My name is Josh Hamilton on the arm you have Mr. Kato Thompson. Your honors Mr. Thompson was convicted under the continuing criminal enterprise statute, which essentially criminalizes being a drug kingpin. And as part of the government's proof, it would have to establish sufficiently to the jury that he had been in participating in a series, what I'll call series of instances of three substantive liberal narcotics violations. It was an expansive case that the government put on. It began, I believe, in as early as 2002 and ended roughly before the tenants were arrested, I believe, in 2010. Thus, the good portion, as many as one third as much as one third rather of the government's case and chief concern events that occurred prior to the period five years before the filing of the statute of limitations. Sorry, before the indictment, which would be outside of the statute of limitations. And as the Supreme Court held in Yates when a general verdict could be based upon illegally and add to the ground such as a statute for a time bar, the verdict must be set aside. And that's precisely the issue that's presented here. There's two important decisions, prior decisions of this court, that I think guide our inquiry. The first would be United States versus Jerome. And in Jerome, which concerned continuing criminal enterprise, the government put on a different aspect of the statute, but it's very much applicable to this one. As part of the CC charge, they would have to prove that there was at least five supervisees. And in the Jerome case, they put on quite a number of potential supervisees that the jury was told, these are the people from whom you can select from to find at least five supervisees. Over two of them were ordinary drug purchasers, which are legally cannot be supervisees under the law. And this court correctly held that the district court aired and not been failing to properly instruct the jury that it could only select from the proper number of people
. And the verdict was reversed as a result. That case was essentially relied upon in a case that's even more applicable, which is the fuchs case. In that case, which addressed a conspiracy, fairly complicated conspiracy, there was 10 overt acts that the government argued to the jury that these are the things you can select from to find an overt act in further. So the conspiracy to satisfy that requirement. A lot of those things were time barred by the statute of limitations. And again, just like in this case, no jury instruction was ever put to the jury saying that you must find an overt act in further interest that the conspiracy was committed within the statutory timeline. That's exactly this case. Let's back up just a minute. I got to make sure I understand what points you're trying to make. So your argument is, is the part of the acts, that there were no acts that occurred within the statute of limitations period, is that your point? Well, I'll say this. I don't know. I thought he was convicted of the conspiracy, just of a straight-out conspiracy chart. No, that's Mr. Williams. Mr. Thompson, my client was convicted of two things. One was engaging in a continuous criminal enterprise being a drug king and second was a disaster, no one
. So the government's case in chief put on events dating as far back as 2002. And there were quite a few and they're outlined at Nazim in the government's briefs. There's a lot of things that the government put on. A huge bulk of which occurred prior to the outside of the statute of limitations. And because the jury was never instructed that they must find at least one of those, what I'll call, serious offenses. One of these substantive violations that you must find free of unanimously in order to establish a proper basis for conviction. The jury was never instructed that it had to find at least one of those things fell within the statute of limitations. And thus we get right back to the very legal issue that the United States Supreme Court discussed in the Yates case, which is to say, when a general verdict could possibly rest upon illegally inadequate basis, such as a statutory time bar, the verdict cannot stand. And that's exactly the situation. The government, in fact, in its closing arguments gave the jurors four specific things. They said, well, there's much more, but let me give you four that you really want to focus on. Two of those fell outside of the statute of limitations in and of themselves. So the lion's share of this, what I'll call what I repeatedly refer to as serious offenses. All this evidence fell far outside of the statute of limitations. What was the statute of limitations period? The indictment that alleged CC was filed in April of 2011. So the events which occurred prior to April 2006 would be time barred. So if the jury, if the three serious offenses that the jury was instructed, you must unanimously agree upon, occurred prior to 2006, April 2006, the verdict cannot stand
. It's legally, it would be acquitted at that point. But in this case, we don't know, the jury was never instructed whatsoever. The record is totally silent. And that's precisely the issue that requires reversal in this case. And it was evidence of acts further in some of the experiences in the five years, what's evidence facts in the six years, or the five years, and the judge did not tell the jury they had a fight. It's a thin, thin, thin fight. Exactly. The picture argue holding a thieves case in which the government put on, I believe, 10 overt acts and furtherance of the public conspiracy, some of which fell within the statute of limitations and some of which fell outside of the statute of limitations. But as this court held precisely because the jury was never instructed, as to that very important fundamental legal basis, the verdict was legally inadequate. And it was reversed on that basis. And the result in this case should be no different. Did you ask for that instruction? Well, I didn't represent the defendant in trial. Well, the defendant trial, there was a verdict classified. He did move several times to dismiss the indictment. Did you ask, you're not answering my question, would somebody ask? Would the defendant ask for that instruction? No, but the defendant didn't ask for that instruction. In the case case, or the Jerome case, and both of those cases, where there was essentially some evidence which fell within the statute, some evidence which fell outside of the statute, barred by a perv legal reason, the court nonetheless found the planar in the result in this case should be no different. I also will point out the reason I wasn't trying to be evasive, the reason I pointed out the moving to dismiss the indictment on statute of limitations around, was that that was something that, in the fuchs case, the court found was significant, and which it listed as part of its reasons for why it reversed the conviction
. So your other point was about the law as a manager of the right here? Well, in that case, the heart was back on Jerome, which was cited a lot. I think the bigger issue is with respect to the statute of the location. There's a statutory time bar. As far as the, as far as the supervisees, I think it is arguable that some of those people, for instance, there was, I don't want to use a inflammatory term, but one of the women who was an exotic dancer, who the defendant had met in Tucson in which they had alleged was a supervisee, because she picked up a friend of his up at the airport, and there was another individual who would go and run groceries, things like that. But I think the much bigger issue is the, is the fact that I could count five specific series violations, which were told to the jury. These are the things you can rely upon. These are the things you can select from to form your basis. That wasn't true, and they were never instructed otherwise. I see I have 12 minutes left, so I'm going to turn it over to Mr. Kim. Thank you. May I please the correct time, Philip Kimball, I represent Paul Williams. You are on our first addressing Mr. Williams sentencing issue. I think it's important to note that at the outset, everyone agrees that a conviction for a single offensive involving an undetermined amount of marijuana is subject to a five-year sentence. It's also undistinguished by a year's, yes, in fact, for the five years. Then, if he had missed the 400, to 100 kilograms, then I would get 21 United States folks maybe, so I'll change it, and he'd be, he'd be 41, he'd be 7
