good morning my name is ben coleman i represent appellant rafael munoz can solace who i think is number three on your list but he was the number one defendant in the case are our tentative plan with the court's permission is that i would take twelve and a half minutes torres was not going to argue unless the court had any specific questions for her and then with my twelve and a half minutes i was watch the clock and hopefully save a minute or two for rebuttal if i'm able to work a ok for my argument i'd like to focus on my client's a mandatory life sentence and in particular i was going to try to address the the first and second arguments in the joint brief unless the court want to me to address any of the arguments and in my individual brief the first argument has to do with i guess what is considered to be a prior conviction in the context of sections a forty one in a fifty one and sort of the law in this area has changed over the years  back in the one nine hundred ninety s the judge could sort everything out at the time of sentencing and then after a print he things changed with respect to a forty one and then as the printer revolution started to occur this court has held that a jury must find that a conviction was entered before the defendant committed the instant offense and then after the sentence in this case the supreme court decided that any fact that the time as a manager or a minimum in this case we're dealing with a mandatory life sentence must be found by the jury and it's our position in this case that the jury never made a determination as to whether munoz's two thousand conviction which was alleged as an overt act in the conspiracy occurred before he committed the instant conspiracy offense and so for that reason there's a constitutional  the very least the case needs to be sent back for at the very least a fifty one trial where the jury would make a determination as to whether mr munoz committed the conspiracy after he had sustained a two thousand conviction doesn't this fall into the exception for parking fictions well it does but there is an exception to the exception and the exception to the exception as this court made clear in colvin sand of all in other cases is that with respect to the timing of the prior conviction the jury must make that determination that the jury must find that the defendant committed the instant offense after the prior conviction so the exception as the fact of a prior conviction it doesn't say the fact of another conviction so the priority is part of the exception so i was having trouble with that without argument i'm not sure i understand so the exception says the fact of a prior conviction for it doesn't say the fact of another conviction which then you could at least argue that whether it was prior in time or not was not part of the exception but the exception itself an exception to the exception with the exception itself includes the temporal component while i think the exception is the fact of a of a conviction how i see you was say the fact of a prior conviction but that's what the exceptions as a fact of  prior conviction not the fact of another conviction which is how the court would have had to express it if it didn't think that priority was part of the part of the exception well i guess i'll just fall back on this court just thirteen twenty six cases i'm not i'm not sure why only in thirteen twenty six cases the jury would have to make a finding that's the temple relationship kovi and as the exception is limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and prove beyond a reasonable doubt of those last factors arnot issue here and kobe and doesn't quarrel with the proposition that the exception is limited to prior convictions which is what we have here so how is it that covielle is inconsistent with the brief the need to go on to say it's not limited to the immigration context and i'll try to find that the focus is on removal because removal comes from a process that doesn't have jury trial and the other occurred after the conviction it's the same thing here the fact that the defendant committed the instant conspiracy the jury must find that he did that after the conviction the fact that removal the same as a conviction i mean that the quotation i just read focused on the protections that come with the jury with the jury conviction distinguishing removal so so covered and talks about removal why does that apply here we're not talking about removal here well here we're talking about whether he committed the conspiracy after the conviction well that's what he's convicted for the it's the after part that you're alleging that he didn't have the prior convictions that the conspiracy came afterwards but i'm not sure what it is the jury is supposed to find i mean the fact of the prior convictions that's what's what's the case law let's is let's the court determine on its own our position at the very least the jury has to find that he committed this conspiracy after that prior conviction that's that's and over the convictions the conviction was two thousand and it was the thing that was alleged as an overt act in in this case mr munoz my client then went into custody and was in custody for the next seven years he had no evidence other than cooperating witnesses that he engaged in any drug trafficking activity after that particular conviction and these cooperating witnesses were you know his challenge visions is evidence so i don't where that goes do well it goes to i mean the government's contended that it's harmless error that the fact that the jury didn't find that the any temporal relationship is harmless but in this case the only thing we have that the only connection with hard evidence of my client with any drugs is that two thousand conviction other than that all it is is the word of some cooperators who have who were apparently believed by the jury well i'm not sure the jury believed everything that didn't have to believe everything they believed enough well we don't know what you have a challenge sufficient evidence to try to tell me that the evidence was finding as to when my client committed the conspiracy so that there was no jury finding that my client committed the conspiracy after after his prior conviction so it i don't have to tell this there's you have your limitations