Hello everyone. Welcome to Options with Doug, streaming live daily on Bookmap Discord and the Bookmap YouTube channel at 1.30pm Eastern Time. Before I get started, I need to go through the Disclosures. General disclosure, all Bookmap limited materials, information, and presentations are for educational purposes only and should not be considered specific investment advice nor recommendations. Risk Disclosure, creating futures, equities, and options involves substantial risk of loss and is not suitable for all investors. Pass performance is not necessarily indicative of future results. Here's my contact information. The best way to get in touch with me is through Discord. My name on Discord is Doug P. Also in Bookmap Discord there's an option stash Doug Chat channel. That's a great place to post questions, comments, and content related to the topics of my presentation and the topics of the channel that I'll go through in just a moment. And note that Bookmap Discord is free and available to everyone whether you have a Bookmap subscription or not. There's a lot of great content there, a lot of very good traders trying to help each other get better. So everyone is welcome to join us on Bookmap Discord. I'm also on X, formerly known as Twitter. My name there is at Doug Pless. The focus of my presentation today and the focus of the options stash Doug Chat channel is options order flow, the impact of options markets on stocks and futures, and the influence of market maker hedging flow on price action. I have a two step process for trading and the first is planning and I use positional analysis. I look at how traders and market makers are positioned in the options market and how those positions change from day to day to develop a thesis regarding the expected trading range and volatility for the day as well as the directional bias. And the second step in my process is execution. I look at real time order flow in Bookmap and real time market maker hedging flow and spot gamma hero to confirm my thesis and for setups for entries and exits. And when I talk about setups today, I will be focusing on an underlying asset and setups in that asset can be taken any number of ways. For example, the S&E 500 setups can be taken with ES futures, spy shares, spy options, SPX options, or even ES options. Questions and comments are welcome and I will be watching both the options dash Doug chat channel and discord as well as the chat and YouTube for your questions and comments. Please feel free to post and I'll do my best to answer your questions. All right, let's get started. Here's my agenda for today, Wednesday, January 10th. First of all, I want to go over news items, economic data and events for the rest of the week. There is nothing today, at least nothing that appeared on my calendar. And then I'll go through my positional analysis from today. Then I'll review some setups from earlier today. And then I'll talk about the live market. And when I get to the live market, if anyone has any stocks they want me to take a look at, please let me know and I'll be glad to do that. All right, let's move on to positional. Let's start with economic data and events first. All right, so there are a couple of key economic data releases later this week, starting Thursday with CPI data coming out at 8.30 a.m. Eastern time. Also, jobless claims 8.30 a.m. Eastern time. And then PPI data comes out at 8.30 on Friday. So CPI on Thursday, PPI on Friday, both could be market movers. And there have been a few Fed speakers during the week. Also, bank earnings begin on Friday, Friday morning. All right, so overall pretty light week for economic data with the two key events on Thursday and Friday. All right, now let's get on to positional analysis. And I'm going to start with ESV500. This is the ES futures and book map. And before I take a closer look at this chart, I do want to take a look at a larger time frame. I'm going to take a look at the underlying index, which is SPX. This is again the underlying index for the SB500. And this current rally began October 30th. And the SB500 rallied for a variety of reasons. IV collapse, put Vanna rally, and dovish FOMC, lower than expected inflation reports, all leading up to this rally to the end of the year, December 28th. The SPX found resistance just below 4800. Now it appears to be recovering after the first week. In January it was somewhat weak, maybe profit taking. All right, WRB says 10 year auction record bid to cover today, the highest I have ever seen. Maybe that was, there was a drop. So we'll take a look at that. A drop in the SB500 and NASDAQ, I believe. All right, so that is a one day chart. This is thinkorswim, a one day chart for SPX. Now let's zoom in a little bit. And yeah, this must be the, what WRB is referring to, that must have been just after 1pm Eastern time. All right, let's take a look now on a one hour chart. So this is the upper portion of the rally that I showed in the one day chart. Here's the resistance just below 4800 at the end of the year. That was on Thursday, December 28th. And then this Monday, this massive rally has recovered. It looks like most of the, if not all of the losses in the SPX, the beginning of the first week of January. All right, let me point out the levels on this chart. First of all, the dash purple lines are showing the lower and upper weekly expected move. This is based on the options market. I update this once a week. Looks like SPX is trading above the upper weekly expected move. Then the dash blue lines are showing the lower and upper daily expected move. Looks like SPX has been close to that level earlier today. And is trading within that range. We'll take a closer look in just a minute. And that is updated once a day. And that is also based on the options market. All right, the dark red lines are showing spot gamma levels. These are proprietary spot gamma levels based on gamma weighted open interest. These levels are provided to spot gamma subscribers for showing on a variety of trading platforms. Again, this is thinkorswim. And I'm going to point out the key daily levels. So first of all, the put wall is at 4,600. That's a strike with largest net negative gamma that can be expected to act as support. The next level up is the volatility trigger at 4,745. That is spot gamma's proprietary volatility and gamma flip level. Below that level, market makers position on the gamma curve is negative. In a negative gamma environment, market makers have to trade with price to hedge their delta exposure. And that tends to subdue or decrease, enhance or increase volatility. So that's in a negative gamma environment. On the other hand, above that level, like SBX is trading now, market makers position on the gamma curve is positive. In a positive gamma environment, market makers have to trade against price to hedge their delta exposure. And that tends to subdue or decrease volatility. So below that level, market makers are trading with price. Above that level, market makers are trading against price. And then finally, 4,800 is the call wall. That's a strike with largest net positive gamma that can be expected to act as resistance. That's also the absolute gamma strike. That's a strike with largest absolute positive negative gamma. We'll take a closer look at that in just a few minutes. And note as price approaches that level and also the January expiration approaches, the gamma at that level will increase. So that level becomes more and more important if price continues to move higher as expiration, January expiration on January 19th approaches. And that that level could tend to act as a magnet for price. Alright, so 4,800 the potential ceiling for price 4,600 the potential floor and the gamma flip level at 4,745 note, there were no changes in levels for SPX. They all remain the same from yesterday. No changes. And that the same goes for spy. There were no changes in and the key daily levels for spy as well. Then finally, let's take a look at a one day chart. I'm sorry, a one minute chart, just so we can get a closer look at the level center in play for today. And I'm actually showing just around three hour three days worth of data here in this one minute chart. And what I wanted to show was that the SPX this is the high of the day on Monday after that huge rally that proved to be resistance yesterday and now support today. So SPX has now recovered and moving higher than the high of the day on Monday. And it looks like towards this combo l two level at 4776 the combo levels combined spy and SPX gamma weighted open interest into one level here converted to an equivalent SPX price. So note also that SPX is above the upper weekly expected move and has not quite made it to the upper daily expected move yet. Also trading above the volatility trigger. So on a positive gamma environment and gamma notional was positive at the beginning of the day as well. And if the rally continues, gamma notional will most likely shift to more positive tomorrow. Alright, let's take a look at book map now. Let me check for questions and trading for a living. Welcome. Glad you're here. And you're welcome for the live stream. I'm glad to do it. Hope it helps everyone and demo trader. Hello. Welcome. Glad you're here. It's afternoon for me. Alright, this is the SAP 500 futures ES futures and book map. And book map, I have my own cloud notes. So I can show I can show SPX levels and I don't quite see that combo level that I was looking at in the chart just a moment ago. Let's see if that's just above. Yeah, there it is. Alright, so here's that combo level, the 4776. So I'm showing SPX levels. This is a level that was noted as resistance in the spot gamma am founders note that is SPX 4773. I'm also showing spy levels on this chart. There's the spy 475 absolute gamma strike. And here's the spy 474 large gamma three level that acted as support earlier today in this down move and also a good launching point for a long just at the cash open. And then I'm also showing key ES levels. There's the upper weekly expected move. And this is the upper daily expected move for ES. So I have one column of cloud notes. I'm showing all these key levels. Alright, now there is a difference in price between ES and SPX. And today it is around 37. And that's what I'm using. So ES minus SPX is 37 points. So I'm showing this 4761 at ES 4797 98 I'm sorry. So 37 4761 plus 374798 for ES. And I post the all the index relationships that I use every day in discord. Try to get that out by 10am at the latest. Alright, so those are the levels in play for today. The 474 being the key support earlier this morning. And the high of the day so far as the upper daily expected move and also this 4776 combo two level. Alright, so that is the SB 500. Again, there were no shifts in levels. So fairly neutral initial thesis for the SB 500 today. Alright, let's take a look at NASDAQ now. So here are the NQ futures and book map. Another strong rally in NASDAQ today after a brief drop down move lower pretty similar to the SME 500 just right around 10am leading to a great long reversal. Just after 10am. We'll talk more about that in a few minutes. So let's take a look at the levels in play for today. And first of all, I want to take a look at a QQQ chart. So here are the levels in play for QQQ note this combo to L2 level acted as resistance earlier today. Some consolidation around that level. And now QQQ is trading higher, maybe finding resistance at 408. Alright, slow down and crash F16. I'll get to both of your questions in just a moment. Alright, so let's take a look at NDX. So this is the NDX trading really looks like kind of a continuation of the rally yesterday. And just like SPX, it is trading above the Monday high now. Also trading above the 16,650 call wall absolute gamma strike. Alright, let's go back to NQ now. And just like ES, I have my own cloud notes. So I can show so I can show first of all QQQ levels and NDX levels. There's that 650 absolute gamma strike call wall. And then also key levels for NQ upper daily expected move acting as resistance earlier today. And then the big round numbers the the 50s and the zeros for NQ. So NQ finding resistance at the upper daily expected move. And again, I'll talk about setups in a few minutes. Ida, you're welcome. And welcome glad you're here. Alright, let me get to crash F16 your question first ask Doug. If the ES has its own gamma levels, why do you put the SPX levels in the C level column? Alright, so the reason I do that is SPX is the underlying index for the SB 500. And spy is just a different version of that. So the underlying index when when traders buy and sell options in