you on this although there are multiple issues raised in my brief it's really a single issue case a single issue at heart in the issue is whether mr corral was indicted in two different districts for the exact same conspiracy the conspiracy has a name a colorful name no pun intended the black buffy a family it's clear from d n a press releases it's clear from other matters that both indictments we indicting members of the black mafia family used in detroit to name the black mafia family in the indictment in the los angeles indictment they did not but there are two da press releases that were filed with the district court which make it very clear that the indictment in los angeles is part of the black mafia family at page one forty five and one forty six of our pendants from i quote from a press release out of atlanta from the d n a a federal judge has sentenced ten of the sixteen defendants indicted for their participation in the cocaine distribution activities of the black mafia family it goes on to say the focus of federal prosecution in atlanta detroit los angeles louisville orlando and elsewhere and again government's appendix page twelve the press release that i filed attach to my reply brief it begins to indicate that in los angeles they charge twenty alleged members and associates of the campanella park peru blood street gang and alleged members of the black mafia family known as b m f a glowing with roots in detroit michigan or in your best evidence that these are both the same conspiracies it is that day stories at that location or is it the member's name or something else well the problem in this case is the best evidence that they are the same conspiracies is outside the actual indictments sometimes when you're looking in to determine whether indictments charge the same conspiracy twice you need to look beyond the indictment you do that if you win your case how would you go  bad well in the terms cyril case which i said in my brief and in the kelly case which is a six circuit case i said in my brief they looked at grand jury testimony and in this case i think they could look at discovery material as well and one of the of the district court opinion in this case is that the district court failed to look beyond two bare bones indictments the indictment in detroit didn't even allege any overt acts of daniel chorale so how can a court compare the indictment in detroit with the indictment in l a to determine whether or not he's being charged for the same thing he did in l a and apps up and sam are just regular trial that you would have mentors and you need an evidentiary hearing the threshold for an eviden y hearing in the twenty to fifty five petition is relatively low the it's a question of fact whether to conspiracies are the same conspiracy or different conspiracies if you're at a jury trial the jury can resolve that when the judge can resolve that on motion based on the evidence but we're just looking at two bare bones indictments you have to look beyond the indictments we tried to give the judge some information from the da press releases that made it clear that the black mafia family was being indicted in multiple cities all around the country and the mr corella was only one of two people who were indicted twice in l a and also in detroit we look beyond the indictment as it goes to silence asking this question as well do we know the extent to which there are some commonality overlap of in terms of the people and on their it beyond those two people there is not overlap in the people name but the government only the people name but i guess is there any way to know otherwise yes yes the discovery material would reveal i mean i alleged in my petition there's same conspiracy involving the same people and then allegation was not based on fantasy that's based on my review of the discovery material but i never had a chance to have a hearing and present all of that everybody hear of it was already in the record or that no is to be determined discovery material that i would have liked to have presented to the district court had the district court granted my request for a hearing to show the district court that the people named in los angeles overlapped with the people in detroit out just as a practical aspect of this case sure how experienced counsel assuming that you still have a money laundering correct add lines from the present report for money laundering are even greater than the conspiracy to distribute cocaine and it looks like your client to just be right back in the same hole well cause he got one hundred twenty much well there is no mandatory minimum on the money laundering and if you read the sentencing transcript judge cohen asked repeatedly to the government why aren't you requesting that i can go below the mandatory minimum in this case given the extent of his cooperation you know he in this major case he was released on bond and there was a reason for that is because he was working in this case or it could get him out in two and again it could it could also give him something question you ask is that the judge did not pronounce a specific sentence for the money laundering county pronounced a single sentence of one hundred twenty months in quoting the transcript and he did not differentiate between counts on that so when the judgment was entered the one hundred twenty months for the money laundering even though he never pronounced it also there's plenty of authority to say that if one of several counts is vacated as you point out we would have a right to every sentencing on the money laundering