Call our next case lacy gorgons versus the United States Well How Before I forget, a comment is being represented by the Ducor Law firm, a pro bono basis, and we want to thank you, our thanks to the firm for undertaking this. We're most appreciative when able counsel say yes when we call. So thank you very much. Thank you, Your Honor. May please the court. My name is Carolyn Isaac and I represent the appellant Lisi Goggins. I'd like to reserve three minutes for rebuttal these red. Mr. Goggins is serving a 25-year mandatory consecutive sentence that's based on a guess of what the jury might have found if they had been asked. In this case, we don't know because they weren't asked. All we have is a general verdict. There's no way of knowing based on that general verdict whether Mr. Goggins' 25-year sentence is actually based on a second conviction for use of a firearm in connection with crime of violence or if it's based on the single use of a firearm in connection with crime of violence, which would be only 1924 C. Your theory is that a special interagitor should have been submitted to the jury. Yes. Is that something that the other defendants also should have taken advantage of? I mean, this is a multi-defendant case
. Should would that be the case with any one of the defendants that it would have applied? It could have been your honor. It wouldn't have hurt the other defendants to have the special interagitor. But in this case, it was particularly important for Mr. Goggins to have it because he was situated differently from the other defendants. I realize it's difficult for you, but could you try to have a little louder? Sure. We're a little bit closer. As I was saying, Mr. Goggins was situated differently from the other defendants. And the evidence was different. Correct. His involvement. Right. Give us a little of that. Sure. So Mr
. Goggins was not, and the government conceded that he was not present. He could not have been present for at least two of them. Right. But there's nine in total. There were nine completed bank robberies. That's correct. And then one attempted, wrong. And the one attempted. And for the other nine bank robberies, and this was different, there was evidence as to the other his co-defendants, but there was no DNA evidence lining Mr. Goggins up with any of the completed bank robberies. There were no fingerprints. Well, we, I'm not we, but I'm sure the government would concede it'd be much better case if we had better evidence. But, you know, if you look at the circumstantial evidence that was put forth, I mean, it looks like it's that he was guilty. I would never say that. What I was going to say was it looks like it would certainly meet a sufficiency challenge
. And, you know, from what six of them have as well as the attempt. We're on that. That's exactly why we think that a jury should have been asked because it was a circumstantial evidence case. And our system, we have a jury find the facts that. So, the new rule we should have got is that it's a circumstantial evidence case. No, you're right. But this is the sixth amendment. I mean, this is Booker. It's a trendy. It's a lien. It's every case. The Supreme Court has continued to affirm that it's a jury's role to find the facts that are used to convicted, defendant, and sentence him. So, it's not a new rule at all. It's an old rule. But there were there were cell phone records, easy pass records, purchases shortly after the robberies
. He's unemployed and he buys expensive things. The calls that he made at the time of the robberies. And Mr. Goggins testified about that, Your Honor, and he did explain, you know, it wasn't unexplained wealth as the government tried to say. He explained where the money came from. He explained the cell phones did not belong to him and the easy pass records did not belong to him. So, there was certainly enough there to raise a doubt in the jury's mind. And that's why it should have been sent to the jury. There was surveillance, obviously. There was surveillance of him that, you know, only found him on April 1st and April 16th, 2002. Big day on the 16th. Right, correct. That for the Roma bank robbery only, there was no surveillance, you know, tying Mr. Goggins to any of the non-completed bank robberies, though. So, there was enough that a jury could have said we think he was only involved in the Roma bank robbery
. And they could have convicted him on that basis on count three for the attempt to rob the Roma bank. And on count one, based on a conspiracy to rob the Roma bank, and he would have gotten a 924C that was attached to each of those who counts, even if he was never found guilty of having any involvement in any of the completed bank robberies. You know, finding ineffectiveness, you know, a substandard performance by counsel takes a lot. What is it that really supports the fact that, you know, this counsel should, I mean, special interrogatories are easily available. I don't think they are. In terms of the faces, you know, what is it that should make us say, you know, counsel really should have realized that this was something should have done. And let me add to that, what special interrogatory should have been submitted? Sure. I'll start with that one, because that's sort of the more straightforward answer. And the two, we think they're just needed to be two on count one. And the jury could have been asked, was Mr. Goggins guilty of conspiring to rob the Roma bank? And was he guilty of conspiring to rob any of the other 9 banks? And that would have answered the question of whether there could be a second 924C that attached to the completed bank robberies instead of just the Roma. Then there should only have been 1 924C. And the reason, the counsel was ineffective because anyone looking at this indictment can see that there's an overlap. And he knows that this one count is 25 years. He should have had a heightened attention to the paying attention to the 924Cs
