[00:00:00] Speaker 03:
Good morning and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
I'm Judge Nelson and it's a pleasure to be with my colleagues, Judge Fletcher and Judge Berzon.

[00:00:09] Speaker 03:
We want to welcome counsel here and everyone else who's here to see the arguments today.

[00:00:15] Speaker 03:
We ask that during arguments you please watch your time.

[00:00:18] Speaker 03:
Just keep to a lot of time frames.

[00:00:20] Speaker 03:
We have five cases set for arguments, so not that you won't get any extra allotments, but we'll probably be a little tighter than normal.

[00:00:30] Speaker 03:
But so try to just sum up your argument as your time is concluding.

[00:00:33] Speaker 03:
And let us know if you want to reserve any time for argument and rebuttal.

[00:00:38] Speaker 03:
We'll go ahead and start into the argument calendar.

[00:00:41] Speaker 03:
And we'll first hear argument in United States versus Carmen, case number 22-35100.

[00:00:52] Speaker 04:
Good morning, Steve Hormel on behalf of Arvind Karman.

[00:00:56] Speaker 04:
There's a single issue here today, and that is whether or not trial counsel was ineffective or deficient in failing to object to the second element of instruction number seven on a count that charged a continuing criminal enterprise under 21 USC 848.

[00:01:20] Speaker 04:
The flaw in, I was going over this this morning, and I know that I've referenced it a lot in my briefing, but I think instruction number seven, which is at ER 114, starts at ER 114, the first two elements of the instruction actually given by the judge is really the key to the issue in this case.

[00:01:45] Speaker 04:
And that is because the first element that the judge instructed the jury on is that Mr. Carmen had to commit a continuing series of three or more narcotics violations.

[00:01:57] Speaker 04:
That is, Mr. Carmen had to.

[00:01:59] Speaker 04:
Defendant Carmen committed one or more of the following narcotics transactions, and it lists conspiracy, distribution of a controlled substance, possession with intent to distribute controlled substance, and use of a communication facility in furtherance of

[00:02:15] Speaker 04:
drug trafficking crimes.

[00:02:17] Speaker 04:
And then it lists, you know, what the jury has to be looking for, that there has to be at least three specific occasions that he committed the violations and that he committed the violations, that he committed each of the three violations beyond a reasonable doubt.

[00:02:34] Speaker 03:
I thought your argument was the difference between in concert with versus.

[00:02:40] Speaker 04:
But this is where the this is where the expansion of the second element comes because the first the first element is saying Mr. Carmen has to the jury has to find these three violations at least three.

[00:02:58] Speaker 04:
Well, we don't know how they did.

[00:02:59] Speaker 04:
And here's the reason why there's an issue here is because the second element, which is correct, the defendant committed the violations together with five or more persons.

[00:03:10] Speaker 04:
That's a correct statement of the law.

[00:03:12] Speaker 04:
The government does not have to prove all five or more of the other persons operated together at the same time or that Carmen even knew them.

[00:03:19] Speaker 04:
That's true.

[00:03:21] Speaker 04:
But what is not a correct statement of the law is

[00:03:24] Speaker 04:
that the government must prove beyond a reasonable doubt, however, that defendant Carmen and at least five or more other persons were part of an agreement.

[00:03:34] Speaker 04:
And the reason why that's important.

[00:03:36] Speaker 03:
Well, so let's assume that that is important.

[00:03:40] Speaker 03:
Tell us why that gets you the result, because you still have to show prejudice.

[00:03:44] Speaker 03:
That's correct.

[00:03:45] Speaker 03:
And you still have to show, I mean, that you can't take this out of isolation.

[00:03:50] Speaker 03:
There were other provisions in the

[00:03:54] Speaker 03:
in the jury instructions that seem to limit the negative impact, even if that were an incorrect statement.

[00:04:03] Speaker 04:
So that was the position of the district court, which is at page 11 of ER 1.

[00:04:09] Speaker 04:
that somehow the third element involving the organizer, supervisor, or other management position corrected that problem, or somehow the jury verdict corrected that problem.

[00:04:21] Speaker 03:
But that really doesn't end.

[00:04:23] Speaker 03:
Because if the jury found, the jury had to find that he was a manager or a participant in the crimes, right?

