the honorable the united states court of appeals for the st circuit is now in session all persons having any physicist before this honorable court make give their attendance and they shall be heard god save the united states of america and this honorable court methods to the facts of the case and it is the court's role as gatekeeper to require more than cursory assurances that the expert testimony will in fact be reliable over mr saddles objections the court failed to perform its gatekeeping filing that followed that once the government added additional details so that expert disclosure thank you the court even expressed doubts concerning whether wood was really going to be providing expert testimony a vs impermissible summary testimony the court's reflections its doubts demonstrate why it should have conducted a job or come home hearing to determine whether was testimony was in fact permissible such a hearing would have allowed the courts  perform the required assessment of the nature of what's intended testimony which the court repeatedly confessed remained abstract and determine whether the government's expert which it compared to an anthropologist had used principles and  have an expert just about the criminal organization as an expert you know your honor i bet you that someone to him what is the methodology that needs to be shown that would be different from what this is agent show another would wouldn't it be based on experience and studying the organization of the group and isn't that what the evidence in the record shows he was collected but there was no explanation for exactly where certain information was coming from and how agent would have separated fact from fiction you know to ultimately come to his conclusion about what truly made the organization's principles and why it wouldn't base his opinion in terms of what the organization mission was added whether or not certain crimes had been committed as part of a pattern that was representative of the organization versus just factual instances in this case and i think that that's a result of special agent or at having been both the leader of the investigation that occurred here in boston i assume the objection that he wasn't the actual content of what he gave might not have been expert testimony which is a separate point from the gate people question but as to the gatekeeper question he did independently study this organization we spoke what the record demonstrates and i don't really see you contesting that directly to the so i'm just not really understanding what the specific gatekeeper challenge is to his credentials as an ex for his credentials in terms of being a special agent that worked in the f b i with the gang task force it's not a question your honor whether or not certain cooperation witnesses or members of the game that he spoke to were credible versus not credible which is particularly relevant in a case where the government's number one cooperate in witness turned out to be someone that was quite not credible and was actually committing crimes while i understand your argument to be that he relied on unreliable one second hand ok i'm going down one other question about all of the number of issues that you raise in your brief that i did want to ask you about which is the challenge to the prosecutors statement is your contention as to the gap between what that statement represented your client to and what the record shows your client actually yes your honor yes but during the closing argument the government did say that our client specifically instructed members of the yes i'll ask clay to go kill savalas when in fact he never gave any such instruction what the record could reflect is that you know our client was aware that you know and that's thirteen as an organization perhaps you know that others had committed murders or how do you know engaged and assaults with you know rival gang members i believe the specific quote is that you know someone had said that they had betting beat a rival gang member something like that but again a big gap between recognizing the possibility that this may have been occurring shed versus you know what i'm talking about the wider and it's thirteen organization not the specific place and an instruction from our clients to go actually do commit murders out you know as coming from him a purported leadership of the game given there are two separate objection i am told on him in the record as to the use of the term in general however in your brief on appeal i don't see any argument objecting to the use of the term in general instead what i see is an argument as to your other can't instruction it's not clear to me whether you were saying that an e two there had to be has specific intent to join the conspiracy care before your time runs out i don't want to cut you off from answering this question if you have more to say i wanted to make sure you get a chance to address the sufficiency challenge and and i want to in particular understand  one aspect deciding what your particular challenge is true as i understand the theory of the government it appears to be dependent on the evidence at least partially dependent on the evidence of the statement from sand of all as the leader of the group describing what one would understand from being jumped into the organization because it's in is dependent on the jury believing that your client was unaware of that statement or whether your sufficiency challenge proceeds even if the jury could reasonably find that even if your client was aware of the statement your sufficiency challenge still stands and so the fact that he would number two was not all that critical well i would submit that the fact that he was number two was there really sufficiency challenge is undoubtedly focused on the fact that he's number two rather than number one and what that means about what he would have known about the organization's mission etc what he would have that send them all may have known things your client didn't that's certainly a thrust of your argument but i am asked you whether even if that were not true and a jury could believe on this record as number two he probably would have known what number one knew do you still have a sufficiency challenge and if so what is it that he is more distant and your average man is thirteen gang member and runouts well might my point is that regardless of whether he sort of had a general something if you could say ok because of where he was in the organization there's no reason to think he would have known that or maybe your argument is even if he knew that the mission statement shouldn't be understood to be about this clear or you could be arguing the mission statement because it says go kill or look for to follow isn't