may please the court and i miss thomas lyons and i represent robert shields counsel i would like to reserve one minute for model your honor robert shields is currently serving a life sentence following a trial where the jury was permitted to find him guilty of distribution resulting in death based on drugs sold by an alleged coconspirator without any finding that he was part of a chain of distribution resulting in that death as required by this court's decision in  united states versus whining there are really three issues that i want to focus on the first is whether there was sufficient evidence of a conspiracy because this was nothing more than a buyer seller relationship the second issue is that the jury instruction on the pinkerton liability failed to include the sweeney rule for death results sensing enhanced meant to apply under age forty one b one c a coconspirator must be part of the chain of distribution resulting in death in the jury must so find based on elina and the printing and the government argues critical facts not in evidence during their closing arguments which link karr finnell to shields substantially prejudicing him and his right to a fair trial with regard to the buyer seller argument it's fairly straightforward what we have here is to purchases one on august twenty second one on august twenty fourth  there was no previous relationship between mr ham who purchased the drugs and mr shields shields who sold the drugs the lady who actually distributed the drug because the overdose in this case is a lady named miss myers who mr shields had never met before under the deets decision there are several factors that the courts look to in terms of buyer seller argument the length of the relationship the established method of the payment the extent to which the transactions are standardizing the level of mutual trust between the buyer in the seller here the length of the relationship is extremely brief only talking about three days and transactions there was no established method of payment because they hadn't had a relationship long enough to do so and the extent to which the transactions were standardized there was no real proof about standardized transactions that was submitted at the district court level and the level of mutual trust just make sure that anger stands structurally you're saying this should work we your position is first that would pinkerton is not applicable because there was insufficient evidence in the case not because of this is the why the system should operate now that would be that would be imported into the jury trial in this case because of a print do you know other changes in the law that's that's essentially correct or ok so with regard to this warning in argument i guess that's sort of the bulk of what we're what and so what would you do if pinkerton does apply and then but you still got to deal with well i think the way you would have to do that your honor is you'd have to tailor the pinkerton instructions which are fairly generic at this point i mean they're standardized i think you would have to tailor the pinkerton instruction to incorporate the language there's a long standing doctrine within the law of conspiracy and it's just so little problematic to figure out what today i don't i don't know that it is that problematic because this is a special rule that's applying when you have a b one c enhancement for death results case so we would only be changing that portion of pinkerton as it relates to these particular class of cases it's not in general instruction that would have included something like what you think should have happened had i tried the case i would have done so i mean there is not grading you down personally but it did i read the transcript right that that there isn't a specific proffer there's not your honor i had to be candid that there was no proposed instruction that incorporated this morning language into what i guess what would presumably be the pinkerton aspect of the of the case so what are you saying preserve the issue then in the district court what do you what happened that would preserve well two things and perhaps i'm stretching a touch but but the first part was that they did object to any vicarious liability instruction being given they did to pinkerton instruction being given the judge overruled that instruction and in the short opinion and the second thing is that they argued in their rule twenty nine conference the chain of distribution should preclude conviction on counts two and three of this of this indictment but normally saying something that rule twenty nine discussion doesn't doesn't preserve an instruction issue doesn't it doesn't and let's assume for a second that that we can't make the preservation issue so we're looking at it under harmless harmless error there's a case that's been decided back in two thousand thirteen united states versus kerman in that case they dealt with these alternative theories of liability for conviction in the court said this when he jury is instructed that it may convict on one of two legal theories one erroneous and one proper the possibility that it could choose to convict on the permissible theory does not necessarily save a general guilty verdict from reversal jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law and there is no reason to think that their own intelligence expertise will save them from that error and let me ask you about conviction or guilt standing alone versus and han i suppose we agree with you on the swine e issue and we pass over the preservation do you get to go back and retry the whole case or do you retry effectively the instruction that incorporates this whiny this one rule relieving though the swine the rule really doesn't have anything to do with whether the jury could have found distribution under or not could have had to find distribution either either directly on or under pinkerton because if they found distribution directly then you lose outright if they found it under pinkerton then the only thing that you got a bad mark on would be the direct chain of distribution so why should they have to retry that because we don't know what they did but i mean my wrong when i say you're right or you may be right that there are two possible theories but the two theories are either a dead loser because the distribution directly or what they were instructed on which is pinkerton