[00:00:00] Speaker 02:
is 23-3112, United States versus Peppers.

[00:00:04] Speaker 02:
And Ms.

[00:00:04] Speaker 02:
Nichols for the appellant.

[00:00:08] Speaker 02:
You may proceed.

[00:00:11] Speaker 01:
Good morning, your honors.

[00:00:13] Speaker 01:
My name is Paige Nichols, and I represent the appellant, Mr. Dante Peppers.

[00:00:17] Speaker 01:
May it please the court, I'd like to focus this morning on the two trial issues, beginning with issue one, the constructive amendment of the indictment.

[00:00:26] Speaker 01:
Now, there really should be little debate about whether there was a constructive amendment.

[00:00:30] Speaker 01:
Even the government agrees that their conspiracy elements instruction was broader than the conspiracy charged and that that broadening instruction alone theoretically allowed the jury to convict Mr. Pepper's of an uncharged conspiracy.

[00:00:45] Speaker 01:
There was also the government's argument that there were more people involved in the conspiracy, that this 9244 phone number's owner was a main participant, that the jurors should consider alternative theories and uncharged conspirators.

[00:01:00] Speaker 01:
So I'd like to jump to the more difficult question, which as always in a plain error case, is whether we can meet prong three of plain error on this constructive amendment.

[00:01:13] Speaker 01:
And how we conduct prong three of plain error in a constructive amendment case isn't really that different from how we can conduct that.

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analysis in any other case.

[00:01:24] Speaker 01:
Miller, the case in which this court reversed a conviction on grounds of a plain constructive amendment, tells us how we do it.

[00:01:34] Speaker 01:
Miller found that prong three was met because the court cannot tell whether the jury based its verdict on the charged crime or on an uncharged crime that the instructions allowed it to convict on.

[00:01:49] Speaker 02:
Is that like a sufficiency of the evidence inquiry, just trying to understand how to frame the analysis, whether the government will stand up and say, well, there's

[00:02:01] Speaker 02:
a lot overlong in evidence of guilt.

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And you'd look at kind of any rational juror type perspective of the evidence.

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Should we look at it that way?

[00:02:12] Speaker 02:
Or I think what you're describing, Miller's seems a little different than that.

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It feels like an easier standard to meet for the defendant here.

[00:02:23] Speaker 01:
Well, prong three has never been a pure sufficiency of the evidence analysis.

[00:02:28] Speaker 01:
Now, prong three won't be met in cases where the evidence is overwhelming.

[00:02:33] Speaker 01:
But if it's just sufficient, that doesn't mean we lose on prong three.

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And it never has.

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In fact, in Miller, one of the other issues in the court was whether the charged false statement was, as a matter of law, false.

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And so there was a kind of separate

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sufficiency of a matter of law question there, which that defendant lost, but he still won his constructive amendment argument on plain error.

[00:03:02] Speaker 01:
So what we're looking for is, in the ordinary case, you know, it's a reasonable probability that the outcome would have been different.

[00:03:09] Speaker 01:
Here, that would mean that the jury wouldn't have convicted him of the charged offense if it hadn't had

[00:03:15] Speaker 01:
these instructions and this argument and evidence that allowed it to convict of an uncharged offense.

[00:03:20] Speaker 03:
So when Miller talks about... May I interrupt you a minute on Miller?

[00:03:23] Speaker 03:
Yes.

[00:03:23] Speaker 03:
That's what I always assumed, that you would have the obligation to prove a reasonable probability, not possibility, but probability, of a different outcome.

[00:03:34] Speaker 03:
And you've just said that.

[00:03:36] Speaker 03:
There's a statement in Miller quoting an earlier case of ours, James, that appears to be more favorable to you.

[00:03:45] Speaker 03:
I'm just curious on your take on it.

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It says, even under plain error, we'll find a constructive amendment occurred when the evidence presented at trial, together with the jury instructions, raised the possibility

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that the defendant was convicted of an offense other than that charge.

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That troubled me.

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I was a little surprised about that.

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And I'm kind of relieved in a way that you're arguing what is a more traditional argument.

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But I'm sure you've thought about that.

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You chose not to argue possibility.

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You've chosen to argue the more conventional probability.

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And I'm appreciative of it.

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But I do have trouble figuring out how to get around that statement in the middle.

[00:04:24] Speaker 01:
I can sort it out, I think.

[00:04:25] Speaker 03:
Well, only if you can do it in 30 seconds.