SPX and spy, market makers hedge those options trades with ES futures. So that is kind of the the entire basis of what I'm doing here. And looking at that options market in SPX and spy, the underlying index ES is just a derivative of SPX. So again, SPX is the underlying index. That's why I spend so much time looking at it, looking at those levels. And this is how I look at the SB 500 in terms of the key levels spot gamma levels for the underlying index products, SPX and spy. Alright, so the gamma levels on ES ES really doesn't have its own gamma levels. The gamma levels are based on SPX and spy. So I hope that answers your question. And the upper daily expected move. Let me show that real quick. So the way I get that is I go to an options chain and at the close so at SPX closes at 415 p.m. Eastern Time. So at the close, I will take this number right here. This is the thinkorswim options chain for SPX. I will take that number the one on the right plus or minus. Right now it's 34.57. And I expected that to be a little bit elevated because the CPI data tomorrow. So today the expected move for SPX was plus or minus 21. And I expect that to be higher tomorrow because of the CPI data report. So I wait until 415 at the close. So I take the closing price for SPX. And then I will subtract that and add that number whatever it is at the close to the closing price for SPX to come up with the lower and upper daily expected move. And then I do the same thing at the end of the week for the weekly expected move. Alright, so crash, I hope that answers your questions. Alright, let's take a look at. Alright, great, you're welcome. Alright, so now let's take a look at finish up the positional analysis, the and then we'll take a look at setups. Alright, so first thing I want to take a look at is gamma notional to see how market makers were positioned on the gamma curve at the beginning of the day. So this is the data table at the end of the spot. Yeah, I am founder's note. And I want to focus on gamma notional here. This is market makers position on the gamma curve at the beginning of the day for SPX are the SP 500 NASDAQ and Russell 2000. And note with the exception of IWM all these numbers are positive. This indicates that in this position, what's my gamma assumes for an index is that traders are short calls, market makers are long calls, hence the positive gamma environment, and they have to trade against price to hedge their delta exposure. And note these numbers, although positive for the SB 500, did shift lower, still positive and pretty much neutral for spy. And then for NASDAQ, the numbers actually shifted higher. And then for the Russell 2000, the numbers shifted lower. So kind of a mixed picture for for gamma notional. And let's take a look. I do want to take a look at a couple things here. First, let's since we're on SPX, I want to go to this absolute gamma. This is the SPX absolute gamma chart. Let's go back. Sorry about that. All right. Looks like now you have to use these sliders to zoom in. Okay, all right, so here we go. So this is absolute gamma for the SPX. The orange bars are called gamma positive gamma, blue bars, put gamma or negative gamma. And what I want to focus on here is the 4800 strike that is the absolute gamma strike as well as the call wall. And just focus on the amount of gamma at this level in relation to the other levels. And as price approaches 4800 as I mentioned before, the gamma will increase gamma increases as price is at closer to the money and is expiration approaches. So gamma is greatest at the money at expiration. So that level could act as a magnet for price. If price continues to move higher and expiration approaches.  Yeah, I believe so, just click on next expiration right here. So for the SME 500, next expiration is zero DTE. Since SPX has options that expire every day at the end of the day. Alright, so here you go. Slow down. All you need to do is click on the next expiration. So this is showing right now a lot of gamma concentrated around 4750 4760. And then there's 4800. And then not much above that. Let's take a quick look at the Vana model. And let's see where SPX is trading now, right around 4774, somewhere between these two lines right at the bottom of the curve. Let's just take a quick look at spy. So that indicates there's really not much of a Vana tailwind or head headwind with price at the bottom of the Vana model. This chart is showing market makers delta notional on the vertical axis price on the horizontal axis. And there are two curves on this chart that like great curve shows how market makers delta notional may change with changes in price only. And then the purple curve adds implied volatility to the equation showing how market makers delta notional may change with changes in price and applied volatility. And that change in delta with the change in applied volatility is the Vana effect Vana is the second order Greek. That's the curve that we want to take a look at. So now we're on spy spy currently trading right around 475 476. Also at the bottom of the curve. So just briefly this is showing if price continues to move higher, market makers may need to sell futures to hedge their delta exposure since their delta exposure is increasing. And that will tend to subdue or decrease volatility. Alright, let's take a look at some setups down. Alright, the first thing that I want to do is take a look at options trades. So everything that we've looked at so far other than book map has been based on static data that's updated once a day sometime during the night spot gamma takes open interest data that is updated once a day. And they apply their own algorithms to that data to come up with the gamma weighted open interest and the levels that we've looked at the Vana model, the gamma curve, and also the key levels. Now we're going to take a look at real time data. So what this chart is showing is options trades in real time. It's hero, he I h i r o hedging impact real time options. This is available to spot gamma subscribers. What this particular chart is showing is price for SPX and the hero signal. When the hero signal is increasing, this indicate indicates that traders are taking positive delta positions, they're buying calls and or selling puts and market makers take the opposite side of those trades. And and these are options trades and spy SPX. We'll take a look at the combined signal in just a minute. And then market makers are hedging that with futures. So they want to they want to remain delta neutral. So when traders take positive delta positions, market makers take negative delta positions, and they have to buy ES futures to hedge their delta exposure. That's the most efficient way for them to hedge options trades in the SP 500. So the hero signal on this chart is showing a combined signal of options trades and market maker hedging activity for this combined signal of SPX by XSP and ES futures on the one combined signal. Alright, let's zoom in on this chart. And I really want to focus on one set up here. And this is just around somewhere between 10am and 1010. The the morning was pretty choppy. The hero signal up, then chop, and a little bit difficult to interpret. So today, for me, at least it made sense was paid off to wait until about 10am to look at trades. So this, especially if you missed this first flow alert, the flow alerts indicate significant options activity. And the next one comes in just right around 1010. As traders started taking positive delta positions, and price responded higher, and now really continues to move higher. Let's see what traders were doing. So this, these two lines are showing calls and puts. So the orange line rising orange line shows that traders were buying calls when traders buy calls, market makers sell the calls, and they have to buy ES futures to hedge their delta exposure. So really the key for today was to watch the call line. Traders buying calls, take their foot off the gas, then just right around 10.05 they put their foot on the gas again, start buying calls. Meanwhile, not doing much with puts.  And the rising orange line positive notional value indicates traders are buying calls and note the very large notional value for calls compared to puts call buyers definitely in charge today, driving price higher. Alright, let's go take a look at book map now. Go to ES, zoom in on this just a bit. So here's that reversal right around 10.05, 10.10, 10.05 as traders resume buying calls and reverse price reversed higher right at spy 474. Water flow was not as easy to read today as I thought it has been for the last couple days. And then there were a couple of pullbacks here just below VWAP. VWAP shown by the light blue line. And then price finally started moving higher. So you know, looking back in hindsight, this was the the best entry point for a long and then a secondary entry right around 1115 pullback to VWAP and this 4761 level. Alright, WRB says the 10 year auction was at 10am. Okay. Alright, so here's this maybe this is the reaction to the the 10 year auction. Just after 10am. Let me check for questions GH ask, is there any way to get the past record history of a stock and book map? Or do you have to save it? You have to save it. So with book map, you have the option every day to record live data. That creates a feed file. It's depending on how many instruments you have open that can be quite large. And I do that every day. I save my data. I open book map in the morning, I close it in the evening, restart my computer. So I have a feed file for every day, then I have book map open. And then I can use that in the for the replay feature of book map, which is which is great. A great way to practice with a or you know, back test or practice any setups that you want in book map. So there's no way to load historical data for stock other than I open book map somewhere between 630 and seven in the morning. And DX feed provides stock data, starting at 4am. Right, hope that answers your question. So a little bit difficult. For me, at least a little bit more difficult read today for order flow and hedging flow here in book map. But really the key was to look at the look of the call buyers and and hero here. Watch these alerts. There's that timely flow alert right around 1010, and then price moved higher. And there's the pullback opportunities. Alright, so it looked like this was going to be a reversal initially, but call buyers stepped right in again just a few minutes after that reversal lower. And now price continues higher. Alright, let's take a look at NASDAQ now. So here's NASDAQ. No, here's the. So what this signal is showing is price for NDX, and then a combined signal. Hero signal for QQQ and NDX. So this is also a combined signal. Alright, WRB says depends on what time you zone your end, but one hour ago. So so the, yeah, the bond auctions are typically at at 1pm Eastern time. Alright, so this is the NASDAQ signal. Here was the long entry just above the 650 call wall key gamma strike. And let's separate outputs and calls. So in this case, at that time, traders started buying calls and selling puts that shown by the rising orange line and blue line, when both lines are moving in the same direction, that's a very powerful directional indicator. Let's go back to the total signal. Alright, let's take a look at one other signal. This is the mag seven. Let me zoom out. So this is another combined signal. In this case, showing the options trades and market maker hedging activity for a combined signal of the stocks known as the magnificent seven that is Apple, Amazon, Google, Meta, Microsoft, Nvidia and Tesla. Zoom in and note the little bit of a leading indicator here, that the hero signal for the magnificent seven starts moving higher just before 10am. So a little bit of a lead there and continues to move higher. This is fairly new to spot gamma hero and is a great, great signal. I look at this every day. Alright, let's go back to book map. Go to NQ now. Zoom in. So to me, this was a bit of a little bit easier read than the SMB 500 today. Note a couple things first of all the volume dots here in book map. They show market buy minus sell magenta dots indicate more sellers than buyers, green volume dots indicate more buyers than sellers. Note also there were some large traders buying with iceberg orders that shown by the rising light blue line there. Also the on chart indicator, although that's not a very large number large traders were buying with iceberg orders they used to hide their size. So you can see that aggressive sellers came out on the way down. And then as price moves higher, as traders were taking positive