defense offered there was no no statue of limitations there was no instructions on the statue of limitations your client attempted statute of limitations defense i don't believe that he did you know i believe the law would be is even if my client wasn't participate in the conspiracy as long as the conspiracy continued it would have been within the statute so the bottom line is i don't the challenge is sufficiency of the evidence because the jury never made it in finding as to whether my client committed the conspiracy after the about two thousand and four that for a jury to make a finding a finding a sufficient finding as to drug quantity to a particular defendant they have to find two things one that the quantity was recently foreseeable to the defendant and secondly that the quantity was part of the defendant's jointly undertaking criminal activity and in this case the jury was only instructed on the reasonable foreseeability prong they were not instructed on but that's the truth it was a picket in charge here which find that the defendant was a member of this conspiracy and you find that a particular act was recently foreseeable you can hold them accountable for that act but i didn't say that that particular act had to be part of this jointly undertaken i wasn't specifically focused in that judge simply told them that they could reach that finding on a reasonable foreseeability standard in a reasonably foreseeable standard only we're looking at this for plain error right well our position is that the defendant objected when the judge gave the supplemental said that the rule for the statute is the same as the rule for the guidelines right that we construe the statute to mean something and then if the guidelines changes i don't know that they have per se automatically changes are well i would i would say that you should look to ortiz which is needed it is discussed what is absolutely clear i think in all the search i mean frankly this is the law and all the circus so this would be the only circuit that has this unusual cork in the law that you only look at reasonable foreseeability and not joining undertaken activity as well and i've already won over time so thank brief and the reason for that is because mr all down on like some of the other defendants was in a fairly unique position with suffolk lee with regard to count seven in his specific position that was unique was the fact that he had a two thousand approximately two thousand testimony about his having been involved in drug transactions in two thousand with m t v and then after and i think it was five instances maybe that were testified to mr rove mr elvia when he testified specifically said that the transactions he was involved in with mr obama had nothing to do with any of the other name defendants that were contained in count seven drugs didn't come from there no taxing no money back from there there were completely separate independent transactions in addition the testimony was that later on when confronted by one of those defendants mr vieja denied that he was engaged in drug transactions so for that particular transaction there was an argument that could be made that that was not part of count seven and similarly in two thousand and eight in december when the search was conducted at mr  residence there was no testimony that connected the drugs located there or the testimony of the one cooperate in witness about having provided those drugs the related either the drugs or the providing of the drugs to any of the defendants who were named in the count seven conspiracy specifically no references to the gonzalez brothers so there again when we're looking at that it was my view that there was an argument that could be made that that transaction while it may have been a conspiracy to distribute methamphetamine was not part of the count seven conspiracy we couldn't make either one of those arguments with regard to either of those because of the fact that the court refused our multiple conspiracy instruction even though the court was specifically advised that that was something that was an argument that we wish to make and the evidence that i've number forty eight so can can you explain why those were not adequate they weren't adequate because they did not provide the factual those are the legal basis to discuss the existence of two conspiracies one of which was charged and one of which was not sure and those instructions don't address that so they know what language was as being in your view the standard ninth circuit multiple  language in those instructions which indicate you can only be found guilty for the conspiracy which you were actually involved so why was that insufficient well if if you step back a new look even at the language that your honor cited th e problem becomes that we're not disputing the existence of a conspiracy the conspiracy was testified to by the two cooperating individuals what we're contesting is that it was the same conspiracy and that instruction doesn't get you there the multiple conspiracies instruction does and that's exactly why there is a multiple conspiracy instruction because when under the theory that the government's arguing in your honor suggesting that's a useless instruction why isn't i circuit have it if it doesn't serve a purpose if i may i think the government you know describes in this brief evidence that showed several overt acts by all donda that connected him to that point the thirteen gang in the other  is true or not and there was but i'm talking about counts seven counts seven is a drug conspiracy not a record tearing conspiracy so unless the two are exactly the same and by that i mean as a matter of law there's no difference between those charges then you can't just look at mr obama's membership in the room in the racketeering conspiracy as convicting him automatically of instruction you requested it says even though that defendant may have been a member of some other conspiracy is that the missing language that's ok because that the two instructions that the government points to do say you can only be found guilty for the conspiracy  you're actually involved it's a would you say cause the error is it doesn't say even though that defendant may have been a member of some other conspiracy is that what you're focusing on that's what