. I'd say that 100 kilograms of water and nitrogen are contained in the detectives, and I'd be able to detect all the amounts of marijuana. 100 marijuana plants are not less than five years and that's more than 40 years. Where am I wrong? Because the government says that they understand the same thing. People back in the United States, I don't know where that comes from. Where they have maxed five years, please. From the statute specifying that where there is not a determination as to the weight. And in this case, the jury was... You have a lawyer come up there and said, what's the least of my name? The argument as to the sentencing was to essentially make the best of what the jury apparently had found based on fact that there was some testimony by one witness. That was Mr. Checo who testified regarding, well there was the number of transactions, and there were no seizures related to those transactions, but those transactions may have amounted to somewhere in the area of 500 kilos. Now, although there was testimony with regard to that, there was not a request with the jury finding. Was the jury finding though that it was less than? The only finding was that it was less than a thousand years. So why do we assume that it falls within the maximum of five years? Because where there is, as the government has knowledge, no finding, in other words, no determination as to an amount above zero. That we're talking about an undetermined amount, undetermined amount, then the maximum penalty is five years. But the lawyer walks up to 100 and 400, I think
. Well, I'm looking for the quote that was not I handed. Well, I believe your honor is referring to the objection to the pre-sensory court. And the objection to the pre-sensory court essentially was addressed to the fact that the pre-settin saw is there. I've got it. I've got it. There was no evidence that would have supported the quantity of marijuana in 700 and 1,000 kilos. Only apparent testimony regarding the amount of marijuana that was being carried out. The case was checked, although it testified that he had supplied 500 kilos of cleaners and all of that in the quality of the claim. Given this uncertainty, the most credible range argued was supported by the evidence. The defendant had trial that apparently could be by the jury. Right. And the most credible range. That would be beyond. Well, it should have been. The testimony said. Like it. Yeah, okay
. Between 100 and 400. That's it. And your honor inside the hindsight. That would have been the correct argument. However, even at, even at that, there was no basis for concluding how the jury reached its determination as to under a, under a thousand kilos. So you're saying the mistake here was not asking the jury to just specify an amount that was attributable to Mr. Williams. X amount of marijuana. We find that X amount of marijuana is attributed to Mr. Williams. Yes, Your Honor. And in fact, it depends, did ask for an interrogatory that would have somewhat more specifically set out determinations of weight. Now, it was, it was a weight of 100 to a thousand and a thousand more. What we're talking about here is because the sudden determined, it assumed to be 150 kilos. And that's what triggers the maximum of five years. Do we have any case of all that says that specifically? That that the, in this particular circumstance. Well, I think that we use that brain
. I think there's some, so there's some, there was some marijuana. Well, according to the jury's verdict, it was less than, so it has to be at least one, one. There is, there is, there is some marijuana because they presumably found the bird that says that. The difference here is that unlike, for example, in, in Menorie and Buckland, which the government's first to salvage the, the sentence over five years, there were actual seizures that were attributable to those events. There was no objection to the weight in those, in those instances. And there were multiple counts in those cases, all of which, which would have mandated the greater, greater weight determination. In here, there were no seizures from Williams or tributes. There was only one count of conviction. And there were objections to the weight determination. Therefore, given that, the fact that there was not a determination by the jury as to an amount other than below one particular threshold, the court has to determine that the threshold amount was, there was no threshold amount that was determined. And that the, this is, as the government territory, is an undetermined amount, where you have an undetermined amount. The, the court has to determine that the, that the weight at below 50 kilos, which is starting, starting weight for the statute, is applicable. And that means a sense of no more. How many of you have been able to find the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the., the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, eleven is one of you. to the fact that the Resettance Report can't suggest a number between 700 and 1000 with no particular basis, which was to say, well, they said it was under 1000. This is the next step below 1000
. Therefore, we're going to take that. This is some attempts to say, well, even in the best case scenario, you can't take that because even this one witness testified to a mountain that would not have justified that. I guess the bottom line of your argument is that the jury has to make a determination beyond a reasonable doubt with the point of the pipe and the quantum set depth. Yes, sure. As to the... Well, I... You're almost at a time if you're going to save the time, and the human atmosphere. I'll know about your focus. All right. I'll defer to my comment. Thank you. Good morning, Your Honors. Please, the Court, Eric and the Calam, appearing on behalf of the United States, here from the District of Arizona
