of two potential conspiracy scenarios either it's a hub and spoke conspiracy or it's a religious wheel of several conspiracies i think based upon what's in my brief is no question that in this case well i should say that of course there is a question that's why we hear there's a question of whether it's a room less wheel or whether it's a hub and spoke but here's the thing under one case from the ninth circuit barnard versus united states this appears to be a was wheel of several conspiracies and both the government and the district court and the court below ignored barnard even though i cited it maybe that was an oversight now they've ignored it again you know here's the thing if it's a and i'm suggesting that it is mr germany's entitled to a new trial and here's why this was a staged car accident case so was barnard in this case there were six independent conspiracies no you needed a rim connecting the spokes and that's exactly what happened in barnard is that there was a stage car accident case just like this one and in barnard you had the main defendant who was common to all five stage accidents on the plan six but there was no must know or have reason to know this some type of independence or they're part of a larger operation and that's not what we have here in fact the only evidence that the district court cites to and the government parrots and it's brief is one single record that should have let mr germany know that he was part of a larger operation but that's not true all right the fact that he was coaching him also what it's coaching had to do this accident there was no talk of other accidents no talk of doing an additional accident with this person and in fact mr germany did not even go to the same medical providers or the same lawyers that any of the other conspirators went to and this is really what it comes down to even this court and united states versus byrd a lot he said for conspiracies is too many well six is more than four and we don't have to get into a precise number here the point is this could the jury reasonably have been influenced by the transference of guilt mr mcfadden was the main defendant on trial he was involved in all six conspiracies and with all of the other twenty seven coconspirators if we take by way of example that say there were ten conspiracies and one hundred coconspirators i think even at that point the government would agree you have some transference here ten conspiracies one hundred conspiracies too many points o yes true and not affect your yes it hurts me that was my fault at the trial i should have thought of it and i did not so i have to eat that i understand that's the case i should have requested a multiple conspiracy charge but at the end of the day that's what i did it's done that since the argument it's not sufficiency because one of the things that led against i've tried the past look at each conspiracy on its own if the evidence would have been sufficient to convict if that were the that there's an error in the instructions which would have to be a my plan or a standard or it's a failure to give a severance or something like that it would probably be both it was one mistake a multiple conspiracy charge but even that wouldn't have helped because of the transference of you really needed a severance here and was a severance requested now so it's a planet severance argument that's probably what it was because a multiple of conspiracy charge would not of solve the problem here you latest argument with but i'd like to dress my arguments here my full of minutes to count two and likewise we say that that argument with respect to can two is safin insufficient that it was that no rational try or effect a fact could have found the essential elements of the crime with respect to count two the substantive beyond a reasonable doubt and we say that w looking at the total totality of the circumstances here and when we do we look we realize that as to the evidence presented with respect to mr brown's patisserie patient in the january twenty second axin of two thousand and ten that there was insufficient evidence to demonstrate that in fact that there was the second collision which is really the subject of the conviction since the first collision that happened there was nothing mailed so it's only the second collision that has to be directed to the you know the evidence you're saying that a reasonable juror would need to have had a reasonable doubt about whether somebody who was pacifically told that there was going to be if they get accident after that fake accident happened would assume that were could reasonably have believed that a second strike by the same driver driving the same you slightly later was a legitimate accident that is correct and i will explain the facts of how we get there the evidence is presented and it's it's because after the first collision mr cooke question cookoo was the main witness because he wanted to with respect to that accident despite the plethora of evidence with respect to all other unrelated accidents to mr brown v said that after the first action was much confusion he speaks about not himself but mr mcfadden talking on the that she ever spoke to anybody in the red chrysler pacifica in which mr brown was a passenger not the driver so there is no evidence as to any communication between the two strikes if you will according to mr brown excuse me according to mr cook approximately twenty to twenty five minutes but during that time according to  she was had turned around and gone back to brooklyn where they had come from so we don't know exactly there wasn't much communication and the important point here with respect to mr brand he's a passenger so we have no statement as to what he was thinking we do know in fact from mr cook's testimony that he was a reluctant patisserie pinned to begin with but he did read that he was going to be in something  that it from according to mr cooke if you believe him yes however we also know that he took much persuasion and that there was a lot of confusion and while the first stage accident was planned they had a spot there was going to be a signal in fact the second stage accident was unplanned that is mr cook did not indicate where it would