[00:00:00] Speaker 00: Case number 21-3051, United States of America versus Luz Irene Fajardo Campos, also known as La Comadre, also known as Jenny Campos, also known as Jenny Udiles, also known as Janka Appellant. [00:00:14] Speaker 00: Mr. Axum for the appellant, Ms. [00:00:16] Speaker 00: Lloyd for the appellate. [00:00:18] Speaker 04: Good morning, counsel. [00:00:19] Speaker 04: Mr. Axum, please proceed when you're ready. [00:00:21] Speaker 03: May it please the court, counsel. [00:00:24] Speaker 03: Tony Axum representing the appellant, Luz Fajardo Campos, and I'd like to reserve three minutes for rebuttal. [00:00:30] Speaker 03: There was no venue in Washington, D.C. [00:00:33] Speaker 03: Under the Constitution, venue shall be laid where the crime was committed. [00:00:39] Speaker 03: And where a crime is not committed in any state, Congress can choose where to set the location for venue. [00:00:46] Speaker 03: The charged conspiracy was committed in Arizona and Mississippi. [00:00:52] Speaker 03: Law enforcement seized drugs there and arrested alleged co-conspirators there. [00:00:57] Speaker 05: The offense was the agreement. [00:00:59] Speaker 05: These are conspiracy counts. [00:01:00] Speaker 05: What evidence is there that the conspiracy was hatched in Arizona? [00:01:08] Speaker 03: I'm not sure that the government presented evidence that the conspiracy was hatched in Arizona. [00:01:13] Speaker 05: But these are conspiracy counts. [00:01:18] Speaker 05: The only thing that matters is where the agreement took place. [00:01:22] Speaker 03: I think under the Constitution, the Constitution requires [00:01:27] Speaker 03: that venue be laid where the crime was committed, not where the crime is committed. [00:01:35] Speaker 03: Crime is the agreement. [00:01:40] Speaker 03: Well, we know that it was not committed in Washington, D. C. So the Constitution also says where the crime is not committed in any state, Congress can set the location for venue. [00:01:57] Speaker 03: So [00:01:57] Speaker 03: We know that the crime was not committed in Washington, DC. [00:02:01] Speaker 03: Therefore, there is no authority to set venue in Washington, DC. [00:02:06] Speaker 03: But it wasn't committed in the United States. [00:02:09] Speaker 03: It absolutely was committed in the United States. [00:02:15] Speaker 03: Well, if we're talking about the formation of the agreement, I'm not sure that the government presented evidence as to where the formation of the agreement took place. [00:02:27] Speaker 03: there were certainly, there's certainly evidence that it did take place in Mexico. [00:02:33] Speaker 03: There's certainly evidence that it did take place in Arizona and Mississippi. [00:02:38] Speaker 03: But. [00:02:39] Speaker 04: Well, let's suppose, can I ask you this? [00:02:41] Speaker 04: Let's suppose that the agreement took place outside the United States. [00:02:45] Speaker 04: Then does Congress not have the authority to specify that venue can lay in the District of Columbia? [00:02:52] Speaker 04: For a conspiracy offense where the agreement was reached abroad. [00:02:58] Speaker 03: Certainly, if all parts of the conspiracy took place abroad. [00:03:04] Speaker 03: But there are two phrases in the Constitution. [00:03:08] Speaker 03: One is where Congress should set, where venue must be set when a crime is committed here. [00:03:18] Speaker 03: And when a crime is not committed here, the Constitution says, but when the crime is not committed within any state. [00:03:27] Speaker 03: We know that this crime, this conspiracy, and a conspiracy is a continuing offense. [00:03:33] Speaker 03: I mean, the government benefits from that all the time because they are allowed to establish a venue in any location where the conspiracy was committed. [00:03:46] Speaker 03: The government runs away from that now because the conspiracy was committed in Arizona and Mississippi, but under the Constitution. [00:03:57] Speaker 03: The Constitution says, but when the crime is not committed within any state, the trial shall be at such place or places as Congress can set. [00:04:08] Speaker 03: The plain text of the Constitution does not allow Congress to set venue wherever it wishes if the crime was committed in any state. [00:04:21] Speaker 03: We know that this conspiracy was committed in [00:04:25] Speaker 03: Arizona and Mississippi. [00:04:27] Speaker 03: I understand. [00:04:28] Speaker 05: You know, object offenses occurred in those states. [00:04:34] Speaker 05: That seems different from the question whether the conspiracy itself happened there. [00:04:43] Speaker 05: I mean, yeah, it's a continuing offense in the sense that any crimes committed pursuant to the conspiracy can be attributed [00:04:55] Speaker 05: to the conspirators. [00:04:58] Speaker 05: But I mean, the agreement itself, it's an on-off switch. [00:05:01] Speaker 05: There's a conspiracy. [00:05:03] Speaker 05: It's formed. [00:05:04] Speaker 05: That's an offense. [00:05:06] Speaker 05: And it continues unless and until someone separately withdraws from the conspiracy, which isn't alleged here. [00:05:15] Speaker 03: Yes. [00:05:16] Speaker 03: And then I think the question is, where was that conspiracy committed? [00:05:21] Speaker 03: The question is not, where was that [00:05:24] Speaker 03: conspiracy formed. [00:05:26] Speaker 03: Where was the agreement reached? [00:05:29] Speaker 03: Where is the first place that the elements are satisfied? [00:05:34] Speaker 03: Because it's continuing, and again, that is why the government benefits from charging someone where, for example, in Sitzman, where there is a single phone call to [00:05:50] Speaker 03: let's say Washington DC, that would establish that the conspiracy was committed in Washington DC. [00:05:58] Speaker 03: So the Constitution is asking where was the crime committed, not where were the elements satisfied, where is the first place that an act in a continuing offense took place. [00:06:14] Speaker 03: I'm not sure that it's [00:06:22] Speaker 03: I'm not aware of any elements test for establishing venue. [00:06:29] Speaker 05: I suppose there had never been any drugs imported. [00:06:36] Speaker 05: They just proved there was a conspiracy in Mexico to import drugs. [00:06:45] Speaker 05: And thankfully, it was stopped before the drugs crossed the border. [00:06:50] Speaker 05: And that would be prosecutable as a conspiracy and for which venue could be assigned to the district. [00:07:02] Speaker 03: Absolutely. [00:07:03] Speaker 03: If we know that the entire offense took place, if we know that the offense was not committed within any state, absolutely, the Congress can set [00:07:17] Speaker 03: venue wherever it wishes, because the Constitution allows it. [00:07:20] Speaker 03: That's exactly what the Constitution says, if that is the only evidence. [00:07:26] Speaker 03: But that wasn't the only evidence in this case. [00:07:28] Speaker 03: The government did not have to join the Arizona and Mississippi counts in this case. [00:07:33] Speaker 03: It chose to do that. [00:07:36] Speaker 03: So by doing that, the government bound itself to the limitations of the Constitution. [00:07:49] Speaker 03: If there are no other questions on Vinyu, I'm happy to move on. [00:07:57] Speaker 05: Just one quickly, which is what is the good cause for not having raised this pretrial? [00:08:05] Speaker 05: Which I think you have to have