i'm focusing on and the reason for that is is because the absence of legal authority i could suggest factually yes that it wasn't included but what i needed was i needed the the a forty of the instruction to be able to tell  the you can look here's what the instruction says about that and here is the testimony that supports the fact that it's different and the significance just to take it one step further is that both of the acts that i'm talking about are the only understanding of why your argument was hobbled it's hobbled because i need to explain the other conspiracy and why his involvement in the other conspiracy doesn't automatically make him guilty of the conspiracy charge and count seven and i need the last ending behind me to be able to make that argument to the jury him point it out to them and show it to them so that they can go think about whether or not even though he was guilty of a drug conspiracy it's not further objected to the use of the term act which was the modification that the government requested with regard to that instruction in the reason for that is because in this particular case you have conspiracy on top of conspiracy on top of conspiracy and the effect of the pinkerton instruction basically says that if somebody is involved in a conspiracy and some other member of that conspiracy in gauges in a conspiracy then the defendant in conspiracy one can be guilty of a conspiracy too even though the defendant had no involvement in any of the conduct that was the subject matter of conspiracy so that conspiracies ended up mixing it's the same problem when you look at the special verdict form and the use of the term overall conspiracy in the special verdict form overall conspiracy are we talking about when the jury is being asked to make a determination with regard to amou  i'm sorry i do i disagree with the fact finding yeah yes i do disagree with that finding because it's not clear first of all that two overt acts i'm talking about those amounts don't get us up to what the jury found so the only way mr all donna could have gotten up to the amount the charmin by the jury would have been by bringing in drugs from someplace else and my position is that when you say overall conspiracy you're not telling the jury what conspiracy they are supposed to be looking at so you're saying that the instructions of the out on it was only responsible for quantities relate his conspiracy with the other defendants and is that if you just step back and go with the testimony of the amount of drugs mr o'donnell was involved that does not get to the jury finding you say that they could at filed that particular overt act unless they also considered the drugs involved  i think is where you say no the drugs are all mixed together there is no count seven drugs versus racketeering drugs that has a problem with overall conspiracy so you're disagreeing with the special verdict is that what you're saying yes ok you're saying that the jury reached a conclusion verdict form no i think there was also special very for for help them if i'm not mistaken it's the that in the special verdict form uses the term overall conspiracy without saying whether it's the that that there are several overt acts that were alleged connection with iraq during cases and yes he was found guilty of those and there was evidence but i'm looking at the impact of the drug issues because of the impact of counsel thank and the bottom line here is that our claim is the sentencing was flawed and we presented in our opening supplemental brief a laundry list of reasons that we feel it was flawed including the lack of confrontation  as to the government's expert on fingerprints that however was one of only six or seven different reasons that we felt it was an irregular and unreliable sentencing not the least of which being the district court judge  not recognizing that the standard was beyond a reasonable doubt ultimately during the hearing he came to realize that but part of the confusion i would suggest is the fact that we had two different pre sentence reports in the case one recommending twenty years one recommending a life sentence this is an indicator of the confusion and the flaws basically and overall in the sentencing in this case the argument that crawford should apply during sentencing i understand asked this court to take great leap however eight fifty one is a different animal than all other sentencing because of the lack of discretion and in this case that was a big point the judge said on the record that he didn't feel that caesar deserved a life sentence but he had no choice but to impose it this gives you the difference between eight fifty one and other general sentencing and i'd like to reserve the last minute or two for  while you are just gathering your wits about you maybe you can explain whether or not the count seven should have been charged as a separate conspiracy  seven for the multiple conspiracy and for the record may please the court matter jenkins on behalf of the united states and also with the court's indulgence if there are questions about the motion to suppress those will be handled by my colleague jennifer williams the reason the multiple conspiracy instruction was properly denied in the district court in our view is that what council's overlooking is that there was an abundance of evidence that certainly the interplay between the racketeering enterprise charge and count one a predominant function of that racketeering enterprise was drug trafficking in addition there was also it's not just yes those are other point they thirteen gang members the evidence that was developed at trial and was largely an refuted is that it's not just about selling the drugs it's about being able to do so under the auspices of the mexican mafia protection provided an access to those drugs in addition allowed him to conduct extortions of other members in tax and other members all of that falls under the drug conspiracy framework the the the separate conspiracy that mr truman is seeking to create simply does not exist on these facts you reference mr newman yes as an evidence of where this separate conspiracy would have provided him so alternate world speirs you but that simply is not borne out by the record because it is mr nino's who talks about meeting definite obama and i'm