. It looks as though we're looking at two of the issues, of the several issues that are raised in this joint appeal, turning first to defendant Thomson's CCE claim. Primarily, something that really needs to be clear and perhaps was not this morning is that the defendant never challenged the statute of limitations below. He did try to dismiss the count from the indictment because he said you have to ledge a specific five people in a specific three or more events in the indictment. Now, Knight's Circuit Law, obviously, is clear on that. That's not necessary. And so the indictment correctly was for the charges correctly not dismissed. One of the judges here this morning asked, well, didn't the indictment include at least one event which was within the statute of limitations? And let me clarify, the statute of limitations was not as defense claims April 28, 2011. It was 2010 because the statute runs from the first indictment, not the second super-seeking indictment. In any case, the defendant was convicted of conspiracy and also a specific possession with intended distribute count, which was from November of 2008. So that count fell within the statute of limitations and that because it was a conviction, of course, it was unanimous jury finding that that was one of the three events that were part of the continuing series. In addition, you don't have to oblige in the indictment specific theory, but it's not the case. You do not, yes, that's correct. Under the case. So as it went out here, he was convicted of the conspiracy. You used convicted of a conspiracy charge and the possession with intended distribute charge, as well as the continuing criminal and breach. Yes. So the government's position that both of those convictions, conspiracy and the possession distribute, the distribution charge fell within the statute of limitations and satisfied that, but the sterling case says, you only have to alleged one that falls within. Yes, you only have to alleged one that falls within the statute of limitations. In addition, the statute of limitations is an affirmative defense that may be waived and the defendant never raised it below, never challenged it. And so it's the government's position that that was waived. And we can't review it at all. I would say that that's correct. That's forfeiture versus waiver. It's waver. It's forfeiture. It's forfeiture near. We would use it for a year. We would use it for a year. We would use it for a year. It because it's an affirmative defense, I believe it may be forfeited. And I'm looking. I'm making way. I'm sorry, Your Honor. This is one that gives me every time
. Yes, you only have to alleged one that falls within the statute of limitations. In addition, the statute of limitations is an affirmative defense that may be waived and the defendant never raised it below, never challenged it. And so it's the government's position that that was waived. And we can't review it at all. I would say that that's correct. That's forfeiture versus waiver. It's waver. It's forfeiture. It's forfeiture near. We would use it for a year. We would use it for a year. We would use it for a year. It because it's an affirmative defense, I believe it may be forfeited. And I'm looking. I'm making way. I'm sorry, Your Honor. This is one that gives me every time. It's one that's barred if it's not raised below. And we're looking at the fuchs case that Judge Gravers dissent and also the US Supreme Court in Smith versus US. And because this was raised in the recovery, I did not have an opportunity to respond to it. So there is a US Supreme Court case, Smith the US, and it's US Supreme Court 133 SCT 714. Just to be clear on the record. Defense relies heavily on the fuchs case and says that this is the situation that we have here. But the difference is in the fuchs case, the indictment, it was a conspiracy case, and the indictment alleged a whole series of events. And it was impossible to tell without a specific finding or by the jury which events form the basis for the continuing criminal interference count. That's not the case here because we have those two convictions of charged events. So there's just no confusion about at least two of them. And you only have to have one. In the fuchs case, the defendant tried to try to blow to dismiss based on statute limitations. Not the case here. And also in the fuchs case, the evidence was not overwhelming. And in fact, the court found that the strongest evidence was in the counts that fell outside the statute limitations. Here, the evidence primarily fell within the statute and was for well-being. So again, that's different
. It's one that's barred if it's not raised below. And we're looking at the fuchs case that Judge Gravers dissent and also the US Supreme Court in Smith versus US. And because this was raised in the recovery, I did not have an opportunity to respond to it. So there is a US Supreme Court case, Smith the US, and it's US Supreme Court 133 SCT 714. Just to be clear on the record. Defense relies heavily on the fuchs case and says that this is the situation that we have here. But the difference is in the fuchs case, the indictment, it was a conspiracy case, and the indictment alleged a whole series of events. And it was impossible to tell without a specific finding or by the jury which events form the basis for the continuing criminal interference count. That's not the case here because we have those two convictions of charged events. So there's just no confusion about at least two of them. And you only have to have one. In the fuchs case, the defendant tried to try to blow to dismiss based on statute limitations. Not the case here. And also in the fuchs case, the evidence was not overwhelming. And in fact, the court found that the strongest evidence was in the counts that fell outside the statute limitations. Here, the evidence primarily fell within the statute and was for well-being. So again, that's different. Turning to, unless the court sent any further questions on that issue, I would turn to the sentencing question. And just to clarify, the government actually raised this issue in its answering brief. It's never really raised it below or on appeal, but we felt that it was fair to lay out the correct law here. And it's the government's. Is that also something that we wait? The defendant doesn't raise it? Well, it's not necessarily that it's waived, but that the defendant has the burden to prove that his substantial rights were affected. And they weren't obviously because all the way up below, he was saying this is more than 100 kilograms. And also, he has to raise it in the delivery. I'm sorry? Did he raise his sentence in just a 30 seconds in here? No, he raised it in his reply. Well, he responded to me raising it in his reply. Okay, so one question is, oh, waived it. I'm not raising it in his. I believe, yes, thank you for clarifying that. Yes, I think the court could find that. Unless the court were to say, well, this is strictly a matter of law. And on the other hand, the government said, look, there's a problem here. There's a potential problem here. We acknowledge that there's really not a problem
. Turning to, unless the court sent any further questions on that issue, I would turn to the sentencing question. And just to clarify, the government actually raised this issue in its answering brief. It's never really raised it below or on appeal, but we felt that it was fair to lay out the correct law here. And it's the government's. Is that also something that we wait? The defendant doesn't raise it? Well, it's not necessarily that it's waived, but that the defendant has the burden to prove that his substantial rights were affected. And they weren't obviously because all the way up below, he was saying this is more than 100 kilograms. And also, he has to raise it in the delivery. I'm sorry? Did he raise his sentence in just a 30 seconds in here? No, he raised it in his reply. Well, he responded to me raising it in his reply. Okay, so one question is, oh, waived it. I'm not raising it in his. I believe, yes, thank you for clarifying that. Yes, I think the court could find that. Unless the court were to say, well, this is strictly a matter of law. And on the other hand, the government said, look, there's a problem here. There's a potential problem here. We acknowledge that there's really not a problem. Yes. And the reason it's not a problem is because he didn't demonstrate that it affected his substantial rights because evidence was overwhelming that this was more than 50 kilograms. And the key I'm trying to get to here because there seems to be a bit of confusion is that your position that it is should be viewed as a plain error. Yes. If it is reviewed, it should be viewed in plain error. And there's two prongs of plain error where it fails. Number one is, the substantial rights number two is the fairness to the judicial proceeding. And that's because if you look at the cotton case, it talks about how it would be unfair to have a proceeding where there's an abundance of evidence establishing a large weight of a drug. And then sentence that it then is under 841 B1D, which is the five-year cap that you're asking about judge's question. And the way that it works is if there's a trial and there's no weight finding whatsoever, then the default is to go back to the lowest statutory cap. This is under a printing. And that would be B1D, maximum five years, for any weight below 50 kilograms. Now, here there's absolutely no dispute that the weight was at least 100 kilograms. The defense that trial said 266 kilograms. At sentencing said 100 to 400 kilograms. No one ever said this is less than 50 kilograms. And in fact, the jury had been asked which appointed this, the jury had been asked from within a month in the possible present