done. [00:08:08] Speaker 05: You have to raise pretrial unless there's good cause. [00:08:12] Speaker 03: I'd respectfully disagree that [00:08:15] Speaker 03: we have to show good cause at this point. [00:08:17] Speaker 03: Under Rule 12, a defendant can file a motion and should file a motion to dismiss revenue. [00:08:27] Speaker 03: Rule 12 does say must. [00:08:29] Speaker 03: But we're not at this point alleging that [00:08:38] Speaker 03: there was a defect in the indictment and asking to dismiss the indictment. [00:08:42] Speaker 03: We're proceeding under Rule 29. [00:08:45] Speaker 03: And venue is unique within Rule 12 because venue is actually the only, I guess, issue, objection, or challenge that is actually a question of sufficiency. [00:09:03] Speaker 03: So under Rule 29, we [00:09:08] Speaker 03: are allowed to challenge venue as an element at the close of government's case without having raised it as a pretrial question under Rule 12. [00:09:25] Speaker 05: You raised it at the close of the evidence for the first time? [00:09:29] Speaker 03: Venue, no. [00:09:30] Speaker 03: Venue was not raised at all. [00:09:31] Speaker 05: When was the first time you raised it? [00:09:34] Speaker 03: The first time is in this appeal, in this court. [00:09:37] Speaker 03: That's correct. [00:09:38] Speaker 04: So there was a general motion for acquittal, but not a specific objection as to venue. [00:09:45] Speaker 03: That's correct. [00:09:47] Speaker 03: And as this court is aware, a general motion for judgment of acquittal preserves all elements of the offense, and venue is an element of the offense. [00:09:56] Speaker 03: So we are in the position that we can challenge it, and we should challenge it. [00:10:03] Speaker 03: And the only question is whether it was essential or not, whether there [00:10:08] Speaker 03: was any evidence of venue in Washington, DC. [00:10:10] Speaker 03: I don't think the government disputes that. [00:10:12] Speaker 03: This is, again, a venue is unique in itself under Rule 12, but this is an unusual case in that the government presented absolutely no evidence of venue in Washington, DC. [00:10:26] Speaker 03: In most cases, there is a question. [00:10:28] Speaker 03: Venue is an element? [00:10:31] Speaker 05: Yes. [00:10:31] Speaker 05: You have to prove that to the jury? [00:10:36] Speaker 05: Yes. [00:10:37] Speaker 03: I mean, yes. [00:10:40] Speaker 03: I mean, it's an element that's proven by preponderance. [00:10:45] Speaker 03: I mean, the jury is instructed. [00:10:48] Speaker 03: And it is an element, yes. [00:10:54] Speaker 03: I mean, it's not something that the government can ignore. [00:11:00] Speaker 03: Element provable by a preponderance? [00:11:04] Speaker 05: Sounds odd to me, but OK. [00:11:06] Speaker 03: That's what the Supreme Court. [00:11:08] Speaker 03: It's odd to us, too. [00:11:09] Speaker 03: We would prefer that it be beyond a reasonable doubt. [00:11:11] Speaker 03: But that's the standard that the Supreme Court has set. [00:11:14] Speaker 03: But this court and the Supreme Court have clearly stated, the United States v. Here, that venue is an element of the offense that the government has to prove. [00:11:23] Speaker 03: So in the absence of any proof, the remedy is reversal. [00:11:40] Speaker 03: I'd like to turn to the ineffectiveness claim if there are no other questions on the menu. [00:11:47] Speaker 03: Council was ineffective in failing to request multiple conspiracies during instruction. [00:11:55] Speaker 03: The evidence clearly supported one and the District Court would have been required to give it. [00:12:02] Speaker 03: There was no conceivable strategic reason for Council's failure. [00:12:10] Speaker 03: Ms. [00:12:10] Speaker 03: Fajardo-Campos's defense, as counsel presented it, was a reasonable doubt defense. [00:12:19] Speaker 03: Thus, the multiple conspiracy instruction would not have required an admission of guilt, as the government argues. [00:12:26] Speaker 03: And even if there were some inconsistency, counsel could have requested the instruction, and the jury would have been aware of its obligation to find, to decide whether there [00:12:40] Speaker 03: a single conspiracy had been proven or whether multiple conspiracies had been proven. [00:12:44] Speaker 03: And counsel did not also have an obligation to argue it. [00:12:51] Speaker 03: Defense attorneys ask for instructions all the time and do not argue those specific instructions. [00:12:55] Speaker 03: So there was no strategic reason, conceivable strategic reason for counsel's deficiency and failing to request the instruction. [00:13:05] Speaker 04: You've also raised the substantive claim about single conspiracy and multiple conspiracy, right? [00:13:08] Speaker 04: Not just with an ineffectiveness overlay. [00:13:13] Speaker 03: Yes. [00:13:13] Speaker 03: But I would say that the two arguments are distinct. [00:13:19] Speaker 03: Because prejudice under an ineffectiveness claim asks whether there's a reasonable probability of a different outcome rather than simply whether the evidence was sufficient. [00:13:31] Speaker 03: And my substantive multiple conspiracy argument [00:13:35] Speaker 03: is essentially a sufficiency argument. [00:13:42] Speaker 03: Whether counsel should have requested this, should have requested the instruction establishes counsel's failure to request the instruction. [00:13:54] Speaker 04: Well, can you prevail on the ineffectiveness claim if you don't prevail on the, and I know you'll resist the assumption, but just for purposes of understanding how these arguments fit together. [00:14:04] Speaker 04: If you happen not to prevail on the substantive claim, can you nonetheless prevail on the ineffectiveness claim, even though the substantive claim as to which the instruction ostensibly should have been sought would have lost him on that assumption? [00:14:21] Speaker 03: Yes. [00:14:22] Speaker 03: Yes. [00:14:23] Speaker 03: Because again, the standard, and I understand that the standard is uncomfortable. [00:14:30] Speaker 03: I think Noye even points out that it's [00:14:32] Speaker 03: It's an unfamiliar standard for courts to apply because it's speculative. [00:14:40] Speaker 03: And the standard for the ineffectiveness claim is whether there's a reasonable probability that any juror would have found, would have had a reasonable doubt as to whether the government proved single conspiracies or multiple conspiracies. [00:15:01] Speaker 03: A reasonable probability is not even a preponderance. [00:15:04] Speaker 03: It doesn't ask whether the defendant was prejudiced as the substantive multiple conspiracy argument. [00:15:16] Speaker 03: claim would requires. [00:15:18] Speaker 03: It only asks whether at least one juror would have had a reasonable doubt as to whether the government proved the single or the multiple, whether there was actually a rim connecting the multiple conspiracies, whether a single juror would have had a reasonable doubt as to whether there was a rim connecting the multiple conspiracies. [00:15:38] Speaker 03: I think once we've established that there are multiple conspiracies based on the record evidence, [00:15:46] Speaker 03: It's inescapable that a juror would have had a doubt as to whether the government proved the single or proved the multiple. [00:15:55] Speaker 03: I think a jury instruction, and one example is the jury instruction in Tarantino that this court