delta positions in both NASDAQ and the magnificent seven stocks, aggressive buyers come in, start to move NASDAQ higher. Note the cumulative volume delta rising. That's the dark blue line. And then price makes a series of pullbacks giving you great entry opportunities. This is the price continuation pullback set up that shown in the book map learning center and the strategy section. Nice up trend, deep pullbacks, good entry points. As traders were taking positive delta positions in both NASDAQ, QQQ, NDX, and the mag seven stocks. And I'm looking at questions, GH ask, when you resize the 3d bubbles, the size grows? Does the growth include the smaller bubbles behind it? Or do they remain hidden? Because it's impossible because it is impossible to read accurate as smaller bubbles are hidden. So if I if I increase the size of the bubbles, then what what I believe book map is doing here is aggregating all that information into one larger bubble. So there is a there's a sweet spot. And it just depends on on your visual preference. You know, as I zoom in and out of the chart, I may need to resize the bubbles to see more clearly. So it's really up to your visual preference. Alright, so the strong rally after a brief dip at 1115 down to the point of control shown by the purple line prices now moving higher and higher. Let's go back and take a look at hero. So we know that CVD continues to rise aggressive buyers. You can just see all the green volume dots. Now NQ is above its upper daily expected move, heading towards 17,000. Let's go take a look at at hero. So the mag seven traders of buying calls and selling puts call buyers much more aggressive, really driving price, but both the blue line and the orange line moving in the same direction now. Again, that's a very powerful directional signal. And in NASDAQ, and the combined signal, call buyers definitely in charge, especially after about noon. What this is showing for the put line is showing that traders really weren't doing much with puts. And then there was a large block order that came in. Just after 1pm, that must have been with the the tenure bond auction, tenure note auction. And then now they are starting to sell puts again. So right now the blue line or an orange line moving in the same direction, moving higher, this very bullish traders buying calls and selling puts. Let's take a look at some stocks. First, I want to take a look at AMD. Let's go back to the total signal. So in the case of AMD, it was there was a bearish setup this morning. This is the 150 call wall key gamma strike. Sorry about that. That act is resistance earlier today. Alright, demo trader, thank you very much for clarifying my answer, providing more detail. Alright, GH just says just started watching book map learning center about a few weeks ago. Alright, so this is the hero signal for AMD. Let's go to book map, go to AMD. Here's the reversal in the morning at the 150 call wall key gamma strike. Now AMD trying to recover back to hero. So right around 10am 10 to 1010, just like NASDAQ hero signal reversed higher, traders started taking positive delta positions. And price started moving higher after that initial drop the resistance at the 150 call wall. Alright, the next I want to take a look at is Amazon. I'm going to separate outputs and calls and traders are buying calls in Amazon. When traders buy calls in a stock, market makers sell the calls, and they have to buy stock to hedge their adult exposure. That's a very powerful driver that can drive price higher. So call shown by the rising orange line. Note the timely flow alert there just after the open. Let's go take a look at book map. So strong rally here in Amazon as traders buy calls, market makers sell the calls, and they have to they have to buy stock to hedge their delta exposure. Alright, the next I want to take a look at is meta. Let's go to the hero signal. Take a look at meta. Very powerful rally today in meta. And unlike AMD, meta breached its call wall at 360 very early in the day. Call buyers definitely driving price, but traders are buying calls and selling puts. Call shown again by the orange line positive notion of value. We know they're selling puts because the positive notion of value there. So the both the blue line and orange line moving in the same direction. Also when this call walls breach, that's where most of the calls are concentrated. So as those calls remember trade for a stock, spot game assumes that traders along calls, market makers are short calls. And as those calls go deeper in the money, market makers have to continue to buy stock to hedge their delta exposure. So that can also help to drive price higher. So in this case, traders buying calls selling puts, and those calls that are at 360 going further in the money deeper in the money, the delta is becoming more negative. And market makers have to continue to buy stock to hedge their delta exposure. Let's go to book map. Looks like I need to add more lines to my chart here. It's such a powerful rally and meta. Right the next I want to take a look at Microsoft. Alright, if anyone has any stocks they want me to take a look at, please let me know. I'll be glad to do that powerful rally here in Microsoft. And the case of Microsoft 380 is the call wall. There were some congestion at that level, resistance, then acting as support and price moved higher. And let's go take a look at hero for Microsoft. Or here's Microsoft looks pretty pretty similar to meta. Traders buying calls and selling puts call buyers much more aggressive price moving higher. And here there was some congestion right around 380. And now price has breached that level found support at that level. And is moving higher support right there. And slow to Ross. He says they I assume analysts and are saying that Microsoft might overtake Apple and market cap become the most valuable company in the world that I think that's pretty highly likely. I haven't checked all the fundamental data but for Apple growth is definitely slowing down. Alright, let's take a look at one other thing. Back to the total signal, just to get more clarity on this call wall breach. I'm going to go to open up equity hub here. We'll take a look at meta.  So here's that call wall at at 360. This chart is showing call gamma with the orange bars. Put gamma with the blue bars. Remember for a stock, spot gamma assumes that traders along calls market makers are short calls. Hence here, the negative gamma notional for the orange bar and the positive gamma notional. Or the I'm sorry the positive gamma notional for calls and negative gamma notional for puts. So for a stock spot gamma assumes that traders along calls long calls and or long puts market makers are short both. So as these note the most of the call gamma concentrated between 350 and 360 as these calls go further in the money. Delta becomes more negative and market makers have to continue to buy stock to hedge their dealt hedge their delta exposure. One other thing one other takeaway from this chart is notice how this call line this rate of change of gamma for calls starts to level off somewhere around maybe 380 indicating market makers may be fully hedged at that point and will not have to hedge as aggressively. Alright, let's take a look and there were a couple of stock requests. Alright, CWR wants to look at Apple. So let's go back to the hero signal look at Apple. So after a slow start, there was a kind of a burst of options trades shown by this vertical line there. Let's see what traders are doing. So that was a large institutional order block order of calls. Timely flow alert. And now really Apple has taken off after launch. As traders continue to buy calls. Let's go take a look at book map. Go to Apple. Alright, so kind of a choppy morning in between 184 and 185 this morning and then finally, as traders start buying calls more aggressively, Apple finally starts to move up. Alright, Prime also wants to take a look at Tesla. Let's do that. Go to Tesla. Choppy day in Tesla. Let's see what options traders are doing to the total signal. So very close correlation between options trades, market maker hedging activity and price action. And note there were a couple of timely flow alerts. Good signals in this case for sorry about that for mean reverting price action. Not sure why it's doing that. Timely flow alerts in this case for indicating a good mean reverting entry point mean reverting signal there. Flow alert. Hero signal starts to reverse higher traders start taking positive delta positions. Trader and the price response higher. Another flow alert at the high traders start taking negative delta positions and price moves lower. So the long entry was right around 10 to 1015. The hero signal giving somewhat of a leading indicator, making a higher low before Tesla price moved higher. And that's right around 1015. And then reversal lower just after 11. Let's go take a look at the bookmap chart. Here's that reversal higher. As traders started taking positive delta positions. Then here's that reversal lower. So this long was good for about three points in Tesla today. All right, then Paul wants to look at Nvidia. So I think we covered just about all the most of the stocks here that I track that I watch Nvidia, all the mag seven plus Netflix and AMD large cap tech stocks. Another bullish day in Nvidia. Let's go take a look at at hero for Nvidia. Another timely flow alert mean reverting price signal price reverses higher. Just a few minutes later. Right around 945. This is a very typical pattern of aggressive options traders in the morning. And they take their foot off the gas. Sometime mid morning in this case right around 11. Hero signal for reverses lower. And then price moves lower or consolidates. Let's go back to bookmap. Zoom in. Note the series of higher lows, multiple entry points for long. As traders started taking positive delta positions. And remember at 11am traders, options traders took their foot off the gas. A lot of aggressive sellers come in. Note the resting liquidity at the order book typically higher at the zeros and the fives for high price stocks. These are limit sell orders. The heat map and book map is showing a history of the limit seller the limit orders in the order book. In this case above price, they were limit sell orders. And looks like all those orders were consumed and price started moving lower as options traders took their foot off the gas. And aggressive sellers came in showing by the shift from green volume dots to magenta volume dots. And then finally, WRB wants to look at Boeing. I don't have that a book map. We can go take a look in hero. See what options traders are doing. Let's go to Boeing. So initially, they were taking positive delta positions, took their foot off the gas, then started taking positive delta positions again, right around 10am, took their foot off gas started taking negative delta positions, price moved lower, showing a very strong correlation between options trades hedging activity and price action. And in Boeing, let's just see what they're doing. So net for the day, they have been buying calls. And that was a course higher earlier in the day, but the numbers still positive. Also selling puts shown by the positive notion of value for the blue line. Alright, Sodorasi says maybe upside is done on ESNQ. Let's see. So here's that 4800 level for SPX still up above. So still a little way to go to that to the really the potential upside at least for now.  And price is consolidating now. Let's take a look at NASDAQ. Kind of an odd dip in the hero signal here. But net just continues higher maybe consolidating now. Let's take a look at the mag seven also, so also slowing down. Alright, I'm way way over my time. I need to wrap it up at this point. I want to thank everyone for watching. Thank you very much for your questions and comments. I really enjoy these interactive sessions. Keep it up. Again, please ask questions, post stock suggestions. And I'm glad to help. Alright, remember also tomorrow morning, CPI data comes out at 830am Eastern time. And we'll talk about it tomorrow. Alright, thanks again, everyone. Have a great afternoon. And I will see you tomorrow. Bye