it's not the case with what the case you cite in those kind of cases are one theory that's good and one theory that's clearly bad what you've got here is one theory that's good and one theory that's even better for the government yeah i think the problem with the court's construction there though is that the prosecutor in this particular case told the jury they didn't even need to be concerned about the direct distribution issue it basically told the jury that all of this stuff about other sources of supply that could have caused the death of mr willoughby was irrelevant because of the pinkerton instruction and then they referred to facts that were actually not in evidence including specific dates of samples that were taken from tracy meyers on the twenty second in the twenty third and linked the car if it will directly with the death of mr willoughby and said that sosa which is the nickname for my client mr shields was the one who supplied that karf and all those facts were simply not in evidence that was flagrant and improper and so i think that answers your all your question your hon about why it would have to be retried in toto my time appears to be up thank you  alan krueger a labor economist who wrote about the issues of economic dislocation and opioid crisis in this country i think set a context for the kind of problems we're facing here actually i filed a very late twenty eight j letter which just barely sort of amplifies the cases already cited but there was a unique note in there about the world health organization report twenty seventeen about karf until basically saying we don't know much about it which i think explains why the testimony in this case seemed so ambiguous at times because the medical experts the pharmacological experts were having trouble saying what was going on with this case the from the testimony however when we did not notice a brief came across it preparing for this at the end of the medical examiner's testimony judge reeves asked that question and the medical expert said and the key here is his car fintan ill take schedule two controlled substance such that twenty one u s c eight hundred forty one and it's penalties can be applied and the only testimony that seemed to even come close to that was through the leading questions of the prosecutor asking if it was a schedule one substance and i think the pharmacology fellow said well yeah very likely rather so he didn't really establish yes or no it's very likely but it's not a schedule one substance it's and when there was earlier testimony saying well sort of the prosecutor trying to lead him to say this is schedule two he kind of you know i and i mean you know it's used drugs out meringues shouldn't be used by humans but that doesn't establish the fact for the jury that this is a schedule two controlled substance and under both elaine and peerage that is something that has to be proven and  to jury could have found it because there was no testimony to that effect the other issue we looked at was the nature of mr ham's at least in my limited experience extraordinary cooperation once he found out that someone had died the question then comes up in terms of count three has he not renounced his actions has he not withdrawn from happened tracy mars was arrested he was arrested and he began with them to do that extraordinary set of activities has an informant to go make a troll buy to get mr sh take him off of the street and this all happened several days before the incident where tracy myers is lodged in the jail apparently was not fully searched and then handed out the car to other inmates who then seized up and had to be treated to keep them alive and how was it that ham was arrested i mean he go and turn himself in no ice believe they were able they were able to look at the dust the dense phone so all the communications back to tracy monitors they had previous information that mrs myers had been dealing narcotics and i believe they may have been made a controlled by for her and so that's when they went there and they said this is you know they said why we're here is that you know search the house here you can search my phone and then hand begin to tell us everything about where this had come from so it said they were both arrested the same time but i am begin telling you know this is where it is if you want to stop it and get it this is the guy you can get it from and they didn't even the police remarked that this was exceptionally swift because they were possibly having to take him out of state to meet with shields but it turned out they just were able to meet up here in northern kentucky and conducted it they made the arrest and then begin talking about his cond so that would see the response that from the government as well but the act of giving that to ms miers occurred before all of this extraordinary activity and since she then had it in later in jail passed out that doesn't show that he has with role cuts off his liability we of course disagree because the point there is he's doing every possible thing that is set up to both pull back from the conspiracy but to neutralize his actions that were part of the the overt acts the wrongful conduct in the conspiracy i was just asking that because it you know you sort of almost made it sound as though he had become remorseful and turned himself in as i looked further it looked to me is though they were arrested hamm was arrested because he was with meyers and and his wife i mean all three of them who'd been involved in the whole drug operation were all swept up together at the same time is that right yes or i mean i think they and myers was their suspect i don't know that they knew at that time that she had gotten the product from him to go at all they found and cut a deal saying look if i cooperate can you help me he just said let me tell you how we can stop this stuff let me tell you i got it from what you let me tell me what you need me to do so we can in this i mean he was  or the other aspects about this was this kind of almost family cooperative of these comics who says they all knew each other if he was friends with meyers and she was a kid he was friends with the dissidents since they were kids it was a strange community not something that i've seen in other narcotics cases so i do in fact believe his was remorseful he was shocked at what had happened and thus his extraordinary