[00:04:27] Speaker 03:
I don't want to take your time.

[00:04:28] Speaker 01:
Right.

[00:04:29] Speaker 01:
I can do it in 30 seconds.

[00:04:30] Speaker 01:
The possibility of a conviction of an uncharged offense goes to whether there was a constructive amendment, the error in the first place.

[00:04:39] Speaker 01:
That's at stage one.

[00:04:41] Speaker 01:
Thank you.

[00:04:42] Speaker 03:
You've done it beautifully in one sense.

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I understand.

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Less than 30 seconds.

[00:04:46] Speaker 01:
Yeah.

[00:04:46] Speaker 01:
Really well done.

[00:04:49] Speaker ?:
Wonderful.

[00:04:49] Speaker 01:
The conversation in Miller about we cannot tell whether the jury based its verdict on the charged or the uncharged crime.

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We won't presume the jury's thinking and given that guilt on the charged crime was not overwhelming,

[00:05:04] Speaker 01:
The jury might very well have based its conviction on, based its verdict on an uncharged conspiracy.

[00:05:10] Speaker 02:
What wasn't the focus of trial, though, really on Millsaps and Howes?

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That was the core of the prosecution's theory.

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And maybe there were these other people in the car, and there was the mysterious phone number and those sorts of things.

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But is that really the thrust of what the trial was about?

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I mean, just because there were

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you know, these unnamed co-conspirators.

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Is that really a realistic way to view the trial record here?

[00:05:41] Speaker 01:
It is in this case because we have evidence that Lindsay Fry's car was at two of the buys and that she herself was definitely at the second buy and was probably at the first buy.

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There was a white woman in her car at the first buy.

[00:05:56] Speaker 01:
We have evidence that the 9244 number comes up

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in two separate buys, buys two and three.

[00:06:04] Speaker 01:
And we only have Mr. Peppers himself present at one buy, but nobody can see in the car.

[00:06:09] Speaker 01:
Nobody can see who Millsap goes to talk to in the car.

[00:06:13] Speaker 01:
And there's nothing found in the car but a smell of marijuana.

[00:06:18] Speaker 01:
Well, they don't search the car when they stop the car afterwards.

[00:06:21] Speaker 01:
So we have as much evidence about Lindsay Fry and the 9244 person, at least as much evidence about their involvement in those buys as we have about Mr. Pepper's involvement.

[00:06:31] Speaker 01:
May I ask a question?

[00:06:33] Speaker 03:
In a conspiracy, you can have a handful of conspirators, or a couple, at least two,

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And then they may involve a whole lot of other people to execute that conspiracy.

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That show up in cars, participate in buys, and it doesn't mean the conspiracy runs all the way down to all their agents and helpers.

[00:06:52] Speaker 03:
So how do we know that these other people that you are saying really were part of the conspiracy, couldn't it legitimately be viewed they were simply helpers of the conspiracy as alleged?

[00:07:04] Speaker 01:
Right.

[00:07:05] Speaker 01:
Just as Mr. Peppers might have been found by the jury and probably was found by the jury as a mayor helper as well.

[00:07:12] Speaker 01:
So the conspiracy situation, you have people who are in on the agreement itself, and then you have aiders and abettors.

[00:07:19] Speaker 01:
And the government here encouraged the jury to consider aiding and abetting.

[00:07:22] Speaker 03:
And they charged aiding and abetting.

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they charged.

[00:07:24] Speaker 01:
And yes, so with the government pushing aiding and abetting as a theory of conviction for Mr. Peppers, that opened up the possibility there had to have been a conspiracy for him to aid and abet.

[00:07:34] Speaker 01:
So if he aid and abetted Millsap's conspiracy with an uncharged conspirator, that is a conviction on an uncharged

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conspiracy, because it's aiding and abetting an uncharged conspiracy.

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So the point here is, like Your Honor said, you've got all these people swirling around, these different buys.

[00:07:54] Speaker 03:
Aiding and abetting, though, I don't see as a constructive amendment, because that was in the complaint all along.

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So it kind of complicates things.

[00:08:02] Speaker 03:
If we just focused on the conspiracy, you're saying that there was more people in this conspiracy than they alleged.

[00:08:10] Speaker 01:
The government said that.

[00:08:11] Speaker 03:
Should we look at the law differently, depending on

[00:08:15] Speaker 03:
whether there's more than you allege that you prove, or whether there are less in there than you approve.