[00:04:35] Speaker 04:
Based on the based on the the first part of the jury instruction, but Therein lies the rub because this was a five and a half week Trial the government threw out a shotgun effect involving conduct by a lot of people some of which mr. Carmen was involved with and some of which weren't the problem is

[00:05:00] Speaker 04:
that the jury could have found and was allowed to find that he distributed drugs by an agreement or that he possessed with intent to distribute because he was in an agreement with other people.

[00:05:15] Speaker 00:
Well, but in fact, that part of it is not in the special verdicts, the special findings.

[00:05:20] Speaker 00:
What is in the special findings are the individual crimes

[00:05:25] Speaker 00:
And we, the jury, unanimously find beyond reasonable doubt that he acted as an organizer, supervisor, or manager of the five or more persons, with all of us agreeing as to the specific five or more persons.

[00:05:37] Speaker 00:
Is your position that he could have been an organizer, supervisor, or manager, but didn't

[00:05:45] Speaker 00:
and do the crimes together with them?

[00:05:47] Speaker 04:
No, it's my position.

[00:05:48] Speaker 04:
You don't get to that until you can resolve the problem with the second element.

[00:05:53] Speaker 04:
And the reason the second element's important, the flaw in the second element, is because when the jury is looking at, I'll give a perfect example.

[00:06:03] Speaker 00:
This is my question.

[00:06:04] Speaker 04:
OK.

[00:06:05] Speaker 00:
If the findings, the special findings taken alone, are they sufficient to convict him of the crime?

[00:06:15] Speaker 04:
if it was based on Carmen committing these crimes, either as a principal or as an aide or an abettor, which the instruction number two allowed them to- Well, they found that he was the organizer, supervisor, or manager of five or more persons.

[00:06:31] Speaker 00:
That's not sufficient?

[00:06:32] Speaker 04:
Well, but if you allow them, if you allow the jury to bypass the specific detail- How about yes or no?

[00:06:40] Speaker 04:
I don't think so under the way that the instruction was drafted with number seven.

[00:06:45] Speaker 03:
Look, I think we're kind of all getting, the questions are trying to get you to focus on one thing, which is you may have a technical argument that that portion of the jury instruction is wrong, but it seems like there's two problems you have.

[00:06:58] Speaker 03:
Number one, as Judge Berzon is reading, you've got a special verdict form that says he was an organizer, so it's hard to reconcile, and I guess all this goes to, was there prejudice?

[00:07:10] Speaker 03:
I mean, there was overwhelming evidence at the end of the day that,

[00:07:15] Speaker 04:
There was overwhelming evidence that he was involved in activity with the others.

[00:07:20] Speaker 04:
So the problem that I believe instruction number seven has is the best example that I have is the possession with intent to distribute.

[00:07:34] Speaker 04:
Because they said there were three or more occasions which Mr. Carmen committed the crime of possession with intent to distribute.

[00:07:42] Speaker 04:
There's only two circumstances in the whole record.

[00:07:46] Speaker 04:
in which Mr. Carmen possessed drugs with intent to distribute, and that was on conduct occurring after the CCE ended on February 28th.

[00:07:57] Speaker 04:
The government's trying to use those as part of the predicates, but they are not part of the predicates because they occurred afterwards.

[00:08:03] Speaker 04:
So scouring the record for additional times that Mr. Carmen or somebody that he was involved with, possessed with intent to distribute,

[00:08:13] Speaker 04:
on specific dates at specific times.

[00:08:18] Speaker 04:
You can say he had agreements with a lot of people to do that, but find and dig in the record any specific date or time in which somebody that Arvin supervised, managed, or operated, or even was involved with, possessed with intent to distribute one of the drugs.

[00:08:40] Speaker 04:
There is none.

[00:08:40] Speaker 00:
To back up for a minute, and just so I know, from where, what opinion says that being part of an agreement is not sufficient?

[00:08:55] Speaker 00:
I mean, the language is in concert.

[00:08:57] Speaker 00:
What's the statutory language?

[00:09:01] Speaker 00:
What does the statute say?

[00:09:03] Speaker 04:
The statute says that for the purposes of this section, a person is engaged in a continuing criminal enterprise if he violates any provision of the subchapter which is a felony of the controlled substance subchapter.

[00:09:17] Speaker 04:
Such violation is a part of continuing series of violations of the subchapter Which are undertaken by such person in concert with five or more concert usually does mean an agreement so why There must be a case or something you're relying on to say that the agreement is not sufficient.