. Yes. And the reason it's not a problem is because he didn't demonstrate that it affected his substantial rights because evidence was overwhelming that this was more than 50 kilograms. And the key I'm trying to get to here because there seems to be a bit of confusion is that your position that it is should be viewed as a plain error. Yes. If it is reviewed, it should be viewed in plain error. And there's two prongs of plain error where it fails. Number one is, the substantial rights number two is the fairness to the judicial proceeding. And that's because if you look at the cotton case, it talks about how it would be unfair to have a proceeding where there's an abundance of evidence establishing a large weight of a drug. And then sentence that it then is under 841 B1D, which is the five-year cap that you're asking about judge's question. And the way that it works is if there's a trial and there's no weight finding whatsoever, then the default is to go back to the lowest statutory cap. This is under a printing. And that would be B1D, maximum five years, for any weight below 50 kilograms. Now, here there's absolutely no dispute that the weight was at least 100 kilograms. The defense that trial said 266 kilograms. At sentencing said 100 to 400 kilograms. No one ever said this is less than 50 kilograms. And in fact, the jury had been asked which appointed this, the jury had been asked from within a month in the possible present. The jury was the verdict? They would have said yes. Oh, would it? Yes, yes. It's beyond a reasonable doubt they would have said more than 50 kilograms. The verdict form, which we believe had a typographical error, said make a finding of 1000 kilograms or greater or less than 1000 kilograms. Now, the defendant had submitted a proposed verdict form that include about 100 kilograms or more or 1000 kilograms or more. That 100 was not put on the final verdict form. The defendant reviewed the form, blessed it and his only objection was you should specify in this form that there has to be a finding that the weight is without the rapid. Did the government review the form? Yes, and the government did. Well, the defendant didn't object to it is where I'm going. No, the government also didn't see it and the court didn't see it. And so that was the verdict form that was used. But I can and I'll admit this. What do you think the defendant is a lawyer statement under the law? What does the effective act as far as I think it would be as well as the public's effective act? The big, huge, 16, 16 months or whatever. What does the defendant do? I think what it does is it throws it because it's undisputed that it's at least 100 kilograms. It takes it out of that 16 month maximum and at a minimum it's up to B1C, which is a 0 to 20 year range. And the defendant was sentenced to 121 months. So he was within that the next between 1500 kilograms range essentially the statutory range
. The jury was the verdict? They would have said yes. Oh, would it? Yes, yes. It's beyond a reasonable doubt they would have said more than 50 kilograms. The verdict form, which we believe had a typographical error, said make a finding of 1000 kilograms or greater or less than 1000 kilograms. Now, the defendant had submitted a proposed verdict form that include about 100 kilograms or more or 1000 kilograms or more. That 100 was not put on the final verdict form. The defendant reviewed the form, blessed it and his only objection was you should specify in this form that there has to be a finding that the weight is without the rapid. Did the government review the form? Yes, and the government did. Well, the defendant didn't object to it is where I'm going. No, the government also didn't see it and the court didn't see it. And so that was the verdict form that was used. But I can and I'll admit this. What do you think the defendant is a lawyer statement under the law? What does the effective act as far as I think it would be as well as the public's effective act? The big, huge, 16, 16 months or whatever. What does the defendant do? I think what it does is it throws it because it's undisputed that it's at least 100 kilograms. It takes it out of that 16 month maximum and at a minimum it's up to B1C, which is a 0 to 20 year range. And the defendant was sentenced to 121 months. So he was within that the next between 1500 kilograms range essentially the statutory range. Is it a factor? It's a factor, but it's outweighed by the fact that the defendant didn't meet his burden to show plain error on two problems. And I did, I did, if I have a moment left, I did want to clarify. I do that. This is a lengthy brief and I actually had to shorten it. And so it's not entirely clear what the difference that there were no seizures from Williams. But I'm just, I'd just like to briefly run through the transactions that Williams was involved in that there was evidence on. 2008, he received delivery 135 pounds of marijuana set July 2009. He received delivery 250 pounds of marijuana August of 2009. He and his co-defendant Thompson loaded four bundles of marijuana into a car and drove it across Tucson. September of 2009, defendant loaded five bundles into a truck that was taken to Florida. And November of 2009, he loaded five bundles in another truck that went to Florida. So there's a bun in evidence that there are. The amount is definitely sees 50 kilograms and also hundreds of the grams. I'm looking at my notes. I don't really have anything else that I wanted to bring up on this issue. Did the court have any other issues? I said, I'm going to sit down the briefs and ask you to confirm. Thank you
. Is it a factor? It's a factor, but it's outweighed by the fact that the defendant didn't meet his burden to show plain error on two problems. And I did, I did, if I have a moment left, I did want to clarify. I do that. This is a lengthy brief and I actually had to shorten it. And so it's not entirely clear what the difference that there were no seizures from Williams. But I'm just, I'd just like to briefly run through the transactions that Williams was involved in that there was evidence on. 2008, he received delivery 135 pounds of marijuana set July 2009. He received delivery 250 pounds of marijuana August of 2009. He and his co-defendant Thompson loaded four bundles of marijuana into a car and drove it across Tucson. September of 2009, defendant loaded five bundles into a truck that was taken to Florida. And November of 2009, he loaded five bundles in another truck that went to Florida. So there's a bun in evidence that there are. The amount is definitely sees 50 kilograms and also hundreds of the grams. I'm looking at my notes. I don't really have anything else that I wanted to bring up on this issue. Did the court have any other issues? I said, I'm going to sit down the briefs and ask you to confirm. Thank you. Okay, thank you. First, the defendant was never charged. I don't think this matters. It was never charged with continuing criminal under enterprise until the second super seating indictment April 2001. So I believe that's when the period would run. Not that I don't think that makes any difference. The government said that this issue was never brought up. I'm holding here a blue brief on page 20 and specifically brings up this issue and sites, views and all the other cases. So that's incredible. This issue puts the end of the scene. Excuse me? This issue, are you talking about the number of statute of limitations for emergency. The statute of limitations being, well, the number of serious violations being time barred by the statute of limitations. That was brought up. It wasn't that it wasn't brought up here. It was in your blueberry. If I understood it, it wasn't brought up in the district. Well, she said it was only it was only argued in my reply