[00:08:21] Speaker 03:
Is the standard the test for both, or does one have a harder problem?

[00:08:26] Speaker 01:
The problem here is more difficult because what it means if you're- More difficult for whom?

[00:08:31] Speaker 01:
For the government, because the grand jury only returned an indictment on an agreement between three specified people.

[00:08:38] Speaker 01:
They did not in the indictment say, and others unknown.

[00:08:40] Speaker 03:
But they didn't say, and no others, though.

[00:08:43] Speaker 03:
They said three people agreed.

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And if four people agreed, it is still true that three people agreed.

[00:08:50] Speaker 03:
And there's all kinds of reasons that government might say there is a bigger crime here, but for a variety of reasons, we're not charging the bigger crime.

[00:08:57] Speaker 03:
Maybe we want to flip.

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Maybe we've got an evidence or confidential informant or something else.

[00:09:01] Speaker 03:
So that's not a surprise.

[00:09:03] Speaker 01:
But the government made its choice, and it has to get its instructions and make its argument based on the choice it made.

[00:09:11] Speaker 01:
We've known this since Styron.

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We've known this in every Constructive Amendment case this court has decided.

[00:09:17] Speaker 01:
They decided to charge a very narrow conspiracy, and even the government agrees that the instructions allowed a conviction of a broader conspiracy than that charge.

[00:09:25] Speaker 01:
That's a violation to the Fifth Amendment right of a grand jury indictment.

[00:09:30] Speaker 02:
Are those cases distinguishable because there the prosecutor really hammered home a broader conspiracy, made that a more explicit pitch to the jury than occurred in this case?

[00:09:42] Speaker 01:
I don't know how you can get more explicit than the prosecutor in opening statement having a visual aid that says this 9244 person is the main participant and he's at the top of the chain.

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Or more explicit than the government urging the jury to look at those aiding and abetting instructions and ask them to consider

[00:10:00] Speaker 01:
alternative theories.

[00:10:02] Speaker 01:
But when we get to, as we're talking about the problems with this broadened indictment, I want to remind the court that we've argued as well cumulative error based on the court's exclusion of Millsaps

[00:10:19] Speaker 01:
out-of-court statements against interest.

[00:10:22] Speaker 01:
And I want to make sure I save plenty of time for rebuttal, but two things I'd like to point out.

[00:10:27] Speaker 01:
I think one of the biggest flaws in the courts excluding those statements has to do with Millsap's statement out of court that he got marijuana from Mr. Peppers because the district court didn't really address that except when it was addressing the corroboration prompts.

[00:10:44] Speaker 01:
We've got a

[00:10:45] Speaker 01:
against penal interest prong and a corroboration prong when it comes to statements against interest.

[00:10:52] Speaker 01:
And it's quite clear that telling an investigator for the federal defender office who's asking you about a case you were involved in, in federal court, that if you tell that person, I committed a crime in addition to the crimes I was charged with, of course you didn't word it that way.

[00:11:09] Speaker 01:
I bought marijuana from Mr. Pepper's at the second buy.

[00:11:13] Speaker 01:
That is a declaration.

[00:11:13] Speaker 02:
The theory would be the investigator is going to inform the US attorneys of the potential discrepancy?

[00:11:22] Speaker 01:
I'm sorry, I didn't hear the first part of your question.

[00:11:24] Speaker 02:
I'm just trying to figure out how this is going to work in real life.

[00:11:31] Speaker 02:
tells the investigator one thing that's contradictory to what he told the sentencing judge, then the investigator is going to inform the U.S.

[00:11:41] Speaker 02:
attorney and the U.S.

[00:11:42] Speaker 02:
attorney then it's a potential investigation indictment for perjury.

[00:11:49] Speaker 01:
Well, not necessarily just for perjury.

[00:11:51] Speaker 01:
On the marijuana part of it, it's a separate crime to possess marijuana.

[00:11:55] Speaker 01:
He could be charged in state court.

[00:11:56] Speaker 01:
He could be charged in city court.

[00:11:58] Speaker 01:
Possessing marijuana in Kansas is a crime.

[00:12:01] Speaker 02:
Would that ever happen?

[00:12:03] Speaker 02:
Has that ever happened?

[00:12:07] Speaker 02:
I'm sure that's not in the record.

[00:12:09] Speaker 01:
Has it ever happened that someone's been charged for possessing marijuana?

[00:12:13] Speaker 02:
No, no, no.