enough to show that the mission was to commit predicate act i'm not following what you are as i say the that if that's all the evidence sewed about what the missing is that can't be enough to show that the mission was to commit predicate acts is that the idea that's correct but how do you know what you're as case for that position looking at the testimony of maurice sanchez and hernandez macallan what precedents supports the idea that an alternative formulation like that in which the mission is to commit a predicate act or not to give an adequate act is that it shows that they have not got an agreement to commit predicate act i don't have a case at hand of the happy if your honour's were willing to give me the opportunity to present a twenty june letter in the next couple of days yes well i'll allow that after the fact with respect to the sentencing provision could you just just give me a sense of i can't seem to find any authority that supports your positions it's about i mean there's not a whole lot of authority on it go he doesn't say let's go after he let's he says right you're not making the argument that if he was an accessory after the fact that most of the murder correct you know i well i actually i don't believe that he was an accessory after the and then is despite its use of the term involved because what because the broadest interpretation of the word involving has no limiting principles and it would mean it would important contention raised in the government's brief and perhaps the most important contention before the court and that is whether united states versus watts precludes consideration of the defendant's claims that  careful reading of the watts case shows that the issue is not foreclosed wise with counsel can it can i meet let me see if i can can truncate this discussion a little if i  understand your position from your belief what you are suggesting is that this court in precedence following wants have misinterpreted wants and so that the agrement that you're making as i am to see in your brief and i think you're both commit no maybe an interesting argument to make on a petition from long review or in the petition for sure but it's what we that we have to the law of the circuit doctrine isn't a matter of what you lection on our pot it's a doctrine that binds laws to assure written method of proceeding but we're not here on a non binding proceeding we're here on a panel plus you my my only response that is that the supreme court cases since watt in particular i would refer the court to on aren't there having other questions no thank you counsel you have one minute left if you choose to use it all right or we will hear from the government now court mark levin on behalf of the united states let me take it to sentencing claims st because i can think they can be dealt with in short order just tell you you're exactly right in terms of the claim regarding acquitted conduct it's foreclosed both as a matter of vertical star decisis and under the law the circuit doctor this court has expressly read defend it takes th and th amendment rights as is foreclosed by supreme court and purser in authority citing watts in a slew of decisions by this court to the extent the defendant is claiming that supreme court decisions subsequent to watch undermining the rationale of that decision the supreme court has squarely said most recently in agassi any versus phelps and that courts are to follow this the decision on point and not presume that the supreme court has implicitly overruled one of its prior decisions and there are none of the decisions nor either cited by the that it is not simply that we the government has picked a couple of definitions of the word involved the definitions that we cite in our brief were adopted by the supreme court or in the s murder would qualify and as you are correct there are there is that just because of the breadth of the word and bald and how it's defined in those cases in other words i think the force of the argument against you is that it's one thing for using the word involved for in kuwait crimes there are pros fact of least thinking about the crime being committed but if we open up involved to capture things that occur after the right committed what limit is there to it would be an obstruction of justice claim that happened to involve a murder it said or it would seem to be just about anything in which the pows conduct related back to a murder and and that does give me some concern as to whether we're making the word involving really i understand point judge baron and i think the response to my response would be to  position is that the word involved is the same as in relation to right i'm sorry i missed i designed this construction of the word involved would make it a synonym for in relation to  dictionaries adopted or used the word for the word except if we accept your position that mean an obstruction of justice charge in a murder case constitutes involving murder congress uses a particular word it typically has the same meaning across different different statutes there's there's nothing at least that i'd see in in either their congressional record was a little surprised by your answer because the obstruction of justice charge is not in fact in front of us and there are it seems to me there is a better that in light of the broad definition of the word involved excess or i don't cry i'm would qualify well i suppose the argument can be made but i just don't think that issue is present for us that's right aaron and i want you to turn to the sufficiency but just i take it you're the by your answer to judge lynch you think the word loosely connects could draw a line between obstruction of justice and accessory after the fact you know that you know i did i'd have to think about obstruction of justice just because retrospective conduct easily takes out obstruction of justice and in fact in one way but if you say no some post ex post conduct still could be involving murder then we would need some wine to explain what other types of exposed conduct also wouldn't be included and i guess that would have to be the word closely that the idea yes yes that yes that's correct claim i would make two points there st as a general matter there was ample testimony about what the purpose of not just and that's thirteen in general exact quote is  your of the defendants here and it may not have any force but i think you have to address it and it does go to the misstatement by the prosecutor which is is that war significant for purposes of determining whether stabbing is that stabbing is not a predi  i'm i'm thinking of the i mean it's a maggot in the guidelines contacts but in the guidelines contents certainly armed assault with intent to murder under macit