[00:09:36] Speaker 00:
Yeah, Richardson Well Richardson seems to say the opposite

[00:09:39] Speaker 04:
No, Richardson actually says exactly what I'm saying is that there has to be specific details that the jury finds on each of the elements of the crime.

[00:09:51] Speaker 04:
And in this case, the jury restricted one of the predicates to the single conspiracy charge in count two.

[00:10:02] Speaker 04:
So there had to be other predicate violations of the sub-chapter that Mr. Carman was involved with, identifying specific times, specific dates, as Richardson instructs, so that each of those elements can be fulfilled, because each violation is an element.

[00:10:21] Speaker 01:
This question's already been asked in one sense, but I'll ask it again.

[00:10:24] Speaker 01:
So it has to be in concert with, so under third,

[00:10:32] Speaker 01:
The jury said that he acted as an organizer, supervisor, or manager.

[00:10:36] Speaker 01:
Why does that not include in concert with?

[00:10:40] Speaker 01:
I'm just asking sort of ordinary English language.

[00:10:44] Speaker 04:
Because I think before we can resolve the question, because I know you were on the panel of the direct appeal, Judge Fletcher.

[00:10:56] Speaker 04:
So that's a good question.

[00:11:00] Speaker 01:
Well, it's already been asked.

[00:11:01] Speaker 01:
I'm just repeating the question you already asked.

[00:11:04] Speaker 04:
If you take the elements, you get through element one, you go to element two.

[00:11:08] Speaker 04:
So when you get to element two, there are times throughout this whole period

[00:11:14] Speaker 04:
where Arvind Karman is working with other people and doing things.

[00:11:20] Speaker 01:
I'm asking you a different question.

[00:11:22] Speaker 01:
Why does not the answer to question part three take care of the problem in part two?

[00:11:30] Speaker 04:
Because it has to be a continuing series done at a specific time.

[00:11:35] Speaker 04:
So there may be periods or certain times throughout this whole period.

[00:11:41] Speaker 04:
where Mr. Carman told somebody to distribute.

[00:11:45] Speaker 01:
You're not responding to the question I'm asking.

[00:11:47] Speaker 01:
This is just a pure language question.

[00:11:50] Speaker 01:
You're saying that the jury was not asked to find that he acted in concert with, and that's true.

[00:11:56] Speaker 01:
Those words do not appear anywhere in the jury instructions.

[00:11:59] Speaker 01:
But I'm asking you, well, when the jury was asked to find, did he act as an organizer, supervisor, or manager, does that not necessarily include having acted in concert with?

[00:12:11] Speaker 01:
It's just a language question.

[00:12:13] Speaker 04:
Well, it could, except where I'm- I'm asking, why doesn't it have to?

[00:12:19] Speaker 04:
It's just a matter of language.

[00:12:21] Speaker 01:
It doesn't have to because- What's the difference in terms of language between acting as an organizer, supervisor, or manager

[00:12:29] Speaker 01:
And that language in concert with.

[00:12:33] Speaker 04:
In concert with means you're working with other people.

[00:12:36] Speaker 04:
Being a supervisor manager is a level beyond just working with other people.

[00:12:43] Speaker 04:
So it means that you are the organizer, you have some sort of management position in the overall conduct of these three or more violations.

[00:12:53] Speaker 04:
So that's what in concert means?

[00:12:55] Speaker 04:
No, and concert means you're just working with people.

[00:12:58] Speaker 04:
The supervisory position is a position over and above that.

[00:13:01] Speaker 04:
Otherwise, we just have a regular conspiracy.

[00:13:03] Speaker 03:
Maybe the finer point, and maybe we're...

[00:13:06] Speaker 03:
We're just not going to get the answer we want.

[00:13:08] Speaker 03:
OK.

[00:13:08] Speaker 03:
And we'll give you a little bit of time.

[00:13:10] Speaker 03:
All right.

[00:13:10] Speaker 03:
How can you be an organizer and not work in concert with someone?

[00:13:15] Speaker 03:
I think that seems to be what we're struggling.

[00:13:17] Speaker 04:
So I think the question tells me that the formula is being worked backwards, though.

[00:13:24] Speaker 03:
But it doesn't matter.

[00:13:25] Speaker 03:
I mean, I'm willing to give you that there when maybe it is an error, maybe it's not.

[00:13:29] Speaker 03:
But let's assume that it's an error.

[00:13:32] Speaker 03:
You still have to show prejudice and given the jury or the special verdict, I don't know how you can say the jury found that he was an organizer.