Probably a disappointing defeat in terms of the result but quite a lot of positives to say from this afternoon Yeah, I think so I think with great spells in the game where we could have maybe nicked something But it wasn't to be but there's definitely signs of improvement there working very hard Monday to Friday to To get things right and please go we can go to Danny next week and try to make something there One no down at halftime What was the message from David Hawking because the 25 minutes sort of start the second half were very very good Probably the best period of the season you could argue. Yeah, yeah, definitely I'm obviously demanded what he wanted from us for the for the second half and we went down and got in that obviously the couldn't quite stop all over the line, but the just definitely big improvement there and it's It's been we've been working very hard on it during the week and stuff and I don't think the Rich had much to do really their keeper didn't really have much to do obviously from my shot in the first half But not much else apart from that So it was one of them where games where maybe the toenail losses and really feel justified and you took the captain's arm band to Down it did that change anything for you? Did it we have to do that? Oh, yeah, absolutely. Yeah, and he asked me to do it. I just said, yeah It's an honor like so just a joint of a club to lead the lads out It's not something I expect to hold on to but it's a it was a great honor Yeah Is it frustrating at the moment because obviously where we are on the table perhaps don't quite reflect today's Sort of outcome and things like that Tough games coming up with dunk us from Bristol. Yeah, but every game is tough in the league. So it's it is what it is like It's um It we're definitely in a false position. I feel and we're obviously riddled with bad injuries at the minute But the last I came in have done great. He was in the middle haven't played in a long time. We're brilliant today Young Lewis as well was exceptional. So it's um It's definitely a bit of learning to be done from all of us because we're all still new together obviously the new managers come in and he's and And cement in his way of playing stuff. So it's um, there's a lot of learning still happening It's um, but I'm confident we're going to turn it around you can see by our performance that it's it's definitely improving Yeah, definitely he's he's managed to um Set the tempo where our fitness levels are gonna are gonna rise along along with the style of play that he wants from us So it's um, it's great the way he's come in the way he's done it and stuff and we're all We're all like backing it as well. We really wanted to to work out where in a horrible position in the league confident results will change for us And hopefully Come Saturday. We can mix up my weight on you just on Saturday What will you take from this afternoon that perhaps you didn't take from the black ball game into the Yeah, obviously there's a belief there that that we can pin teams back I suppose and and dominate the ball and and Really get to my hard time. I think Obviously there's a bit of like a concentration just leading up to the to their goals But listen that comes from me as well I'm the first defender on the pitch at the other end and we all need to do better in them circumstances But there's a lot to like the positives to be taken where we've been definitely more confident going into next week because Today didn't really feel just for


Let's see the recoverable value. Recoverable value is about defined as the higher of fair value, less cost to sell or value in use. There are two things. Cost to sell, less sale cost. If there is any cost to sell it, that should be reduced out of it. For example, assets which is now 10,000 and you want to sell it, you get 9,000. So we consider 9,000 as the recoverable value. And the use mean that if we use these assets, let's say, of its remaining life, what amount we are covering out of that usage? That is cash inflow, absolutely cash inflow. Now fair value, less cost to sell means what the assets could be sold for after deducting the cost of disposal very clearly. Then value in use is the present value of cash flows expected from the future use and eventual sale of assets at the end of its useful life. Now this is something slightly need more explanation. Look here, you are talking about selecting the cash flow in the remaining life of the asset. By the use of this asset, whatever cash you generate, that is operating cash you generate, number one. And plus when your asset expires life, so you want to recover some value, that is residual value. So we need to find out year by year how much cash is generated by each year and then how much we are going to collect at the end of the life of the assets. Now once you get these figures, then you need to discount it. Now what is this discount rate? Basically this is the market risk-free interest rate and that rate is going to be used to discount these cash flows. Now look here, they are three years and they are even cash flows are there and the present value of 10% is there. So simply you multiply and you can get the figure, total value in use is 248,700. So we need to compare this first with the sales value and then whichever is greater, then we compare it with the carrying value. Thank you very much.


You're watching FJTN, the Federal Judicial Television Network. A federal judicial center production, charging and sentencing after Apprendi. Now from the studios of the Federal Judicial Center in Washington, D.C., our program moderator. Hello. I'm John Cook. On June 26th, the United States Supreme Court decided Apprendi v. New Jersey. Although several other decisions by the court received more attention at the time, in the six months since it was decided, Apprendi has generated more litigation and more discussion than any case last term. With us today to talk about Apprendi, what it did and did not do, and some of the questions it raises, are Judge Paul Boorman of the Eastern District of Michigan, Professor Lori Levinson of the Loyola Law School in Los Angeles, and Judge Joe Kendall of the Northern District of Texas, who is also a commissioner on the United States Sentencing Commission. Thank you all for being here. The materials for today's program, including copies of the leading cases, citations to other cases, a list of federal criminal statutes potentially affected by Apprendi, and other materials, can be found at the center's website. A one-page evaluation form is also included with those materials. Please fill it out and fax it to us on the number on the form. That's the only way for us to know what you thought of this program and how we can better serve you. Let's begin with a quick review of the Apprendi decision itself, and how it relates to some earlier Supreme Court decisions. Professor Levinson, can you talk a little about that? Absolutely, John. As you mentioned, Apprendi was one of the most important cases decided last term, and it's important because it established a new bright line rule. If there are sentencing facts, or facts that are going to be used to increase the sentence beyond the maximum for which the defendant was convicted, other than a prior conviction, then those facts now need to be pled and proved to a jury beyond a reasonable doubt. How do we get to this rule? Well, in Apprendi itself, Charles Apprendi in New Jersey was shooting at the home of an African-American family, the only African-American family in an all-white neighborhood. As a result of his acts, he was charged with 23 felony counts, and he ended up striking up a plea bargain and pleading guilty to three of those counts. The maximum sentence on those was 10 years each. However, the prosecution reserved the right to bring an enhancement based upon the state's hate crime law, to say that this was a racially biased, motivated shooting. Well, they got to the sentencing hearing, and that's exactly what the state argued based upon some statements Apprendi himself had made to the police officers. But Apprendi put on his own evidence, and he said that, in fact, he was not biased, and that his shooting was the result of being intoxicated. After listening to the evidence, the judge made up his mind and found by a preponderance of the evidence that the prosecution was right and imposed a sentence above the 10-year max toward 12-year sentence. Apprendi, at that point, on appeal, brought a constitutional claim. He said that under due process, and in Ray Winship and other cases, he was entitled to have that presented to the jury and decided beyond a reasonable doubt. He lost in the intermediate courts of New Jersey. But in the New Jersey Supreme Court, he at least got a divided opinion. And the court there went along with the procedure that the Supreme Court had up to then, which is to carefully analyze the statute to see whether something is an element or it's just a sentencing factor. When the Supreme Court was presented with this issue, they were looking for it. They were ready for it because they had cases leading up to it. And at least five of the justices thought it's time to set the bright line rule, and they did exactly that. They did not do the multi-factor analysis to decide whether this was an element of crime or whether this was a sentence enhancement. Rather, they said, if this is a fact that leads to a sentence beyond the maximum and it's not a prior conviction, it must be pled and proved beyond a reasonable doubt. And that opinion was written by Justice Stevens. Now, part of the problem for Justice Stevens in writing that opinion was dealing with the court's own precedent. Because the court had, for example, the McMillan case back from 1986. And in that case, the court had said that on mandatory minimum sentences, those facts can be decided by a judge. They need not be decided by a jury. But Stevens said, well, this isn't a mandatory minimum. This is going beyond the maximum. The prosecution had also said, well, what about Alamandara's torres? Now, that was a case in which the defendant was convicted of being deported as an alien, and the sentence for that would ordinarily be two years. But because of a prior conviction, the sentence was up to 20 years. And the court said, that's okay. That's a sentencing factor that the judge can consider. Because, in fact, that's an issue of recidivism. When Justice Stevens looked at Apprendi, he said, well, you know, we don't have either one of those situations. We're not limited by that. So we can and we will say that it's a violation due process to increase the maximum if it's other than a prior conviction factor. We could see this case somewhat coming based upon a couple other cases the court had recently handled. Namely, the Castillo case in just last term in which the court carefully looked to see whether machine gun was a separate crime in terms of use of a weapon under 924C. And in particular, in the Jones case, in which Justice Souter, in a 5-4 opinion, has a footnote that gives a preload that says, right now, we're analyzing statutes. And we don't have to strike them down on due process grounds because the statutes themselves, their context, their history show us that these are separate offenses and have to be proved beyond a reasonable doubt. But they almost invited the Apprendi case by saying there might be a situation where we don't do that analysis. We're not sure. And in that situation, we may still have a due process violation. Apprendi was that situation. Now, in addition to Justice Stevens' opinion, which sets that bright line rule, we have a very important concurrence by Justice Thomas. Justice Thomas would go even further. What he says is that if you have any aggravating facts, even if it doesn't push it beyond the statutory maximum, those should be pled and proved to the jury. In essence, arguing you should not be convicted for one crime and sentenced for another. And then there were two very strong dissents in this case, one by Justice O'Connor and one by Justice Breyer, who almost argued that the sky is falling and that if you take the court's reasoning to its full extent, that this has grave implications, for example, for the federal sentencing guidelines, is a dramatic change in how judges have handled sentencing and, in fact, is a bad change. Because there are certain types of sentencing factors that judges can and have historically handled. So that's how we got to Apprendi. And if I was going to boil down what that decision says, it says for right now, if you have a fact that's going to increase the maximum sentence for that defendant. And it's other than a prior conviction. The prosecutors better plead it and prove it beyond a reasonable doubt. We know that Apprendi has generated quite a bit of attention in the federal court since it was decided, and many of the circuits have addressed one aspect of the decision or another. Could you summarize briefly for us what some of the major holdings have been? I will. There's been an awful lot of action in this area. There have been