approved, simply asks that very question, whether the government proved a single conspiracy or multiple conspiracies. [00:16:12] Speaker 03: If the answer is yes, you don't move on to the second stage of whether the defendant was prejudiced, whether the evidence was sufficient, whether there was a more narrow conspiracy than the broader overarching conspiracy charged. [00:16:28] Speaker 03: And again, the government benefits from being able to charge multiple conspiracies in a single count. [00:16:38] Speaker 03: And it benefits because [00:16:42] Speaker 03: It can prove in the alternative. [00:16:43] Speaker 03: It can prove a more narrow. [00:16:45] Speaker 03: But there are consequences that go with that benefit. [00:16:48] Speaker 03: One of the consequences is that jurors should be instructed as to whether these multiple acts constitute a single conspiracy or whether they constitute multiple. [00:17:05] Speaker 03: The government didn't seek that. [00:17:06] Speaker 03: I understand. [00:17:07] Speaker 03: Defense counsel didn't seek that. [00:17:08] Speaker 03: My argument is that was ineffective. [00:17:11] Speaker 03: And this difficulty in understanding multiple versus single conspiracies is very fact intensive. [00:17:21] Speaker 03: That's why this court has historically deferred to the jury's findings on multiple or single conspiracies, because it is traditionally the jury's providence to decide that. [00:17:41] Speaker 03: This issue, sorry, are you finished? [00:17:45] Speaker 03: When counsel fails to ask for that instruction for something that's so essential and so clearly like the province of a jury, the defendant has been prejudiced. [00:17:58] Speaker 05: This seems to all [00:18:06] Speaker 05: the multiple conspiracy point. [00:18:12] Speaker 05: And I'm just having a hard time understanding that because the indictment, indictment is written in pretty broad terms, right? [00:18:26] Speaker 05: It's a conspiracy, it references conspiracy. [00:18:31] Speaker 05: The defendant together with others doesn't say who, just anyone else. [00:18:37] Speaker 05: It says a conspiracy to distribute cocaine and methamphetamine. [00:18:46] Speaker 05: Doesn't have a lot of additional detail about with whom, when, which flights, right? [00:18:55] Speaker 05: And all of the... [00:19:00] Speaker 05: subsidiary conspiracies that you're positing the jury might have found. [00:19:04] Speaker 05: I mean, any one of them fits within the general parameters of the indictment. [00:19:11] Speaker 05: And you haven't argued, I think, you haven't argued that the indictment was too vague to give you sufficient sense of what the trial was going to be about. [00:19:23] Speaker 05: So how can there be a material variance? [00:19:31] Speaker 03: If we're going to stick to the strict language of the indictment, the indictment does charge a single conspiracy. [00:19:38] Speaker 03: And that conspiracy is not simply to distribute cocaine, and not simply to distribute methamphetamine, and not simply to manufacture methamphetamine. [00:19:49] Speaker 03: It is for all those three things, all three of those. [00:19:54] Speaker 03: what I would say, separate conspiracies, all with the intent to import the cocaine or the methamphetamine into the United States. [00:20:01] Speaker 03: We know that most of these conspiracies [00:20:05] Speaker 03: for cocaine have no mention whatsoever of the United States. [00:20:09] Speaker 03: And the government has to prove actual knowledge and intent to import into the United States, not constructive, not just because I'm producing in Mexico and United States buys cocaine, that there's an inference that it's headed to. [00:20:23] Speaker 05: If the government proved all of the elements with respect to cocaine, but not with respect to meth, [00:20:35] Speaker 05: that would be sufficient to support a conviction under the terms of this indictment, right? [00:20:44] Speaker 05: Well, my argument is that it's not, but... I mean, the and really is an or, conspiracy to import cocaine and meth. [00:20:58] Speaker 05: They prove cocaine, they get a conviction. [00:21:04] Speaker 03: The problem is that [00:21:06] Speaker 03: The first question is whether they are single. [00:21:08] Speaker 03: It's a single conspiracy or multiple conspiracies. [00:21:12] Speaker 03: If you were conspiracy. [00:21:14] Speaker 03: Is to import into the United States and one of the two conspiracies does not involve importation into the United States. [00:21:23] Speaker 03: There's a conflict between those conspiracies. [00:21:25] Speaker 03: You, by definition, have two conspiracies, one to do something in Mexico and the other to do something that impacts the United States. [00:21:34] Speaker 05: I also point out that the venue- Right, but the verdict form and the jury instructions required proof of all of those elements, importation. [00:21:43] Speaker 05: The only thing the verdict form [00:21:45] Speaker 05: did differently from the indictment was to separate the cocaine aspect of the case from the meth aspect and the jury convicted on both. [00:21:56] Speaker 03: Well, I'd respectfully disagree that the verdict form is the same as the jury instruction. [00:22:01] Speaker 05: I understand that... Sorry, same as the indict. [00:22:10] Speaker 05: It just breaks the cocaine issue [00:22:14] Speaker 05: from a math issue. [00:22:21] Speaker 05: And the jury convicts on both. [00:22:23] Speaker 05: So what difference? [00:22:27] Speaker 03: The verdict form asks the jury to determine the quantity that the defendant is responsible for. [00:22:34] Speaker 03: If that's the, and that's the only place at which anything is broken apart, that there's any distinction made between cocaine or methamphetamine. [00:22:46] Speaker 03: And that quantity finding is not a finding that there is a single conspiracy. [00:22:59] Speaker 03: To decide whether the government proved the elements of the offense, you have to back up to the actual instruction. [00:23:06] Speaker 03: And the actual instructions combine cocaine and methamphetamine at every step. [00:23:14] Speaker 03: They don't make a distinction at all. [00:23:17] Speaker 03: So the jury was never instructed that there is evidence [00:23:25] Speaker 03: of multiple conspiracies. [00:23:28] Speaker 03: There are conspiracies within conspiracies. [00:23:32] Speaker 03: Conspiracy, as this court has said, in a hub and spoke conspiracy, where you don't have integrated actors all working interdependently with one another. [00:23:47] Speaker 03: For example, a typical drug conspiracy would have a source who's [00:23:52] Speaker 03: supplying to someone who is distributing. [00:23:57] Speaker 03: And the distributor is then supplying to someone who's wholesaling. [00:24:00] Speaker 03: And the wholesaler is then supplying to someone on the street. [00:24:02] Speaker 03: The government didn't present any evidence of an integrated chain like that whatsoever. [00:24:08] Speaker 03: The government presented text messages and chats spanning two and a half years and conversations that span six years [00:24:20] Speaker 03: that every conversation that Luis Fajardo Campos had with someone where drugs was mentioned. [00:24:29] Speaker 03: We're not arguing that Luis Fajardo Campos did not engage in drug trafficking. [00:24:36] Speaker 03: I'm arguing that she should have been found guilty of the conspiracy in which she participated. [00:24:42] Speaker 