. This was 25 years, which is the bulk of Mr. Goggins sentence. And I mean, it's practically a lifetime. He knew that going in. There was case law to support first the use of special interagitories. And this court had said they're useful in complex criminal cases where there are multiple defendants. There's multiple objects of a conspiracy. And this is a time where the facts were crucial to the sentence. And it's a 25-year sentence. There was case law that said there can only be a single 924C count if there's only a single use of a gun. So all of this case law was available to him. All he had to do was do the legal research and he would have found it. And he knew also that Mr. Goggins was situated differently from his co-defendants so that this mattered to Mr. Goggins in particular so that he should have been separated
. So then how do you get over the prejudice problem? I mean, we have Judge Thompson basically finding that he was involved in six of the robberies and we have this evidence. What is it that should lead us to believe that the outcome would have been different? And that the judge would have given the special interagitories. Well, that too. Well, we couldn't find him ineffective if we didn't find that the court would have in the back given him this. Had somebody asked for them. Right. And we think there's a reasonable probability that the judge would have given him the special interagitories if she had been asked a trial and given the case law. Based on what? If the judge had been asked a trial to have the special interagitories and had been given the case law from this court saying this is why it's important in complex criminal cases, we believe that she would have found this if the overlap had been pointed out at trial. Is that a holding that we've come to in other cases or was that dictated? Not that they're required. No, it would be dictated. Different cases have pointed out where this court has found that special interagitories are necessary. There's also case law saying that ambiguous verdicts can't stand. And we have cases where verdicts are overturned or judgments are vacated on the basis of ambiguous jury verdicts. And I should point out Mr. Goddard's only had the standard for prejudice is actually quite low
. He just needs to show that it's something sufficient to undermine confidence in the jury's verdict. And I think there's no confidence in the jury's verdict when we don't know what the jury found. They didn't find these facts because they weren't asked to. Is it possible that this was a strategic decision because if there had been a special interagitorie set up and if there had been an enumeration of each robbery separately that it actually could ignore to Mr. Goddard's detriment, for instance. If we know the district court made its findings with regard to six of the robberies and the the attempt. Now let's say there was a special interagitorie and it was enumerated with regard to each of the nine and the attempt. If the jury checked off six of the conspiracies and the attempt, wouldn't that in the order to the defendant's detriment? I don't think it would have made a difference in giving him any more detriment than he already had. The judge found what she found to sentence him. It wasn't charged as six separate conspiracies if that's what you're saying. Six rabbits. Right, it wasn't six different drones. It's part of what you're asking, right? You're asking that we find that there should have been a special interagitorie and that the format would take would be a separating out of each of the robberies. Yes. Well, not each of the robberies
. Just a group one through nine, the completed robberies, to separate that from the attempted robbery that was already captured. Do you find that he was involved in any one of these? Any one of the nine. And then because the 924C could have attached to any one of those nine and then it would be okay. Okay, so if we did that, then I go back to the prejudice question that Judge Rendell put to you before. Right, if it's one through nine and you just have to check one box and then the attempt, which probably could agree there's more evidence on the attempt than on the one through nine, then how do you show that there would have been a different result? Under my confidence. Well, it undermines confidence because the lack of evidence for the completed bank robberies. So for one through nine, there's no direct evidence tying Mr. Gaggins to any of those robberies. So there's a reasonable probability that the jury would have found him or would not have found him guilty beyond a reasonable doubt on that basis. And would have said he's not guilty of those. Maybe he's guilty on April 16th of the attempted robbery of the Roma bank. And so he could be guilty of a conspiracy just around the Roma bank. And so he could be guilty on count one, but he would not be able to get a second nine twenty four C for that for just the one use of the firearm. Roma was included in count one. Correct
