture of all these evidence is did on the evidence inserted act the jury to consider and that leads them to the interstate commerce argument as well because the government is asking this court to assume and find on appeal a fact that it's not in the record that the jury never a government counsel may have been argued to the jury based ome would the jury was going to be charged under the pattern this is what we've proved but i haven't read the argument and that's why i asked the course that way but i will but anyway you you reiterate all of the issues previously raised in our initial brief but with the court's permission i'd like to focus on the nine hundred and twenty four convictions and that argument so as those court is aware obviously rico no longer qualifies as a crime violence and there is recent court precedent in the circuit with united states versus jones in this case there was a similar issue with the verdict form in that it did not require the jurors to specify on which predicate they relied the rico conspiracy or the drug trafficking on the jury instructions provided that they could choose but the verdict form did not give them a spot to do that or require that they do that now the government admits in its brief that it conceded in jones that rico is not a crime of violence and that a jury spelljammer to specify on which predicate it relies but possibly allow it to have relied solely on the rico predicate however the government then argues that despite all of that these nine hundred and twenty four convictions should stand because this in the instant case is in fact an aggravated form of a rico conspiracy but the elements that were required to be proven in trial did not require the use of force attempted use of force or the threat of use of force when it came to that rico conspiracy so the government acknowledges that it has no specific cases on point as to this aggravated form of rico conspiracy but cites three cases two in the original running out of the th circuit but all of those would argue are completely distinguishable from the issue that's facing this court with these rico this rico conspiracy in all three of those cases the conspiracies on which the court there he lied to find that the one hundred and twenty four dollars convictions would stand st of all all included an additional element of resultant death and additionally all of the courts there applied the modified categorical approach in making their assessment of the case now the government has also conceded here that the categorical approach applies in this case which would suggest that no three of those cases apply and that in fact the rico conspiracy is not a crime of violence and all these nine hundred and twenty four convictions vacated using the categorical turchin focusing on the statutory definition rather than the underlying an individual facts which appears what the government is asking the court to do rico is not a crime of violence and if the jury possibly could have relied on that as a predicate then this court must vacate any of those and twenty four convictions the government also concedes in its briefing that the davis error would affect these appellant substantial rights and that if this court finds rico not to be a crime of violence then those involving the predicates as long as the jury instructions and verdict form unfortunately that happened at a charging conference that was not recorded or change or accept that we have to look at this even through the four it would be a miscarriage described this as a line of violence despite a special finding a murderer yes your honor because the rico itself which is the one of the predicates that was given for these particular convictions is not a crime of violence so even though there was a an additional finding that was put in that the statute itself does not require the use of force very i guess it is just quickly at the end if we were to reverse as you request it does deep in a conflict with the nd circuit it doesn't agree with jones does it also create a conflict within the circuit especially the th it's easy to recognize the aggravated rico as a separate offense you understand my question if i understand your question correctly if i don't judge please feel free to redirect me i don't think it necessarily does because in this case the the way that it was written doesn't include those particular elements that would be needed to make it an aggravated form of or the rico conspiracy just because they included it as a finding does not necessarily mean that it was listed as is is is or any of the defense jury's going to talk about the grayson or grass in factual basis issue and are any of you going to talk about that i'm not prepared to discuss that i enterprise as you already know requires a common purpose the common purpose presumably is to deal drugs but the government didn't even charge my client why not alan the alleged ringleader with the drug conspiracy in this case i guess i'm in charge lionel with a string of shootings and murders setting aside whether the government carried its burden to prove that mr allen was the actual driver of gun and the evidence is that those acts of violence are standalone acts of violence each deeply disturbing and tragic in each warranting a straightforward prosecution for what they were you know not a sprawling rico conspiracy that random acts of violence in around a dangerous neighborhood what we have are left with here instead is this sort of gordian knot sixty plus witnesses and so many overt acts and counts that even the government lost track in the middle of trial most of it law about us declaring as a matter of a law that ease multiple girlfriends and coconspirators are against nature they're just contradictory that it just can't be true what they say it's not that they're not credit i'll just say that you that well i think there are a lot of great cases because we don't have a case with this kind of testimony so i can't point to one just like this but for instance in our alleged we didn't have a witness with a documented history of  you know didn't you know sort of work its way through the air and so i mean i'm just saying i mean i would balls down to is judging since age you got to be able to demonstrate it and impossibilities so to speak  if this is a book club then my client was not even afforded the opportunity to sit much and one of the discussions and even have any input yet the government believes that he should be part of his gray conspiracy and  you accept as true everything that the government presented mr scott could have been prosecuted state court for possession or distribution or one sale of two point two grams of  cocaine and