03: And there was not an overarching conspiracy to distribute cocaine, methamphetamine, and to manufacture [00:24:49] Speaker 03: It's not just distribute cocaine and distribute methamphetamine and to manufacture methamphetamine all with the intent to import to the US. [00:24:59] Speaker 03: The government simply didn't establish one conspiracy. [00:25:04] Speaker 05: Suppose I disagree with you on [00:25:08] Speaker 05: I'll just call them the really micro conspiracies, conspiracy with this guy to secure these flights to that city. [00:25:16] Speaker 05: I don't want to break it down that finally, but I am interested in the issues we're discussing on the one point about whether the cocaine conspiracy is linked to the meth conspiracy. [00:25:34] Speaker 05: So help me out with that. [00:25:36] Speaker 05: I had thought that the verdict form [00:25:39] Speaker 05: solves that problem because the jury checks yes and makes an amount finding. [00:25:47] Speaker 05: It says yes to cocaine, yes to meth. [00:25:50] Speaker 05: So it doesn't really matter whether you think of them as one overarching or two separate. [00:25:56] Speaker 05: Help me with that. [00:25:58] Speaker 03: You're saying the jury instructions don't break it up. [00:26:01] Speaker 03: No, and the government won't provide you any jury instructions with regard to the verdict form. [00:26:07] Speaker 03: Because there aren't any. [00:26:08] Speaker 03: They essentially say, read the verdict form and decide what quantity the defendant is responsible for. [00:26:14] Speaker 03: That's not a finding of guilt. [00:26:17] Speaker 03: I mean, I can't say that it's not a finding of guilt at all. [00:26:21] Speaker 03: But the guilt determination has already been made based on other instructions that do not separate out. [00:26:28] Speaker 03: So the judge says, after, do not look at the verdict form until after you have decided guilt. [00:26:35] Speaker 03: So I understand. [00:26:36] Speaker 03: And the government has to do the quantity findings because I think it's Eileen requires when you're seeking a mandatory minimum that the jury find the quantity that is the mandatory minimum. [00:26:49] Speaker 03: That verdict form was not designed and does not accomplish the task of separating one conspiracy for another and asking the jury to make a determination whether a single or multiple conspiracies were proven. [00:27:04] Speaker 05: And last question on this line, why does any of that matter if the quantity finding for either cocaine or meth by itself is enough to just go almost off the charts on the guidelines? [00:27:24] Speaker 05: And this is a case where there's a very substantial downward variance. [00:27:30] Speaker 05: So what are we arguing over? [00:27:34] Speaker 05: You get guilt as to both, and the amount of meth by itself is more than enough to support a sentence well above the one that was given. [00:27:49] Speaker 03: I think if you're looking at simply the jury findings of the mandatory minimum, [00:28:01] Speaker 03: I disagree that those quantities take the guidelines off the chart because the quantity that the jury found was 4.5 was, I think it's five. [00:28:20] Speaker 03: Five kilograms. [00:28:21] Speaker 03: Five kilograms or more of cocaine. [00:28:24] Speaker 03: Five hundred grams or more of meth. [00:28:26] Speaker 03: Five hundred grams or more of meth. [00:28:28] Speaker 03: High number. [00:28:29] Speaker 03: Well, five hundred grams or more of meth is offense level 38 and five kilograms of cocaine is 28. [00:28:35] Speaker 05: The sentencing guidelines chart goes to 38. [00:28:40] Speaker 05: 22 years? [00:28:41] Speaker 05: Correct. [00:28:41] Speaker 05: Which corresponds to what would correspond to what offense level? [00:28:44] Speaker 05: Something a lot lower, I assume. [00:28:53] Speaker 03: 22 years corresponds to offense level 39. [00:29:04] Speaker 03: So there's a significant difference. [00:29:07] Speaker 03: If we're talking about sentencing as to the specific findings, I mean, that's 262, if my math is correct, 22 years. [00:29:19] Speaker 03: Well, I'll check it. [00:29:20] Speaker 03: I got it. [00:29:23] Speaker 04: If my colleagues don't have additional questions, then we'll give you the time for rebuttal, but I want to make sure you do. [00:29:29] Speaker 04: Thank you. [00:29:31] Speaker 04: Thank you, Mr. Act. [00:29:44] Speaker 04: It's Lloyd. [00:29:45] Speaker 01: Good morning, Your Honors. [00:29:46] Speaker 01: May it please the court, Aleah Lloyd for the United States. [00:29:50] Speaker 01: Turning first to the venue challenge, [00:29:52] Speaker 01: The defendant's venue challenge was untimely and meritless. [00:29:56] Speaker 01: The defendant has not shown good cause, and even on plain error review has not satisfied her burden of showing that the district court plainly erred in allowing venue to occur in the District of Columbia. [00:30:06] Speaker 01: Starting first with the untimeliness of the challenge, numerous courts in the plain language of Rule 12b3 requires for a defendant to bring a venue challenge when the basis of that challenge is reasonably available to the defendant pre-trial. [00:30:21] Speaker 01: And that's exactly what happened in this particular case. [00:30:23] Speaker 01: The defendant alleges that there is no tie to venue in the District of Columbia. [00:30:27] Speaker 01: And those allegations were not in the indictment. [00:30:31] Speaker 01: The indictment does not allege that the conspiracy was entered into in the District of Columbia, that overacts occurred in the District of Columbia, that the defendant was arrested or first brought in the district from abroad, or that any acts occurred in the District of Columbia, or any facts that would make support venue under other statutes. [00:30:49] Speaker 01: So that's an obvious alleged defect in the indictment, which brings this under the rule 12B3 rules. [00:30:56] Speaker 01: Under those rules, rule 12 requires good cause to consider untimely venue objection, which the defendant has not provided. [00:31:06] Speaker 04: So for those reasons, we think that the defendant's challenge- Let's just suppose that it's under plain error instead of good cause. [00:31:10] Speaker 04: I understand and take fear. [00:31:12] Speaker 04: But if we get to plain error, then I'd like to hear your response to the [00:31:19] Speaker 04: Yes, Your Honor. [00:31:19] Speaker 04: I heard about the constitutional provision. [00:31:21] Speaker 01: If we get to plain error, the defendant has not supported her burden of showing that the district court plainly erred. [00:31:26] Speaker 01: The defendant points to no cases where any of persuasive or binding authority where a court has held that a conspiracy under 963, where the defendant has committed all of her acts and entered into the agreement abroad, cannot be brought under the provisions of 3238 or 959C. [00:31:45] Speaker 01: And in fact, the government has pointed in its brief to five cases that hold otherwise. [00:31:50] Speaker 01: So the defendant has not met her burden of showing that there was a plainly erroneous decision by the district court. [00:31:56] Speaker 01: And we cited those cases on page 25. [00:32:00] Speaker 04: I mean, there's definitely case law. [00:32:01] Speaker 04: But just in terms of the language of the constitutional provision, the argument that we've heard is that conspiracies [00:32:10] Speaker 04: It's