count we're willing to take that risk given judge jones attitude about wanting to go below the minatory minimum but the government not requesting it in this case although they did request it in los angeles there's one other thing to answer your questions about what points to the same conspiracies we have an admission from the s attorney on the record at the time of sentence when they were discussing whether or not the defendant was going to be released but continued to be released on bond and turn himself in they were talking about that he had a turn indeed on the los angeles case and the job said what's this was the angelus case and the u s attorney answered it's the same the same conspiracy involving the same defendants so that admission has to count for something and i think it counts for a lot and i would say as you look at the declaration of mr krieger the defense counsel in this case that that that that declaration will come up the two things will come up one when his decision to pursue cooperation did not result in a reduction in the mandatory minimum as it had in los angeles in two when the u s attorney said oh that's the same conspiracy i think a light bulb went off and said this was double jeopardy anite failed to object and that's why he provided us with this declaration and that's why we went forward with the twenty two fifty five i think that as i see it all the other issues are interrelated here the venue change is also an issue that could have been ra overt acts charges against mr corella in the indictment and although we have been briefed this my understanding is in a drug conspiracy case you don't actually have to prove an overt act which explains why they may not have alleged any against mr corral i think all of mr corrals actions all of his activities everything that he did in connection with this organization occurred in california in los angeles and one of the things you look at is the defendant substantial context did he have any contacts with this district and i would suggest that he did not have any contacts with this district as we allege in our petition i mean he wasn't even and oh you joy or i mean it yes it was never that you're trying to rob in the football game results from all right right if he was indeed well if somebody did something yes but the question is is there profit proper venue is to him if he had no contacts with detroit i think if you look at the williams case where they tried to indict somebody in kentucky i want to say  actions he did in texas where he had no contacts with kentucky although there was a coconspirator who did have contacts with kentucky this court i think an opinion by judge ryan found that venue was improper let me address what i think is wrong with the district court's opinion in this case and there are several things that i believe the district court was erroneous and in its conclusions the first is the overlapping of times that district court found there were different times here actually the times completely overlapped except for a few months the los angeles indictment alleged that the time period was from an unknown time time to november of two thousand and seven and of course the times in the indictment always end at the time the indictment is filed an indictment was filed in november of two thousand and seven the detroit indictment alleged that it began in one nine hundred ninety and went to it bill two thousand and eight not it's an overlapping time period in fact that's an eighteen year period alleged in the detroit indictment the also judge again just look to the people named in the indictment and not be on the actual indictment the judge found that there were different drugs alleged in los angeles against involving this conspiracy but mr corrals involvement as he pled both in los angeles and detroit only involved the drug cocaine he was not involved in any other drug transactions here but most importantly what the district judge did not do in this case is look at any cases which determined whether there was more than one conspiracy he looked at double jeopardy cases and the five factor test undersea nido he applied gibbons which was a case which decided whether to counts in the same indictment or double jeopardy but he never looked at a case like wheeler which found that there were two separate indictments charging the same offense and he never looked at any argument there was an effective assistance of counsel here yes the ineffective assistance of counsel again is wrapped into the failure to make a motion to dismiss for double jeopardy and it's also wrapped into the  as mr krieger declares in his declaration he was told that if he filed a motion to dismiss for double jeopardy the government would take cooperation off the table and mr corella would be facing these high guidelines so he was in a conundrum but nonetheless didn't f the motion and if the motion is filed and granted the case is dismissed as to the prosecutor of addictiveness argument has that been procedurally to default that's the argument the government while the government makes procedural default arguments but the court found that ineffective assistance of counsel excuse is procedural the fall in the government has not cross appealed on that issue so i don't think that issue is properly before the court whether there is procedural default thank you you thank  good morning may it please the court my name is margaret mary smith i'm here representing the united states defense counsel has miss framed the issue here the issue is not whether the defendants received a