[00:13:42] Speaker 03:
I mean, it seems like you have to come in and say there was no evidence that he was an organizer.

[00:13:48] Speaker 03:
That's not your argument.

[00:13:49] Speaker 03:
So if he was an organizer, how could he not be working in concert?

[00:13:53] Speaker 03:
I just don't understand.

[00:13:54] Speaker 04:
So my argument is that the evidence isn't sufficient.

[00:13:58] Speaker 04:
That he was an organizer?

[00:14:00] Speaker 04:
No, that the jury was allowed to convict him on two other predicates based on an agreement, and that is contrary to

[00:14:06] Speaker 04:
to the indictment in this case, as contrary to the instructions in this case.

[00:14:11] Speaker 04:
They found just one conspiracy, but they were allowed to find that if Arvin Carman went out and distributed drugs to somebody, that he was part of an agreement.

[00:14:22] Speaker 04:
And so if he did that five times and he was part of an agreement, when they didn't have to specify what date, what time, and when those occurrences were to have occurred.

[00:14:33] Speaker 04:
And I believe Richardson.

[00:14:34] Speaker 00:
That issue was the subject of the first appeal as to whether they had to find unanimously with regard to each of the crimes that he committed, right?

[00:14:46] Speaker 04:
No, it was the faulty jury instruction not requiring unanimity in the folks that were organized, supervised, or otherwise managed.

[00:14:56] Speaker 00:
But isn't that what you're saying now, that there wasn't unanimity as to the particular crimes?

[00:15:02] Speaker 04:
Yes, but the first issue on appeal was whether or not the jury instruction was sufficient on the supervisor organizer part, not on the violations, the actual violations.

[00:15:15] Speaker 00:
So what exactly is your argument now?

[00:15:17] Speaker 00:
Is that it wasn't sufficient as to the individual violations or this agreement issue?

[00:15:22] Speaker 00:
You seem to wander between the two.

[00:15:24] Speaker 04:
No, the position is that the jury was permitted to find the other substantive underlying offenses if Carmen was operating as part of an agreement with others to violate the controlled substance laws.

[00:15:41] Speaker 00:
Your argument is based on the substantive underlying agreements and not his connection to the other individuals.

[00:15:50] Speaker 04:
It's he was connected to other individuals when but I'm just saying that the jury wasn't required to find specific instances in which two of the other predicates were committed with by Carmen.

[00:16:07] Speaker 04:
in concert as a principal or as an aider and a better because the jury had only found that he committed one of the predicates as a conspiracy so there has to be two other underlying substantive offenses and the jury instruction permitted

[00:16:23] Speaker 04:
the jury to bypass specifics and details and say well he was part of an agreement because everybody was out there distributing drugs and he was and he was doing it too so it didn't require them to go into specifics so that's the reason why in my reply brief

[00:16:39] Speaker 04:
That's the reason why in my reply brief I set out the phases of activity and much of which Carmen wasn't even involved with To show that that the shotgun approach by the government coupled with the faulty instruction Deprived mr. Carmen of a fair trial and I believe under a properly instructed Jury with the facts as they were in this case in this trial that they they would have a reasonable doubt as to his guilt and

[00:17:07] Speaker 04:
Thank you.

[00:17:08] Speaker 00:
When you come back for rebuttal, can you show me where in Richardson it says what you said it says?

[00:17:14] Speaker 03:
You can do it later, because... We'll give you some time for rebuttal.

[00:17:19] Speaker 04:
Yeah, I've got it here, and I'll just do it when I come back.

[00:17:22] Speaker 03:
Yeah, we'll give you two minutes for rebuttal, so thank you.

[00:17:27] Speaker 03:
We'll hear from the government, huh?

[00:17:47] Speaker 02:
Good morning, Your Honor.

[00:17:48] Speaker 02:
It's David Herzog of the United States, and may it please the Court.

[00:17:51] Speaker 02:
The authority that the Court is looking for is Rutledge, the Supreme Court case in which the language, this is 517 U.S.

[00:17:59] Speaker 02:
at 300, the plain meaning of the phrase in concert signifies mutual agreement in a common plan or enterprise.

[00:18:07] Speaker 00:
Well, I know, but I'm being told that Richardson says that agreement is not sufficient.

[00:18:11] Speaker 00:
Is it your position that this instruction was correct?

[00:18:14] Speaker 02:
Yes, under Rutledge, I think because the language is in concert with, I think for two reasons, both of which have been articulated by the court, the government wins on the agreement language itself.