true that the agreement might have occurred somewhere else, but the conspiracy continuing offense. [00:32:14] Speaker 04: And so if aspects subsequently occur here in a particular district, then it's not a situation in which the offense wasn't committed in any district, because at least if the offense is a continuing one, then some of the offense was continued in some district here. [00:32:32] Speaker 04: and you have to bring the prosecution in one of those districts in that event, that it could have been brought just as a claim that involves an agreement full stop and that there was nothing introduced about where the continuing offense then was carried out. [00:32:46] Speaker 04: But this case is different because here there's a focus on Arizona and there's focus on two states where the continuing offense continued to occur. [00:32:55] Speaker 01: Well, Your Honor, first, I would point, Your Honor, to the indictment, which did not allege any overt acts or that the conspiracy took place. [00:33:03] Speaker 01: Although it did say it took place in the United States, it didn't say that it took place in Arizona or Mississippi or anywhere else. [00:33:11] Speaker 01: But secondly, I would also point, Your Honor, to the Supreme Court's decision in Whitfield, which says that for a conspiracy prosecution under the common law rule, [00:33:20] Speaker 01: the district in which the unlawful agreement was reached would satisfy the default venue rule. [00:33:24] Speaker 01: And here there's been no, then all of the evidence submitted by the government show that the unlawful agreement by this defendant was reached abroad, which then calls into play the constitutional structure that the Congress can then direct revenue may be held. [00:33:38] Speaker 01: And that is the two statutes that we've cited, 3238, as well as 959C. [00:33:44] Speaker 01: And the two courts to the courts in particular levy auto parts in the Fourth Circuit and Miller in the Second Circuit explicitly discuss the requirements of Article three section two when deciding that under thirty two thirty eight when a conspiracy is essentially foreign. [00:33:59] Speaker 01: even where some of her acts or offense conduct occur in the United States, venue is still proper under 3238. [00:34:05] Speaker 01: And of course, the venue was proper in this particular case under 3238 because the defendant who committed and begun her offense abroad had no last known residence in the United States and was indicted before being first brought or arrested to the United States. [00:34:20] Speaker 01: So we think clearly that the Constitution's requirements were satisfied. [00:34:24] Speaker 01: And of course, under plain error review, the defendant is not pointed to any case [00:34:28] Speaker 01: that would hold to the contrary. [00:34:29] Speaker 01: The two cases that the defendant cited, Cobar actually is in our favor. [00:34:33] Speaker 01: One defendant who acted in the US, the court held there was no venue for, but the other defendant who acted extra-territorially, like our defendant, venue was found to be proper under 3238, but that a defendant was not first arrested or brought in DC, and so 3238 couldn't apply. [00:34:48] Speaker 01: That's not the case here where it does. [00:34:51] Speaker 01: And then Gilboa, which the defendant also cites, was held by Miller in the Second Circuit to be dicta. [00:34:57] Speaker 01: And so the Second Circuit holds that 3238 is allowed to provide for Bren U when certain offense conduct occurs in the US, so long as the conspiracy of the offense is essentially foreign, which is exactly the facts we have in our case today. [00:35:15] Speaker 01: I just wanted to address the idea that I think the defendant said that [00:35:21] Speaker 01: No, I think I think that's all my my all my thoughts on venue, your honors. [00:35:25] Speaker 04: And we've got the single and multiple conspiracy questions. [00:35:29] Speaker 05: Yes, happy to turn to just one quick question. [00:35:32] Speaker 05: The indictment alleges that the conspiracy happened in Colombia, Mexico, Ecuador, Panama, the US and elsewhere. [00:35:41] Speaker 05: That's correct. [00:35:43] Speaker 05: Wouldn't you could you could sustain a conviction [00:35:48] Speaker 05: even if there were no acts in the US. [00:35:52] Speaker 05: And this is a charge about importing. [00:35:55] Speaker 05: So you would expect you need extraterritorial acts. [00:35:59] Speaker 05: You don't need acts inside the US. [00:36:03] Speaker 01: That's actually absolutely correct. [00:36:05] Speaker 01: Although the government does take the position that there were overt acts shown in this case to be in the US. [00:36:09] Speaker 01: 963 under most case law, including this court, does not require an overt act to [00:36:17] Speaker 01: for proof of the conspiracy or to be charged. [00:36:19] Speaker 01: And there were no overt acts charged in this indictment either. [00:36:24] Speaker 05: So I guess, I mean, if you think of conspiracy as continuing in the way that the chief judge was suggesting, the indictment wouldn't really signal one way or the other whether the crime charged occurs in any state. [00:36:44] Speaker 05: That's correct. [00:36:46] Speaker 05: You wouldn't know. [00:36:47] Speaker 01: That's correct, which is why we think that that's had to be a challenge brought to under 12b3 pretrial because there's an alleged defect. [00:36:57] Speaker 01: That's obvious. [00:36:58] Speaker 05: And so the defendant had the basis for I guess I was I was going the other way with that, which is it could be [00:37:06] Speaker 05: could be perfectly valid to convict based on extraterritorial acts. [00:37:11] Speaker 05: And if they were, it was purely extraterritorial, then you would lie in DC. [00:37:17] Speaker 05: Yes. [00:37:18] Speaker 05: But on your opponent's theory, that depends on whether or not there were overt acts in the US. [00:37:25] Speaker 01: Well, Your Honor, we don't believe that the overt acts are necessary to [00:37:29] Speaker 01: the conspiracy charge, which is what Whitfield and the Supreme Court held for why Venum will be proper where their agreement is reached. [00:37:39] Speaker 01: And as I also said, the other circuits have not yet decided or have decided that even if overt acts occur in the United States, so long as the conspiracy is essentially foreign, i.e. [00:37:50] Speaker 01: formed abroad, then 3238 applies even under the Constitution and under Plain Arrow rule, which is what we're operating under the Plain Arrow review standard. [00:38:00] Speaker 01: We don't think that the district court plainly aired in following the weight of the circuits. [00:38:08] Speaker 01: Okay. [00:38:08] Speaker 01: Turning to the variance issue. [00:38:13] Speaker 01: I just want to emphasize that the standard for this is in the light most favorable to the government drawing all reasonable inferences in its favor. [00:38:20] Speaker 01: And under that standard, the evidence clearly showed a single overarching conspiracy. [00:38:25] Speaker 01: The defendant, known as LaDonna and the Godmother, titles given only to persons of status in a drug trafficking organization, oversaw the manufacturing and transportation of vast quantities of narcotics that were imported into the United States and elsewhere and distributed for profit. [00:38:40] Speaker 01: And the members of her organization, her children and other participants, knew or must have known