violation of double jeopardy the issue here is whether counsel was in effect of for failing to raise and a double jeopardy issue he the district court found and the government has argued that he procedurally defaulted his double jeopardy claim his sentencing change excuse me his sentencing claim his venue claim and his  to raise the money directly peel what's left is for this court to determine whether counsel was ineffective for failing to file such motions what i would like to do is first focus on why the california indictment is a separate and distinct conspiracy alleged as opposed to the michigan indictment and then briefly address the vindictive prosecution argument the district court correctly how old that the defendants plead based conviction did not violate double jeopardy and this circuits five factor totality tast demonstrates that these were two separate conspiracies today the defense attorney has argued that there is discovery material that would show that the that these two conspiracies overlapped time to file about would have been with his twenty two fifty five motion where he was free to attach as many exhibits as he felt necessary to present his claim but doesn't the record show that there was sick no significant that and i'd like to that is one of the five factors in this court is how that were several factors differ the conclusion is that they are separate i think i think that the biggest mis characterization of this case is that the california indictment and the michigan indictment involved members of the black mafia family the michigan indictment alleged as part of its general allegations that that conspiracy was spearheaded by the flannery brothers who deemed themselves the black family mafia the defendant himself was not alleged to be a member of that conspiracy rather he was a distributor to that conspiracy he was also a distributor to this separate california conspiracy the persons acting as  those name did it and each indictment was the person who is the petitioner in this case right correct correct plus one other person that is correct the statutory offenses charge also support that these were two different and distinct conspiracies the michigan indictment alleged conspiracy of possession with intent to distribute cocaine and conspiracy to launder money and that method of laundering money had to do with property purchases and purchasing winning lottery tickets in michigan the california conspiracy on the other hand involved cocaine crack cocaine heroin p c p and marijuana the members of the california conspiracy were alleged to have been using coded language and using firearms and further into that conspiracy and in fact to california and i mean a lot of specific lay that the defendant distributed as part of the conspiracy distributed cocaine in st louis missouri the places where the events were alleged to have taken place are also different in both indictments there is some overlap between the states but these two conspiracies where large scale large scale conspiracies and the defendant for his role was a distributor in both of these conspiracies it is not unusual for a large scale drug distributor of the type that this defendant was to have his hand in more than one drug trafficking organization the defendant has alleged that the prosecutor at mit it that these were two one in the same conspiracy by some comments that she bade and at sentencing and as i argued in my brief if you look at the transcript that is not what she said the court the defense attorney was requesting a concurrent sentence with the california sentence which in fact was granted and the court was asking if the other case was federal and she answered yes and then he continued to ask what's the offense and her answer was it's the same meaning it's the same offense it was possession with intent to distribute and a forty one and a forty six charge to say that she made an admission that it was the same conspiracy is simply wrong and this goes into the vindictive prosecution issue because if you read the defense attorney's affidavit he says that he brought the issue of the double jeopardy to this prosecutor's attention and her response was i don't agree with your position and then she further that it's one in the same conspiracy and he further stated in his affidavit that she said to him if you want to litigate these issues i'm not interested in cooperation nobody has alleged that the government refused to negotiate a plea agreement but the government did make it clear and is perfectly able to do so in the bargaining process to say you're either all in or you're not if you want to come to the table and cooperate the first step is admission of guilt and if you want to fight every single step of the way i'm not interested in cooperating in the end of the government should allow him to pursue cost to  the government did not prevent that to this defendant for filing any motions and show his claim that there was vindictive prosecution is a nonstarter because he never exercised his protected right which would be to f motion to dismiss he never did it so even if even if you could argue for the sake of this argument that he couldn't do so because of the threats by the prosecutor the defendant has identified any stake in these proceedings nor has he identified any recent illness or the prosecutor's conduct what ended up happening in this case was the defendant had a two hundred ninety two to three hundred sixty five month guideline range the parties agreed in a written cooperation agreement that the government would recommend a