efforts to try and stop what he may have felt he was responsible for paralleling a hundred pinkerton liability is also this notion of foreseeability i don't know that anyone would have expected that miers after having been arrested and searched would still have somehow managed to conceal on her person a series of these toxic doses or that she would be able to make it through jail security with this or that she would pass it out to other people just from a from a sentencing point of view if if we agree with you only on this part about count three in withdrawing really going to help your client if that was the only point that's raised that we agreed with and yes i'm trying to hit a home run on the controlled substance schedule to issue a p claim is to affirm because the defendants i think i failed to show a subset of the fact of any potential effect on their substantial rights as the discussion just a minute ago with my friend on the other side  revealed it seems clear that plain error the action that was interposed the trial was not sufficient to preserve the issue playing our applies in the evidence in this case was overwhelming that both shields and ham where in the controlled substance that you had done to fight or call phantom no to hamm there is also no dispute to him later that day delivers a controlled substance to tracy meyers and there is no dispute that later that day delivered what turned out to be car fentanyl to allocate w who later assumed the substance in overwhelming evidence and it can get into that evidence if you're honest i think it's appropriate or to the court for the course for review in exhibit seven the videos of the other traveler who travel with him and his wife jenna him and did use the substance right after they obtained it from shield and on the way  with respect to swining we want you want us to say than have anything to do here  provision applicable in cases where defendants are convicted of conspiracy charges and in the plot point these guys what's all the thing about pinkerton if the defendants here didn't have conspiracy charges why would you even which provide still the applicable law with respect to have you apply to until enhancement but you've got to do it in a world in which cases in which a court is what the government charges and the cord is applying an enhancement to for the conspiracy so even though it's just well there's nobody there to argue for it and so therefore you don't charge it correctly if we don't argue correct we understand anything that's what this court just recently in the done a day o decision was pointed to when he said the distinction between the guidelines standards applicable in this  context and pinkerton is not necessarily intuitive but important i think the court was directly reaffirming the existence of that distinction and the fact that when a defendant is charged with substantive counts whether his liability is proved as a matter of principle like the the defendant is supposed to because it's not only in the indictment that the fags that would lead to application swining then the defendant can stop worrying about them as to the conspiracy charges as to the conspiracy charge yet so as to the substantive counts if the counts whether counts are proved under pinkerton theory figure out procedurally had to deal with them it seems to me your and your wife are dealing with it it seems to me a is matter was i charge in the substantive camp and then i don't charge i this in the conspiracy can i get the benefit of pinkerton that why is it right not to be clear if you're charged on the conspiracy count as well as to that count we we agree that i probably need to look at the back at the indictment in the way it's worded in this particular case like a challenge to write in principle but let's assume that we agreed with your adversaries on this point for this case for the future could you charge plain old distribution in one count and distribution resulting in deaf in another county and then the instructions would say pinkerton applies to the first of the counts but you would have to instruct on swine with respect to the second of the counts as i laid them out would that be a way to solve the problem going forward it was a case about conspiracy there was no distribution charge and in fact the court went to some length to distinguish it for circuit case paterson on the ground that that case involved distribution and aiding abetting distribution so there's no indication that certainly not the the four corners of the swine don't compel application of the narrower guideline style if i may so refer to it us whiny principle outside of cases where the defendant is charged with conspiracy and you know to the extent that a subsequent developments in the case law have given rise to the possibility that the same conduct may lead to different sentencing ranges one depending on how the case is charged well that is not unique to this area to this area of law for instance thirty three seventy one conspiracy the general federal federal conspiracy statute has a the the sentencing range for the conspiracy offense itself will be limited on the upside to five years not so for the substance substantive offenses even if the proof of the substantive offenses relies on a pinkerton theory of liability just in this case to this is not there is some uniqueness to the swine the holding in this particular context but the idea the sentencing ranges may vary based on how the government charges conspiracy and related substantive offenses is not unique to this area of law and i think that at the expense whiny with all the baggage this whiny comes with into substantive counts would really carve a new exception into were to reach that the legal ruling as i mentioned before in this case there would be no basis for for reversal because there is overwhelming evidence that in fact the defendant board the defendants both defendants where in the distribution chain but even aside from that and because of that at that point for instance it is conceivable that the government not insist on the hands move for instance i'm not saying that there will be a decision there will be a decision that your adversaries is there a legal reason that we couldn't couch it as just remain ending for a determination on the enhancement no there is no and the proof that it was a controlled substance whether a substance