. Okay, thank you. First, the defendant was never charged. I don't think this matters. It was never charged with continuing criminal under enterprise until the second super seating indictment April 2001. So I believe that's when the period would run. Not that I don't think that makes any difference. The government said that this issue was never brought up. I'm holding here a blue brief on page 20 and specifically brings up this issue and sites, views and all the other cases. So that's incredible. This issue puts the end of the scene. Excuse me? This issue, are you talking about the number of statute of limitations for emergency. The statute of limitations being, well, the number of serious violations being time barred by the statute of limitations. That was brought up. It wasn't that it wasn't brought up here. It was in your blueberry. If I understood it, it wasn't brought up in the district. Well, she said it was only it was only argued in my reply. I'm just putting out that was not true. Did you raise it at the district? I believe it was the indictment was challenged for a whole number of things. One of those things was statute of limitations issue. I can't go back and look at the motion. There was a motion to dismiss the indictment on this ground. I believe so. I don't have the record in front of me, but I believe so. It was a. I'll check. I believe I'm correct about that. Nonetheless, it makes no difference because just as the jury in Jerome could have found the defendant guilty based upon individuals who are improperly accounted in the number of people who are supervised or managed by the defendant. The jury in this in just like in fuchs could have found the defendant guilty based upon acts that were improperly included in the CCE case because they were barred by the statute of limitations. And just as this court held in fuchs, the district court's failure was highly prejudicial, was plain and required reversal. That's exactly this situation. So if I could really sum it up into one sentence that's this, when a jury reaches a verdict that could be premised upon a legally invalid grounds. Such a statutory time bar. The verdict cannot stand
. I'm just putting out that was not true. Did you raise it at the district? I believe it was the indictment was challenged for a whole number of things. One of those things was statute of limitations issue. I can't go back and look at the motion. There was a motion to dismiss the indictment on this ground. I believe so. I don't have the record in front of me, but I believe so. It was a. I'll check. I believe I'm correct about that. Nonetheless, it makes no difference because just as the jury in Jerome could have found the defendant guilty based upon individuals who are improperly accounted in the number of people who are supervised or managed by the defendant. The jury in this in just like in fuchs could have found the defendant guilty based upon acts that were improperly included in the CCE case because they were barred by the statute of limitations. And just as this court held in fuchs, the district court's failure was highly prejudicial, was plain and required reversal. That's exactly this situation. So if I could really sum it up into one sentence that's this, when a jury reaches a verdict that could be premised upon a legally invalid grounds. Such a statutory time bar. The verdict cannot stand. In this case, we can't determine the guilty verdict's basis because the jury was never properly instructed. Nothing that the defendant could argue can change that back. So I'd ask the court for a reversal conviction for that reason. I believe there's no other way to make sure that. Thank you. Thank you, Council.
My name is Josh Hamilton on the arm you have Mr. Kato Thompson. Your honors Mr. Thompson was convicted under the continuing criminal enterprise statute, which essentially criminalizes being a drug kingpin. And as part of the government's proof, it would have to establish sufficiently to the jury that he had been in participating in a series, what I'll call series of instances of three substantive liberal narcotics violations. It was an expansive case that the government put on. It began, I believe, in as early as 2002 and ended roughly before the tenants were arrested, I believe, in 2010. Thus, the good portion, as many as one third as much as one third rather of the government's case and chief concern events that occurred prior to the period five years before the filing of the statute of limitations. Sorry, before the indictment, which would be outside of the statute of limitations. And as the Supreme Court held in Yates when a general verdict could be based upon illegally and add to the ground such as a statute for a time bar, the verdict must be set aside. And that's precisely the issue that's presented here. There's two important decisions, prior decisions of this court, that I think guide our inquiry. The first would be United States versus Jerome. And in Jerome, which concerned continuing criminal enterprise, the government put on a different aspect of the statute, but it's very much applicable to this one. As part of the CC charge, they would have to prove that there was at least five supervisees. And in the Jerome case, they put on quite a number of potential supervisees that the jury was told, these are the people from whom you can select from to find at least five supervisees. Over two of them were ordinary drug purchasers, which are legally cannot be supervisees under the law. And this court correctly held that the district court aired and not been failing to properly instruct the jury that it could only select from the proper number of people. And the verdict was reversed as a result. That case was essentially relied upon in a case that's even more applicable, which is the fuchs case. In that case, which addressed a conspiracy, fairly complicated conspiracy, there was 10 overt acts that the government argued to the jury that these are the things you can select from to find an overt act in further. So the conspiracy to satisfy that requirement. A lot of those things were time barred by the statute of limitations. And again, just like in this case, no jury instruction was ever put to the jury saying that you must find an overt act in further interest that the conspiracy was committed within the statutory timeline. That's exactly this case. Let's back up just a minute. I got to make sure I understand what points you're trying to make. So your argument is, is the part of the acts, that there were no acts that occurred within the statute of limitations period, is that your point? Well, I'll say this. I