[00:12:19] Speaker 02:
The PD investigators, wearing a couple hats here, investigating crimes for her primary case and gets information on another case.

[00:12:34] Speaker 02:
Maybe I'm speculating a bit on how frequently your office provides information to the US Attorneys to go after people.

[00:12:42] Speaker 01:
What matters here is if we know what Millsap was thinking, what he was thinking or what a reasonable person would think in terms of am I

[00:12:50] Speaker 01:
putting myself at that's actually that was what I was yes, you you right and successfully got me to me or tour I wanted to go and is that a reasonable a reasonable fear for a so this court has has Found statements to be against penal interest even when they were to the person's own lawyer which was the The Sorry

[00:13:20] Speaker 01:
Yeah, there's a Lopez case from 1985.

[00:13:22] Speaker 01:
It's referenced in the Lozado case.

[00:13:25] Speaker 01:
It was error to exclude a co-defendant passenger's statement to his own attorney that happened to be in the presence of the defendant.

[00:13:32] Speaker 01:
So there was no attorney client community problem there.

[00:13:36] Speaker 01:
That he alone put drugs in the car.

[00:13:38] Speaker 01:
So this court has found, and it doesn't have to be a statement to law enforcement.

[00:13:42] Speaker 01:
The statement in Yellowhorse that was found to be against interest was to family members.

[00:13:45] Speaker 01:
The statement in, got another one for you.

[00:13:52] Speaker 01:
in smalls was to a cellmate.

[00:13:55] Speaker 01:
So the statements don't have to be made to law enforcement.

[00:13:58] Speaker 01:
They don't have to be made under oath.

[00:14:00] Speaker 01:
And I see that I am running low on time.

[00:14:02] Speaker 01:
So if I can, I'd like to reserve the rest of my time for rebuttal.

[00:14:04] Speaker 01:
You may.

[00:14:04] Speaker 01:
Thank you.

[00:14:05] Speaker 01:
Thank you.

[00:14:09] Speaker 02:
OK, Mr. Clark, for the government.

[00:14:25] Speaker 00:
Thank you.

[00:14:25] Speaker 00:
Good morning, Your Honors.

[00:14:27] Speaker 00:
Brian Clark for the United States.

[00:14:29] Speaker 00:
May it please the Court.

[00:14:30] Speaker 00:
The problem with Mr. Pepper's constructive amendment argument is that the government presented only one theory of conspiracy to the jury at trial, and that is that Mr. Pepper has conspired with Mr. Millsap to possess and distribute methamphetamine.

[00:14:45] Speaker 00:
That conspiracy was charged in the indictment.

[00:14:48] Speaker 03:
What was the language in the indictment?

[00:14:50] Speaker 03:
Did the indictment mention a potential third conspirator?

[00:14:56] Speaker 00:
The indictment charged Mr. Peppers with conspiring with Mr. Millsap and Ms.

[00:15:01] Speaker 00:
Lori House together with each other.

[00:15:03] Speaker 03:
Isn't that contrary to what you just told us?

[00:15:05] Speaker 00:
No, so under Williams as well as Davis, all the government had to prove at trial was that the conspiracy involved Mr. Peppers and one or the other of the other two co-defendants, either Mr. Millsap or Mr. House.

[00:15:19] Speaker 00:
And that's what the government did.

[00:15:20] Speaker 02:
Well, that begs the question.

[00:15:22] Speaker 02:
The defense argument is that he was convicted of conspiring with 9244 or Frye or Robinson.

[00:15:30] Speaker 02:
And the evidence would permit that finding by a jury, a rational jury.

[00:15:34] Speaker 00:
No, I disagree.

[00:15:36] Speaker 00:
The evidence would not support that.

[00:15:38] Speaker 00:
And I think it's important to think about and really drill down on the elements of a conspiracy.

[00:15:44] Speaker 00:
Two of the elements that were talked about a lot at trial were an agreement and interdependence.

[00:15:50] Speaker 00:
The prosecutor mentioned those in opening and focused on those in closing.

[00:15:54] Speaker 00:
There was not evidence of an agreement

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of some uncharged, with respect to some uncharged conspiracy.

[00:16:01] Speaker 00:
There is not evidence with respect to interdependence as to some uncharged conspiracy.

[00:16:06] Speaker 00:
And I think really, I know Mr. Peppers has done a good job of sort of cherry picking pieces of the record and statements that the prosecutor made in an opening and closing.