it's a controlled substance is not a question of fact the question of fact is whether the substance was distributed the fact that the substance distributed was controlled it is a question of law the federal co honor please i think those last questions were really pertinent it seems that the government is attempting to take swanny and simply make it inapplicable to this case just based on the idea that been around forever but what pinkerton does is it shapes the outer boundaries of coconspirator liability what's why did was it held that a more individualized approach regarding forsee ability is required because of the enhanced penalty under age forty one b one c because of the substantial liberty interest at stake we're talking about somebody who's got a life imprisonment here the same individual has to approach felt that what he would have had a twenty year maximum is that the the operative statement or what could he what would be or could he give my recollection your honor and i don't have the statute in front of me but my recollection is it's twenty and then if you've got a prior conviction  with this court and used whiny the court has recently amended the pattern jury instructions on quine a quantity to make these required findings and this idea that somehow because and it is controlling now the final point i guess i want to make is you really make these charges subject to prosecutorial manipulation when you allow them to not charge the  conspiracy for the car finnell issue for the distribution resulting in death and then allow them to use conspiracy principles in instructing the jury on liability for that death that makes no sense to me whatsoever one of the things th and reeves held was you can still have a pinkerton instruction notwithstanding the fact that there was no conspiracy alleged as to count two in three of the indictment so you don't need a conspiracy charge be you get the benefit of the conspiracy law because the very first instruction under pinkerton is do you find that there was a conspiracy so what you're allowing the government to do is essentially manipulate when so many might apply simply on the basis of how they charge it well i'm sorry the same question to ask your adversary is if we agreed with you in general as to the applica swine is there a way that they could get the benefit of pinkerton on the substantive count absent the enhancement i suggested charging the distribution and then charging distribution causing death separately had some qualms about that do you have any view on it or is this just a way of preventing the government from getting pinkerton liability on any distribution causing death count well i think if there was an actual conspiracy charge you certainly would get the pinkerton instruction as it pertains to the death the death issue you're honest what would you charge it as conspiracy causing death and spirity to distribute causing death i mean that's how they could have charged and why does that make you better or worse off than the way it happened to come out this way that is if counts two and three had both read conspiracy to distribute then what result i think we'd still be in the same box with respect to this one where i'm pushing this is that if you're right on swine any doesn't that mean that the government can't ever use pinkerton in a causing death case it can use modify pinkerton i think that's the end result of what are you going all out of sight what do you call modified pinkerton the pinkerton instruction would have to include language that marries up with what's what's what's whiny required very clearly required that there has to be a distribution chain in order for this particular penalty to be imposed it sounds like that  saying logically it seems to me that your position would mean there's a way government now the government can use pinkerton in a cause and well the government if the election that they're going to charge somebody with distribution causing death then maybe they're going to be required to make the election of whether going to be able to get a pinkerton instruction versus a swanny instruction so what you probably have to do if you are going to try you know one of these cases and you know  i'm looking at it obviously from the trial judge's perspective what you'd have to do is probably do if you did a standard pinkerton and  but in cases where in camps where causing death is charged then you're a fan you fanning must be as follows a different set of findings but for the judicial question we have right now for the jury but just splitting the theories of viability in other words trying to give us you know what might or might not turn out to be a workable system where you've covered but you've also given the government to the extent it properly should be applicable  pinkerton apparently hadn't thought about that before i came up here but that seems like a reasonable way to well i haven't figured it three yet but it's just been run into remember and that there ought to be some white a properly marry now that we have so much more jury that finding than we did some years ago because of the conspiracy elements when you've not charged in the substantive counts that contain this and handsome and so there may even in fact be a problem there with proceeding along those grounds you may in fact have to a challenge and a charge conspiracy to get them hooked on pinkerton liability under the current laws we have applying fifth amendment six minute findings by the jury  called on the statute eight forty one b one c it says that breaks out punishments controlled substances but also by schedule so that means whether it's a schedule one schedule two schedule three schedule for those are elements the crime because they relate to the punishment so they were in fact charged in the indictment so if there is a failure to act of proof on those based on something that is even i think subject well t ignoring possibly you could do a judicial notice by the court but that wasn't done here either so we have we appreciate your time and by the way on behalf of myself  thank you for accommodating our schedules and putting us on this afternoon docket thank you very much i was thinking about why we did that and i can remember  but we know that both of the defense attorneys are who are appointed under the criminal justice act we appreciate very much the service you've given to the