actually at least 150 decisions in the last six months since Apprendi by various courts interpreting that. Let's get to the easy part. Taking a look at other types of cases that might be affected. And the main type, of course, are the narcotics offenses under federal law. And every circuit that has addressed this issue have said that the quantity and the type of narcotic must be pled and proved to the jury, although in the pre-Apprendi decisions, when those are now coming up on collateral attack or review, the court is applying both the Plain Error Rule and the Harmless Error Rule. They're not playing the Plain Error. They're saying that it's not Plain Error, and they're refusing to apply Apprendi in a retroactive manner. But there are other types of cases as well that these are starting to percolate in, whether it be the fraud cases, the type of weapon used, and the serious bodily injury. Let me tell you how the courts are not applying Apprendi. If the actual sentence imposed was below the statutory maximum, then Apprendi doesn't come into play. And the courts are sticking with that. If the case is like Almandara's torus and involves the use of a prior conviction, the courts are not applying Apprendi. They say Apprendi says the judge can consider that, even if it's not pled. They're not applying Apprendi in forfeiture situations. And Apprendi itself says not to apply it in capital sentencing schemes. So there it's not implicated. Question then is what constitutes compliance with Apprendi? What have courts been doing in that area? And they're doing a wide range of things. Certainly if it's mentioned in the indictment, that's the first start for the courts. But they're also looking to see whether there have been special verdicts forms. And one court even went so far to say, well, does the evidence show to such a point where we'd say it was harmless error not to give notice of this particular factor? They're rejecting, so far, Justice Thomas's argument that any aggravating fact should be pled to the jury. But the defense lawyers have hooked into that, anticipating that the next cases to come before the court may be to review McMillan and those mandatory minimums, as well as Almandara torus, and to say that in all those situations, Apprendi should apply. That's what's been happening so far around the courts. Thanks. Some have suggested, including the dissent in Apprendi, that the majority's decision casts some doubt on the sentencing guidelines themselves. Judge Kendall, would you care to comment on that? Well, I have somewhat of a contrarian point of view from many of the commentators. You and your question, I think, hit the nail on the head. The dissent suggests. But as we all know, the dissent is not the holding and it's not the law that, at least as federal judges and prosecutors and defense lawyers and probation officers and law clerks and others who may be viewing this, that is not what binds us to majority holding does. I believe it was Mark Twain who said that 95% of the things I worry about never come to pass and I think that that might be somewhat applicable here. Of the 150 decisions that were mentioned, at least of the ones that I have read, I have yet to read one that suggests to me that the federal sentencing guidelines as a sentencing regime is in jeopardy. In fact, the dissent itself was dealt with in the majority opinion. Really, it was dismissed in a footnote, footnote 21, and I would, for purposes of evaluating Apprendi in light of the guidelines, commend if nothing else is read, read that footnote, which speaks to the dissent and says in essence that we're treated to, I believe the word was disquitation, on the federal sentencing or determinant sentencing regime and then interestingly, and I think not accidentally, quotes back Justice Breyer's own words to him from the Edwards decision, which sets up an Apprendi type situation applying the guidelines that is, Justice Breyer had said this in Edwards, that this may be a different case, the Edwards case may be different if we were going above statutory maximums, but that's not the case. And then Justice Breyer cites 5G 1.1, which for Apprendi purposes, I think is probably the key guideline to have a working knowledge of, which has always been the law under the sentencing guideline since 1987, which is that the statutory maximum, which of course as we know is what is pled in the indictment, that always trumps whatever a guideline calculation is. So that being the case, I do not think for the purposes of the guidelines as a sentencing regime that they are in jeopardy, that indeed the sky is not falling. And even for those who would prognosticate what future courts may do, the pragmatic question I would ask of those who have that view is once you get past Justice Scalia, who is the dissent in Mastretta, and Justice Thomas from the language in his opinion, once you get past those two votes, I'd be curious as to where the other three are going to come from. So if I understand you then, Apprendi affects the calculation of the maximum sentence, but not the application of the guidelines within that maximum. Oh, not at all. And the court says specifically, no, the guidelines are not before us, but the very fact of quoting back 5G1.1 when you understand what it does, as well as quoting Breyer's, Justice Breyer's words to him back from the Edwards decision, I think it's pretty clear that the majority do not see this as affecting the guidelines. And certainly you'd be hard pressed to argue that the dissenters in Apprendi would be for adversely affecting the guideline regime. But the point I want to make and not lose sight of is what Apprendi deals with is statutory maximum. It is dealing with a ceiling. And as long as that ceiling is not gone past, then you're not going to run into an Apprendi issue for guideline sentencing purposes. Let's take a couple of simple examples just so we can all be on the same sheet of music here. And using the drug statutes as probably the most frequently used area since Apprendi's come down. A defendant convicted of possession with intent to distribute marijuana amount unspecified in the indictment and unaddressed by the jury, what would the maximum be under Apprendi? Well, there I think that you have a good question because some are arguing it would be one year under the statute 841B4, which says that if someone distributes marijuana, a small amount doesn't define small. And for no remuneration that the sentence maximum is one year. If there is evidence of a large amount or not small amount, and also that there was remuneration, then you get five years, it seems to me. But Apprendi certainly casts its shadow over here. And I think it'll have a significant impact in terms of drug prosecutions, what's charged, what's brought before the jury. And it's a new world for the government in terms of prosecuting cases and also for judges in terms of instructing juries. Are you seeing amounts pled in any cases that you've had? They're now, yes, the prosecution is now putting amounts in indictments. In a simple case, that's fairly easily handled. How about a more complicated case with perhaps a multi-defendant conspiracy case with different amounts for the different defendants and so forth. Well, I think we're gonna be seeing the prosecutor putting the largest amount in the indictment. But then also asking for special instructions on lesser included offenses. For example, if one person in the conspiracy is guilty or there's evidence of a large amount and then lessers go to lesser and other individuals in order to protect themselves, I think the government is going to have to request lesser included offense instructions and also may be dealing with more substantive counts. Used to be there would be a conspiracy count and that would cover everything. Now I think you're gonna see more substantive counts to go with conspiracy counts, both in terms of directing the amount, but also in terms of protecting themselves in terms of sentencing where they may be able to ask for stacked sentences, consecutive sentences to reach what under the guidelines would be suggested but will be limited under Apprendi for the offensive conviction. And in fact, that's what some courts have been doing so far, not a lot of them, but there have been at least two or three courts around the nation who in the drug context have been stacking those sentences so that they could give beyond what ordinarily would be the maximum to an overall maximum for all the counts to which the defendant is pleading guilty or convicted. And is that an effective way to get around Apprendi then? Well, I'm not sure that it will need to be done if the prosecutors start pleading their cases more accurately, but I think that in the time being this has been a fill gap measure. Well, Professor, that raises a question because I don't recall specifically Apprendi several times, not familiar with what happened in the New Jersey courts, but there were three counts there where those stacked. No, in that situation, the court basically looked at, I think the court had concurrent sentences there and the court looked at the fact that the 10-year sentence had been raised to a 12-year with that enhancement. Well, that, in your mind at least, I mean, I'm sitting thinking that that might call into question that procedure. Oh, I think the procedure should be called into question because, in fact, if you look at the reasoning behind Apprendi and really what the court's trying to accomplish there is that they want to make sure that the defendant has noticed and that the jury has an opportunity to decide that case. So I am in no way encouraging courts to find this way around, but I am pointing out that it's been one approach that the courts have used. Well, I think the point that Professor just made, John, is a good one, and that is another thing not to lose sight of is that Apprendi first and foremost, as I read it, is a notice case, Sixth Amendment notice case, that the indictment, and we've talked a lot, we've thrown the term around here a lot about determining statutory maximum as being what sets the ceiling, the statutory maximum is and can only be determined by what the government chooses to plead in that indictment. And so, again, how that would fit in to this business about stacking, I'm not real clear. After the fact, to try to come back is maybe a mop-up operation. I don't know, but I guess that will play itself out in the circuit courts. I think Judge Kendall raises a significant point on the stacking thing, that while government may seek to do that, it runs into Apprendi in terms of what Apprendi's talking about and the rights of notice and pleading and what the ultimate sentence can be. And going back to what both of you have said, and I totally agree that Apprendi is a lot about the notice about the charging decision, but I also think that it puts added responsibilities on judges now because in addition to looking at what the prosecutors have charged, there's going to be a need for the judges to evaluate those jury instructions and make sure that they're tailored not just for the specific counts, but for the specific defendants that may in fact make the jury instruction process a lot longer and bulkier to do all of that. And finally, it may be necessary, at least some courts have taken the approach to tailor their verdict forms as well so that they have clear verdicts as to what the jury's finding and what they're not. I would agree with that. I think that some procedures may need to be changed and really looked at, but recall, 93% I believe the last statistic I read of cases, criminal cases in federal courts in this country are resolved by plea agreement. So much for the jury charge and the vast majority of the work the courts do. I believe that's a correct stat. It's somewhere in that range. It's a lot. But with regard to jury trials, particularly where you're going to really need to be careful as a court personnel, multi-defendant, conspiracy cases, and it does not need to be only drug cases, although the majority of the cases that have come out out of the 150, I believe majority of them are 841 cases. But again, you just need to do, if you're the judge, what a good lawyer and a good judge, take judging requires. Take the indictment, take what is pled, parse it and draft your charge accordingly. I want to come back to the jury issue a bit, but since you've raised the guilty plea issue, where the amount is pled in a drug prosecution, for example, does that change in any way the colloquy from what you've previously engaged in? Well, a lot previously you'd say, okay, we'll take