just but just briefly quote from governments started at four twenty six and it is mr noon yes again pointed to by a defendable donna who talks about selling drugs with a friend and all donna watching defended all donna regularly sell drugs going on taxi missions with the fed and all donna and this is a charge coconspirator in the drug trafficking conspiracy my understanding essentially from what i think is really argued by the fed and all donna is that he complained about the scope of that conspiracy not that there was a separate one but because he was in custody for certain part and he only dealt primarily with certain twenty thirty members therefore the fact that he was held liable for a larger amount of that that's really what it seems to me is being complained of but that's not a multiple conspiracy pinkerton instruction was meant to handle and that being that the jury here did find that he was in that same conspiracy with other point day thirteen members and that the scope that was reasonably foreseeable to defendant all donna of the quantities that they found meaning that he could argue that because i was in custody because i mainly dealt with andy vs and mr nunez there may be this larger point to a thirteen conspiracy in drugs flown everywhere which way but i really only knew about really was only reason for siebel to me this small amount but the jury rejected that because frankly the evidence was overwhelming that everyone knew that in twenty thirteen where they had an actual mexican mafia brother which provides them a lot of esteem in authority they were selling a lot of drugs regularly they're making other people sell drugs they're extorting drugs and drug proceeds from them it is it is no secret to defend it all donna who in fact bragged later on in two thousand and eight about getting essentially a promotion his job was to come extort other members he talked about it with other coconspirators that hey we got to go jan these guys up in the parlance of they're not paying they're going to give us money or give us drugs to fell down and knew exactly how twenty thirteen operated in that methamphetamine is a primary economic lifeblood and so again that's what i think the argument that he was really making and i think it was rightfully overwhelmingly rejected by the jury because defending all donna was a big time player in this enterprise and he well knew that methamphetamine fuel that enterprise i'm still positing on the multiple conspiracy issue because the case law doesn't require or doesn't invite the judge to make a decision as to which argument is more credible the requirement is of there be some evidence in support of the defendant's theory and are you saying there was no evidence that qualifies to support the proposition that some of the deals were being done he was doing on the side not as part of the point the thirteen conspiracy yes your honor and i understand the multiple conspiracy test is a difficult one because as you pointed out if there's a potential imo to come of evidence that could support that theory then in most cases it should be given here that did not exist and the reason that it did not exist in our positions we argue that the the is that the defendant all donna posited for why he should have been allowed to argue this theory still render him guilty of the drug conspiracy as charged in count seven so even on his best argument our position is that it provides him zero support which is why the court denied it because in even in those various iterations of a smaller conspiracy or i really was just working with these two guys under the auspices of point they thirteen in the two thousand through two thousand and eight they were run by two mexican mafia brothers the latter of which is the lead defense in this case who defended all donna worked very very closely with these explanations about this multiple conspiracy theory is  we argue that it provides no defense at all and i will just respond to the additional arguments briefly and i'm also happy to respond any additional arguments not raised by coun just to try to be as pithy as possible i believe the court accurately pointed out the flaws in the issues related to the prior convictions we would point out first that been brought up earlier the only articulated objection to the age of the ones in this case which was briefed by the district court or at this court level was whether or not and where an overt act is charged as also in a fifty one is a compass in a broader conspiracy whether that technically is prior because a conspiracy essentially could pre date and post date the eight fifty one so does that mean prior because the beginning of the conspiracy and of course in our view baker answers that question conclusively when it says you measured by the end date of the conspiracy which in this case at least exceeded the eight fifty ones by a decade and so i think baker conclusively and we and we recognize that there is maybe not ambiguity but there certainly were changes to baker but and argue it was a very narrow review and overturning select portions of baker but  undisturbed they didn't touch that portion of it that being the temporal relationship of when a conspiracy ends and whether that means that a conviction is prior product of action so that is not it's not irreconcilable we don't think it was touched by subsequent cases and so our view is that it remains a good law and other cases support that both the out of this record cases that we cited and so forth and second circuit i believe but also the fact that that stated ongoing conspiracy when particularly here which i think is very compelling we didn't just pick dates out of nowhere what i mean is that the overt acts in this case did stem for decades did there were overt acts that actually came after these prior convictions approximations were pretty old early ninety's one in two thousand and two was the latest the predominant evidence in this case was two thousand and six to two thousand and ten so i think it supports baker by the fact that of course if the majority of the weight of all the criminal activity is taking place almost a decade after this product innovation it would seem to make little sense to say that very standard that yes you do and i we do not see that how that impacts the temporal ations of