don't know. I thought he was convicted of the conspiracy, just of a straight-out conspiracy chart. No, that's Mr. Williams. Mr. Thompson, my client was convicted of two things. One was engaging in a continuous criminal enterprise being a drug king and second was a disaster, no one. So the government's case in chief put on events dating as far back as 2002. And there were quite a few and they're outlined at Nazim in the government's briefs. There's a lot of things that the government put on. A huge bulk of which occurred prior to the outside of the statute of limitations. And because the jury was never instructed that they must find at least one of those, what I'll call, serious offenses. One of these substantive violations that you must find free of unanimously in order to establish a proper basis for conviction. The jury was never instructed that it had to find at least one of those things fell within the statute of limitations. And thus we get right back to the very legal issue that the United States Supreme Court discussed in the Yates case, which is to say, when a general verdict could possibly rest upon illegally inadequate basis, such as a statutory time bar, the verdict cannot stand. And that's exactly the situation. The government, in fact, in its closing arguments gave the jurors four specific things. They said, well, there's much more, but let me give you four that you really want to focus on. Two of those fell outside of the statute of limitations in and of themselves. So the lion's share of this, what I'll call what I repeatedly refer to as serious offenses. All this evidence fell far outside of the statute of limitations. What was the statute of limitations period? The indictment that alleged CC was filed in April of 2011. So the events which occurred prior to April 2006 would be time barred. So if the jury, if the three serious offenses that the jury was instructed, you must unanimously agree upon, occurred prior to 2006, April 2006, the verdict cannot stand. It's legally, it would be acquitted at that point. But in this case, we don't know, the jury was never instructed whatsoever. The record is totally silent. And that's precisely the issue that requires reversal in this case. And it was evidence of acts further in some of the experiences in the five years, what's evidence facts in the six years, or the five years, and the judge did not tell the jury they had a fight. It's a thin, thin, thin fight. Exactly. The picture argue holding a thieves case in which the government put on, I believe, 10 overt acts and furtherance of the public conspiracy, some of which fell within the statute of limitations and some of which fell outside of the statute of limitations. But as this court held precisely because the jury was never instructed, as to that very important fundamental legal basis, the verdict was legally inadequate. And it was reversed on that basis. And the result in this case should be no different. Did you ask for that instruction? Well, I didn't represent the defendant in trial. Well, the defendant trial, there was a verdict classified. He did move several times to dismiss the indictment. Did you ask, you're not answering my question, would somebody ask? Would the defendant ask for that instruction? No, but the defendant didn't ask for that instruction. In the case case, or the Jerome case, and both of those cases, where there was essentially some evidence which fell within the statute, some evidence which fell outside of the statute, barred by a perv legal reason, the court nonetheless found the planar in the result in this case should be no different. I also will point out the reason I wasn't trying to be evasive, the reason I pointed out the moving to dismiss the indictment on statute of limitations around, was that that was something that, in the fuchs case, the court found was significant, and which it listed as part of its reasons for why it reversed the conviction. So your other point was about the law as a manager of the right here? Well, in that case, the heart was back on Jerome, which was cited a lot. I think the bigger issue is with respect to the statute of the location. There's a statutory time bar. As far as the, as far as the supervisees, I think it is arguable that some of those people, for instance, there was, I don't want to use a inflammatory term, but one of the women who was an exotic dancer, who the defendant had met in Tucson in which they had alleged was a supervisee, because she picked up a friend of his up at the airport, and there was another individual who would go and run groceries, things like that. But I think the much bigger issue is the, is the fact that I could count five specific series violations, which were told to the jury. These are the things you can rely upon. These are the things you can select from to form your basis. That wasn't true, and they were never instructed otherwise. I see I have 12 minutes left, so I'm going to turn it over to Mr. Kim. Thank you. May I please the correct time, Philip Kimball, I represent Paul Williams. You are on our first addressing Mr. Williams sentencing issue. I think it's important to note that at the outset, everyone agrees that a conviction for a single offensive involving an undetermined amount of marijuana is subject to a five-year sentence. It's also undistinguished by a year's, yes, in fact, for the five years. Then, if he had missed the 400, to 100 kilograms, then I would get 21 United States folks maybe, so I'll change it, and he'd be, he'd be 41, he'd be 7. I'd say that 100 kilograms of water and nitrogen are contained in the detectives, and I'd be able to detect all the amounts of marijuana. 100 marijuana plants are not less than five years and that's more than 40 years. Where am I wrong? Because the government says that they understand the same thing. People back in the United States, I don't know where that comes from. Where they have maxed five years, please. From the statute specifying that where there is not a determination as to the weight. And in this case, the jury was... You have a lawyer come up there and said, what's the least of my name? The argument as to the sentencing was to essentially make the best of what the jury apparently had found based on fact that there was some testimony by one witness. That was Mr. Checo who testified regarding, well there was the number of transactions, and there were no seizures related to those transactions, but those transactions may have amounted to somewhere in the area of 500 kilos. Now, although there was testimony with regard to that, there was not a request with the jury finding. Was the jury finding though that it was less than? The only finding was that it was less than a thousand years. So why do we assume that it falls within the maximum of five years? Because where there is, as the government has knowledge, no finding, in other words, no determination as to an amount above zero. That we're talking about an undetermined amount, undetermined amount, then the maximum penalty is five years. But the lawyer walks up to 100 and 400, I think. Well, I'm looking for the quote that was not I handed. Well, I believe your honor is referring to the objection to the pre-sensory court. And the objection to the pre-sensory court essentially was addressed to the fact that the pre-settin saw is there. I've got it. I've got it. There was no evidence that would have supported the quantity of marijuana in 700 and 1,000 kilos. Only apparent testimony regarding the amount of marijuana that was being carried out. The case was checked, although it testified that he had supplied 500 kilos of cleaners and all of that in the quality of the claim. Given this uncertainty, the most