be how it would be an he didn't see it so he has and we don't get from him what exactly happened we only get that from this hang on one of the police report and the police report has a notation that mr brown was  injured so we have that from the you know most objective observer we don't have any pictures of the vehicle we don't have any statement from even miss tang as to the conditions of the red chrysler pacifica we don't well we know is that she said that she was going down a one way street and this other car was trying to make a right hand i believe in she was making a l there was this collision but there was no statement as planned as opposed to the first stage tacksman so we have no idea there is not beyond a reasonable evidence that was submitted to trial to support a beyond a reasonable doubt that mr brown knew or agreed to participate in a second stage which we have no evidence of what he said we only have that he was in the car and it's that circumstantial evidence that the government is relied in their brief and i submit in that he was a passenger in january away from where he lived that the it's unreasonable to say that that fact alone is the basis for his continue a patient in an accident which he was not controlled when missing is what they try to supply through the evidence of all the i'm related accidents here and to my recollection i'm not sure that they were i don't i submit i am not clear what the other accidents could add to this it's the same the it's basically the same story which is he agreed to participate in a in a staged accident they staged the accident and apparently there was some screw up they decided to do it again and i take your point that there's no affirmative evidence that somebody told mr brown we're going to do it again don't involve tuesday jackson's if there were ten other accidents where each time they did explain to the other people that sorry the first one didn't work we're going to do another vendor bender that might be a point but i don't see how that  here but the fact that there were other staged accidents doesn't add to what brown knew about the second hit it's what he what it is sort of conceivably sufficient evidence that he knew that there was going to be a stage accident that day and he was in it well i would submit i believe that there was one other but since i my recollection of that is hazy i don't want to it would be in the record and i believe it's part of our brief when we describe all the other evidence that we agree with the court is not relevant what we do believe prejudiced the jury into thinking what mr brown knew and i submit based on the record as we have it it's speculation that mr cook indicated he had to persuade mr brand to begin with there was nothing that he submitted there's no evidence what he said to the attorney there's no evidence of any medical treatment that he went to the medical clinics of the others there's none of that evidence so i submit that the the it was speculation upon which the the jury based it in the circumstances of him being in the car alone was not sufficient for to  the other which is the mailing but i see my time is up and i'm sorry thank you who asserted his right to a speedy trial he was the only defendant who was ultimately sentenced to serve jail time under the speedy trial act time cannot be excluded unless there is a record of that the a record of the reasons why the ends of justice will be served by the exclusion the exclusions which we've addressed which i've addressed to mr mcfadden's brief were for i'm going plea negotiations there were never there was other than saying the prosecutor saying that we're talking to we think we're closer to three people and maybe not so with two people there's never any elaboration of why the process should take any more time and that that it was consistent throughout the the continuances arguing should not have been excluded and results in a violation of the speech trial act occurred before he made a motion to proceed is counsel ever say to the judge judge that's not enough i want more detail about these plea negotiations no the opposite his his lawyer said i've told my client that there's no basis to make a speedy trial motion i don't know what a reasonable amount of time is but i don't think this is it and when the at the stage when we're talking about should he make a speedy trial denial motion but as these exclusions are made it seems to me the prosecutor gets them tell you the missing something prosecutor gets up negotiations with some of these people and therefore we need more time and the judge says well i think would actually be and he used the term miscarriage of justice if we didn't give these people time and in fact under the rules if you give them time mcfadden trails along right so i'm not sure what's missing there from the judge's finding and if you what you're telling me is what's missing is the prosecutor should hav elaborated more on what the state of negotiations was and why it's taking so long i guess i have two questions one is is there any case where we've said that that much needs to be said and number two isn't that argument waived if the lawyer doesn't ask for more elaboration no because in the supreme incentive or the supreme court said the consent of the parties in agreement of the party  parties the prosecutor makes a statement we've got these plea negotiations going on and we need more time the judge says that's good enough for me now that point i'm wondering what it is that what more is there any authority that more of the matter is required and point two even if there is isn't it incumbent on somebody to say the judge judge that's not enough i want to know more about the state of these negotiations i would argue that under center there is no obligation for someone to a party to object because either is an adequate basis there either is an adequate basis for an exclusion and there is not so in center fit the record is devoid of the reasons that the speedy trial act requires in order for there to be an exclusion for what should be there there should have been let me say this there's always going to be a tension when you have one defendant in malta a defendant case who wants to go to