a priors at all and specifically related to the drug quantities that you must lead to them as we concede you must the and i will then just skip to the question about the drug quantity findings and our position as also highlighted by the court is that the  as is allowed under this court and supreme court law consider all the concern of the insurrections constructively and in fact judge matts said several times don't focus on one thing focus on the entirety of our instructions he said that when there is a question given to him and he answered it directly and we believe accurately about what reasonable foreseeability means and in doing so he also said but remember all these other instructions and encompassed in that where all all these other instructions is pinkerton in a court pointed out in opening responses think written in our view exactly covers the jointly undertaken portion that they say is now lacking it doesn't say those specific words but as we point out it it exactly is what the court is talking about when it says the same conspiracy and in furtherance of that conspiracy it makes it very clear that a component of pi defendants need to be in the same conspiracy need to be committed to that same conspiracy and enemy to be conducting acts in furtherance of that same conspiracy even before you get to reasonable foreseeability so we think the combination of the pinkerton instruction the court's response to the one jury question and again the fact that the court said can consider all of these instructions as a whole we think satisfies the challenge there that they are somehow misled about what they need to find and unless the court has been further questions about any other issues and the support of the questions on the search including this  i think that the i the one common i want to make and i'll let mr freeman rebut is that the issue about the multiple conspiracies and the drug quantity finding i think are are somewhat related and the problem in this case is there was no jointly undertaking wrong given as to the drug quantity finding the pinkerton instruction i know you're on and asked about it in there and they just argued that that covered it it just didn't cover it in the pinkerton struction only cover a reasonable  foreseeability it says yes you have to be part of this conspiracy and then the acts have to be recently foreseeable but the but the guidelines which govern the a forty one b analysis say that the jointly undertaken concept is jointly undertaken activity and then of course the jury asked a specific question about how do we determine this reasonable foreseeability as to drug quantity which shows they were focused on this issue and had to join the undertaking activity requirement being given  there may have been a different result here so even if you want to use plain early view we think that there was prejudice year and there should at least be  if i made the argument the governing council made mixed apples and oranges and started talking about mr all done and being some upper echelon in point they thirteen in going out and taxing people that may be related to the racketeering case i count seven is a different conspiracy it's a conspiracy to possess with the intent to distribute methamphetamine that's a tax somebody who's a drug dealer number one number two when government counsel says that the auspices if he's viewed by the market that he's serving as somebody who's connected with the gang and is operating as part of it even if he's doing the deal on the side i mean does that mean that that it's not part of the twenty thirteen conspiracy if he's using the fact that  of office of people view him as part of that conspiracy even if he's pocketing him selfe isn't that somehow still part of the same conspiracy but first of all there was no testimony of that fact but past that issue  fact that somebody is part of a gang and the fact that the gang may engage in drug transactions however you want to define this doesn't automatically make somebody who's a member of the gang guilty of twenty one u s c eight forty six conspiracy those are two separate crimes and unless they're viewed separately then then there is a different is so much defined as being  drug gang i mean that's that's that's the life blood that's the revenue stream i'm not sure i understand the separation well one this gang if just reading through the indictment makes it clear that it's not just a drug gang that's not well that's just but what i waste a lot of revenue is coming in through the drug dealing and so what i'm pointing to is what the evidence was with regard to mr all donna and the overt acts mr v has five sales of methamphetamine being the mr obama took place between september of two thousand and one in june of two thousand and two mr o'donnell was not a recognized upper echelon member of anything during that time varied in there was no testimony that he was that's the only time mr b a sole methamphetamine to mr al donna that's a sale from from via to al donna the source of the m seven had anything to do had anything to do with the sales to mr al donna all the money from the methamphetamine sold to mr al donna went into mr b is own pocket used to be a paid no taxes for any of the sales none of the sources of the methamphetamine that he sold were from the gonzales or mr taurus in other words that there was evidence that and that's the transaction if you look at over for that's the transaction they're talking about saying that that's the separate conspiracy and that i submit we should have been entitled to argue was a separate conspiracy and the significance of that is is that if you take that overt act out of camp seven because you conclude it's not part of councilman and you take the other overt act overt act seventy seven out in which were making the same argument all of the allegations with regard to mr all donna and drugs and count seven are gone now i submit we should have been entitle to be able to make that argument to a jury especially with these facts and i'm citing from my brief in the citations of the record or in the brief in the point is that there was evidence that we should have been entitled to make that argument and let the jury make its call however the jury's going to make its call but we weren't allowed to make that argument thank you