[00:18:25] Speaker 02:
First, it's impossible to be an organizer or supervisor without acting in concert with.

[00:18:31] Speaker 02:
Second, Rutledge itself says in concert signifies mutual agreement.

[00:18:36] Speaker 00:
So despite- They're saying that the agreement language is right.

[00:18:40] Speaker 00:
It's not wrong.

[00:18:41] Speaker 02:
Your honor, to be frank, I would prefer for it to say in concert with in the jury instruction, but it says together with in the first sentence.

[00:18:49] Speaker 02:
It does, your honor.

[00:18:49] Speaker 02:
And I think under the principle that the jury instructions are meant to fairly instruct on the law, I don't see the level of daylight that my friend does between in concert with and agreement.

[00:19:02] Speaker 02:
There is no requirement anywhere of joint action.

[00:19:04] Speaker 02:
But the jury also appears to have found that.

[00:19:08] Speaker 02:
And I would submit that.

[00:19:09] Speaker 03:
Wait, can I ask, did the jury instruction said, committed the violations together with, or that's the model jury instruction?

[00:19:17] Speaker 02:
No, that's the instruction.

[00:19:19] Speaker 02:
If I may clarify, Your Honor.

[00:19:20] Speaker 02:
So instruction number seven says, defendant Carmen and at least five or more other persons, and this is the language, were part of an agreement or joint action.

[00:19:30] Speaker 02:
That's what's in the jury instruction.

[00:19:32] Speaker 03:
Right.

[00:19:32] Speaker 03:
Right it's the model but the model I thought I the model jury instruction says committed the violations together with that I think that's correct your honor.

[00:19:43] Speaker 03:
Oh it does that was my question it is so the actual instruction says that okay okay pardon me.

[00:19:49] Speaker 00:
But it does say committed the violations, so presumably it's the violations that they were just found, he was just found to have committed.

[00:19:58] Speaker 02:
Yes, Your Honor, and I think that first sentence of, after the word second, the second element of that instruction I think makes the court's point, committed the violations together with, and then the length.

[00:20:09] Speaker 00:
But doesn't that eliminate, I mean, he was found to have done those things, not to have agreed to do those things, but to have done them.

[00:20:15] Speaker 02:
Both your honor if the court looks at the verdict form He was found both to all ten to the first thing that he the first violation is the conspiracy right?

[00:20:25] Speaker 00:
But the rest of them are not so to get to five you have to have four of them that are not Just conspiracies that is correct your honor, and I was so if you have five five of them that are not just conspiracies Then he had to have actually done those not just agreed to have done them

[00:20:43] Speaker 02:
One quick point, your honor.

[00:20:45] Speaker 02:
There's no language in the statute about what the number is rich.

[00:20:48] Speaker 02:
Since Richardson, the numbers have been perceived to be three, not five.

[00:20:52] Speaker 02:
So three separate acts, three separate violations.

[00:20:54] Speaker 02:
And here the jury found not just the conspiracy, as my friend suggests, but also at least three of distribution

[00:21:03] Speaker 02:
possession with intent to distribute, and use of a communications facility in furtherance of.

[00:21:09] Speaker 02:
I think those special findings, when read in the language of the verdict, that he committed those substantive violations, right?

[00:21:17] Speaker 02:
Distribution, possession, and use of a communication facility in furtherance of the CCE.

[00:21:25] Speaker 00:
The conspiracy can be one of them.

[00:21:27] Speaker 02:
And it is.

[00:21:27] Speaker 02:
It is the first one.

[00:21:28] Speaker 02:
It is.

[00:21:29] Speaker 00:
So the whole thing is accurate, actually, because it says either he was part of an agreement, that would be the conspiracy, or the joint action for the other ones, because it says commit the violations.

[00:21:42] Speaker 00:
So they had to be, some of them had to be actual actions, not just conspiracies.

[00:21:46] Speaker 02:
That's exactly right, Your Honor.

[00:21:47] Speaker 02:
And the jury, the verdict from here, I think,

[00:21:51] Speaker 03:
does all of the does most of the work to fix whatever assuming there is a problem with the word agreement in instruction number seven the verdict makes it clear what the jury found so would you would you rather that we say the jury instruction was just not error therefore he has no claim or would you rather that we avoid that question and say there's just no prejudice the the special verdict form cures whatever error there might have

[00:22:17] Speaker 02:
the former, your honor, I do think because Rutledge says that in concert with is meaningfully indistinguishable from agreement with there is no error in the first place.

