it please the court counsel good morning my name is lisa but sam and i have the privilege of representing the appellant in this case mr rue it mandatory life that's why we are here mr was was one of twenty defendants named in the twenty four count indictment he was the only individual to go to trial he is a mexican national at trial while the government pleaded in its count one conspiracy twenty individuals it's pared down it's to scott or it's evidence in the trial two to a a two week period between september ninth and september twenty sixth of two thousand and fourteen that this the conspiracy itself was alleged in count one of the indictment as being over a thirteen month period so mr webb joined the conspiracy in the last two weeks well designed or stand to you concede there's only one conspiracy right there's only one conspiracy planet is there one conspiracy absolutely not we're not all teachers i understand you're the record you even concede there's one conspiracy well perhaps that was in artful pleading on my part but what we have we have attempted to to bring to the court attention are the arguments that were raised by the trial court mr donovan when he said what the government proved in court was not one huge conspiracy but rather many conspiracies a conspiracy involving rodriguez and mr leland in great falls and another conspiracy involving rodriguez and mr greiner out of hammer well because even in your argument in your brief it seems like your reference you don't reference any other conspiracy from that which the jury reasonably convicted your client if you will but that one conspiracy which had two different places where people were doing things in the middle of it the conspiracy that was pled involved five locations and twenty different defendants what mr donovan argued in his rule twenty nine is that no that wasn't the evidence that was presented to the jury and certainly that there were multiple conspiracy so if we if we were to take the government's argument that this was an ongoing huge conspiracy without any evidence what the government would like to say as long as you've ask you the questions it seemed to me it was a fourteen month fourteen month investigation that rodriguez was a central distributor and source that he fronted large amounts of drugs to both i may not be saying these names right that then your client joined that he became the enforcer in the translator for the main sources fly and that he and rodriguez then threatened landrieu lampert because of the success of the entire operation was in jeopardy and they distributed drugs in great falls in butte that seems to me to be what was argued and what the jury looked at in determining this central feeling of the conspiracy if you will looked at the pleadings and i said this match it seemed a message it doesn't match it doesn't match at all a conspiracy is not just drug dealers who want to continue distribute jury members i think it's a little bit about your honor i think that this was a broad complex pleading of of of this conspiracy as well as they call it but there is definitely a problem of unanimity not only in count one of the conspiracy but count that point it isn't just whether you have one individual who exercises his right to trial it is whether or not there was a possible jury confusion and that's what we have here we have jury confusion what conspiracy are we talking about there is absolutely no information that was brought out in trial that griner and leland had any codependency or any agreement between themselves to make this entire conspiracy work griner and rodriguez and i believe right or even said gallic was in there as well they had the agreement you give me four ounces of methamphetamine i will pay you four thousand dollars that's their agreement what you do after that we don't have any control over  said you must find that there was a plan to commit least one of the alleged crimes alleged in the diamond as an object or purpose of the conspiracy with all of you agreeing as to the ticker crime which the conspirators agreed to commit why is that so different from the very unanimity instruction you may have wanted well you'd never the instruction would have directed the jury to make sure that what they are convicting on are the same facts well let's exactly what that says you must find there was a plan at least one of the crimes as an object with all of you agreeing as to the particular crime where the conspiracy years agree to commit that's what five says but what is the particular crime well they can determine the crime but the problem comes in that they do say you've got to agree to this particular crime write their name struction five with the bulk of the conspiracy it requires more than just drug dealers seeking to deal trucks there has to be the proof of a coherent of i understand that i understand what you're arguing but my problem was when i looked at this one and i saw what was in instruction five which the court gave as an instruction i find i agree ing to the particular crime which the conspiracy has agreed to commit covering exactly what you would have asked for a unanimity instruction if you don't ask for one and now i'm supposed to on plain error say the court was wrong absolutely you can say that the court was wrong this is a conspiracy of twenty defendants fourteen of them were not even mentioned in the court what the government did is limit its evidence to basically greiner and leland great falls and hammer that was it or beaut what happened after going down the conspiracy with all the rest of the people was not mentioned in the court so how is it he has been convicted on facts that were not even presented to him at trial and your honour's i want to save some time for for a rebuttal