that others known and unknown to them were sharing in this large project, even if they didn't know who those people were or the parts that they played. [00:38:53] Speaker 01: Instead, the defendant is just pulling pieces of evidence piecemeal and in isolation when we need to look at the broader context and all the evidence that was admitted. [00:39:03] Speaker 01: So under this court's precedent, there are three main factors that we need to look at to see if there was a single overarching conspiracy. [00:39:09] Speaker 01: Those are a common goal, interdependence, and overlap. [00:39:13] Speaker 01: And the evidence showed that all three of those factors were met in this particular case. [00:39:19] Speaker 01: Just giving some brief highlights of the evidence for each factor, [00:39:22] Speaker 01: The common goal was profiting from importing narcotics into the United States and elsewhere. [00:39:26] Speaker 01: Evidence showed that the defendant was the leader of a drug trafficking organization whose goal was to traffic cocaine and meth into Mexico and then out to the United States and other countries. [00:39:37] Speaker 01: There was testimony that the defendant sent her drugs to the United States and had distribution offices in multiple United States cities. [00:39:44] Speaker 01: And so all persons utilizing the defendant's distribution network shared in the same purpose. [00:39:49] Speaker 01: They all were trying to profit from the importation and distribution of narcotics. [00:39:55] Speaker 01: In terms of interdependence, there was overwhelming evidence that this was a single conspiracy. [00:40:00] Speaker 01: The main structure with the defendant at the head of it, with her children apparating beneath her, with the defendant setting prices, authorizing the use of pilots and aircraft, organizing the transportation. [00:40:11] Speaker 01: Her children were acquiring customers and helping with the distribution. [00:40:15] Speaker 01: But this was a large scale operation. [00:40:18] Speaker 01: This defendant was trafficking amounts of 250 kilograms of cocaine, vast amounts of precursor chemicals to make meth, stamping cocaine with her name on it as a brand. [00:40:30] Speaker 01: And there were repeated agreements with multiple other conspirators to distribute wholesale quantities of narcotics for distribution. [00:40:38] Speaker 01: In terms of the evidence for the United States distribution, there were multiple text messages where the defendant [00:40:43] Speaker 01: in her own words or other conspirators mentioned that the drugs were going to be heading to the United States. [00:40:49] Speaker 01: I point the court to the record in 1553 to 54 where the defendant and her daughter are discussing securing a charter to transport 500 kilograms of cocaine heading to the United States. [00:41:01] Speaker 01: Another at 1554 through 1555 where the defendant and her son Paco are discussing a cocaine load that's being sent to the United States. [00:41:11] Speaker 01: I also [00:41:12] Speaker 01: the fact that the meth that the defendant was discussing with her son Activo was seized in Jackson, Mississippi. [00:41:18] Speaker 01: But nonetheless, there are other record sites, which we put in our brief, that show that other conspirators also asked the defendant or knew that the defendant was sending her drugs, including the cocaine and meth, to the United States. [00:41:33] Speaker 05: And what's your best evidence? [00:41:36] Speaker 05: I think you're right. [00:41:38] Speaker 05: There's plenty of evidence of a large cocaine conspiracy, and same for the meth conspiracy. [00:41:47] Speaker 05: One of them, cocaine, you've got all the flights from Colombia to Mexico. [00:41:52] Speaker 05: Meth, you have the lab. [00:41:55] Speaker 05: She's running in Mexico. [00:41:56] Speaker 05: What's the evidence that this is one conspiracy rather than two? [00:42:01] Speaker 05: There's a cocaine ring, and there's a meth ring. [00:42:05] Speaker 05: And why are they the same? [00:42:07] Speaker 01: Your honor, that's our overlap factor. [00:42:10] Speaker 01: And that particular factor is supported by the fact that not only did the defendant participate in both schemes for meth and cocaine, but also her main collaborators, her children, participated in both schemes, the meth and cocaine. [00:42:22] Speaker 01: And so from that understanding, which I think the court held in Bathurst, there's clearly overlap and an overarching conspiracy when the main figures are participating in both schemes. [00:42:33] Speaker 01: that's clearly satisfied by this particular case with the sites that I already cited to you earlier about the defendant discussing with her children, both cocaine distribution and transportation, and meth distribution and manufacturing and transportation. [00:42:46] Speaker 01: So that's our best evidence, Your Honor. [00:42:51] Speaker 05: And all we need to find is legally sufficient evidence. [00:42:54] Speaker 05: Yes, Your Honor. [00:42:55] Speaker 01: But even if Your Honor. [00:42:56] Speaker 04: Is it basically a sufficiency claim? [00:42:58] Speaker 04: So if any rational juror could have found that there's [00:43:03] Speaker 04: the overlap you indicated so as to support the jury's determination that there was a conspiracy. [00:43:10] Speaker 01: Yes, your honor. [00:43:11] Speaker 01: It's a sufficiency claim any rational juror with all evidence being viewed in the light most favorable to the government. [00:43:17] Speaker 05: That's that's one way in which you could win. [00:43:22] Speaker 05: Yes, your honor. [00:43:23] Speaker 05: Could you also win based on the verdict form and the fact that the jury checks yes to both boxes? [00:43:32] Speaker 01: Yes, Your Honor. [00:43:33] Speaker 05: Or did we run into problems with the instructions, as your friend was suggesting? [00:43:38] Speaker 01: Absolutely not, Your Honor. [00:43:39] Speaker 01: As you've already mentioned, we were allowed to prove in the conjunctive with Ann, or charge in the conjunctive with Ann, but prove in the disjunctive. [00:43:48] Speaker 01: And so the fact that the jury found both cocaine and meth is enough for us to sustain a verdict. [00:43:55] Speaker 01: But also, whether they charged, if they found it together or separate, it doesn't matter. [00:44:00] Speaker 01: But more importantly, turning towards the jury instructions, the government believes that the instructions actually did inform the jury that they could prove or find a guilty verdict for cocaine or meth or both. [00:44:13] Speaker 04: Can you point us to where you're looking? [00:44:15] Speaker 01: Yes, your honor. [00:44:16] Speaker 01: If you look at the record site at 1653, the district court instructs the jury that- Which volume of the- That would be volume seven. [00:44:32] Speaker 01: So 1653, the court instructs, and I'm cutting off a bit of the quote, but all 12 of you must unanimously agree. [00:44:40] Speaker 05: Where are you on the page? [00:44:43] Speaker 05: Oh, I see. [00:44:44] Speaker 01: No worries. [00:44:45] Speaker 01: All 12 of you must unanimously agree that Ms. [00:44:48] Speaker 01: Verhardo-Campos conspired to distribute the same controlled substance or substances for importation into the United States. [00:44:55] Speaker 01: A little bit further down, when the court instructs on the verdict form, [00:45:02] Speaker 01: The court also instructs, if you determine that the government, this