allegedly possessing a firearm that is not part of any great conspiracy any part of any interstate commerce it is part of any rico or anything to to fit any of the other fifty some odd sixty witnesses in this case and the government's five super star witnesses who by the course own admission although we are discussing how to pigeonhole their testimony contradicted itself as they went oh another words one witness one governor with this we get up to contradict the other government with us but from mr scott's standpoint that only shows and proves that he was prejudiced by being looked in with the rest of these individuals then in his case but that's always true in a case where is a motion  there were correct me if i'm wrong but at least twenty seven over acts that were allegedly committed by this group of individuals and seventeen of these acts occurred while mr scott was a minor was was not really chargeable with these offenses and in fact some of these acts occurred when this to scott was thirteen years of age if you do the mathematics it they don't so the government didn't show where mr scott was involved at that young of an ace in this group so you have this alleged conspiracy or organization obviously in brief i think it's well laid out that goes to show that highly inflammatory evidence of other crimes is not sufficient to overcome the prejudicial aspect of being joined in a group where your charges could be easily separable and tried on their own and there's obviously prejudicial over spill as a result there of all right ok thank you must pla thirteen and fourteen and all of that qana stuff i mean normally there's more rough and ready and i'll say improve it but it the fabric of it certainly of the different to me in improving it up is gaining you know with the young ones in this in ned and so forth it just likes a misson elements to use the there and the drugs and guns and that kind of thing so that's why i'm opening you know say well this is like between one side saying is just rock tearing activities here you've got drug dealing you have a lot of it over years and you have a lot of violence and all this violence is our y m m v if that are connected to each other where multiple individuals all get involved and are  acting in furtherance of that enterprise by shooting people that did not shoot them but shot somebody else and why men of enterprise and as far as you know street gangs go the reason i say that out of that it seems typical to me is you know you've got the lot of association evidence with the gang signs the t shirts the name of all of this stuff so i mean because these defendants were maybe younger than run of the mill and but they racked up a lot support that each defendant or saw the total amount and if you didn't do it do we just have to go look through it know what i if i could just direct the court to some testimony that would back that up or bases in on grace if i might correct me if i'm wrong i just speak this way but the st twenty pages of director taking him line by line through and then in closing you say quote the factual basis is in evidence read it two hundred and eighty grams let's look at the math so when i look at that you took the factual basis for grayson and in closing you use it as conclusive proof of a conspiracy in a drug amount as to others  based on a factual basis where the district court here even said to the jury you can't use a guilty plea against other defendants for guilt so as far as the authority goes the best case we have here is  caught here which doesn't say that you can introduce an entire bottle basis but what it says is that if a defendant stipulates to that then that it should be reviewed on a plane air and that really goes to the plane or issue but  obviously they objected because the district judge of the beginning says this is for a beach and they do say later that was stipulated to already but i read that to be we stipulated our objection already i don't see how that's somehow a relinquish basis is because of grace and volunteers everything in there and that is a lie so the government has to go and find out what you know we're we're putting forth the foundation as to whether or not this testimony is going to be inconsistent and they knew that i it to me that it was everybody's understanding that this exhibit had been admitted into evidence and was and it was all the defendant's understanding it was being used as a substance of that was that was in the midst of a presentation about drug amount that was we didn't rely on the drug amount of actual basis to prove the entire drug we went through the testimony of the witnesses and then we mentioned and by the way here it is in battle bas has to prove at trial and ran when the issue isn't raised it ought to be on plane air but we have to show even under under taler is that there was a continued participation in the conspiracy and we did that is maybe i'm just interrupting because these are really interesting issues oliver is our authority but you would agree you couldn't convict any of them on juvenile acts alone you have to have something post th birthday right that's correct but miss rhodes client again he did the davis if you believe the witness says he did it davis shooting before that doesn't count but he did this miss shooting after but unless you get an instruction telling the jury they can't consider the juvenile act how do you know the you can't convict unless they do find an act after the th birthday how do we know that when no one instructs them they've got to do well because here we have be evidence we have evidence of ratification regardless but you also have treated you have juvenile act evidence we just don't know whether you were there were that unanimous just anything post th birthday that's true but i mean these are not elements of the jury house to find out i mean it is a proof issue we analyzed is a proof issue and all of or it's not like with any you you wouldn't know until the trial evidence comes out if you've actually shown something like the smith murder so clearly i don't  understand it well be argument but i do agree with you plain error would seem to be implicated because they don't draw attention to it will twenty nine and they don't ask for an instruction and i'm still wondering is it reversible error of a court and the government don't know questions about that not to deter you from the other line but i sure want to i just want to know how you proved it up as a said you know read a bunch of these now the judges have is that say what you have to do it concern me the interstate commerce so the side says well you said it happened only interstate so what's your your focal argument that