so if i could stop there unless there's something we're from the government and then you will have saved some time thank you good morning your owners may please the court i'm lee johnson for the united states i would like to get right to the issue of the defense concession here you know on page twenty five of their brief they they wrote rather the evidence showed the conspiracy involving  greater rodriguez yallop griner and leland well that's exactly what the district court found they have conceded that the essential conspiracy that was presented to the jury in this case was that essence of those essentially fo participants with rodriguez in the center and his two lieutenants being leland on the one hand and griner on the other and that's essentially what the district court found and that finding itself precludes the errors that  that the appellant is making here but what concerns me about this case is the life sentence the three prior drug crimes in california are at least judging from the sentences imposed relatively minor two of them were possession one was possession with intent to distribute but all three minimal is in for the sense that all the time and you using them to give him a life sentence without possibility of parole have to say that's an awfully long sentence based upon three prior crimes that were and were regarded in california and was not terribly serious crimes only as i understand it but minimal jail time for all three of them i agree your honor and obviously rebut us the sentence judge morse obviously troubled by that at sentencing and i guess i guess our response is this was a serious crime as we presented to the district court at sentencing we had we had a i read the transcript a sentencing if the judge have freed it said had felt himself free to do so he would not have sounds to this amount of time well i i think he was reluctant to do so obviously so i think you could draw that inference your honor i think  fair to say but so you saw the prosecutor's offices in effect a sentence or in the case of mandatory crimes that is essentially the world we live in that you had the discretion whether to charge these earlier as a basis for sentencing we did it we exercised so your office is d yes and we are we exercise that discretion not so much based on the prior crimes but based on the present crime and the seriousness of how bad was this crime i've seen an awful lot of bad crimes yes and he is part of  conspiracy to distribute drugs i get that you could interpret some of his comments with respect to one of the protest events as a threat to kill him but he might have just been running his mouth talking about what they didn't california and the think it was evident i understand it was a potential for violence but there was none and i guess my best response to your question your honor is that there was something of a disjunct in this case between what the defendant decided to do when he turned down our play agreement that would get him out from under the a fifty one and your feeling when you offered him i think twenty three years well that's what he says at the sentencing our plea agreement allowed him to plead to count one count fourteen  twenty four which was three subs the counts with no no other stipulations the point being your honor and i think what was the offer was a twenty three no you on it was simply is i understand it the he would plead to those three counts and be sentenced probably based on drug weight in the advisory range so the point being is that i understand judge morris is frustration with this and the courts because there was  here i mean it appears late coming in with your notice of sentencing that when you want to you're a forty one sounds excuse me and you were late coming in with your notice of intent to sentence to life without parole correct no no it was more than a it was approximately a month before trial and i need to point out for the record that we disclose all of that material when we did our initial disclosure with discovery so that information was in the record from the outset we moved under eight fifty one a month before trial because we don't like to make that motion until we're certain the defendant is not going to plead outside of the fifty one so one of the problems that we run into in these cases is the the optics that were using the eight fifty one to leverage a plea agreement and then as i understand as you did it of months before but me and this is just me calculating is only four and a half months from indictment trial right it was the prior fall in october when the disclosures would have been made that included all of the eight fifty one information that you'll find in the record at page six zero six was there any well i'm going to say the terms because they are in the cases tempora proximity between his rejection of the plea offer and the filing of the information well in the government's in the government's trial brief it is set forth and unfortunately that's not  excerpts of record but it is it is in the docket the government sets out under missouri versus fry that it offered him an agreement prior to the fifty one's being filed and then after and they agree but it was the same both times that he could plead without the eight fifty wants now the problem in this case is you and i well know that this defendant really had no defense to offer here he was well aware from our eight fifty one filing that he was facing a life sentence and he chose to go to trial apparently as he explains at sentencing because the his attorneys were suggesting that it should it seems in the rational decision let me ask you not a question is there any place in this record where the states made any statements to the defendant or his counsel in the caving in