the same traficant from trafficking and smuggling the same goods the two relevant legal principles are clearly established and undisputed first although the government may charge and obtain verdicts and multipliciti  counts a trial the sentencing judge cannot enter convictions and sentences on all of the multiplicities counts because doing so violates to double jeopardy clause the second principle is the block berger test which says that if one crime is a lesser included offense of the other meaning that the first crimes elements are a subset of the second crimes elements then it's multiplicity as in other words it's the same for double jeopardy purposes  yes why because i think the block block burger like schmuck asses focus on the text of the statute is that correct your honor and then so what elements i guess if you c walk me through it do you think or do you think they're all the same i'm trying to figure out because if one is different then it doesn't fulfill the blairite well well with that one the one is a different one each one has to have an element of the other one doesn't so it's one of the subset of the other that's the same for double jeopardy purposes so i'll try to explain i think it is on five forty five the smuggling charge because the smuggling statute prohibits knowingly importing merchandise contrary to law it therefore requires an underlying statutory violation in other words to prove that count the government has to prove all of the elements of the underlying statutory violation plus two additional elements that the defendant knowing we imported the goods and that he knew that he did so knowing that it violated the underlying statutory crime so whereas here the underlying statutory offense is itself a crime it becomes de facto by definition a lesser included offense of the greater crime five forty five which incorporates all of its elements and i think that that's where the plane error is it's in it's in the plain language application it's in the application of book plaintext of five forty five in the case where is here the government chooses to allege the same crime as both the underlying charge supporting the five forty five coun and also as a separate substitution of account again they can they can charge it that way and they can get convictions but they can't get two sentences so what would there still be just double jeopardy if  smuggling hadn't treated the trafficking as a subset because as you see the jury instructions said in order for you to find the defendant to the jury when i was talking to the jury the judge and up saying for you to find the defendant guilty of smuggling it stated the elements of smuggling but then it included and then you also have to find the conviction of the trafficking offense correct correct wh chosen some other statutory violation for the five forty five pounds and then brought the well if they had clouded it into that and incorporated it into the five forty five then then then if if they they had to incorporate something your honor so if if whatever they incorporated into that they also charges up a crime that's always going to be a lesser included offense if they had chosen in this case for example to choose some other statutory violation to choose the five forty five support five forty five pounds and separately charge the trafficking counts then we wouldn't have this this argument because there wouldn't be a subset of the elements that wouldn't be that the indictment and the dreams directions and quite frankly the government's argument to the jury all said that the the crime that underlies the smuggling charge is the corresponding trafficking charge and i would point to the court's opinion in shales which was a place which was a error case and they did something the court did something very similar it looked at the statutes and said well you know one statute has the subset of the elements of the other and then the government made the argument well we think that there's a factual distinction about what what the basis for the crime was because the because a jury could have convicted for some other theory and what they did isn't what i asked the court to do in the reply brief is they started by comparing the indictment and they said well indictment these two counts look like they're based on the same act they looked at the jury instructions which were steps somewhat similar to this in the sense that they did not suggest to the jury that they had to base things on the same act and they also made some note to the government's argument and i would point out here that the government's argument at page thirty five of excerpts of record you know after they've talked about the trafficking counts and it's time to turn to the smuggling counts when they talk about element to they say defendants importation in bringing was in violation of section twenty three twenty that's a trafficking in goods that's everything i just talked about and then two pages later when they come around again  to the second element defendants importation or bringing in was in violation of section twenty three twenty two trafficking counterfeit goods i've already talked about that so even the governments are going to the jury is premised on the idea that the smuggling charges based on corresponding sentences including the special assessments have to be vacated as i pointed out in the reply brief in the government conceded that something this is such a simple error to corrected the court can do it itself it can say we are going to strike the trafficking because that was a lesser included offense and it made sense to me that the greater offense should stand i think the government misrepresented its brief that i was asking for the smuggling charges to go i don't think it makes that much of a difference as long as one set of the charges go but as i said i mean unless the less the government has a reason why they want the smuggling charges to go i would suggest getting rid of the trafficking charges of the crime approach and we're looking at this under plane  not yes so do you think well it's the plane air yes i do yes i do i think that again the fundamental principles are beyond a doubt established the block berger test the idea that you can't enter judgments on multipl and so the only question is are these multiple of the discounts in applying the block berger test to five forty five when it incorporates another statute which is simultaneously charged as a substantive count i think plainly violates the block good morning and may it please the court right and wait for the united states as the defendant acknowledges the standard of review clickable to this appeal is plain there and that's because despite extensive litigation below including litigation to the very jury instructions that the defendant now complains about not once did the defendant raise this claim that's on appeal to the government or to the district court yes why didn't you just c here what's the big deal it can't be that you really want that hundred dollars right for each conviction so i guess i'm asking that in a serious way i'm just sort of i hustled why we're here this doesn't i think he's already been released right so there's no  i just don't i don't quite get why we're having a full blown appeal here when it doesn't seem like there's anything lost to the government if you were to have conceded that ok sure one set of the convictions can be thank you your honor i see your point but i have two responses first we didn't concede because i believe legally we're correct and i can explain that in a moment second because what's at stake here is the sanctity of a jury verdict and we don't take that lightly lightly after a trial a four day trial the jury found the defendant guilty and that's