and reasonable doubt instructions as affected by the way the district court judge he answered two of the jury's questions during deliberations a little bit of background factual background on the cases necessary to understand these issues for several months prior to february of two thousand and ten it was investigating a target by the name of rafael guzman they had several deals with mr guzman several recorded phone calls at no point during the several months of investigation in the name of one does come up at all he was not a target he was not known in any way they had no knowledge of any involvement of mr melendez in or on  of two thousand and ten the d a had initiated what they referred to as a reverse sting as i'm sure the court is aware that means no drugs were involved were ever going to be involved and the entire deal was based upon a live by government agents what the agents had negotiated with mr guzman was the so called sale of five he was grams of cocaine the way the arrangement was supposed to work as mr guzman was going to pay for three of those fictitious the lowes price of approximately eighty eight thousand dollars i believe it was or eighty six thousand dollars and that two of the key were graham's fictitious again we're going to be quote unquote fronted by the government that means we'll give them to you you pay once you sel the deal was set up for february second of two thousand and ten to occur at a restaurant in quincy prior to the arrival of mr guzman the agent an agent you have as called mr guzman made sure he was on his way and asked if he was going to be alone to the agent surprise he said no i have a friend that friend turned out to be mr melendez at the deal again no cocaine was shown the money was in the back seat it was discussion that mr melendez was the one putting up the money for the three kilos when mr guzman got out of the vehicle to speak to mr and you have as out of mr melendez as presence the discussion was the sale price here is actually going to be ninety two thousand i'm taking three thousand dollars off every of the of the three kilograms of each he will gram when i sell over to mr guzman is very clear guilty of a substantial conspiracy he has acknowledged that from the beginning it was his defense at trial but he says i was in this only for the three kilos whatever was going to happen with those other two that was separate deal the government obviously disagreed with that despite the implication of the evidence of what mr guzman said at the scene to the agent after the arrest and in exchange for a very favorable sentence mr guzman changed his story and said no no no no we were both in it for all five mr guzman in fact ended up with a sentence of about four and a half years one person and that includes all of the other deals he was involved in mr melendez of course is due in twelve years the issue arises then a trial with respect to the unanimity require verdict slip was issued to the jury which laid out first a question for them to answer was their guilt on the conspiracy not a contested issue at trial the second then was the weight and the judge laid out three levels of weight and then the final question had to do with the one twenty four c gun offenses of which mr melendez was quitted during the deliberations and in fact only within a few minutes it was about two hours after the liberation started inclusive of lunch the jurors asked the following question if a conspiracy exists if only one conspirator knew of the entire amount of the deal are both parties responsible for the entire amount as from the verdict sheet one be states distributed by the the implication in that question in fact i think it's more expressed that implication is we as a jury are concerned that sure both of these conspirators are accepting five he would grams we know that that's what's talked about but do they both get assigned the five all five milligrams if one of them is taking three and going his own way and one of them is taking two and going his own way that was the defense that was clearly what the jurors were concerned about the court answers the question the conspirators must agree as to the object of the conspiracy we all agree on that the object is the distribution of controlled substances in question one b this means that the conspirators must agree on the amount of the drugs that will be distributed by members of the conspiracy in our view all that really does is restate the question we know that both people are members of the conspiracy we know that both people are going to be distribute the issue is is the distribution entirely the object of the conspiracy or did these two people split those weights the three and the two the judges answer didn't really do the trick what's your objection to there was not this is plainer review ok the question becomes even more significant and there's nothing wrong so far at least with the answer it may not be specific as to the point of a court hasn't this one hasn't misstated the law but hasn't answered the question either in my view all he's really done is restate it becomes significant when three hours later the jurors ask the next question that first question in in my view clearly events is a an issue with the jury as to how to handle these five  os three versus two and then the following question comes along and this was at about five o'clock in the afternoon and the question was simply must we be unanimous on all three count decisions by three count decisions we presume they mean the three questions in the verdict slip because those are the only three questions that they had to answer and there were three counts there were only two counts must we be unanimous on all three counts interestingly in the initial debate among the court and the parties about that question the court says well the answer is yes of course if the judge had said that to the jury it wouldn't be here but he didn't say that to the  instead the judge after a discussion the judge says i think what's really going on here is they are preparing to hang and i want to give them an allen type charge of dynamite both sets of lawyers say no it's way too soon for that but the judge doesn't like that answer the judge wants to implore this jury to reach a decision so instead of saying yes you must be unanimous the judge says this ladies and gentlemen of the jury you should make every effort to reach a unanimous decision regarding each of the questions put to you on the verdicts there's no sense at all that this jury is preparing to hang no sense at all that they need to be dynamited or given an allen charge there is no reason to believe that the jury is going to take that question and say all or that answer and all the judge is really doing here is imploring us to reach a decision on a unanimous basis and it's text and in its context the answer means you don't have to reach a unanimous decision you should just make every effort to do so that completely dilute well if it is a vicious rates the unanimity requirement and dilutes the reasonable doubt requirement and lo and behold just a few minutes later we have a  verdict and i ask you the same question and you judge there there was no ultimate objection to that answer ok certainly the defense counsel said no we shouldn't have a dynamite charge but as to this particular phraseology no he did not object and i can see that once again we're on planar review but i do believe that the elements are clearly met here there's no question in my mind that that is a wrong answer that that misstates the jury to make every effort to agree it tells the jury you don't have to you know the judge said that it says you should make every effort to reach to reach a unanimous decision but you don't have to be last spot after the but your that the judge didn't say that he said you should make every effort to reach a unanimous decision regarding each of the questions and i don't see what the jury i don't see what's wrong with that as a statement nothing wrong with that it may be it may not be the question because the jury gets that answers and we don't have to be you know we should try but we don't have to be and it's the maybe that undermines the confidence in this court that the result was right because the defense was so strong because the issue even as evidenced in the first question was whether all five kilos should be applied to both as the object of this and irs that when they are relieved of the obligation to be unanimous about the way it becomes easy and i'm obviously out of time you are so i'm going to well as far as we know because the jurors may be answering that question only in the context of the instructions they were given as respected with respect to the two crimes conspiracy and firearms are just we were unanimous but we weren't told we had to be with respect to the other question thank you counsel thank you getting your honour's in a place the court kelly lawrence for the united states turning to the last question asked the government's view is that the jury's return of unanimous verdict which is recorded in the record and there's no reason to doubt that its representation is accurate that it did return it animists verdict as to each of the three questions asked makes any potential error and we don't believe there are any errors in the instructions given harmless as the unanimity church with regard to the reasonable doubt instruction on the conspiracy charge and the drug wait specifically the district court correctly instructed the jury that it had to find with respect to drug weight that the defendant along with his  together to distribute the amount of drugs five kilograms as the government charged three kilograms as the defendant claimed there's simply nothing in the record to suggest that evidentiary there is no evidence in the record to suggest that the defendant did not know that the entire transaction involved kilogrammes he claimed that he intended to only sell three and that guzman would sell the other two but under the law of conspiracy if they agreed together that the transaction would involve five kilograms mr melendez the defendant would be guilty of conspiring to distribute that amount regardless of who would distribute it in the court properly instructed the jury to bad and in its substantive instructions and its answer to the jury's question