. So yeah, count one counted as the conspiracy nine completed bank robberies and then Roma bank as a separate object of the conspiracy. And that's how I got counted twice in counts one and count three. And I think it's important to note the rule of lenity applies. And in particular, in this case, this is an ambiguous verdict. It's an ambiguous statute that we're talking about. And this court has found in Diaz that the application of the rule of lenity is particularly appropriate in the context of section nine twenty four C because of its mandatory consecutive sentences and extremely harsh penalties for subsequent conviction. And we have no case on this issue in our court in the third circuit. This career has a conversation Diaz. Correct. But you're saying you should have anticipated the three other courts of appeals at the time of Mr. Grog and Stiles had considered this exact issue. So the second circuit, the fifth circuit and the DC circuit had all addressed this exact issue. And it was of ineffectiveness. No, it was not ineffective. Well, at the time, he didn't need to show ineffectiveness. He needed to show that this is, you know, this is the rule. And this is why he should have been asking for special and wrong to us to begin with. Was Diaz inconsistent with the passiano? No, and I wonder if it's not. No, you're on it. It's not. And I think in the court in Diaz pointed out, the Casiano doesn't apply here because there are two uses and two predicates. So in Diaz, it was two predicates. Therefore, Casiano doesn't control because there were two predicates in there. And here, Casiano doesn't control here because there were two uses in Casiano. And, you know, I think our chart and our reply brief separated those out. So when there are two uses and two predicates, fine, you can have two 924C counts. But if you're missing one side or the other side, only 924C can lie there. And the Supreme Court has said that recently in Rosemond, when they said, it's a combination crime. So you need to have both a use and a predicate. Thank you, Your Honor
. He needed to show that this is, you know, this is the rule. And this is why he should have been asking for special and wrong to us to begin with. Was Diaz inconsistent with the passiano? No, and I wonder if it's not. No, you're on it. It's not. And I think in the court in Diaz pointed out, the Casiano doesn't apply here because there are two uses and two predicates. So in Diaz, it was two predicates. Therefore, Casiano doesn't control because there were two predicates in there. And here, Casiano doesn't control here because there were two uses in Casiano. And, you know, I think our chart and our reply brief separated those out. So when there are two uses and two predicates, fine, you can have two 924C counts. But if you're missing one side or the other side, only 924C can lie there. And the Supreme Court has said that recently in Rosemond, when they said, it's a combination crime. So you need to have both a use and a predicate. Thank you, Your Honor. Thank you. We're here for a hammerball. May I please the court plenimor Marco on behalf of the United States. I think the court is correct to focus on the prejudice prong. And I think that's really where this case, you know, is sunk for Mr. Goggins. The evidence in this case was overwhelming. When you really look at what sunk all of the defendants, they were all in the same situation in the sense that they all would have benefited in the same way from having a special interrogatory because they all had the possibility that they were convicted on just the attempt where... Does the evidence as to the others is much stronger? I mean, it was somewhat stronger. I mean, what the best evidence in this case were the cell phone records and the easy pass records because the witnesses frankly weren't all that helpful because very few could identify individuals who were involved in the case. Now, it wasn't his car. It was Mr. Blackwell's car
. Thank you. We're here for a hammerball. May I please the court plenimor Marco on behalf of the United States. I think the court is correct to focus on the prejudice prong. And I think that's really where this case, you know, is sunk for Mr. Goggins. The evidence in this case was overwhelming. When you really look at what sunk all of the defendants, they were all in the same situation in the sense that they all would have benefited in the same way from having a special interrogatory because they all had the possibility that they were convicted on just the attempt where... Does the evidence as to the others is much stronger? I mean, it was somewhat stronger. I mean, what the best evidence in this case were the cell phone records and the easy pass records because the witnesses frankly weren't all that helpful because very few could identify individuals who were involved in the case. Now, it wasn't his car. It was Mr. Blackwell's car. The cell phone records, but basically Mr. Goggins is wearing a tracking device during three of these robberies. I