the plea and we'll deal, sometimes we'll deal with the amount at the sentencing, not anymore. You've got to put it right out there. And if you're dealing with an indictment that does not list an amount, the judge shouldn't take the plea unless they can reach something where there'd be a superseding information at the plea proceeding listing the amount. Because otherwise, if you're gonna go above the cap, you can't. And Apprendi was a state case, now we're dealing here, obviously with the federal cases, where we also have the right to an indictment that sets forth the specific amounts, the specific elements, that's what Apprendi's talking about. So Apprendi doesn't deal with that, but at the same time, there's language in it referring back to Jones talking about the right to an indictment, which they have in the federal courts and the indictment spelling out what the elements are. And you also need to tell the defendant what the maximum he faces, is that correct? And again, I would just come back to what I've said earlier that it all starts with the indictment, in the Rule 11 plea colloquy, take the indictment. And really, this is, I think, a way to apply Apprendi generally as a judge. Take the indictment, see what is pled, take the statute, determine what the statutory maximum is for what is pled, that becomes your ceiling, take that number, put it in your pocket, and form the defendant of the maximum. Do whatever you're gonna do, do the trial, do the plea, do the sentencing process, determine the guideline sentence. Take that number, take the number that you put in your pocket, which is the statutory maximum, and apply 5G 1.1. The sentence is the guideline calculation not to exceed what you determined. And that may sound like an oversimplification, but that's the holding, not a lot of the talk, but that is the holding of Apprendi. That that statutory maximum becomes the ceiling on what you can do as determined from what the defendant has put on notice of in the indictment. Of course, it goes without saying under Rule 11, Paul, as we all know from federal judging 101 that that Rule 11 plea colloquy has to put the defendant on notice in open court of the maximum sentencing cases. And I'm just wondering that you might end up with some combination type pleas, where the defendant does plea, but the amount is in dispute and you almost bifurcate that out to have the judge do a court trial or stipulated fact trial or some other type of trial essentially on that issue so that you could end up with pleas, but you still have that issue that has to be resolved by the decision maker beyond a reasonable death. Would you accept a plea like that? Well, you'd have to have a waiver of the right to jury trial. You'd have to make the decision beyond a reasonable doubt and you'd have to have a hearing that would be like a bifurcated trial. I think it would be acceptable. Obviously from a judge's point of view, the better thing would be if it's not charging the indictment is to have an information, superseding information, the defendant waives the right to indictment and you put the amount and go from there. But if the defendant challenges the amount, but at the same time wants to plead, you can't say, well, we'll decide it at the sentencing. You have to have a type of trial. Well, it depends. It depends procedurally. I'm thinking through this, what was suggested by the professor procedurally. If you have the indictment and there is not a plea agreement, something different, you either plead to the indictment or you don't plead to the indictment. If you don't plead to the indictment, you're required to enter the plea of not guilty and you go for a trial on the merit. So I'm not sure procedurally you could do that. But they could have the information where you plead it or you have maybe two types of pleadings. I'm not quite sure, but I'm wondering about those situations where defendants want to plead to basically the overall narcotics charge, but there is still a dispute as to the amount. Maybe the way to do that, as you say, is don't have any plea at all and just say that we will have a court trial and we accept that the evidence on this, regarding you admit the evidence on this, regarding the actual distribution and the only issue left in the court trial would be the amount. Let's go back to the jury trial again for a minute, the contested case. And again, we'll use drugs as a simple example, although this could apply in other situations. The indictment alleges a certain amount that would carry a higher maximum penalty, but the jury finds a lower amount with a lower maximum penalty. There may be though, minimums depending on the amount in the statute, the guidelines themselves may be driven by amounts and factors that the jury has, in effect, acquitted on. Can you as a judge still consider those for these other factors that don't change the maximum penalty, but may change the sentence that the defendant receives within that maximum? Well, I think that in terms of the mandatory minimum, McMillan is still alive. And despite what's said with regard to one of the justice's opinions, I think, and also the dissent, as Judge Kennel said, the dissenters in there complaining about what they think some of the other opinions do certainly wouldn't go the way of overruling McMillan. So I think McMillan is still there, and you can have a federal sentence where the mandatory minimum would apply, but you cannot go above the maximum. There is, well, let me just reiterate, under the guidelines acquitted, if you can, you have been able for some time now to consider acquitted conduct. So quite clearly, even though a jury may acquit on, let's say, for example, a common, what will probably be common, will be a pled drug amount of a Schedule 1 or 2 drug under 841. If that amount is acquitted of, nevertheless, a jury may find, as a lesser included defense, that the defendant possessed cocaine, but just, for example, which carries a 20-year maximum, but not a specific amount of cocaine. So therefore, 20 years becomes the cap. That does not bar the judge from going back and doing what has been done, and that is determining drug amount by preponderance of the evidence. And that's the key to why acquitted conduct counts is because you have a different standard of proof for purposes of sentencing, and that's specifically by statute, as well as the federal rules of evidence. But if the jury comes back on a lesser included offense, which then takes it to a statutory lower level of sentence maximum, you can't go above that. Well, of course. And I think all of this applies as long as Justice Thomas's view does not win out, because under Justice Thomas's view, I think we would be overruling McMillan and overruling Almondara's Taurus and any facts that have that type of effect on sentencing would be something that has to be proved beyond the reasonable. I think we have to distinguish between overruling McMillan and overruling Almondara's Taurus based on what was said in Apprentice. So with regard to McMillan, I think it's pretty clear. With regard to Almondara's Taurus, they're still recounting. Yeah, let's quiet right. Well, quiet right, that as I said earlier, I just don't see it with regard to the guidelines as a regime with regard to McMillan. The votes, I don't see where they're gonna come from once you get past Justice Scalia and Thomas, because you know the dissenters aren't going there and the majority, the other justices certainly could have had they chose to and what did they do instead? Even in what, I can tell by the look on your face, John, we're probably about to turn to Almondara's Taurus. That's one key case and all this we haven't talked about. Even with that case, even with what Justice Thomas said, they left it alone. They left it alone, they reaffirmed McMillan. And so, but I would be a bit cautious about Almondara's. Well, and we know that the defense bar is eagerly bringing the challenges to Almondara's Taurus. They're preserving those in the record. The courts are not ruling in their favor. They're reading as you have, Your Honor, strictly according to Apprentice, which has rejected that challenge. But they're making the stab at having that be the next issue that the court confronts. And just to review the bidding, the reason Almondara's Taurus is such a question mark is because one of the five votes in the majority of Almondara's Taurus, Justice Thomas, now says he doesn't think that way anymore in his concurring opinion in Apprentice. That's right. And so that's out there, but as all courts feels that I've read decisions on this, we as judges are bound to follow the law. Not what we think it might be, but what it is. Coming back to the point that was made though about the defense bar, yes, it's one of those type of situations that I read a lot of argument that's not always based upon what the law is. And it is true indeed that once this case came out and it was publicized, and I think that's kind of a key, you didn't read anything much about this case for a period of about 30 days after it was decided until an article appeared in the Washington Post that basically took the position, the sky is falling. And then it just started rolling, let news spread through the prisons in this country and many, and one of the best decisions. I wanna say it's Talbot, Judge Easterbrook. I'm pretty much sad, and I'm paraphrasing him here, but basically that all the prisoners in this country, in the BOP are thinking that Apprendi is some type of magic wand or get out of jail free card and as he pointed out, anything but the case. And in fact, I think his words were the prisoners should hold their horses and stop wasting everyone's time with futile applications because indeed, as you mentioned, they've been bringing these challenges. Well, those are late habeas that they've been bringing where they get one shot and you said, don't do it there, but there are a lot of persons incarcerated who have either on direct appeal or first time challenges to make under Apprendi and they'll be making them. And I think if you read the opinions where Justice Conner says we're gonna have a flood of litigation, I think that that will be true because she said that there's going to be and also because they have raised issues about is McMillan good, is Alamondara's Taurus still good, and what happens to all the individuals who are convicted and sentenced to be on the maximum sentence in drug cases and telemarketing and other cases previously. So any defense lawyer that does not bring this challenge, for example, to Alamondara's Taurus would almost be guilty of malpractice because all the opinions tell them to. And it was the Supreme Court opinion saying, this could be something you ought to be doing. And so I think it's thoroughly expected and indeed the court is encouraging it in the opinions. Well, one thing I would add to that, I do believe that there will be a finite number, a definite number of persons who have relief available to them who have been wrongly sentenced just because of Apprendi error. Well, I keep coming back to 5G 1.1 error. It's been there if a person was sentenced in excess of a statutory maximum that sentencing guideline has been on the books for quite some time. But once you get past those numbers, I think a lot of the jailhouse litigation that many are seeing, and it's magistrate judges that are seeing primarily, I have yet to see, and I said in a large metropolitan area, I have yet to see my first Apprendi issue here, five and what, five months down the road. But once you get through that, I think, and it's good to remember a little history here, I remember when the Bailey case was decided and there were a lot of pundits and a lot of commentators saying the sky is falling. And then along comes Coon, Coon came out roughly in the same time in the mid 90s. The sky is falling. Well, you know what, the world kept spinning and I think at the end of the day, that's what we're gonna see with Apprendi. Now it'd be a little work in the short run, but I think at the end of the day, so many of these challenges are challenging the guideline regime itself with in statutory maximum factors, enhancements for obstruction of justice or various special offense characteristics that will move up within guideline or within statutory maximum range. A lot of those types of claims are being made and that's just flat, not Apprendi. That's not Apprendi. If what the sentencing factor does is narrow the range for the judge within that statutory maximum, that's not Apprendi, the fencers are arguing it, but I don't see the judges following it and they're not required to under Apprendi give those issues to the jury. Could I make one point about what she said and I think that this, I've read some, frankly in some of the opinions, I've read some somewhat sloppy language and it's good to remember what Supreme Court said about sentencing factor versus element of the offense and it comes up in the issue of whether or not, for example, a drug amount, whether it has to be pled, whether it is an element of the offense, whether this is a new crime and what Apprendi says, referring specifically back, shifting gears a little within the opinion about the monikers that are placed upon these concepts, it's not so much what you call it, it's not the characterization of is this a sentencing factor or is this an element? It's look at what it does, what is the effect and if the effect is to raise a statutory maximum or raise a sentence above the statutory maximum, it must be pled, it must be proved. So as I analyze that, I see that an event, a fact, for example, a drug amount, a drug amount could be either a factor or an element based upon what the statutory maximum is as determined from the indictment, for example, if it raises the potential sentence under the guidelines above that statutory maximum is determined in the indictment, it's an element. However, that same drug amount, if whatever reason does not, for example, criminal history categories, there are a number of factors that can go into its special offense characteristics, but if it does not raise it above it, it is still a sentencing factor, which Apprendi points out as a term that entered our jargon, not until 1986. It still nevertheless can be considered in determining an appropriate sentence under the guidelines.  