[00:22:27] Speaker 02:
Then the verdict form and the other instructions, the general unanimity and the rest of instruction seven correct any error.

[00:22:35] Speaker 02:
But all of that is far above the constitutional floor set by Strickland for defense counsel to have made the argument in the heat of the battle

[00:22:44] Speaker 02:
during a five week trial when the defense was not, there weren't three drug acts.

[00:22:49] Speaker 02:
The defense was like Montalvo.

[00:22:52] Speaker 02:
I was not the supervisor, right?

[00:22:54] Speaker 02:
The alleged scatter shot or shotgun approach.

[00:22:58] Speaker 02:
When that's the defense, I think we're asking too much under Strickland of defense counsel to have to preserve or to make the argument to object to that instruction when the language of agreement

[00:23:13] Speaker 02:
is not disparate from in concert with and the verdict form fixes it.

[00:23:19] Speaker 02:
So I would ask the government's preferred ruling, if the court's given the government a chance to weigh in, would be there was no error.

[00:23:26] Speaker 02:
The verdict form and instruction seven fix any error, though there wasn't any.

[00:23:31] Speaker 02:
And regardless, there is no.

[00:23:33] Speaker 03:
Your position, I guess on the first one, I mean, do we need a published opinion if we said it was not error?

[00:23:38] Speaker 03:
Your position would be Rutledge already decides that question.

[00:23:43] Speaker 02:
To be clear, Rutledge is a blockbuster analysis.

[00:23:45] Speaker 02:
Rutledge is about double punishment.

[00:23:47] Speaker 02:
Yes, because the Supreme Court says that agreement and in concert with are for these purposes co-extensive, then I think Rutledge solves it.

[00:23:56] Speaker 02:
I don't think there's a need for a published opinion on that basis.

[00:23:59] Speaker 00:
It couldn't be convicted.

[00:24:04] Speaker 00:
The three crimes, you could have one conspiracy, but could you have three conspiracies?

[00:24:11] Speaker 02:
Yes, I think that's correct, Your Honor.

[00:24:13] Speaker 02:
You'd have to have three disparate conspiracies.

[00:24:16] Speaker 02:
Here we have the conspiracy as one of the three necessary violations and then at least nine distribution possession or telecommunication facility.

[00:24:30] Speaker 02:
So we're way past the additional two that council would need to undermine to have some finding on just efficient representation.

[00:24:39] Speaker 02:
much less prejudice because of Your Honor's point about the standard of Strickland, which is to say, for this agreement language to have jumped off the page in such a way that it was deficient for counsel not to object to it, we wouldn't be having this conversation today about agreement and in concert with.

[00:24:58] Speaker 02:
I think the fact that Rutledge exists means that counsel wasn't deficient for failing to object to that.

[00:25:03] Speaker 02:
Council was taking a different approach, which is a reasonable strategy, which was there's a mountain of evidence of the drug crimes.

[00:25:10] Speaker 02:
So try to attack the supervisory role.

[00:25:13] Speaker 02:
And that's what the trial was.

[00:25:14] Speaker 02:
And that defense was Montalvo, the same as Montalvo, where there wasn't even in Montalvo, there wasn't even a Richardson instruction.

[00:25:22] Speaker 02:
And that was harmless error.

[00:25:24] Speaker 02:
So for those reasons,

[00:25:26] Speaker 02:
based on the plain language of the statute in concert with, agreement being the same as in concert with, and the remainder of jury instruction seven and the verdict form, I think the defense has too high a hill to climb to show that trial counsel was constitutionally deficient for failing to raise it.

[00:25:46] Speaker 00:
But it seems that because of the reference in second to the earlier list, he has committed the violations, the ones he's

[00:25:54] Speaker 00:
convicted of, right?

[00:25:57] Speaker 00:
Three of them, one of them which was conspiracy.

[00:26:00] Speaker 00:
Agreement wouldn't be enough for the ones that he actually himself committed.

[00:26:08] Speaker 00:
How would that work?

[00:26:10] Speaker 02:
I think for my friend to be correct.

[00:26:12] Speaker 00:
But it could be both.

[00:26:13] Speaker 00:
It could be, some could be agreements and some could be actual joint actions.

[00:26:20] Speaker 02:
With respect, Your Honor, I don't think that's true as to numbers two, three, and four, the distribution, possession with intent, and communications facility, because those aren't left blank.