[00:16:15] Speaker 03:
I didn't think that she was arguing closing statements.

[00:16:18] Speaker 03:
I thought it was just opening statements.

[00:16:20] Speaker 00:
I believe it's both, and Ms.

[00:16:22] Speaker 00:
Nichols can correct me if I'm wrong, the aspect of opening that Mr. Peppers is focused on is the chart that the prosecutor showed with the 9244 number.

[00:16:32] Speaker 00:
But it's just not correct to say that the government's theory was that the 9244

[00:16:37] Speaker 00:
person connected with that number was some, you know, primary component of this.

[00:16:42] Speaker 00:
If you look at the prosecutor's closing, he talks about the 9244 number, the person connected with that number, as someone that just sort of a thread that connects all three of the co-defendants, but not someone that was necessary to the conspiracy.

[00:16:55] Speaker 00:
And I think just to focus the court, I think the most sort of telling part of the record is where

[00:17:01] Speaker 00:
In closing, the prosecutor is talking to the jury about what is required for a conspiracy and specifically an agreement.

[00:17:09] Speaker 00:
And he asks a rhetorical question, something along the lines of, so what evidence does the government have to show that Mr. Peppers agreed with someone else to violate the federal drug laws?

[00:17:19] Speaker 00:
And he answered that question by pointing the jury back to the July 6, 2020 Facebook Messenger messages, which of course were between Mr. Peppers and Mr. Millsap.

[00:17:28] Speaker 00:
and they discussed, you know, prices and quantities of methamphetamine for buying and selling.

[00:17:34] Speaker 03:
So what do we do with the indictment that says that you conspired with others and apparently specifically mentioned Milsol, maybe?

[00:17:45] Speaker 00:
Correct, and that is the conspiracy that the government.

[00:17:48] Speaker 02:
And also, if you could add, the jury instructions allowed a broader interpretation also.

[00:17:54] Speaker 00:
Yes, that's correct.

[00:17:55] Speaker 00:
And I'm not disputing that.

[00:17:57] Speaker 00:
The jury instructions were technically broader than the indictment.

[00:18:03] Speaker 00:
But in this case, that is not problematic and does not necessarily lead to a constructive amendment.

[00:18:09] Speaker 00:
I think Miller actually, I know Mr. Peppers relies on Miller quite heavily,

[00:18:13] Speaker 00:
I think Miller is actually better for the government than it is for Mr. Pepper's and the reason is because Miller shows what this court looks at when considering whether there was a constructive amendment.

[00:18:23] Speaker 00:
It looks at the indictment, it looks at the jury instructions for sure to see if there's a mismatch if the jury instructions are broader, but it also specifically this court looks at the evidence that was presented at trial and the statements that the prosecutor made at trial.

[00:18:38] Speaker 00:
And in Miller, what was particularly problematic was that the prosecutor presented to the jury two theories of criminal liability for false statement.

[00:18:49] Speaker 00:
One of them was charged.

[00:18:51] Speaker 00:
The other was uncharged.

[00:18:52] Speaker 00:
But the government presented evidence as to both the charged and the uncharged offense.

[00:19:00] Speaker 00:
And in closing, the prosecutor told the jury that it could convict on either the charged or the uncharged offense.

[00:19:06] Speaker 00:
But that's not what we have here.

[00:19:08] Speaker 00:
What we have here is a conspiracy, an indictment that charged Mr. Peppers with conspiring with Mr. Millsap.

[00:19:16] Speaker 00:
And others.

[00:19:17] Speaker 00:
And others, sure, but to your point, and I think the Williams case from the Supreme Court is on point on this, just because an indictment may charge others or additional conduct, the government only has to prove at trial, you know, it's okay if the government just proves a subset of that criminal activity.

[00:19:35] Speaker 00:
So just because the indictment charges a conspiracy between the three codefendants, the fact that the government proved

[00:19:43] Speaker 00:
a conspiracy between two of them is sufficient.

[00:19:46] Speaker 00:
And I don't take Mr. Peppers to be disputing that at all.

[00:19:49] Speaker 00:
In fact, in his opening brief, he cites the Davis case alluding to this point, that all the government had to do was to prove a conspiracy between Mr. Peppers and Mr. Millsout.

[00:20:00] Speaker 00:
And if that's what the jury convicted on, then that would be sufficient.

[00:20:04] Speaker 02:
Why couldn't the jury have believed that Peppers and Frye were conspiring together?

