the romeo case and the sealy case it's also set forth in some previous cases there are five cases i think cited by the government where the death richard the five cases that also addressed this question and the question is if you've got multiple charges in the case and the jury comes back in a trial and it quits the fans and on one of those charges the question then arises as to whether or not the jury could convict the defendant on the remaining undecided charteris in a manner that would be logically consistent with the acquittal on our story here here's my problem with your argument and if you can help me through this the objects of the two conspiracies are different one it being to distribute in whopping two in court and in terms of the facts in this case it seemed to me that a jury rationally concluded that your client have the intent to work army important and but not on the distributing hand and i don't see  charges is completely the same it's a pretty simple set of facts we have my client who's has a friend who in turn has a boyfriend who is deeply involved in a smuggling ring smuggling  not conspiracy to distribute i don't think it's conspiracy to possess with the intention that those drugs are going to be distributed how her current legit can coconspirators are not just important at the time they are importing and that they weren't possessing with the intention to distribute and i don't think the jury could have looked at the facts in this case and said well she intended to import but she didn't intend to possess with intent to distribute the jury instructions are very clear if you've got some a drugs in your possession and the eventual goal is to have them in your possession now so that you will later distribute them she doesn't have to be the one that's going to distribute this like she doesn't have to be the one carrying the suitcase in order to be guilty of conspiring to import but if she knows that someone's carrying a suitcase and if there's a whole lot of drugs so they aren't being brought in just for personal use and she certainly has no reason to believe that carlton is bringing them into bury them in the backyard she certainly knows if she does doing this conspiracy that is joining a conspiracy to imports and also to possess for purposes of distribution and that's why we make so much in our grief of the fact that the government done in this case that this was the hugest largest importation of ecstasy through the houston international airport so there's no note no way that anybody who got close to this case could have thought that there was a conspiracy of the import but not also a conspiracy to possess for distribution so under those facts i submit that there's no way the first jury in coming to the conclusion now of course one says then what was the first jury doing why did the first jury on the issue of conspiracy to import that they found her not guilty of conspiracy to possess or distribution and none of us really know of course because we didn't sit in the in the jury room but i read this circus law thickly the say and romeo cases and saying we're not going to refuse to give collateral estoppel effect to the conjecturing about what reasons they might have had to not have also acquitted on the companion counts it's we're going to assume that in reaching the acquittal they acted rationally and we're going to  a question of whether a rational jury having now acquitted on this count could logically consistent with that convict on the remaining counts and i submit that although we have talents that in the abstract have different elements as you apply those elements to the facts of this case you can't find her not guilty of conspiracy to possess or distribution but still find her guilty of conspiracy court once again michael of the united states district judge talk soon on four separate occasions denied the very clean defendant is making here on the last occasion the expression we found that there was not even the issue was not even  debatable among reasonable jurors that the lawn and i circuit was so right well settled that her claim was entirely without merit and that her application for bail pending appeal had to be denied to talk assuming it was correct the problem with the defendant's position is the way they frame the issue in order to prevail on a collateral stoppel claim the defendant bears the burden of proving that he specific issue was necessarily decided by the jury's verdict considering the fact that an organization may have been involved in multiple criminal activities and had multiple criminal conspiracies ongoing doesn't mean that the defendant was charged with being part of one conspiracy so what you need to do is look at the acquitted her the first is the absence or the failure of the government to prove beyond a reasonable doubt that there was an agreement to distribute or possess with intent to distribute and you may the second is the failure of the government to prove beyond a reasonable doubt that the defendant knew there was an agreement to distribute and possess with intent to distribute and in may and the third would be the failure of the government to prove beyond a reasonable doubt that the defendant even if there was such agreement and even if he had knowledge of it having intent to further the distribution and possession with intent to distribute and you know and the defense burden so difficult particularly in a conspiracy case this court has never i've never been able to find a case in which this court  like this court to find that well the jury must of found that she was aware of all these other things that were going on this court would need to find that the jury necessarily determined a specific issue in  favor that precluded a retrial of that issue so not only did she not show that but let's assume she did show that what specific issue could she possibly show that the jury necessarily found in  that specific issue which would not be a problem obviously because she was not tried again on account second is the jury could have gone theoretically found that the defendant had no knowledge that there was an agreement to distribute and possess with intent to distribute m e m a and if this court were to find that the acquittal on count one necessarily rested on a finding that the defendant had no knowledge of this conspiracy to distribute that would still not know whether or not she had knowledge that there was a conspiracy to import because the difference between the two is vast they are different crimes with different elements and you