You've said, of course, that the law today is that a prior conviction is not a matter that Apprendi affects, not a matter that has to be pleaded and proved that the judge can apply that and can raise the maximum sentence based on that. But there's enough question about Almadira's Taurus' future viability that some U.S. attorneys have made the decision to go ahead and plead it and attempt to prove it. And now there's some pretty good reasons why the defense may not want that to happen in front of the jury. If the defense objects to that, what do you do? Were you ever a law professor? Go ahead, Paul, we'll let you handle that question. Thanks. I think what you do is you try and read some type of stipulation on the record that the defendant would agree to, but it's a slippery slope because if Almadira's Taurus were to be reversed and it says you gotta plead and prove it and the prosecutor says here, I wanted to plead and prove it and I'm gonna plead and prove it and the judge may say, okay, if you're gonna do that, if it's gonna be a factor at sentencing, then we'll deal with that or you could bifurcate and have the jury deal with that other issue separately which might be fair because the scenario you're creating, John, would have the defendant saying, I don't wanna brought out the trial because it's a 404B type evidence and it would be prejudicial, 403, more prejudicial and probative, so you might wanna bifurcate it, but it's gonna happen as we all agree. I think the prosecution has a much greater burden after Apprendi and with what's the numbers relating to Almadira's Taurus, that's gonna be before the court, the prosecutors and all of us. I would agree with that. First, what is pled, that's up to the government and if they plead that, they plead it now. But the government can't plead extraneous facts just to get them in front of the jury. I understand that. Now that raises the issue is, and this comes up particularly in an eight, USC 1326A versus B and that's being found in the country having previously been convicted, having been reentering the country after deportation being previously convicted. It's a two year sentence unless you were deported for an aggravated felony which under current law in most circuits, virtually all felonies are aggravated felonies which many of our brethren along the border between the United States and Mexico are all too aware of with the amount of traffic they're having down there, traffic in the courts. Is it jurisdictional? And you would, I think you'd be hard pressed to say that it is given Apprendi's carved out exception for prior convictions being the exception to the general rule of having to plead and prove. The only solution I really see to that absent stipulation which I can't really see what the upside for a defendant would be to stipulate to the aggravated felony would be to bifurcate it. And that indeed is a system employed in many state court criminal justice systems in the country and that is a bifurcated trial between the guilt or innocence phase and the sentencing phase of a trial. For example, in my state of Texas, the Texas state court system, criminal defendants can be sentenced by juries or the judge at their election and those trials are bifurcated so that specifically prior convictions can be proved but the jury is not jaundiced with having that knowledge of hey, I'm dealing with a convicted felony and you've been the defendant who wants to exercise his or her fifth amendment. Right, not to testify. Let me turn it a little bit and similar, same indictment, but the defendant wants to plead guilty to the underlying offense but doesn't want to admit to the prior conviction. How would you handle that? Well, you could say then let's go to trial number one or if you wanted to say, well, do you want to bench trial on that other issue? And then you say, okay, if you want to waive your right to a jury trial on that issue, you want to stipulate to the amount and the other things and we'll have a termination whether it proved beyond a reasonable doubt that you did commit the prior conviction. You know, I think pragmatically though, as I sit here and listen to this discussion in my life experience and I've been doing this for a while now, most of the time, I don't think you're going to have a defendant coming in wanting to plead not guilty part of the case. Paul, maybe you can jump in here if you have a different experience, but most of the time I suspect that if you're going to take the case to trial, if you're the defendant and you're going to put a jury in the box, you're going to go for the home run, you're going to swing for the fence most of the time. Now you may, there may be circumstances but I think that those are going to be very much of the minority scenario you're putting out for us. Let's go back to the collateral attack issue a little bit, we talked about it. Obviously, there's a difference between a first attack and a second or subsequent attack on an initial collateral attack and let's take a federal prisoner to make it a little simpler. What's the standard and what chance does he or she have? Well, thus far the courts have not been willing to allow the defendants to collateral attack under Apprendi. In terms of the direct appeals, the courts have been looking for the plain error and they've not been particularly generous in their application of that rule, but it does depend on the facts of the case and as well as how strong the evidence was and the nature of the evidence in the case. The only thing we know is Judge Easterbrook did carry the day that when you have the subsequent collateral attacks, they're just going nowhere fast. And I think that's the way it's going to be unless the Supreme Court says we want this to be applied retroactively and they haven't said it and I don't know that they would say it in the upcoming years, although I think that they will have other opportunities to examine Apprendi and its application on their torres and other cases that come before it. I think, I'm sorry, go ahead. Well, I think on direct appeal shifting from collateral attack that there's a better chance. They're gonna be looking at the harmless error question and whether this is an element, whether it's required to be proved, whether it is structural and to that extent, I think there may be a better chance on the direct appeal, obviously, with a better standard in terms of the defendant's chance to overturn when they have a sense. It's above the maximum. I think that's right. Now, if it wasn't in the indictment, then does the government have a shot in that case or is that gonna be fatal for the government? Well, you would think it'd be fatal but there was at least one court who was willing to look at the evidence otherwise as well as the other specific findings by the jury and infer in it that there was a finding for the jury. So not paying attention so much to the notice provision but rather the fact of what does the jury verdict tell us? And if we can tell otherwise from the jury verdict that it tells us that they found this person guilty of this fact, then it could be used to increase the amount. Would that be somewhat in luck looking at the verdict form and trying to define juror intent? With or without the chance. I think that's one court that's spoken. I think others will speak in probably contrasting opinions because it's a tough issue and I think you're gonna end up with splits on that issue. Well, and also really it does depend on the nature of the charges. You can envision a case where the charge the defendant's found guilty and in one charge of the indictment, it's very explicit as to the amount of the narcotics involved but it's not specified in the other but you know that the whole case by its presentation was about the exact same set of facts. In those situations, the courts are willing to say we've got a problem in the charging but really do we know what the jury verdict says? But does the constitutional requirement of an indictment listing all the elements of the offense go away? Apprendee was not a federal case but the language in it referring to Jones talks about the right in the federal courts to be proceeded against by indictment listing the elements and so it's a tough call to take that away. I think that's right. No, I would agree with that. I know I'm familiar with the case you're talking about and I'd be interested to see where that ends up but coming back to Apprendee again it's a sixth amendment notice right to draw a jury case at its core. I think the government will have the tougher argument of arguing that there was enough notice given the overall indictment even though it wasn't specified in the individual charge. I think one thing we really have to let the audience know about is that we're not just talking about drug cases that Apprendee is that issue in the federal courts is gonna arise in a lot of statutes like carjacking, alien reentry, telemarketing and there's a whole list in the article the Apprendee article by professors King and Klein that lists all of them and it's something we as judges have to be aware of in all the cases and be ready to acknowledge that there are Apprendee issues in a lot a lot of federal statutes. And that list is incidentally in the materials that are on the center's website with this program. Any other last thoughts? Now I would say stay tuned because the next question would be well what do we expect to make its way back up to the court regarding Apprendee? The Supreme Court so far has sent back a slew of cases this term to be reviewed under the Apprendee standard. And so it may be looking for the next one although given the problem with collecting the votes to overturn the cases maybe they're holding off till they find exactly the right case. But right now the cases are going back and the responsibility is in the trial courts to make sure that they're pled and approved and that the courts are using the jury instructions and jury verdicts to make sure they know what crime they're sentencing the defendant on because when I read all of this together under Apprendee it's really a very basic message by the court. The message is a defendant should not be convicted of one crime and sentenced for another. And you do that when you go over the statutory maximum that changes the nature of the crime as opposed to the prior analysis as you mentioned to the court trying to figure out what's an enhancement sentencing factor and what's an element here they've drawn the bright line. I think that's a good place to stop. That's our program for today. We hope you found it useful and interesting. I want to thank our panelists again for taking the time to talk with us about this important decision and its implications. And I want to thank you for watching. Again, please send in your evaluations and let us know what you thought of today's program. For the Federal Judicial Television Network, I'm John Cook.