trial today or sooner and you have other defendants who why question what what what should have what should have been in the record that judge really should have referred to saying these are the reasons other than i suspect everybody in this room has been in these cases with multi defendants and some person wants more time to see if she can negotiate a plea agree i think it's this it is at a minimum with you know two different positions being taken amongst co defendants the judge can say to the defendant who wants to go to trial asap you have to cool your jets a little and say to the other defendants who are you know don't feel any pressure to to move the case forward swiftly that they better speed up that they better conclude their negotiations by a certain time or give him good reasons why it can't be done that was never done here all the judge said was that mr mcfadden was going to be allowed to take over the speedy trial cup clock and that he couldn't obsess the way this case was going i just ask  one record question as i'm reading the record indicates that there were actually waivers obtained to right from the other co defendants yet addition to the findings by the district court there were waivers obtained of the speedy trial rights during  reason one is not waiving doesn't doesn't that provisions be trial like say them because we go on the school we go on the slowest clock then i watch you make a move a motion to sever or dismiss you're stuck with a defendant who waive the speedy exclusion of time because it's not just you know the defendant's interests it's the public's interest and a judge in fact in precisely this court said that adopting the party's reasons for an exclusion of time is not a judge actually saying it's independent judgment may i move on your honor to the sentencing point be your honest because i i do think it's important  ok i will whatever they did the at the end of two thousand and fifteen before the sentencing in this case the guideline definition of intended last changed it changed from peculiarity harm intended to result from the offense to the cuny ery harm that the defendant purposely sought to inflict that was a really significant change that definition neither the old that's been issued or the new definition were brought up were addressed at sentencing the intended loss that the court found was the total of the claims which was five times the actual loss and would happen here is what the sentencing the sentencing commission by the amendment specifically sought to change in the case they relied on the man a town case they are the court said you can't just stack up the credit maximums in a credit card fraud case here this doesn't isn't the credit card  that the defendant knew what those claims were these were planes that came from attorneys pleadings and medical clinics claims that they submitted to insurance companies big fat who knows that the doctors and lawyers are going to submit claims and he knows that he and his people are only going to get a certain cut well and assuming that the government the government have to prove by a preponderance of the evident what percentage of the he thought he just knows he's going to get paid he doesn't have to know that it's a percentage of something he knows it's not the whole thing you know as the other guys are going to be taking their cut too right right and what absent some indication that he had a limited intention when it's foreseeable that these other folks are going to be submitting claims it's not just like you get a phony credit card that has  a maximum but you only use it once there i understand the difference the fact that you got a car that you could have put in work with you didn't is a rather different thing than somebody who understands that his coconspirators are also inflating this amount they're inflating it beyond what he's going to get or it wouldn't make sense for them to do it so why what is the problem with saying he intends whatever they do i don't see a problem with saying he intends whatever they get but i see a problem with saying they he intends what ever their their lawyers and clinicians claim because he can't have purposely sought to inflict the harm to obtain that money when he didn't even know how much was being asked for this is a situation especially for example in somebody a gun can rob a bank and he goes and robs the bank you don't know how much money he's go get in the bank you know how much money is in the till you intend that he's going to get as much as he can get i don't i think that the bank robbery statute has different language it doesn't say that an element is the amount that he purposely attend intends to obtain from the bank was a loss calculation is part of what goes into the guideline for that to a yes yes we're talking about here is going  proof of what the intent was and to make it more specific what if he says oh i don't know how much it's going to cost of these people who are sort of collateral damage this process no intent therefore no loss i don't think so maybe actual us because when you when you have when you when you would be actually kicked over you get kicked over the actual last man there there is no evidence of the specific intent to take a certain amount we know he intends it to be greater because we know he intends that the doctors and lawyers are going to be getting money too he intends it to be greater then the actual bet is that he's going to make and his colleagues are going to make well actually that's not my argument my argument is that we add up all of the amounts that were paid by the insurance companies may have gone anywhere but why what is the difference by the logic of your argument that shouldn't be ended either because he doesn't know how much that's going to be so why stop at the amount that the insurance company decides because their insurance companies and no offense to the insurance company were here before they're going to cut back whatever the doctors admits because that's what they do so what why does the fact that the insure is chancy that's the fan doesn't know about that either well he knows is that lois it's either intended law or actual us whichever is higher so the intent isn't a factor