mean, you can trace it from his house to the bank, calls being made while the bank robberies in progress, the phone goes back to his house. There's not much more you need to convicted defendant. Remember, he's found on April 16th the day of the attempt, all for them. They're tracked again from their house. They go to the scene of the crime. They've got the bank robbery kit with them. They're arrested. So that one is pretty much a lock. So the only question is, did he join that day or was he a member before? What we tried to show was obviously the MO of all of the crimes were very, very similar. What we know is from the very first crime he had the large unexplained cash payments. We know from the cell phone records that during three of these, we know he was in jail for two of them. So we give him those. But for three of them, we trace his phone from the beginning of the day to the end of the day and to the bank locations
. The cell phone records, but basically Mr. Goggins is wearing a tracking device during three of these robberies. I mean, you can trace it from his house to the bank, calls being made while the bank robberies in progress, the phone goes back to his house. There's not much more you need to convicted defendant. Remember, he's found on April 16th the day of the attempt, all for them. They're tracked again from their house. They go to the scene of the crime. They've got the bank robbery kit with them. They're arrested. So that one is pretty much a lock. So the only question is, did he join that day or was he a member before? What we tried to show was obviously the MO of all of the crimes were very, very similar. What we know is from the very first crime he had the large unexplained cash payments. We know from the cell phone records that during three of these, we know he was in jail for two of them. So we give him those. But for three of them, we trace his phone from the beginning of the day to the end of the day and to the bank locations. So there's not much possibility. And obviously Judge Thompson who sat through the entire trial found beyond a reasonable doubt that he was involved in six. So this academic question of if the jury had been asked to decide which particular ones were found or not found is really beside the point. And I do think because of the strength of the cell phone evidence, it really isn't fair to say that the others were weaker. There was one case with, there was one who had DNA evidence. I think there was a hair from one of the individuals and there was a videotape that was kind of grainy that showed two of the individuals. Or you could certainly think but it wasn't sort of locked solid so much as the cell phone records were. Now you are urging that this was already resolved and that the certificate of appeal ability was improbently granted. Are you pressing that argument? Well I did the prior appeal. I don't want to press you somewhere where you don't need to go. But I really felt like it was decided. I mean this was an issue that the Coleman tried to raise and he was talking about the circumstances of the case. They're trying to frame it as the prior case decided that you need to predicate or he was just arguing there was just one predicate act here. But clearly that's not what he was arguing because there were two different predicate. One was the conspiracy and one was the attempt
. So there's not much possibility. And obviously Judge Thompson who sat through the entire trial found beyond a reasonable doubt that he was involved in six. So this academic question of if the jury had been asked to decide which particular ones were found or not found is really beside the point. And I do think because of the strength of the cell phone evidence, it really isn't fair to say that the others were weaker. There was one case with, there was one who had DNA evidence. I think there was a hair from one of the individuals and there was a videotape that was kind of grainy that showed two of the individuals. Or you could certainly think but it wasn't sort of locked solid so much as the cell phone records were. Now you are urging that this was already resolved and that the certificate of appeal ability was improbently granted. Are you pressing that argument? Well I did the prior appeal. I don't want to press you somewhere where you don't need to go. But I really felt like it was decided. I mean this was an issue that the Coleman tried to raise and he was talking about the circumstances of the case. They're trying to frame it as the prior case decided that you need to predicate or he was just arguing there was just one predicate act here. But clearly that's not what he was arguing because there were two different predicate. One was the conspiracy and one was the attempt. So he wasn't trying to argue that and they quoted from my brief where I said the real issue in this case is whether or not there were two predicates is saying that's what the court decided. What I was saying in my brief is you can't accept his characterization of the facts as leading to predicate. What I was saying is the issue for the court is if there are two predicates then we automatically win. So I was reframing the question from what he was trying to argue. I mean I win on the prejudice prong so if you're going to go that way you know I'm happy but I'm not