Hey, this is Brett, and this 2019 Chevrolet Camaro 2SS is stock number 13936Z. I'm here at Summit Automotive in Fond du Lac, Wisconsin, you're new and used sports car headquarters. This 2019 Chevrolet Camaro has the 6.2 liter V8 gas engine. It puts out 455 horsepower. This car has been fully safety and inspected by our service shop has a fresh oil and filter change. All the fluids have been checked and topped off and it is 100% ready to go. I'm going to go all the way around in this video inside, start it up, take a look under the hood and give you the most accurate representation that I can of the car and of course go over all the options. Riverside Blue Metallic is a color and I shoot all my videos in 4K. So if you have HD capabilities, turn them on now. And if you like the video, you can subscribe to my YouTube channel which is youtube.com slash summit auto. Click the bell notifications to get updates on the videos I do each and every day as well as having access to one of the largest catalogs of vehicle walkarounds on YouTube and sports car walkarounds for that matter. This one comes with the 20 inch painted alloy wheels and it has Goodyear Eagle F1 tires. These are 24540 ZR20s and I would say they have probably about half the tribe left on them. Does come with the big Brembo brakes on there. Front fender is absolutely perfect, no denser dings on there. This one comes with all the LED headlamps, running lights and fog lights. We'll turn all those on at the end of the video so you can see just how nice and bright they are. I didn't see any scuffs or scrapes on that front bumper. Looks really good. The hood is in really nice condition as well. Comes with some really nice black metallic stripes. Definitely have some metal flake to them. Pretty cool and you can see that riverside blue has just a little bit of metal flake in it as well. I didn't see any denser dings on the hood. Looks really good. Passenger side front fender is in fantastic condition as well and the passenger side front wheel no major scuffs or scrapes on there. As you go down this side of this 2019 Chevrolet Camaro, take note of how clean that body is, how reflective and mirror-like that paint is. I take these HD videos so if you are far away or even if you're close by and you just cannot make the trip down but you're still interested in purchasing the car, you can see the car, hear the car, and have confidence in the vehicle that you're looking at before you even get here. So when you do get here there's absolutely no surprises. You can make a smart and informed buying decision from wherever you're at. If this video helps you make that buying decision, let your salesman know that you saw the video that it was helpful and that Brett sent you. Back wheels in excellent shape. You do get the Brembo brakes back here as well and this back tire is 275 35 ZR20 and those tires have just as much tread as the front tires and the frame and underbody from what you can see is in really nice condition. Coming around to the back of the vehicle, this one does have the capitalist fuel fill as well. Rear bumper is in great shape. I didn't see any dense dings, scuffs, or scrapes back here. It does have the backup parking sensors. You get the Borla dual quad tipped rear exhaust. Sounds really good. We're going to start it up in just a second so you can hear that. Also LED tail lamps and that trunk lid is in fantastic condition as well. This whole car is in really, really nice shape. Coming down the driver's side, just as clean as that passenger side, rear quarter looks really good and for full disclosure, this back wheel is in excellent shape as well. No scuffs or scrapes on that. Driver's side door looks really, really good and it does come with blind spot monitoring on those mirrors and those mirrors are also heated.  You get the SS badge on the backrest. No rips, no tears. Both of these front seats are heated and cooled. Factory floor mats, this one does have heads up display, auto headlamps, power windows, locks and mirrors, memory driver's seat, you get the ambient lighting, you can change those colors and the Bose sound system. Didn't want to show you the trunk area here. Back storage area is very nice and clean and underneath here is more storage area. Shuts nice and solidly and we'll hop inside, check out the miles, the radio, and everything that this car has to offer on the interior. Let's see here, it's probably going to make me start it up this way. All right you can see that this one has 6451 miles on it and that the instrument cluster is very nice and clean. Comes with the heated leather-wrapped steering wheel, Bluetooth and information center controls and audio controls on the right. Cruise controls, forward collision warning controls, heated steering wheel button and radio controls on the left. You also have the paddle shifters and we'll turn the radio on here so we can check that out. You get the Chevy MyLink system, actually this is the infotainment system. It does have the factory navigation system on there. This is a highway 41 so that is working very nicely, get an outside temperature display. You also get AM, FM and Sirius XM radio capabilities as well as Bluetooth controls. This one also has all these apps, you have Apple CarPlay, Android Auto, you can project your cell phone to the screen. So there is that as well and yeah it works really nice.  You also have your keyless entry right here with remote start and the trunk popper, passenger side floor mat and seat are in fantastic condition. Smells very clean inside this car, I don't think it's ever been smoked in. The back seats are trimmed out just like the front seats, they do fold down for extra storage and you get the latch, child safety system on there, no rips or tears and this one does come with the sunroof, on-star and SOS buttons and you also get the rear view mirror camera display. So let's start it up and then we'll check out that exhaust, check out all the lights and everything else. So that is a video camera of what's going on behind you, it's a real live video stream, you can turn that off just to make it a regular rear view mirror also but then you can put it as the camera too. You can raise it and lower it and brighten it and all that good stuff and I did want to show you it does have the backup camera and that is working nicely but you can see it starts right up, no check engine lights or anything like that. Also the heads up display, see it, turn the lights off here for a second, heads up display shows up in the windshield. Let's go take a look under the hood, listen to that exhaust a little bit, it's really good. I would personally like to thank you for checking out the video today and hopefully from this HD video you've been able to verify the quality condition options and of course cleanliness of this car all the way around inside and out. You can see those LED lights are very bright, working nicely and under the hood we have the 6.2 liter V8 gas engine, 455 horsepower engine bay is very clean, runs very smooth. Once again this car has been fully safety and inspected by a service shop, has a fresh oil and filter change, all the fluids have been checked and topped off and it is 100% ready to go. Shocks are doing a nice job holding that hood up and there is the emission sticker and I would highly recommend this car from a quality and condition standpoint. I didn't see a single dent or ding on it, whoever's going to get it's going to love it. And to see more pictures of this car or one of other 550 new news cars, trucks, SCVs, minivans, Wranglers, Challengers, Chargers, Camaros, Corvettes, Mustangs, GT500, Zunay, but we got to go to that website right there, summitauto.com. Full pictures and descriptions of every single vehicle all at summitauto.com. If you'd like to check out more HD videos you can go to youtube.com slash summit auto click the bell notifications you'll get updates on the videos I do each and every day as well as having access to one of the largest catalogs vehicle walk-arounds and sports car walk-arounds on youtube over 8,000 videos in county in fact in a second you'll see a link to subscribe to my youtube channel the upper left a link to more Camaro videos I've done in the upper right link to this vehicle on our website lower left and a link to one of our latest youtube videos in the lower right click those check us out we're super excited to help you with this ultra clean 2019 Chevy Camaro 2SS in riverside blue metallic thanks again for checking out the video remember to like subscribe and share on the youtube channel I really appreciate it thanks again