credible range argued was supported by the evidence. The defendant had trial that apparently could be by the jury. Right. And the most credible range. That would be beyond. Well, it should have been. The testimony said. Like it. Yeah, okay. Between 100 and 400. That's it. And your honor inside the hindsight. That would have been the correct argument. However, even at, even at that, there was no basis for concluding how the jury reached its determination as to under a, under a thousand kilos. So you're saying the mistake here was not asking the jury to just specify an amount that was attributable to Mr. Williams. X amount of marijuana. We find that X amount of marijuana is attributed to Mr. Williams. Yes, Your Honor. And in fact, it depends, did ask for an interrogatory that would have somewhat more specifically set out determinations of weight. Now, it was, it was a weight of 100 to a thousand and a thousand more. What we're talking about here is because the sudden determined, it assumed to be 150 kilos. And that's what triggers the maximum of five years. Do we have any case of all that says that specifically? That that the, in this particular circumstance. Well, I think that we use that brain. I think there's some, so there's some, there was some marijuana. Well, according to the jury's verdict, it was less than, so it has to be at least one, one. There is, there is, there is some marijuana because they presumably found the bird that says that. The difference here is that unlike, for example, in, in Menorie and Buckland, which the government's first to salvage the, the sentence over five years, there were actual seizures that were attributable to those events. There was no objection to the weight in those, in those instances. And there were multiple counts in those cases, all of which, which would have mandated the greater, greater weight determination. In here, there were no seizures from Williams or tributes. There was only one count of conviction. And there were objections to the weight determination. Therefore, given that, the fact that there was not a determination by the jury as to an amount other than below one particular threshold, the court has to determine that the threshold amount was, there was no threshold amount that was determined. And that the, this is, as the government territory, is an undetermined amount, where you have an undetermined amount. The, the court has to determine that the, that the weight at below 50 kilos, which is starting, starting weight for the statute, is applicable. And that means a sense of no more. How many of you have been able to find the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the., the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, eleven is one of you. to the fact that the Resettance Report can't suggest a number between 700 and 1000 with no particular basis, which was to say, well, they said it was under 1000. This is the next step below 1000. Therefore, we're going to take that. This is some attempts to say, well, even in the best case scenario, you can't take that because even this one witness testified to a mountain that would not have justified that. I guess the bottom line of your argument is that the jury has to make a determination beyond a reasonable doubt with the point of the pipe and the quantum set depth. Yes, sure. As to the... Well, I... You're almost at a time if you're going to save the time, and the human atmosphere. I'll know about your focus. All right. I'll defer to my comment. Thank you. Good morning, Your Honors. Please, the Court, Eric and the Calam, appearing on behalf of the United States, here from the District of Arizona. It looks as though we're looking at two of the issues, of the several issues that are raised in this joint appeal, turning first to defendant Thomson's CCE claim. Primarily, something that really needs to be clear and perhaps was not this morning is that the defendant never challenged the statute of limitations below. He did try to dismiss the count from the indictment because he said you have to ledge a specific five people in a specific three or more events in the indictment. Now, Knight's Circuit Law, obviously, is clear on that. That's not necessary. And so the indictment correctly was for the charges correctly not dismissed. One of the judges here this morning asked, well, didn't the indictment include at least one event which was within the statute of limitations? And let me clarify, the statute of limitations was not as defense claims April 28, 2011. It was 2010 because the statute runs from the first indictment, not the second super-seeking indictment. In any case, the defendant was convicted of conspiracy and also a specific possession with intended distribute count, which was from November of 2008. So that count fell within the statute of limitations and that because it was a conviction, of course, it was unanimous jury finding that that was one of the three events that were part of the continuing series. In addition, you don't have to oblige in the indictment specific theory, but it's not the case. You do not, yes, that's correct. Under the case. So as it went out here, he was convicted of the conspiracy. You used convicted of a conspiracy charge and the possession with intended distribute charge, as well as the continuing criminal and breach. Yes. So the government's position that both of those convictions, conspiracy and the possession distribute, the distribution charge fell within the statute of limitations and satisfied that, but the sterling case says, you only have to alleged one that falls within. Yes, you only have to alleged one that falls within the statute of limitations. In addition, the statute of limitations is an affirmative defense that may be waived and the defendant never raised it below, never challenged it. And so it's the government's position that that was waived. And we can't review it at all. I would say that that's correct. That's forfeiture versus waiver. It's waver. It's forfeiture. It's forfeiture near. We would use it for a year. We would use it for a year. We would use it for a year. It because it's an affirmative defense, I believe it may be forfeited. And I'm looking. I'm making way. I'm sorry, Your Honor. This is one that gives me every time. It's one that's barred if it's not raised below. And we're looking at the fuchs case that Judge Gravers dissent and also the US Supreme Court in Smith versus US. And because this was raised in the recovery, I did not have an opportunity to respond to it. So there is a US Supreme Court case, Smith the US, and it's US Supreme Court 133 SCT 714. Just to be clear on the record. Defense relies heavily on the fuchs case and says that this is the situation that we have here. But the difference is in the fuchs case, the indictment, it was a conspiracy case, and the indictment alleged a whole series of events. And it was impossible to tell without a specific finding or by the jury which events form the basis for the continuing criminal interference count. That's not the case here because we have those two convictions of charged events. So there's just no confusion about at least two of them. And you only have to have one. In the fuchs case, the defendant tried to try to blow to dismiss based on statute limitations. Not the case here. And also in the fuchs case, the evidence was not overwhelming. And in fact, the court found that the strongest evidence was in the counts that fell outside the statute limitations. Here, the evidence primarily fell within the statute and was for well-being. So again, that's different. Turning to, unless the court sent any further questions on that issue, I would turn to the sentencing question. And just