[00:26:32] Speaker 02:
Because those are answered yes in the affirmative, that he did commit them.

[00:26:36] Speaker 00:
He did commit them.

[00:26:37] Speaker 00:
Therefore, the agreement language wouldn't apply to those.

[00:26:40] Speaker 02:
I think that's correct.

[00:26:41] Speaker 02:
Your honor.

[00:26:41] Speaker 02:
I think that's correct.

[00:26:42] Speaker 00:
So the agreement language would only apply to the conspiracy.

[00:26:45] Speaker 00:
So basically what you have, what it says or it means well for the crimes that are about agreements, it's an agreement and for crimes that are about actions, it's a joy to action.

[00:26:54] Speaker 02:
I think that's a fair reading of that jury instruction, particularly where under a cell.

[00:26:59] Speaker 02:
you don't isolate and flyspec one particular part of a, you know, dozens of jury instructions and verdict form.

[00:27:07] Speaker 00:
The read in total... Because if it just said joint action, it wouldn't necessarily reach the conspiracy, which it should.

[00:27:16] Speaker 02:
I think that's probably correct, Your Honor.

[00:27:18] Speaker 02:
I will say I think the cleanest way to do this is to just leave in concert with, in the jury instructions, the way the statute is written.

[00:27:25] Speaker 00:
Or together with.

[00:27:26] Speaker 00:
Just leave that to the second part of it.

[00:27:28] Speaker 02:
I think Your Honor's right.

[00:27:28] Speaker 00:
But it was the government that suggested the second part of it.

[00:27:31] Speaker 02:
That's correct, Your Honor.

[00:27:31] Speaker 02:
That's correct.

[00:27:32] Speaker 02:
We did.

[00:27:32] Speaker 02:
And I think the reason for that is after a five and a half week trial, I wasn't trial counsel, but I understand that the reason they did that was

[00:27:41] Speaker 02:
in concert with is not really lay language that a jury is going to use together with.

[00:27:46] Speaker 00:
Why wasn't that good enough by itself?

[00:27:48] Speaker 02:
I think it would have been your honor.

[00:27:49] Speaker 02:
I think together with would have been and I will assure the court that from our office, certainly we will be using that instruction going forward without this language.

[00:27:56] Speaker 02:
But I do think that the language itself agreement is captured by Rutledge and is not disparate from in concert with to the level that it would need to be

[00:28:08] Speaker 02:
to constitutionally ineffective representation by counsel at trial.

[00:28:24] Speaker 02:
If the court has no further questions, I do just want to quickly just address the Frady-Massaro issue from the briefing.

[00:28:31] Speaker 02:
The district court ruled under both Frady and Strickland, and the government has to raise that argument or re-wave it.

[00:28:36] Speaker 02:
I certainly understand the defensive position that Massaro is a categorical exception, that you can raise a habeas claim even if you didn't raise it below.

[00:28:45] Speaker 02:
I would just note that Frady itself is a jury instruction.

[00:28:49] Speaker 02:
Claim where there's no further record development and so I think I thought it was a good faith argument to make under fraidy But it seems based on today's argument that we all agree that Strickland is the analysis rather than fraidy And under the government's the government's position is that under Strickland the defense cannot show Deficient representation or prejudice if I just make one more point about prejudice

[00:29:11] Speaker 02:
I think the defense would have to show to establish prejudice that if the word agreement were not in instruction seven this jury wouldn't have convicted and I do not think the record supports that and this is Montalvo where there is a mountain of evidence and the defense is not

[00:29:29] Speaker 02:
The drug crimes didn't happen, but I wasn't the supervisor, which is exactly what happened here.

[00:29:34] Speaker 02:
Even if there is Richardson error, that error is harmless.

[00:29:37] Speaker 02:
So even under the defense's theory, the defense can't get to prejudice because of Montalvo and how it reads Richardson.

[00:29:45] Speaker 02:
So unless the court has further questions on that, the government will submit.

[00:29:49] Speaker 03:
OK.

[00:29:51] Speaker 03:
Thank you.

[00:29:52] Speaker 03:
Thank you.

[00:29:53] Speaker 03:
I'll give you two minutes for rebuttal.

[00:29:59] Speaker 04:
So the Richardson case, 526 U.S.

[00:30:01] Speaker 04:
813, involved a decision by the Supreme Court whether the... I know what it involved.