can i suppose that even assuming you necessarily find the first issue had been decided you cannot suppose that the finding would then be the same exact thing as a finding of no knowledge on the issue of a conspiracy to work and the same thing with intent if the jury's verdict you count one somehow were necessarily found to be based on a finding that the defendant did not intend to distribute or possess with intent to distribute it would only preclude us from really getting that specific issue not an entirely separate issue o whether she had intent to further his prosy to import drugs so that's the problem you can't frame this as the jury must acquit because as a quitter via one conspiracy they can't really find that she's part of the second remains she was charged in two separate crimes and her acquittal of one crime which has different elements cannot necessarily be said to preclude an issue with the second count how you phrase that adequately but while trying to say is  they have to show that this count one of quibble necessarily was based on a and necessarily is the key word and that's the word the judge congress who kept coming back to it's not enough to say well it's the jury probably found that she was aware of a conspiracy to distribute or a conspiracy to possess with intent to distribute this court would have to find that the jury necessarily by acquitting her must have found that she whatever she had no knowledge that there was a conspiracy t possess and they tend to distribute and even if they did again that would only mean occlusion as to that specific issue because the jury instructions are quite clear and those owners require findings and with respect to the count want to quibble the jury was not instructed if you find that she knew there was an agreement to distribute then you can acquit her of both conspiracies they were struck in how one government has to prove an agreement to commit a certain crimes that the name of the crime to distribute or possess a conspiracy to import into a conspiracy to distribute it as with intent of this tribute the supreme court in albert as is recognized at the year two these are two separate crimes with different elements and if i was stand before this court and argue that we convicted her of conspiracy to import therefore she must also be guilty of conspiracy to distribute even if i fail to put in evidence of the existence of such a conspiracy of the existence or of her knowledge of such a conspiracy or her intent to further such a conspiracy that this court  would think i was on my mind and that's the same situation here it doesn't matter whether conduct can arguably support two different charges we have to prove that she has specific inten in order to be guilty of a conspiracy count and with respect to count one we had to prove that she had the specific intent to further the possession with intent to distribute m d m a if you will and even if she knew there was someone who was going to be possessing with intent to distribute even if there was an agreement between two more people to commit that crime if we fail to prove that she with that knowledge intended by her actions to further that unlawful objective then we have failed to prove the crime of conspiracy to possess or to distribute and that is why there cannot be collateral stoppel here because it is quite conceivable that the jury in this case said look there wasn't really much evidence of that the government put in about any kind of agreement to distribute or possess in the tent a disagreement distribute there wasn't really any evidence that this defendant knew about such an agreement and it was really evidence that this defendant intended to further such an agreement because what was focused on was the importation so it's quite conceivable they base their verdict on the failure of us to meet one or more of the elem of that crime and in fact the the vote for conviction was ninety three for conviction on the conspiracy to import even though they acquitted her of the conspiracy to were fewer and you had situations in both those cases where marijuana couriers were driving across the border with marijuana in their cars so possession was not an issue because they had constructive possession of the  time to distribute was was not an issue because the quantity was so large that it could not be presumed that it was anything but for distribution so there was only one issue which could have necessarily been behind the acquittals in romeo seeley and that was whether those persons had knowledge that the drugs were in the car but here as the cases we've cited it into account as an additional alamy and you cannot necessarily find that an issue they want you to find was necessarily was concerned there was only one issue the case from the point nobody was arguing in closing argument that you might find you're guilty of this conspiracy but not this conspiracy or here let me show you how factually you find her guilty of th court has said that in that situation the conviction will stand even though they have acquitted on another charge in which there is which which is a logically inconsistent thing but that's when it comes back in one trial  different issue and in fact in likely romeo perhaps the only one of those cases this court addresses the significance of that decision and i think it's it's not a sources powell of that law of the supreme court for this issue of collateral strobl which is a different issue because now we've got an acquittal in one trial the jury hangs on other counts and now we're looking at whether this jury could logically consistent with the first acquittal convicts on the other counts and this court says that in that setting we are going to apply collateral estoppel that's a different issue there are different considerations and what the supreme court was dealing with in power now the one issue in this case was basically you could  say was whether in the jury's view ms kendrick was only along for the ride or whether she really joined the conspiracy was this guilt by association or does she in fact join the conspiracy and that's the judgment kendrick was not a drug user like the other people involved she was a student she was a good student she had a regular job and so forth she was somebody who was on the friend so the question for them to decide was whether or not she really joined the conspiracy or whether she was so to speak just along for the ride but that issues the same issue there was no way factually the say she was along only for the ride on the on the conspiracy to