in the actual loss it's only a factor if you're going to use intended loss and when we say he  being a rimless wheeled conspiracy even if counsel was correct that this was in fact a rim was wheeled conspiracy the government's position is that there was no substantial pressures to the defendant germany in that instance more  no clearer proof that there was no spillover for lack of a better word two other co defendants based on the accidents again if you're viewing the january twenty second accident as one conspiracy there's no spillover from those other accidents  be multiple conspiracies so if this were to not not to adopt the logic that the district were provided as well as the government's put forward in their brief it makes no difference because the variance here was minor at best and again there was no substantial substantive present there was no substantial prejudice to the defendants i would next point to the fact that no pinkerton charge was given so again there was no there was no potential for reverse pinkerton  effects effects and third again in the case of others references to a shocking spillover these were rather mundine i mean you have accidents where people are bumping into cars saying ok hold on we got it wrong and there going it doing it again i believe councils here would have a point if during one of these subsequent accidents for instance in a hypothetical if someone lost and or maybe you could see there would be some prejudice of the jury trying to hold everybody responsible for that type of event but here and i believe the court the court had previously asked about multiple do over accidents there was one other accident that was referenced in the in the transcript where it was again a do over but that just goes to how inconsequential these accidents were i don't believe anything rose to the level of shocking spillover that could prejudice in this instance mr germany moving to defend mr cook one of the other i would suggest hopes of the conspiracy with mr mcfadden there's testimony that he specifically coached mr brown he met him at the barbershop and he coached him as to what he was expected to do here more specifically and i believe these are the references now to facts that are not in the briefs after the first accident cooking mcfadden discussed that they needed to go to a second location and more importantly mr mcfadden immediately gets on the phone now the jury was free to use that circumstantial evidence there's the testimony that's contained in the appendix it's clear that they're discussing the accident needs to be done again so there's only one of two cars essentially he could be talking to the you well or the red pacific there's again testimony that there's back and forth communications and that first site was appendix two eighteen to twenty then there's testimony that mr cook testified make that it was back and forth trying to find a second location to do the accident that's appendix to twenty three and to twenty five again the jury was free and did choose to credit this testimony it was in the car with brown with mr brown i not enough damage we have to find a second location before before everybody panics and moves away from doing this there's additional testimony that was not testimony as to who they speak at that point no absolutely not there was a lot of cross examine objections at that point but it was never made clear or and i believe mr cook actually stated he did not know who miss you mcfadden was speaking to that is i mean it is the organism logical  the driver go find this guy somewhere in brooklyn and his red car and him again there has to be a prearranged location where that's going to happen that would be the inference yes and i would point out that appendix five fifty eight  jury could have concluded if they an in person meeting then the jury could have concluded the phone calls were to the red pacific which mr brown was in that vehicle so i believe there was a substantial amount of facts placed before the jury that they could reasonably concluded the second accident was by no means a mistake but was part of in this instance the conspiracy and then turning to mr mcfadden in terms of the speedy trial clock i would just point out a number of the facts are referenced in the brief in terms of the number of initial defendants indicted there were two facts i believe that i would point to there is in the government appendix thirty five got mr la actually state on the record that he believes it to be a four week trial although he states the government believes it to be three mr later believes it to be for i would just point that out because it points in multiple i believe it was multiple reads the point is made that this was a relatively sure trial i believe in good faith and again now government appendix forty nine there was a significant discussion of the voluminous discovery turned over here i believe in good faith that all defense counsel as well as the government attorneys believe this case was going to last a substantially longer time than it in fact did and i believe in the context of speedy trial the number of defendants the record of the voluminous discovery that had been turned over i believe all the applications for continuance as other defense counsels some pleading their clients out some cooperate in their clients hold down the number of defendants i believe everybody was in to supporting at least a three to four week trial with multiple multiple defendants and as to judicial economy alone you agree that the judge has to make a finding that it's in the interest of justice to exclude the time i would add a waiver is not sufficient just to get up and says  we don't care about a speedy trial we waive the judge can't just say ok the judge has to make a finding which the judge did hear reviews rather strong language about the interests of justice but that that finding is necessary right absolutely so i'm puzzled i've been puzzled for ever why the eastern district submit ask people to sign something that's called a waiver when a waiver has no effect it seems to me that's the kind of thing that could lead a new judge especially  error this isn't a new judge is a very experienced judge but to have a form that