is sorry, 1723 through 24, also in volume seven. [00:45:12] Speaker 01: If you determine that the government has proven beyond a reasonable doubt that Ms. [00:45:16] Speaker 01: Fajardo-Campos conspired to distribute a quantity of cocaine and or a manufacturer distribute a quantity of meth for importation into the United States, you must indicate on her guilt on the verdict form [00:45:28] Speaker 01: and then make a determination as to the quantity of the controlled substances for which Ms. [00:45:32] Speaker 01: Fajardo is responsible. [00:45:34] Speaker 01: Your determination of those quantities, and this is me paraphrasing on 1725, must be unanimous. [00:45:41] Speaker 01: And you must be satisfied that the United States has proven those quantities of cocaine and meth beyond a reasonable doubt. [00:45:47] Speaker 01: So the jury was clearly instructed that they could prove on one, both, or the other. [00:45:53] Speaker 01: And I don't think there's any doubt once you look at the verdict form that they checked the box for both and found for both in the quantities that we needed in charge in the indictment. [00:46:01] Speaker 05: So conspiracy on sub-A or count A, conspiracy is shorthand for all elements of the conspiracy offense explained in the jury verdict. [00:46:14] Speaker 05: That's correct, Your Honor. [00:46:17] Speaker 01: And that's, I think, as you review 1653, which is the instructions on the substantive count [00:46:23] Speaker 01: versus the instructions at 1723 through 25 explaining the verdict form, those dovetail nicely in showing you have to find an overarching conspiracy. [00:46:32] Speaker 01: It can be for one of the drugs, both of the drugs, or the drug separately. [00:46:37] Speaker 01: And then how you indicate that is the instructions for the verdict form. [00:46:41] Speaker 01: So I think the jury was well instructed and clearly found the evidence supported the indictment charges and marked that on their verdict form. [00:46:50] Speaker 01: And finally, Your Honor, just turning briefly to the point on the guidelines, we do, or sorry, for the ineffective assistance of council claim, I'll turn to that one next. [00:47:01] Speaker 01: We believe that the record conclusively shows that council's performance was not deficient. [00:47:06] Speaker 01: The Strickland standard is highly deferential and there's a strong presumption that council's actions were reasonable. [00:47:12] Speaker 01: And that's particularly true in this circumstance. [00:47:16] Speaker 01: One, it was reasonable not to ask for multiple conspiracies instruction because the overwhelming evidence showed that the defendant was the leader of this overarching conspiracy. [00:47:25] Speaker 01: But two, as the Seventh Circuit pointed out in Driver, the defense counsel could have reasonably concluded that the strength of her claim to innocence would have been dissipated by arguing about multiple conspiracies. [00:47:36] Speaker 01: If you look at the defendant's opening and closing, the defense's theory was not just that there was no reasonable doubt, but that the defendant was actually innocent [00:47:46] Speaker 01: any narcotics importation or distribution scheme. [00:47:50] Speaker 01: The defense claimed on multiple occasions that only an innocent person would let themselves come here and be subjected to a criminal trial to the full power of the United States. [00:47:59] Speaker 01: Or at 1711, this is also in volume seven, you should conclude that the only person who would come here voluntarily is somebody who was innocent and who had nothing to fear from the case against them. [00:48:10] Speaker 01: And there are other references throughout the closing opening with the defense's theory being that [00:48:14] Speaker 01: She wasn't a part of this conspiracy. [00:48:17] Speaker 01: You never saw any evidence of her meeting with cooperators. [00:48:19] Speaker 01: You never saw any evidence of her texting cooperators or conspirators. [00:48:24] Speaker 01: You never saw any cocaine seizures. [00:48:26] Speaker 01: You never saw any fingerprint evidence. [00:48:28] Speaker 01: It was just a litany on and on and on of the fact that this defendant had nothing to do with the evidence that was brought in the trial. [00:48:34] Speaker 01: Not that there just wasn't a reasonable, but there was a reasonable doubt. [00:48:38] Speaker 05: So the gist of it is, [00:48:41] Speaker 05: high-risk, high-reward strategy of trying to get outright innocence, and that would be undercut by an argument that maybe she was a part of this small agreement, but not that. [00:48:55] Speaker 01: Agreed, Your Honor. [00:48:56] Speaker 01: Any suggestion that she actually was dealing in narcotics would completely undercut their theory that she was 100% innocent and came to the United States because she had no worries that she had nothing to prove. [00:49:09] Speaker 04: It's not the most normal thing to litigate ineffectiveness claims on direct appeal. [00:49:14] Speaker 04: And so just to play this out, a lot of other courts' ineffectiveness claims aren't part of the appellate chain at all. [00:49:22] Speaker 04: They are raised on collateral review. [00:49:24] Speaker 04: In our court, we've allowed for a remand and then a consideration of an ineffectiveness claim as part of that process. [00:49:31] Speaker 04: If this were to go forward in the trial court, I take it then that the way that it would occur would [00:49:36] Speaker 04: would be sort of like collateral review. [00:49:38] Speaker 04: And you could actually have evidentiary development, including testimony from counsel to determine what they had in mind in making the kinds of assessments they did. [00:49:46] Speaker 04: And we're just kind of guessing at that. [00:49:48] Speaker 01: I don't think we're guessing, Your Honor. [00:49:50] Speaker 01: And that's because, once again, the standard is whether we give a highly deferential and strong presumption that counsel's decisions were reasonable under Strickland. [00:49:58] Speaker 01: And based on the evidence and the record of what the defense's theory is, we think that's conclusively met in this case. [00:50:06] Speaker 01: seem to think that there's some, you know, inconclusive evidence for whether or not performance was deficient. [00:50:13] Speaker 01: There was clearly no prejudice and the record conclusively establishes that. [00:50:19] Speaker 01: And you need to win on both prongs in order to get, or have a lack of conclusivity on both prongs to get a remand. [00:50:25] Speaker 01: So in this particular case, we do not think a remand is appropriate because prejudice, the prejudice prong is clearly not met by the defendant. [00:50:31] Speaker 04: What's the thumbnail on prejudice? [00:50:33] Speaker 04: Excuse me. [00:50:33] Speaker 04: What's the thumbnail on prejudice? [00:50:36] Speaker 01: The thumbnail on prejudice is that there was overwhelming evidence proven at trial of a single conspiracy, which we've detailed, especially in our variance argument, but also that any potential prejudice that could have existed did not come into play in this trial. [00:50:50] Speaker 01: There was no evidentiary spillover. [00:50:52] Speaker 01: Every single message that was introduced, if not almost every, if not all, involved the defendant. [00:50:58] Speaker 01: and all of them were heard discussing actions that would have fallen intrinsically under the conspiracy charge. [00:51:04] Speaker 