to clarify, the government actually raised this issue in its answering brief. It's never really raised it below or on appeal, but we felt that it was fair to lay out the correct law here. And it's the government's. Is that also something that we wait? The defendant doesn't raise it? Well, it's not necessarily that it's waived, but that the defendant has the burden to prove that his substantial rights were affected. And they weren't obviously because all the way up below, he was saying this is more than 100 kilograms. And also, he has to raise it in the delivery. I'm sorry? Did he raise his sentence in just a 30 seconds in here? No, he raised it in his reply. Well, he responded to me raising it in his reply. Okay, so one question is, oh, waived it. I'm not raising it in his. I believe, yes, thank you for clarifying that. Yes, I think the court could find that. Unless the court were to say, well, this is strictly a matter of law. And on the other hand, the government said, look, there's a problem here. There's a potential problem here. We acknowledge that there's really not a problem. Yes. And the reason it's not a problem is because he didn't demonstrate that it affected his substantial rights because evidence was overwhelming that this was more than 50 kilograms. And the key I'm trying to get to here because there seems to be a bit of confusion is that your position that it is should be viewed as a plain error. Yes. If it is reviewed, it should be viewed in plain error. And there's two prongs of plain error where it fails. Number one is, the substantial rights number two is the fairness to the judicial proceeding. And that's because if you look at the cotton case, it talks about how it would be unfair to have a proceeding where there's an abundance of evidence establishing a large weight of a drug. And then sentence that it then is under 841 B1D, which is the five-year cap that you're asking about judge's question. And the way that it works is if there's a trial and there's no weight finding whatsoever, then the default is to go back to the lowest statutory cap. This is under a printing. And that would be B1D, maximum five years, for any weight below 50 kilograms. Now, here there's absolutely no dispute that the weight was at least 100 kilograms. The defense that trial said 266 kilograms. At sentencing said 100 to 400 kilograms. No one ever said this is less than 50 kilograms. And in fact, the jury had been asked which appointed this, the jury had been asked from within a month in the possible present. The jury was the verdict? They would have said yes. Oh, would it? Yes, yes. It's beyond a reasonable doubt they would have said more than 50 kilograms. The verdict form, which we believe had a typographical error, said make a finding of 1000 kilograms or greater or less than 1000 kilograms. Now, the defendant had submitted a proposed verdict form that include about 100 kilograms or more or 1000 kilograms or more. That 100 was not put on the final verdict form. The defendant reviewed the form, blessed it and his only objection was you should specify in this form that there has to be a finding that the weight is without the rapid. Did the government review the form? Yes, and the government did. Well, the defendant didn't object to it is where I'm going. No, the government also didn't see it and the court didn't see it. And so that was the verdict form that was used. But I can and I'll admit this. What do you think the defendant is a lawyer statement under the law? What does the effective act as far as I think it would be as well as the public's effective act? The big, huge, 16, 16 months or whatever. What does the defendant do? I think what it does is it throws it because it's undisputed that it's at least 100 kilograms. It takes it out of that 16 month maximum and at a minimum it's up to B1C, which is a 0 to 20 year range. And the defendant was sentenced to 121 months. So he was within that the next between 1500 kilograms range essentially the statutory range. Is it a factor? It's a factor, but it's outweighed by the fact that the defendant didn't meet his burden to show plain error on two problems. And I did, I did, if I have a moment left, I did want to clarify. I do that. This is a lengthy brief and I actually had to shorten it. And so it's not entirely clear what the difference that there were no seizures from Williams. But I'm just, I'd just like to briefly run through the transactions that Williams was involved in that there was evidence on. 2008, he received delivery 135 pounds of marijuana set July 2009. He received delivery 250 pounds of marijuana August of 2009. He and his co-defendant Thompson loaded four bundles of marijuana into a car and drove it across Tucson. September of 2009, defendant loaded five bundles into a truck that was taken to Florida. And November of 2009, he loaded five bundles in another truck that went to Florida. So there's a bun in evidence that there are. The amount is definitely sees 50 kilograms and also hundreds of the grams. I'm looking at my notes. I don't really have anything else that I wanted to bring up on this issue. Did the court have any other issues? I said, I'm going to sit down the briefs and ask you to confirm. Thank you. Okay, thank you. First, the defendant was never charged. I don't think this matters. It was never charged with continuing criminal under enterprise until the second super seating indictment April 2001. So I believe that's when the period would run. Not that I don't think that makes any difference. The government said that this issue was never brought up. I'm holding here a blue brief on page 20 and specifically brings up this issue and sites, views and all the other cases. So that's incredible. This issue puts the end of the scene. Excuse me? This issue, are you talking about the number of statute of limitations for emergency. The statute of limitations being, well, the number of serious violations being time barred by the statute of limitations. That was brought up. It wasn't that it wasn't brought up here. It was in your blueberry. If I understood it, it wasn't brought up in the district. Well, she said it was only it was only argued in my reply. I'm just putting out that was not true. Did you raise it at the district? I believe it was the indictment was challenged for a whole number of things. One of those things was statute of limitations issue. I can't go back and look at the motion. There was a motion to dismiss the indictment on this ground. I believe so. I don't have the record in front of me, but I believe so. It was a. I'll check. I believe I'm correct about that. Nonetheless, it makes no difference because just as the jury in Jerome could have found the defendant guilty based upon individuals who are improperly accounted in the number of people who are supervised or managed by the defendant. The jury in this in just like in fuchs could have found the defendant guilty based upon acts that were improperly included in the CCE case because they were barred by the statute of limitations. And just as this court held in fuchs, the district court's failure was highly prejudicial, was plain and required reversal. That's exactly this situation. So if I could really sum it up into one sentence that's this, when a jury reaches a verdict that could be premised upon a legally invalid grounds. Such a statutory time bar. The verdict cannot stand. In this case, we can't determine the guilty verdict's basis because the jury was never properly instructed. Nothing that the defendant could argue can change that back. So I'd ask the court for a reversal conviction for that reason. I believe there's no other way to make sure that. Thank you. Thank you, Council