going to concede that it wasn't decided. I don't actually. I disagree for two different reasons. One reason I disagree is that in the in just the attempt you had two firearms and some of the cases have diverged there in each of the and in the conspiracy we were charging a series of nine completed bank robberies plus the one attempt. So there were 18 uses of a firearm. I mean each time you had two people go in, brandish the firearms. And so it's an interesting academic question about whether or not you could do this if there were just a single use but you've got two guns in the other one and you've got the string of nine separate ones that we charged and that's how the case was presented to the jury. It is absolutely true as they suggest that when we're talking about guilt on the conspiracy charge we said you can join it at the end but the prosecutor did make a separate argument when talking about the guns. The gun charges and when it was talking about the gun charges he was talking about the nine times two people went into the bank brandishing guns and then for the attempt you said and don't forget the two you know for the attempt you said don't forget the two that were found in the car that day. So while the jury wasn't instructed that they had to find it that way we're really sort of we're really sort of reframing the issue in a very hypothetical sort of way here. The evidence really was pretty strong and the ineffective assistance of council claim I think the court is right to suggest it's a very high standard here and I would I would suggest that reading Cassiano it was not unreasonable for these attorneys if they had done that obviously we don't know to think that you could in fact do this the way it was the way it was charged and you didn't need that a separate interrogatory wouldn't have been successful but the Cassiano certainly suggests when it certainly was
. So he wasn't trying to argue that and they quoted from my brief where I said the real issue in this case is whether or not there were two predicates is saying that's what the court decided. What I was saying in my brief is you can't accept his characterization of the facts as leading to predicate. What I was saying is the issue for the court is if there are two predicates then we automatically win. So I was reframing the question from what he was trying to argue. I mean I win on the prejudice prong so if you're going to go that way you know I'm happy but I'm not going to concede that it wasn't decided. I don't actually. I disagree for two different reasons. One reason I disagree is that in the in just the attempt you had two firearms and some of the cases have diverged there in each of the and in the conspiracy we were charging a series of nine completed bank robberies plus the one attempt. So there were 18 uses of a firearm. I mean each time you had two people go in, brandish the firearms. And so it's an interesting academic question about whether or not you could do this if there were just a single use but you've got two guns in the other one and you've got the string of nine separate ones that we charged and that's how the case was presented to the jury. It is absolutely true as they suggest that when we're talking about guilt on the conspiracy charge we said you can join it at the end but the prosecutor did make a separate argument when talking about the guns. The gun charges and when it was talking about the gun charges he was talking about the nine times two people went into the bank brandishing guns and then for the attempt you said and don't forget the two you know for the attempt you said don't forget the two that were found in the car that day. So while the jury wasn't instructed that they had to find it that way we're really sort of we're really sort of reframing the issue in a very hypothetical sort of way here. The evidence really was pretty strong and the ineffective assistance of council claim I think the court is right to suggest it's a very high standard here and I would I would suggest that reading Cassiano it was not unreasonable for these attorneys if they had done that obviously we don't know to think that you could in fact do this the way it was the way it was charged and you didn't need that a separate interrogatory wouldn't have been successful but the Cassiano certainly suggests when it certainly was. Yeah, I mean it's interesting just I don't know if we need to get into it you suggested whether Diaz and Cassiano were consistent. Yeah, I would say that Diaz is a much more generous case than than Cassiano was. Much more lenient. Yes, yes and Cassiano was closer in time to the deal decision and I think deal was the one that took the priest. Oh yes, that was Cassiano. Yes, that was Cassiano. A horrible horrible facts there. Yeah, not great facts in this case either though. I mean these victims here whether they were tellers or bank customers were put through a lot they were tied up they were held at gunpoint. They were made to call on the floor. They were put in in different rooms. It was it was a pretty horrific crime and so Judge Thompson didn't really have any problem with the sentences that were imposed. This did go back on a. It's not fun. Judge Thompson