[00:20:11] Speaker 02:
She seemed to be

[00:20:13] Speaker 02:
in the car there.

[00:20:14] Speaker 02:
Why couldn't a jury, based on what was presented at trial, say, OK, those two were in cahoots.

[00:20:20] Speaker 02:
We don't know where they got the drugs, but they were a team selling it.

[00:20:23] Speaker 02:
And that's the conspiracy.

[00:20:25] Speaker 02:
Why isn't that a rational view of the evidence presented?

[00:20:28] Speaker 00:
So it's possible for the jury to have thought that Mr. Peppers and Ms.

[00:20:32] Speaker 00:
Fry had conspired, but not without Mr. Millsap.

[00:20:35] Speaker 00:
And I think that's the key point.

[00:20:38] Speaker 02:
But if she was part of the conspiracy, doesn't that

[00:20:42] Speaker 02:
Isn't that a constructive amendment?

[00:20:45] Speaker 00:
No, it's not.

[00:20:46] Speaker 00:
Because if the conspiracy charged, for example, was just between Mr. Peppers and Mr. Millsap.

[00:20:51] Speaker 02:
So you're saying it's not credible that there could be a conspiracy between Fry and Peppers without Millsap being part of the

[00:20:59] Speaker 00:
That's right.

[00:21:00] Speaker 00:
That's right.

[00:21:01] Speaker 00:
And the reason is because the evidence showed and really focused on the entire government's theory went back to those July 6 Facebook Messenger messages where Mr. Millsap has drug customers.

[00:21:15] Speaker 00:
He's looking for drugs.

[00:21:17] Speaker 00:
Mr. Peppers has drugs and is willing

[00:21:20] Speaker 00:
to sell them at a particular price.

[00:21:22] Speaker 00:
They're negotiating and that, the prosecutor told the jury, was the beginning of the conspiracy and also facilitated the conspiracy.

[00:21:31] Speaker 00:
So if perhaps Mr. Peppers was also conspiring with Ms.

[00:21:34] Speaker 00:
Fry, in addition to conspiring with Mr. Millsap, that does not amount to a constructive

[00:21:41] Speaker 00:
It simply shows that the conspiracy was perhaps broader than what the government charged.

[00:21:47] Speaker 00:
But as long as there's no realistic possibility that the jury found a conspiracy that didn't include Mr. Peppers and Mr. Millsap, then there's no constructive amendment.

[00:22:01] Speaker 00:
To put it another way, the evidence only supported one conspiracy in this case, and it was the charged conspiracy between Mr. Peppers and Mr. Millsap.

[00:22:11] Speaker 00:
And I think the fact that this case is here on plain error review, I think, you know, only helps the government's case.

[00:22:19] Speaker 00:
I know Ms.

[00:22:20] Speaker 00:
Nichols focused on prong three of the plain error review and there was a discussion about Miller and how that's treated.

[00:22:26] Speaker 00:
Well, what the court did in Miller on prong three

[00:22:29] Speaker 00:
was to look at whether there was a reasonable probability that the jury convicted on the uncharged offense and would not have convicted on the charged offense.

[00:22:43] Speaker 00:
But there can be no argument here that there was a conviction on the uncharged offense because, again, the evidence only supported one conspiracy.

[00:22:52] Speaker 00:
That was the charged conspiracy.

[00:22:54] Speaker 00:
The prosecutor, while he made statements about a 9244 number,

[00:22:58] Speaker 00:
made statements about other theories of liability.

[00:23:00] Speaker 00:
If you read the transcript in context, we're just fleeting statements about different aspects of the jury instructions that did not amount to what you have in Miller or FAR, where the government is urging the jury to convict on an uncharged defense.

[00:23:18] Speaker 00:
And so because the evidence

[00:23:23] Speaker 00:
established only one conspiracy, the government focused on only one conspiracy, and that was the charge conspiracy.

[00:23:29] Speaker 00:
There was no constructive amendment of the indictment, and even if there was, the evidence was very strong as to the conspiracy between Mr. Peppers and Mr. Milstaff.

[00:23:42] Speaker 00:
I go back to the July 6, 2020 Facebook Messenger messages, Mr. Pepper's known involvement in the second controlled by his apparent involvement in the first controlled by and in the

[00:23:59] Speaker 03:
And so based on that, the evidence was... So the conspiracy... I mean, the complaint charged at least three names.

[00:24:06] Speaker 03:
Correct.

[00:24:06] Speaker 03:
And you're now saying, well, there's good proof about two of those.