says waiver and and submit those to judges when the law is clear that a waiver would do that and the judge has to make a fine it would seem to me further sunny's her record is made it doesn't hurt that there's also something called a waiver i'm just puzzled as to why anybody thinks it does any good to have something called a waiver and i'm submitting to you that maybe your office want to think about whether especially with the likelihood that new judges are going to be appointed sometime in the near future as vacancies open up that maybe you don't want to the be telling judges something that implies that people have waived and that's a perhaps subconsciously getting to the sufficiency of the evidence may well have in city that germany had to have known what was going on given the bombardment of the other five conspiracies and the twenty seven additional co conspiracies affect substantial rights and that was the right not to be tried on mosques and this type of conglomeration  government both in opening throughout the trial and in this i'm a sion emphasized to the jury that they should consider strongly the testimony of the other defendants the other participants in staged accidents that had nothing to do with the january twenty second and emphasize that in this some nation so that is important as well is when you consider the judges instruction that said to the jury that they can consider in their determination the testimony of these witnesses so while a direct pinkett in charge wasn't given an explicit one implicitly there was particularly when you know you had the indictment in the charges that included references to other insurance companies having nothing to do with the evidence that was presented as to mr brown so we would say that the variance here was can as to count with particularly prejudicial and it need not be shocking that they were different but in fact it's shocking because the amount that was introduced  and as compared to that which was introduced as to brown makes it so very prejudicial with respect to count two we would say that the government overstates its case when it says everybody agreed with respect to the conversations back and forth what we have here is that there is no testimony of direct communication with the car in which mr brown was a passenger importantly possibly happen without ordination i mean why couldn't a jury reasonably infer that they must have spoken to both the car and the truck because otherwise how do they both wind up at the same place at the same time to have the second ac because in fact what what the problem here is with all due respect as to the wreck it shows that mr cook testifies that there was no plan that there was all confusion as opposed to the first there was no plan and mr cooke didn't know that the accident was about to happen so that this coordination didn't exist and there's no evidence that this coordination between karr one of the  speculation you cannot infer from though in lack of evidence that there is evidence what we have is direct testimony that there was conversation between the you you will and when he's asked when cook is there as well what about who are they talking to he says i don't know so the and when it's twenty minutes i think the twenty minutes is important because they're on their way back it's not right away so who's planning this not cook something over big the testimony was that in fact they're going back home who knows maybe the driver of the red pacifica didn't know its way back home and they were in tandem because of that but there's no testimony as to why they have their only that their back going back to brooklyn in the porton only even if the driver of the red agreed there's nothing in that record say that indicates beyond suspect elation that mr brown other than being in a vehicle of which he's a passenger agreed to be part of another staged accident and agreed not to be injured because that was the agreement and i think that's really the right that they had all this other evidence the jury which really had to influence them which the court said you can consider so i see my over my time i apologize i think it was just lynch that that asked whether someone should have said something to judge her early like a sufficient basis for an exclusion the i want to point out that the time period i'm focusing on is the date on which mr meek fattened said openly i will not waive my speedy trial rights and that was from september two thousand and thirteen until february two thousand and fourteen when a new defendant was indicted so he did say something he said in response to the question do you wave your speech rob writes he said no we just aren't the issue is what you're telling me is one of two things it seems to me either the judge made a clearly erroneous fact finding in saying that there needs to be additional time for plea negotiations that he somehow abused his discretion in deciding how long an exclusion was appropriate is  that not the the gist of the argument because he didn't make a finding i mean he doesn't he does make a finding on the record that it's in the interest of justice to exclude this time he says and so many words and the reasons that he gives are not sufficient under the case law to support an exclusion so that's that's the crux of the argument and i want to just point out one other thing which is that before this time period september two thousand and thirteen to february two thousand  fourteen the prosecutor on july tenth two thousand and thirteen put on the record that he had produced all of that to scour every some time ago and that's in the government's appendix fourteen so by the time mr mcfadden says enough i want a speedy trial the government says they have produced all of discovery all the discovery some time ago thank you if you're not say that discovery or the need to review discovery is the only reason the judge really could have found was a basis for for the extension no not at all and in fact i was surprised that he didn't that that didn't come up more prominently it was you know prosecutor would just report on the status of discovery and it wasn't me part of the the judge's reasons it was this very narrow plea negotiations thank you