. Yeah, I mean it's interesting just I don't know if we need to get into it you suggested whether Diaz and Cassiano were consistent. Yeah, I would say that Diaz is a much more generous case than than Cassiano was. Much more lenient. Yes, yes and Cassiano was closer in time to the deal decision and I think deal was the one that took the priest. Oh yes, that was Cassiano. Yes, that was Cassiano. A horrible horrible facts there. Yeah, not great facts in this case either though. I mean these victims here whether they were tellers or bank customers were put through a lot they were tied up they were held at gunpoint. They were made to call on the floor. They were put in in different rooms. It was it was a pretty horrific crime and so Judge Thompson didn't really have any problem with the sentences that were imposed. This did go back on a. It's not fun. Judge Thompson. She's a sweetheart. But this did go back on a book or read and she did not impose mandatory minimum on these individuals. So you know and I do want to say again I'm a strength of the evidence Mr. Goggins to testify a trial and Judge Thompson said it sentencing that the. That is testimony was preposterous. It's just really wasn't any doubt at all. Judge Greenway asked a question about whether this was possibly strategic. I mean it's a widen focus on that but I do think there clearly is a guidelines potential disadvantage if that. If you asked the jury to make a finding now again at this point the defendant didn't know that Judge Thompson was going to find that he had participated in at least six. The grouping rules have a group and you get extra points for each group. The way a conspiracy is charged it's multi object. The judge has to make a finding if the jury has not as to which ones were found. So it may well be that counsel not only wouldn't have gotten it if they had asked for it. But some of the some a co counsel might easily have objected and certainly it may not have been to is a better time site is 2020 now that we know that Judge Thompson found six. But there was the possibility that she would say okay well that anything's possible what she would have said there
. She's a sweetheart. But this did go back on a book or read and she did not impose mandatory minimum on these individuals. So you know and I do want to say again I'm a strength of the evidence Mr. Goggins to testify a trial and Judge Thompson said it sentencing that the. That is testimony was preposterous. It's just really wasn't any doubt at all. Judge Greenway asked a question about whether this was possibly strategic. I mean it's a widen focus on that but I do think there clearly is a guidelines potential disadvantage if that. If you asked the jury to make a finding now again at this point the defendant didn't know that Judge Thompson was going to find that he had participated in at least six. The grouping rules have a group and you get extra points for each group. The way a conspiracy is charged it's multi object. The judge has to make a finding if the jury has not as to which ones were found. So it may well be that counsel not only wouldn't have gotten it if they had asked for it. But some of the some a co counsel might easily have objected and certainly it may not have been to is a better time site is 2020 now that we know that Judge Thompson found six. But there was the possibility that she would say okay well that anything's possible what she would have said there. But again you know if the court has no further questions I would just focus on the prejudice prong and the suggestion you can always find harmless error in any of these things. There's no there's no case that suggests that that this kind of error if it was error could not be harmless. So with that thank you. Thank you. Sorry. The government mentioned hindsight just now but I think their hindsight is making them a little more confident in the evidence that they had at the time. I think if the government was so confident in the evidence of Mr. Goggins participation in bank robberies one through nine the completed bank robberies they could have charged any of those robberies as substantive counts they didn't. They didn't charge nine twenty four C's attached to each separate one because they couldn't and presumably trial counsel for Goggins argued you know the only place you really have him. You know on site if you will is from a correct and tried to make that distinction between he did and and between him and the others correct he did and Mr. Goggins also testified and said it's not unexplained well that the government keeps saying it might it's my parents money and I had a civil. I was a drug dealer like the money came from somewhere I'm explaining it to the jury all these things are factual issues the got the phones he said weren't his he they weren't his phones he was never seen using them it was that you know phone calls were made to people he knew so the government said we think they're your phones Mr. Goggins disputed that and said they're not they just you know they happen to be going to people who I know there was no other evidence tying him to you all drug dealers know what the same people. You know they might you're on I don't know drug dealer I'm not a bank robber right the it's important it's for the jury to find and I think that's the point here is that we shouldn't be basing twenty five years of someone's life based on a guess when our whole system is based on a jury finds the facts to put someone in prison and that's not what happened here this is a judge. The world why they special and let's let this hand is prejudice business what more of a special interrovers he should have asked the first first was Mr