yes if they if that's the goal was to kill or commit armed assault with intent to murder would be no problem but it's armed it's go kill or stab and then the question is just ok you're i mean i just think you got it address the is your job or doesn't matter is the point does it doesn't matter there was a big there was ample testimony in this case about not just what the intent of this clip was to do does click in fact members of this clip in fact did the jury heard evidence that members of the click either themselves or assisted emma's thirteen other in a certain numbers in committing murders purposes of proving the agreement you were not relying simply on the acts that were taken and then say from those acts alone one could infer an agreement for them to have been committed i thought the argument was in light of the statements about mission one could conclude that there was an agreement for an act of that type to be committed and the proof of the acts made it clear that that was not idle chatter and it was quite a reasonable thing to believe that that makes the mission statement absolutely critical to your argument for the sufficiency of the evidence to agreement that's how you put it in your brief so if that's right then i think you do need to address the significance of the or point and i don't quite understand what the answer to it is maybe there is one but i'm just trying to figure out what it is i think the u k commission statement and the other testimony sanda ball for example during when he was talking with members of the cli about that they were no longer to be in the east coast program saying that many of us here have killed and we just respond when in the deed in ceremony it was mentioned that joel martinez had committed to attempt and murders in short order sandoval said he wasn't doing anything wrong that's what's he supposed to be doing homie so you take all of those statements about the about the mission and what i'm gathering from your briefing from what you're saying now is that when someone says our mission is to kill want to or to stab it taken in the context of all othe distant and then lastly if you could just address the prosecutor's statement about both pilcher volodos and whether that is fair argument so as to guzman you have the fact agreed and would intend to do so and then he and martinez went to santa ball and asked for a green light to have c w one killed because mario's believed that he was the person who restaurant and sound of all said that he would not give the green light until there was more proof that c w one was a snitch and reasonable jury could infer from that not only that there was the agreement with i'm concerned about what seems to be a theory in your brief which i don't think is supported by our law that the instruction actually give been using the term in general rise and improved instruction on the word itself makes me a little bit  easy to be candid and it is true that in an earlier case that language was used but in that earlier case we did what you argue must be done in this case which is to look at all of the instructions in there and hire a day and if you do that then it's quite clear but are you asking of racketeering activity to be the activity that included murder attempted murder and illegal drug trafficking trafficking the court said the government must prove quote is that the defendant knowingly and willfully agreed to participate in conspiracy charge to an indictment and this and this is a question for me which is the this word general as a modifier for understanding keep popping up in this instruction and we keep finding for years as your urging us to do it it's found to be ok because of other instructions around without ever saying that instruction self is a good one the alternative instruction f proposes of a specific understanding you object to because you think that would be misleading you have a suggestion as i'm just curious the have a suggestion of what would be a better way of giving this instruction would have void this confusion in other words  specific doesn't work and general keith having to be saved by looking at the other instructions is there any advice that we could give a district court about how to proceed in the future that would avoid this problem i'm mr quinn eleven before you answer the and within five days why don't you fly on a twenty eight chain letter with us as to judge the arms question within five days and our brief the court went on to say that the government must prove that the defendant intended to further endeavored would have satisfied or actually did satisfy the requirement of the pattern of racketeering activity and then just want to read because i think it really dispels any argument that the jury misunderstood the law and i also to be clear again the focus is on the defendants what they agreed to do and the issue was whether each independent individually agreed that the enterprise were involved these types of racketeering activity it's not a finding alone that the enterprise involved the racketeering activity it's these defendants agreed that the enterprise would involve each particular types of activity and your focus again should be on each defendant each individual defendant and what they did or did not where and as for guarding you know what the mission of m s thirteen is if you go back to the transcript you can see that they were talking about what it means to become a member of yes last and then the question actually shifts to that what is the mission or what is you know what does and this thirteen as an organization do so on the one hand as miguel talked about what he understood was expected of him as a member of this specific clave and then the conversation becomes much more general wrong consul kilt and i just want to say that both of those statements have been contested and it can go to the credibility of the government's expert witnesses about how they determine who was actually speaking and what or look for or stabbed or do violence is not fairly read to be the equivalent of killing or assaulting with an intent to murder that's correct  if i say i'm only going to do stuff happens and give your interpretation of status but if i say one of our missions is to kill or the alternative why isn't that that alternative enough in and of itself to say there was an agreement to commit predicate act it's not like he's disclaiming that killing would be one of the things we're going to do there's no indication that he's unhappy if that's one of the outcomes of why isn't that enough to say that i have agreed to be part of  just one report your honor there was no change in the questioning when hernandez miguel made the statements here i'll quote the question was ok what it cost for and