[00:30:08] Speaker 00:
I want to know what language you're relying on.

[00:30:09] Speaker 04:
What's that?

[00:30:10] Speaker 00:
I know what it involved.

[00:30:11] Speaker 00:
I want to know what language you're relying on.

[00:30:12] Speaker 04:
Okay.

[00:30:13] Speaker 04:
It's at page...

[00:30:16] Speaker 04:
819, where it said the first of these considerations, whether it's a means or an element, likelihood that treating violations simply as an alternative means by permitting the jury to avoid discussions of the specific factual details of each violation.

[00:30:31] Speaker 04:
What Richardson is signaling there, I believe, is that the violation conduct has to be based on specific detail.

[00:30:40] Speaker 04:
We know that the conspiracy was because I don't think there's any doubt.

[00:30:44] Speaker 04:
That's why the conspiracy is not challenged.

[00:30:46] Speaker 04:
But the other specific details of distributions, for example, distributions to HUNCA.

[00:30:51] Speaker 04:
HUNCA was no more than a buyer-seller, so he's not in the hierarchy of folks that could be supervised.

[00:30:56] Speaker 00:
What does that have to do with the agreement versus joint action question?

[00:30:59] Speaker 04:
Because the jury didn't in its special finding.

[00:31:04] Speaker 04:
did not specify whether they were finding these separate substantive violations because he was part of an agreement or by joint action.

[00:31:15] Speaker 04:
And instruction number seven allowed them to find those special findings if he was in an agreement.

[00:31:22] Speaker 00:
There's nothing in Richardson that says that an agreement is not sufficient for any concert.

[00:31:29] Speaker 04:
No, but it does say there has to be specific details that the jury has to decide on whether or not each violation occurred.

[00:31:36] Speaker 04:
In this case, only one predicate conspiracy could be considered by the jury and was considered.

[00:31:41] Speaker 04:
So the next of the violations have to be substantive underlying violations.

[00:31:45] Speaker 04:
Jury instruction number seven allowed them to find those other underlying substantive violations if they were part of an agreement with, if Carmen was part of an agreement with five or more other persons.

[00:31:57] Speaker 04:
I know it says or, but it doesn't instruct the jury to say that the or belongs.

[00:32:02] Speaker 00:
It also says violations, so we know that we're referring to the violations that were already found, right?

[00:32:09] Speaker 00:
And only one of them was an agreement.

[00:32:12] Speaker 04:
That was my point.

[00:32:14] Speaker 04:
There was evidence that Carmen distributed, let's say, at least three times to Brandon Werner.

[00:32:23] Speaker 04:
who was he in concert with since Brandon Werner was likely a buyer-seller, it allowed them to say, well, since everybody was in agreement that they could sell pills in Spokane, then he was definitely part of an agreement with five or more persons, even though he did that individually on his own.

[00:32:39] Speaker 04:
Same goes with Daniel Hunker.

[00:32:41] Speaker 04:
That's the problem.

[00:32:43] Speaker 04:
So that's the reason why Strickland requires a detailed, comprehensive review of the record, because a comprehensive review of the record doesn't show

[00:32:52] Speaker 04:
that Carmen acted in concert in any definite period of time with other persons.

[00:32:59] Speaker 00:
That's a completely different argument than the one that you made in your previous.

[00:33:02] Speaker 04:
No, no, no, it actually goes to the prejudice.

[00:33:05] Speaker 04:
It is in my reply brief.

[00:33:07] Speaker 04:
It goes to the prejudice.

[00:33:09] Speaker 04:
And we don't have to show that the verdict would have been different.

[00:33:12] Speaker 04:
Strickland says that.

[00:33:13] Speaker 04:
This is not a newly discovered evidence-type test.

[00:33:17] Speaker 04:
And it's not a Jackson versus Virginia test where you give the government the evidence in most favorable light.

[00:33:26] Speaker 04:
This is a test that says that if there's a deficient performance,

[00:33:31] Speaker 04:
Was that deficient performance reasonably probable that deficient performance affected or would have created a reasonable doubt to the jury?

[00:33:43] Speaker 04:
And I think it would in this case, especially in light of the entire record.

[00:33:47] Speaker 04:
I think we have your argument.

[00:33:48] Speaker 03:
And I appreciate both counsel for your arguments in this case.

[00:33:52] Speaker 03:
The case is now submitted.

[00:33:53] Speaker 03:
Thank you.