sentence of one hundred thirty one to one hundred sixty three months which was more than fifty percent below his guideline rain i got less than that he got less than that your honor and he didn't even have to testify in court on this case not only did he get one hundred twenty months the defense attorney convinced the judge to run it concurrently with the california sentence which means he netted a seventy four month sentence on this case what's he going to do if this  also would support the government's argument that counsel is not in affective for failing to move for a change in venue and i think that defense counsel is mistaken when he says that if that change of venue had been granted the cases would have emerged it simply doesn't work that way if the defendants granted a change of venue for the purposes of moving the case the cases docketed in california it doesn't merge the only way to merge these two cases is under rule twenty transfer order where both the u s attorneys from each office agree to globally resolve the case so for the venue issue the defendant can show that counsel was ineffective for failing to file such motion because he still would have had to deal with the money laundering conspiracy and even if he were granted a change of venue it wouldn't change the circumstances in which he found hi proper and we argued in our brief that venue was proper because the conspiracy involved it did run across multiple states by the defendant was distributing drugs to people including in detroit and he admitted through his plea that he was involved the petitioner should be allowed to have discovery of all this stuff is the proper way to look at it it's not necessary in this case and the district court correctly found that what had been submitted to the court was enough to make the determination that these were two separate conspiracies and like i indicated before the defense counsel's representing that he has the documents ready to go if they should have been attached to the twenty to fifty five petition if there if there was an indication that there was more than what was in the original papers what defensive council is looking for is some sort of a fishing expedition frankly to try to connect these two conspiracies and it's simply not there the judge correctly denied an evidentiary hearing because it was not necessary ok well thank you is correct that this is an ineffective assistance of counsel claim that's what you bring in a twenty to fifty five petition where counsel fails to do something they're supposed to do but the judge which the judge can do truncated the analysis of the in effect of this claim by going to the merits of the underlying issue the issue which should have been raised by counsel finding them to be not valid and in his opinion saying therefore there couldn't have been ineffective assistance of counsel because there was no double jeopardy or any other issue that counsel should vindictiveness so there's really never been an analysis of ineffective assistance of counsel under the strickland standard in the district court on this because the district court found the underlying claims not to be valid which we can we suggest is a serious error here because of the analysis of the court was flawed if the there is a valid double jeopardy claim raised in this case or venue claim or prosecutorial vindictiveness claim if those are valid claims here then the court needs to address whether counsel ineffective for failure to raise those claims but the court never got to that point so we don't get to that point either based on this appeal on the record as it stands now in terms of discovery material being attached you know you there is a huge appendix in this case i'm not going to file five thousand pages of discovery material with the petition twenty two fifty five i will make the allegation that there's the same conspiracy and i've got a statement on the record by the u s attorney here this is the same conspiracy involving the same individuals an admission which the district judge never credited never mention never discussed in his opinion at all which they now try to say well that's not really what she meant to say well that is what she meant to say she knows the discovery material as well as anybody else does and and nobody the u s attorney to this moment has never acknowledged these da press releases except to say well there's no data on him they wouldn't say yes our law enforcement agency the d issued two press releases saying the black mafia family is a multi state conspiracy with roots in detroit michigan has been indicted in california atlanta and detroit which is true but they won't going to file some motion well he wasn't going to deny admission of guilt he had already admitted it in los angeles the question was after admitting it was the angelus and cooperating now he's indicted in detroit should a motion have been filed for double jeopardy and  the prosecutor basically punished him for attempting to exercise a constitutional right the prosecutors should allow the defendant to assert his constitutional rights it has nothing to do whether he's willing to admit his involvement or or admission of guilt he did not have to testify i think if you look at the sentencing hearing you'll see the attorney started to suggest that mr caruthers cooperation was very extensive in this case and he didn't testify in detroit but he did extensively cooperate ok well thank you counsel both of you for your arguments this morning we appreciate them the case will be submitted and the clerk may call the next case