gets you over that you know the interstate commerce piece is you know i know what waste the point in trouble how is it shown as a matter of law it was done as a matter of law because in taylor and radiation the courts found that that local drug trafficking as a matter  apply its lay knowledge that drugs are imported especially cocaine imported from other places and that and find that minimal effect and that is all that is required under delgado is a minimal effect on it was d what was the jury told in the george about  that that is affected by drug dealing it's the jury is instructed that that's what we're  conspiracy because there was no finding by the jury in that case that the murders that were alleged in the special allegations in the rico conspiracy were actually committed that they actually occur so what we have here so so what we are asking is that this court visit that issue we do not think about was resolved by jobs and find that it is divisible as a result of the two different kinds of punishments that you can receive under the statute i don't know they're there how are those iranian where because that because that element aggravates the senate it is an element of the events of bits and with the definition of the offense it has to be proven by the jury to be found by the jury and therefore it is n because unlike in john's the there was a special finding here that the murders were committed and so those were elements that were found by the jury in this rico conspiracy as opposed to giles and if the circuit remind me again the circuit that is most definitively accepted that with an outcome determinative result rather than just saying there may be this strange aggravated rico creature based on the enhanced what's the circuit that is categorically taking the position  know you're right i did have a question i beat i know a dead rd step were really differential it's really hard to know what the just court is thinking is believable law but when i look at the transcript there's no statement whatsoever even by where you throughout these steps is telling the defense counsel on various facts for instance they are trying to get one juror off because of the transportation issue but another juror they did batson challenges abound that as long as the jurors are qualified and there's no doubt that the jurors here were qualified that this is a harmless error issue i saw that argument and i don't remember doing that myself ever so tell me can you point to a th circuit the the government law just challenges and the judge sort of took over the the analysis there and and so it did anyway did even the government ever say don't believe the defense attorney about the military guy i don't know if there was any more and and so that is the main difference between this and daniels that the jury has expert testimony for a lie upon that to make about that multiplication amount there's nothing sketchy about the math here they're just they're just finding whether or not two thousand eight hundred  rocks are sold during these years of this drug conspiracy and we did the math opposing argument and in our brief and you get to that very easily so daniels is he is relatively easily distinguishable from his base think that it's non hearsay if the prior statement is inconsistent was given in sworn contexts so i don't ask so so isn't your only argument the confrontation clause one which wasn't objected to no your honor you're all lying because they gave you a great deal so it struck me probably the defense didn't want to object because they're just hitting pay dirt with this guy is saying i'm lying the government told me to and they wrote that and that sort of their theory is don't all of the cooperate off seems impossible but if that's what all the courts are saying that probably whitewash is the batson problem so this court certainly has never even suggested that it would seem strange they're going to go to bed to bed big choice of issues you bargain him but his them a sense that that's really where you're riding in to get the th circuit to write a law about reverse bateson strikes me your you hone in on the three points you made to start with is that a fair thought i think that the most obvious missing evidence in this case just clear on the face for the record the lack of the interstate commerce element and the government is asking for an entirely new rule we're asking the court the whole the line to cab in the am because they're playing there are some of them or not so i'm giving you a heads up it's a high possibility that you end of the side may get something requesting supplemental briefing on some of these these points after one to move trouble slask concerned about the government t n this up and then saying you know they're sort of looking for us to you know  the area of law when that is not the basis the way the case was tried and i'm not sure that that's true or not that piece worries me a bit but there are some other parts of this that are legal issues that i'm not sure at the it is what it is but there's some discrete legal issues that are in asperse here that are khana scantily bereaved i'll put it like that i mean you're limited by the pages in the brief but i mean their dress but not to my liking as fulsomely as maybe worn in and i think the questions from the panel may have signal you know how some of this places out not as not the same go follow quote twenty a j letter just because you find some case briefing because our goal is to get to get the case right get it correctly not necessarily you know how you say it is going to happen but it is it's possible there's a lot of record in there but this case has a lot of legal issues hard work that you've done in briefing in all our you know behalf of your clients but moral with our entire court is deeply appreciative of all the court appointed attorneys help us throughout the three states and i'm sure this is probably i didn't mean to that's quite all right your honor i actually won't take up that much time mr rhodes addressed some of the rebuttal nine hundred and twenty four issues that i wanted to address i did just want to point out though that the government mentioned it was not straying from the modify categorical approach and the court of previously asked for page numbers on page fifty eight of the government's brief it appears to suggest that a categorical approach is what should be applied here and in doing so it demonstrates this is an aggravated form of rico conspiracies a crime of violence and i would just respectfully suggest that a categorical approach does exactly the opposite that it in fact confirms rico d conspiracy is not a crime of violence and i just wanted to add