[00:24:08] Speaker 03:
Correct.

[00:24:09] Speaker 03:
Milsaupen and how... Peppers.

[00:24:12] Speaker 03:
Peppers, rather.

[00:24:14] Speaker 03:
So is it clear that you can charge a conspiracy of three or four or five people and the government wins if they only prove two of those?

[00:24:23] Speaker 00:
Yes.

[00:24:23] Speaker 00:
I would point the court to the Williams case from the US Supreme Court and the Davis case.

[00:24:27] Speaker 00:
And again, I would just note that I don't think Mr. Peppers is even contesting that.

[00:24:32] Speaker 00:
I think he even alludes to that in his opening brief inciting Davis.

[00:24:36] Speaker 02:
Well, the problem isn't the number of conspirators.

[00:24:39] Speaker 02:
The problem is those identified in the indictment.

[00:24:42] Speaker 02:
permitted under the jury instructions, which is the jury instructions would permit more than the three names identified in the indictment.

[00:24:52] Speaker 00:
That is correct, but under Miller, that's not sufficient, right?

[00:24:58] Speaker 00:
It's not sufficient for Mr. Peppers to say, well, the jury instructions were technically broader than the indictment.

[00:25:05] Speaker 00:
There has to be a realistic possibility that the jury actually convicted on some uncharged offense.

[00:25:10] Speaker 00:
And Mr. Peppers, and again, this goes back to plain error review, with respect to the second prong, he has to point this court to a case that

[00:25:19] Speaker 00:
stands for the proposition he's asking this court to adopt, which is that the jury instructions essentially alone are sufficient to show a constructive amendment.

[00:25:31] Speaker 00:
And it doesn't matter that the evidence only proved one conspiracy.

[00:25:34] Speaker 00:
It doesn't matter that the government's case really only presented one theory of conspiracy to the jury.

[00:25:41] Speaker 00:
This sort of technical overbreath of the jury instructions is sufficient.

[00:25:46] Speaker 00:
Can I interrupt you just for a moment?

[00:25:50] Speaker 03:
I'd like your comments briefly on the exclusion of evidence of the MILSAP change testimony.

[00:25:58] Speaker 03:
Palin didn't have much time to argue that.

[00:26:00] Speaker 03:
You don't have much time to argue it, but I'd like just your quick take on that.

[00:26:03] Speaker 03:
I know ordinarily we're very differential to evidentiary rulings,

[00:26:08] Speaker 00:
That's right.

[00:26:09] Speaker 00:
And I think a couple of things.

[00:26:10] Speaker 00:
One is the standard of review is abuse of discretion.

[00:26:14] Speaker 00:
This court is typically very deferential.

[00:26:17] Speaker 00:
I share what I took to be Judge Timkovich's skepticism that a reasonable person in Mr. Millsap's shoes talking to an FPD investigator would think that by coming up with a story that helped Mr. Pepper, somehow he was putting himself in legal jeopardy.

[00:26:35] Speaker 00:
I don't think that's reasonable.

[00:26:36] Speaker 00:
The district court didn't think that was reasonable.

[00:26:39] Speaker 00:
It made a factual finding to that effect that this court should defer to because it's not clearly erroneous.

[00:26:45] Speaker 03:
So the district court made a factual finding that it was not reasonable and therefore I concluded he probably did not have that concern?

[00:26:52] Speaker 00:
That's correct.

[00:26:53] Speaker 00:
And the reason the district court gave was because Mr. Millsets... Did the district court make that second statement?

[00:26:58] Speaker 03:
It is not reasonable and I therefore conclude he did not have that concern.

[00:27:04] Speaker 00:
I don't recall the district court getting into Mr. Millsap's subjective understanding.

[00:27:12] Speaker 03:
But there's an objective requirement independently, so.

[00:27:15] Speaker 00:
Right, and in fact, really the thrust of the 804b3 inquiry is objective.

[00:27:22] Speaker 00:
In Lozado, this court said that it can take into account some subjective knowledge of the defendant in assessing what an objective person in the declarant's shoes would have been thinking.

[00:27:35] Speaker 00:
But here, what the district court said was because Mr. Millsap's case

[00:27:39] Speaker 00:
had closed months earlier, a reasonable person in his shoes would not have thought that he was putting himself in any legal jeopardy in making those statements.