what we're here discussing today to remain guilty even if we rule against you here i guess i just don't see it from a practical standpoint anything turning on the outcome of the appeal from from the government standpoint except for the they are seeking to have the tracking count vacate and if we are going to vacate once that you agree that that's the set we should take it would be the traveling but i don't believe that you should do so ok so let's hear what you say on that because i guess i'm quite skeptical that you're knowing importation trafficking it into a c section twenty three twenty can be proved by way of importation in the definition of traffic under eighteen u s c twenty three twenty f but there are alternative means to prove trafficking there are a host of them the one that i highlighted in brief is possession with intent to transfer from but the jury instructions here if the jury follow them at least whatever means it found to convict i'm going to get the numbers mixed up really fine attention to the language in the indictment and the jury instructions but i don't think that's quite right let's take for example because i know it can get a bit confusing with the three sets of counts counts one and two they pertain to the counterfeit by agora that mr lee possessed  approximately thirty thousand pills count one is twenty three twenty trafficking count two is five forty five smuggling the indictment e r one into those those two pages the trafficking count stands alone basically says watch the element count to one pitch two of our smuggling count stands alone as well it does not say contrary to law as alleged in count one but it isn't in essence that that's what the jury was instructed i don't believe that's actually correct and i suppose you could read it a couple different ways but what judge progress and did in his jury instructions if you said to the jury you should use the legal instructions given to you for eighteen u s c section twenty three twenty the jury instructions did not say and for purposes of the contrary it's a law element of smuggling you must find that the defendant was guilty of the corresponding trafficking count it said you must use the legal instructions given to you for twenty three twenty and the legal instructions for twenty three twenty i g e r four sixty seven define traffic and the definition of traffic is import there are alternative means but import government must prove each of the following elements beyond a reasonable doubt says first defendant knowingly imported or brought pharmaceutical preparations for the treatment of sexual dysfunction to the united states second the defendant's importation or bring in in violation of eighteen us c section twenty three twenty which is the trafficking that's true but it does not say that you it must be the corresponding trafficking count so i'll play this out for you and one trafficking based on a possession with intent to transfer for carry gain theory then separately as it was instructed to that each count should be treated separately and the jury must be unanimous as to each count on two it could have found mr leach guilty of the various smuggling element and then when it got to the contrary to law provision that cross references twenty three twenty it could have found that for purposes of count two he was guilty of twenty three substantial evidence both i've knowledge as mr lawson stated the government's primary theory of the case was one of importation no doubt but there was not only evidence of importation we didn't just stop and present evidence to the jury that mr lee attempted to cross the border with forty thousand pills in his golf bag counterfeit bills we then presented evidence of his statement that he intended to meet somebody at the airport the value of the pills and over a hundred thousand dollars the business card on his person and in his home in korean that had cialis and levitra both erectile disfunction pills on them additional pill hidden under a rug in his house and also hidden under that same rug a label fine but i'm just saying the jury no doubt whatever theory it came up with for convicting on the twenty three twenty counts of course it would have just relied on that in delivery on the five forty five q i just there's no reason to think that they came up with some totally different theory of conviction once they got to the five forty five count and i don't know for sure whether they did or didn't and that's why i keep coming back to planet earth i mean i guess would you construct this very same way again no i would not ok i i  would not because there is a scenario and i stated this in the brief and i'll state it again here i'll concede where i believe i should that if the defendant was convicted of trafficking twenty three twenty one importation theory and then convicted of five forty smuggling on importation theory trafficking would then be a lesser included offense and the council would be multiplicity therefore if we were to do this again now that my office is aware of this problem a problem that is not recounted anywhere in the case law or in the statutory text obviously or clearly we would either specify in the jury instructions that the jury must find different theories for each count or we would have a special verdict form addressing it but that's not and that is the way we would do it again if we were to do it again but that's not the position we're in here the defendant has to show the clear obvious error and as judge maria pointed out from the text of the statute it's not clearly clear obvious from the elements themselves it's not there obviously there's a way there multiplicity but it's not necessarily the case and the trial evidence was strong for both series given that state of affairs i believe defendant cannot meet prongs one or two and also cannot show that he was prejudiced although this is somewhat i know you're saying he wasn't prejudice i believe he cannot show he was prejudiced because of the substantial evidence of but if the court fuck this is where in this somewhat unique context where you have a statute that says contrary to law that incorporates another statute we don't we don't see that very often the trial evidence here which usually we look to for the prejudice but in this situation where the trial evidence helps inform the court as to whether or not the defendant was in fact convicted of multiplicities count because the statute doesn't say so i believe that the court should look at the trial evidence to make its determination i see i'm running out of time so unless the court has additional questions i'll submit regarding prejudice yes national sussman so if we were to look at that i know you don't think that there is but there's also collateral consequences who are there not i am not yes your honor i am not minimizing the collateral consequences the three hundred dollars special assessment i recognize this is not the biggest issue this court has ever dealt with but they are important to the defendant there's a lot of case says that and i acknowledge that but i believe that prejudice prong as it sort of informs the clear obvious problem is where that is is what i meant when i said he's not prejudiced thank you thank you very much reply brief multiplicity is not a trial issue the trial xalapa makes clear that there's no obligation to raise multiplicity pretrial because the government can do exactly what it did this is only a sentencing issue and unfortunately defense counsel didn't get up there and make a multiplicity direction at the time that's why one plane error but this is a sensing issue and it's the court has recognized in joseph in many other cases there's really no reason not to come to correct plain sentencing errors when they