relationship between the rejection of the plea offer the decision to go to trial in the filing in the information nothing in the record that i'm aware of your honor all i know is that in this in that government's trial brief we recited for the court under missouri versus frye that we've all that we offered him the same agreement twice once before the fifty one and once after so if i'm looking at this and it seems to me that i have to looking at what the d o j may have done i have to consider whether the defendant was a leader supervisor in the organization whether the defendant was involved in the use of threats or violence in connection with the advance the nature of his history whether the defendant has ties to large scale trafficking and whether the in fans and hand spun would create a gross sentencing disparity correct for that what i look at for the purposes of the guidelines yes yes and it should be noted that the p s r the record shows it reflects and this is discussed at sentencing that the p was sent to the defendant and that he did make comments on the p s r and none of those comments included any challenge to the eight fifty one prior convictions now i don't want to be mistaken here had this gone to trial simply under the guidelines i think this defendant deserved a good long sentence so i'm not saying this is a trivial crime send him back to california and tell not send a longer but what i have to say what does bother me is that this is a life without possibility of parole there are an awful lot of worse worst crimes in this country and consents to an awful lot of less time including in montana and including under federal law yes i understand your honor and i guess one of the issues that's raised in this case which i think is appropriate for collateral review is whether the defendant actually understood what the eight fifty one's man's at the time that he refused to change his play i mean that might be an issue for collateral review and you know  it should be explored in that context but given the nature of the amounts of drugs the potential for violence and and the defendant central role here that was the decision our office ma on the multiple conspiracy issue to get back to the points that were raised we do believe that the district court made adequate findings that the jury was presented with one conspiracy and the jury couldn't have confused that with another conspiracy and that takes us out of the realm of instruction error here on either the multiple instruction the multiple conspiracy instruction or the specific unanimity instruction finally just for the record the fifty one b would have done with those prior convictions in any event and with that if the court has no for the questions and do not think of question i have just a few moments but i want to hit one of the main arguments in our case that we didn't get a chance to address in my opening and that is the ineffective assistance of counsel that's really the core of what this case since the government has already said i don't think you do on reply i mean it seems to me get a chance to go on and argued before and the government could have been able to respond no no i don't now you're coming back with some i didn't hear before is that the norm well unfortunately affianced even in montana i'm sorry your honor it was it was really one of my lead arguments but we we got distracted to the multiple players to go on and do it but i want to do it you decided you wanted to sit down instead now now i have to give the government a jazzed or a flood of you i feel i guess i don't because he's in the chair but it seems a little odd that one would go into an argument and now the government doesn't get a chance for life why do we let you go forward with this argument and if mr johnson wishes to respond he will have the opportunity to do so thank you veronica counsel on that issue of ineffective assistance don't we normally leave that for collateral review because  developed that i've developed normally on the correct yes many times we do do it on collateral view but this is the exceptional case this is an extraordinary case so this is what makes it exceptional it makes an exceptional because there was enough evidence in the record to indicate that this individual had absolutely no understanding of what was going on in this case he was absolutely a i need to hear from his lawyer well i think we can hear from his lawyer in the terms of the sentencing transcripts and the statements that are made here from his lawyer like what did i tell him and when did i tell him to on i think that the court can look at the my colleague and i i tried to find a way to get there but i mean he joined the conspiracy being interpreted as the interpreter according to a code i guess a minute just a minute according to them we don't know whether the attorney spoke we don't know whether the attorney had difficulty communicating with his client we it seems that the record shows that at least he understood english enough to confer with the tourney so why don't we need what judge gould says more stuff let's get the record let's get it out there give people a chance look at it if this is really and then the fact it was i think there is evidence in the record that you could say that he needed assistance of an interpreter throughout the course of the of these proceedings and he had an enterprise the court the district court made that decision that he need an interpreter starting at mishal appearance and going all the way through and in fact even use that  that may end up being very helpful to him on twenty two fifty five and because this is federal conviction it's going to come back in front of the same judge till you can make the arguments to judge morris on i c thank you