[00:27:48] Speaker 00:
With respect to the marijuana possession crime, I would just point this court to Lozado, and in particular, footnote 12 of Lozado, where this court said specifically that the likelihood of prosecution is something this court considers in assessing whether a person understands that a statement would

[00:28:07] Speaker 00:
you know, put him in legal jeopardy.

[00:28:09] Speaker 00:
And here, Mr. Millsup had no reason to believe that a statement to a FPD investigator that he, you know, possessed a small amount of marijuana was going to end up getting him prosecuted for the crime.

[00:28:22] Speaker 03:
So it's critical in your argument that this statement was made to a defender rather than to a prosecutor.

[00:28:29] Speaker 00:
I don't know that it's critical, but I think it's part of the mix.

[00:28:32] Speaker 00:
I think this court looks to the totality of the circumstances.

[00:28:35] Speaker 00:
I think it's probably more important that his case was closed over and done with.

[00:28:39] Speaker 00:
I think it's probably maybe even more important that Mr. Peppers and Mr. Millsap had a close relationship.

[00:28:45] Speaker 00:
So under Lozado and Moro, this court can look to and say, well,

[00:28:49] Speaker 00:
And this is what the district court said.

[00:28:51] Speaker 00:
It looks like Mr. Millsap was probably just trying to help his friend out since Mr. Millsap's own case was already closed.

[00:28:58] Speaker 03:
Was that a planning effect?

[00:28:58] Speaker 03:
Does that qualify as a planning effect?

[00:29:02] Speaker 00:
I think so because, and that's one of the reasons why this court defers to district courts factual findings is because the district court has a much better and broader understanding of what's going on in the case.

[00:29:15] Speaker 00:
And so the district court is the one who sentenced Mr. Millsap, dealt with his case, has a good understanding of the relationship between the two, Mr. Millsap and Mr. Peppers.

[00:29:23] Speaker 00:
So I think all of those things together.

[00:29:25] Speaker 00:
And I also want to say, I know my time is up, if I may make a point about corroboration.

[00:29:31] Speaker 00:
There's just no objective evidence that really corroborates what Mr. Millsap was saying.

[00:29:38] Speaker 00:
Indeed, what Mr. Millsap seemed to be trying to do was minimize his role in a methamphetamine conspiracy that he had already confessed to.

[00:29:47] Speaker 00:
and was trying to help his friend out.

[00:29:51] Speaker 00:
He said he was selling fake meth, but there was actually real meth.

[00:29:54] Speaker 00:
He said all of this happened on the day that they were arrested, when really it happened over about a month time in July, not in August when they were arrested.

[00:30:04] Speaker 00:
So there are a number of inconsistencies.

[00:30:06] Speaker 00:
They just simply are not the type of circumstantial guarantees of trustworthiness that this court looks to under 804b3.

[00:30:13] Speaker 00:
With that, thank the court.

[00:30:14] Speaker 02:
Thank counsel.

[00:30:27] Speaker 01:
There was no evidence on the record that Millsap and Mr. Peppers were friends.

[00:30:33] Speaker 01:
family members so close that MILSAP would make a statement against interest in order to help Mr. Peppers.

[00:30:41] Speaker 01:
In fact, the government said, you know, we thought they had some distant familial relationship, but we don't have any evidence of that, so don't rely on that.

[00:30:48] Speaker 01:
And yet the district court made this supposed finding that that was what motivated MILSAP.

[00:30:54] Speaker 01:
There's no evidence for that.

[00:30:55] Speaker 01:
So that is clear error.

[00:30:57] Speaker 01:
As for the drugs, would

[00:31:01] Speaker 01:
Mr. Millsap felt that this small amount of drugs was something he could be prosecuted for.

[00:31:06] Speaker 01:
Well, in Lozado, as you may recall, that case involved the defendant's statements that he was a drug user, he had drugs in his pocket, and he was also responsible for ammunition in a car.

[00:31:18] Speaker 01:
The drugs in his pocket were held to the statement about the drugs in his pocket were held to be admissible by the district court as a statement against interest.

[00:31:28] Speaker 01:
So that was a small amount of drugs in the guy's pocket.

[00:31:31] Speaker 01:
And yes, he should have understood a reasonable person would have understood that those would subject him to prosecution.

[00:31:38] Speaker 01:
And I'm out of time.

[00:31:39] Speaker 02:
Thank you, counsel.

[00:31:40] Speaker 02:
Appreciate your arguments this morning.

[00:31:42] Speaker 02:
You're both excused and the case will be submitted.