. But again you know if the court has no further questions I would just focus on the prejudice prong and the suggestion you can always find harmless error in any of these things. There's no there's no case that suggests that that this kind of error if it was error could not be harmless. So with that thank you. Thank you. Sorry. The government mentioned hindsight just now but I think their hindsight is making them a little more confident in the evidence that they had at the time. I think if the government was so confident in the evidence of Mr. Goggins participation in bank robberies one through nine the completed bank robberies they could have charged any of those robberies as substantive counts they didn't. They didn't charge nine twenty four C's attached to each separate one because they couldn't and presumably trial counsel for Goggins argued you know the only place you really have him. You know on site if you will is from a correct and tried to make that distinction between he did and and between him and the others correct he did and Mr. Goggins also testified and said it's not unexplained well that the government keeps saying it might it's my parents money and I had a civil. I was a drug dealer like the money came from somewhere I'm explaining it to the jury all these things are factual issues the got the phones he said weren't his he they weren't his phones he was never seen using them it was that you know phone calls were made to people he knew so the government said we think they're your phones Mr. Goggins disputed that and said they're not they just you know they happen to be going to people who I know there was no other evidence tying him to you all drug dealers know what the same people. You know they might you're on I don't know drug dealer I'm not a bank robber right the it's important it's for the jury to find and I think that's the point here is that we shouldn't be basing twenty five years of someone's life based on a guess when our whole system is based on a jury finds the facts to put someone in prison and that's not what happened here this is a judge. The world why they special and let's let this hand is prejudice business what more of a special interrovers he should have asked the first first was Mr. Goggins guilty. I don't know it was Mr. Goggins guilty of conspiring to rob the Roma bank and second was Mr. Goggins guilty of conspiring to rob any of the other nine banks listed in the indictment. But how do how do we come to the conclusion and I'm obviously going to be corrected about the imprecise use of the standard but how do we come to the notion that the result would have been different. If we know that the judge is made of credibility finding that Mr. Goggins isn't credible there is more than a little circumstantial evidence obvious that clearly points to his participation despite his denials about the credit cards. In fact him being on site at Roma right obviously lends credibility to the notion that he was involved in the six that the judge Thompson came to determine that he was involved in sorry we keep coming back to it because we're just having trouble with that. Well again this is what a jury is supposed to find and we think there was enough there to undermine confidence in the verdict that's the standard that Mr. Goggins needs to meet on ineffective assistance it's not it's not a high standard for him is less than a preponderance of the evidence is there a chance that the jury would have come out differently. And based on the way that this case was framed in the indictment the government argued from the start you can find him guilty based only on the Roma bank robbery they argue in summation you can find the Mr. Goggins during the conspiracy on April 15th April 16th he'd still be guilty of the whole conspiracy. But that is under current third circonsubrime court law accurate. That is accurate as to the conspiracy it would but the way that that ties the 924 c count into it he would have improperly gotten a second 924 c because the jury instructions also said for count to the 924 c count that attached to the conspiracy it said if guns were used in connection with the conspiracy. So the jury could look and they could see guns on the evidence table they're the guns that were that were recovered on April 16th those are the guns that you could tie to count for the attempts to rob the Roma bank and you can say well those are part of the conspiracy too because there's a conspiracy to rob the Roma bank those guns were used during the conspiracy
. And your point is why would the government kind of go out of its way say oh you can find him guilty even if it's only Roma if they didn't think there was a distinct possibility that the jury would say oh he was only involved in Roma so. That's exactly right your honor and that they that's the whole the frame of the case was that way they argued the case that way to make sure that he was on guilty on count one the problem is that count to included this additional 25 year sentence and we're just going to say that. We're just guessing