01: Her own words established that there was a single conspiracy. [00:51:07] Speaker 01: There were numerous times where she texted, I'm going to bring planes for this or for a U.S. [00:51:12] Speaker 01: trip, or let's I'm going to send you to Jackson, Mississippi, where then we see methamphetamine. [00:51:18] Speaker 01: So there is no effect whatsoever on a lack of a multiple conspiracies instruction on whether or not the jury would have convicted this defendant. [00:51:28] Speaker 04: Thank you, Council. [00:51:30] Speaker 01: Thank you, Your Honor. [00:51:31] Speaker 01: We ask that you affirm. [00:51:40] Speaker 04: Jackson will give you the three minutes you asked for for rebuttal. [00:51:43] Speaker 03: Thank you. [00:51:44] Speaker 03: Um, with regard to venue, um, [00:51:51] Speaker 03: The government correctly points out, the government, on one hand, says that we haven't cited a case. [00:51:56] Speaker 03: COBAR is a case. [00:51:57] Speaker 03: COBAR is very clear and understandable. [00:51:59] Speaker 03: But we don't need a case because the Constitution itself sets the terms under which Congress can set venue outside the United States. [00:52:08] Speaker 03: The government, I think, wants to take the position that anything outside the United States is its own district. [00:52:16] Speaker 03: And that's fine. [00:52:18] Speaker 03: for an offense that occurs entirely outside the United States. [00:52:22] Speaker 03: But if anything occurs within the United States, take for example, let's say everything outside the United States was its own district called Texas, and you had the offense occur in [00:52:38] Speaker 03: Mississippi, and Arizona. [00:52:40] Speaker 03: And the government brought an indictment here in Washington, DC. [00:52:45] Speaker 03: We would have no problem understanding that that is contrary to the Constitution. [00:52:53] Speaker 03: And that's all that's occurring here. [00:52:55] Speaker 03: The Constitution sets the terms under which Congress can set venue outside the United States, and they're not met here. [00:53:02] Speaker 03: I would also point out that the government relies heavily on 3238. [00:53:08] Speaker 03: The plain text of 3238 says, we're an indictment where trial shall take place. [00:53:14] Speaker 03: The first phrase says, where trial shall take place. [00:53:18] Speaker 03: But the second phrase says that the defendant may be indicted in Washington, DC. [00:53:24] Speaker 03: It does not say that trial shall occur in Washington, DC. [00:53:27] Speaker 03: So even 3238 would be consistent with the Constitution if the government were reading it correctly. [00:53:39] Speaker 03: With regard to the variance, I just want to point something out because the government makes a lot of representations about what the evidence shows and how Ms. [00:53:52] Speaker 03: Fajardo-Campos' children were involved. [00:53:56] Speaker 03: What it doesn't do is establish an agreement between Ms. [00:53:59] Speaker 03: Fajardo-Campos and her children. [00:54:03] Speaker 03: I understand that a close familial relationship suggests that there should be an agreement when one family member is talking about drugs with another family member. [00:54:12] Speaker 03: But the evidence established [00:54:17] Speaker 03: very clearly that Ms. [00:54:19] Speaker 03: Fajardo-Campos dealt with lots of different individuals. [00:54:23] Speaker 03: Those individuals did not talk with each other. [00:54:27] Speaker 03: So each time she, even where she reached an agreement with someone, she didn't reach agreement and say, and by the way, my son is going to do this, or by the way, there's another person that is going to supply you this. [00:54:42] Speaker 03: It was always linear, Ms. [00:54:44] Speaker 03: Fajardo-Campos to the person she was talking to. [00:54:47] Speaker 03: with no rim connecting anyone. [00:54:50] Speaker 03: What the government leaves out is that this court has emphasized that there has to be interdependency in order for there to be a single conspiracy. [00:55:04] Speaker 03: And there is no interdependency. [00:55:07] Speaker 03: The government is [00:55:15] Speaker 03: There is absolutely no evidence that cocaine was ever imported into the United States. [00:55:21] Speaker 03: There's none. [00:55:22] Speaker 03: There is evidence on two occasions, two, 2012 and 2015, that methamphetamine was ever brought into the United States. [00:55:31] Speaker 03: I've argued and I still maintain. [00:55:34] Speaker 03: And those two methamphetamine transactions [00:55:38] Speaker 03: involved entirely different players three years apart in different geographic regions. [00:55:44] Speaker 03: And the only thing connecting them, none of them spoke with each other. [00:55:49] Speaker 03: None of them even knew of each other. [00:55:51] Speaker 03: None of them agreed to an overarching methamphetamine conspiracy. [00:55:56] Speaker 03: And for any, if you're just going to confine it to methamphetamine, you need the participants to know that they are dependent on other participants. [00:56:08] Speaker 03: That did not exist here. [00:56:12] Speaker 03: So I understand what the government's saying, but there's simply not each factor to establish a single conspiracy. [00:56:24] Speaker 03: Common goal. [00:56:25] Speaker 03: interdependency and overlap. [00:56:27] Speaker 03: The government relies on overlap. [00:56:29] Speaker 03: But I'd ask the court to look carefully at the sites the government has provided, because the conversation with Arlis is Arlis asks, I'm sorry, the defendant's daughter asks for a plane, and there's no resolution to it. [00:56:48] Speaker 03: It's not provided. [00:56:49] Speaker 03: How can that possibly be a conspiracy? [00:56:54] Speaker 03: And each citation that the government provides is similar. [00:56:59] Speaker 03: They don't establish even a small conspiracy, let alone one that's related to something much larger. [00:57:05] Speaker 03: The very last thing that I want to say is that this court recognized in [00:57:15] Speaker 03: in Coughlin, as the Supreme Court concurrence recognized in Griffin, that when the government charges multiple acts in a single count, it is very important that there are instructions. [00:57:28] Speaker 03: In Coughlin, this court didn't allow the government to change its theory from one single overarching conspiracy to a much smaller one. [00:57:38] Speaker 03: Albeit, that was a double jeopardy claim. [00:57:40] Speaker 03: But the government did not allow the government [00:57:45] Speaker 03: Court did not allow the government to change its theory as it has changed its theory here. [00:57:49] Speaker 03: The government did not argue below that there was some smaller conspiracy that the defendant was guilty of. [00:57:54] Speaker 03: The government argued below and at all times that this was one overarching conspiracy and everyone was involved and knew of everyone else. [00:58:02] Speaker 03: And that is simply insufficient. [00:58:03] Speaker 03: But at a minimum, defense counsel was ineffective for not asking for a jury instruction for the jury to make that determination. [00:58:11] Speaker 03: If there's any question to that, [00:58:13] Speaker 03: about defense counsel's effectiveness, there should be a remand. [00:58:16] Speaker 04: Thank you, counsel. [00:58:17] Speaker 04: Thank you to both counsel. [00:58:18] Speaker 04: We'll take this case under submission.