court take action to correct what i believe is an unjust conviction he will remain in custody for the remainder of a forty year sentence for a conviction for possession with intent to distribute methamphetamine five grams or more in start however is the sufficiency of the argue of the evidence argument that i made for a couple reasons number one as his court knows if you find that there was not sufficient evidence to convict then you don't have to address the other issues that were raised in the brief moreover if we start there then a provides context to the later jury instruction arguments that are available for this court consideration now there's a couple standards of review because the way i raised the issue was one i said that the court the district court erred in overruling our motion for judgment of acquittal at the close of the government's evidence and that at the close of the case and then later aired and overruling our motion for a new trial as to the judgment of acquittal sufficiency of the evidence argument is reviewed by this court no go i mean you can start over again and pay attention to what is argued and what the record shows the government is given the benefit of the light most favorable to their case and those d n a it is whether or not any rational trier of fact could find the elements of the charge crime as to the motion for new trial this fifty of the evidence is for abuse of discretion and you need not this time look and give the government the benefit of the light most favorable to its case and you may reevaluate the evidence and evaluate credibility now possession with the intent as instructed in this case so that two or more persons reached an agreement or understanding to possess with intent to distribute methamphetamine and that will be important then nd element is that shavers voluntarily and intentionally joined in the agreement or understanding the rd bet at the time shavers joined the purpose of the agreement i'm sorry at the time he joined he knew the purpose of the agreement or understanding and then forth it's just that the drug amount involved in methamphetamine was five grams or more now the agreement or understanding in this particular case is that there has to be an intent to distribute met and fed to me in a dim porton because the controlled substance in this case is just not any controlled substance amphetamine the government failed to prove either proposition with regard to the intent to distribute the government must prove either that milton and robert milton being the person who sold drugs to roberts or had distribute methamphetamine as to milton and robert the only thing the government proved is that there was a buyer seller relationship between the two of them mr milton was very clear that he knew nothing of robert chambers wilson who's the rd codefendant in the case he knew nothing of them before the day in question he met roberts who asked him whether or not he had last to sell which was misinterpretation of the phrase that describes methamphetamine milton's clarified with him do you mean ice methamphetamine and robert said yes and they agreed at that point that perhaps milton could later provide methamphetamine to robert's a conspiracy requires a common purpose a mere act to sell what one person has to offer to a person who agrees to buy it is simply buyer and seller there is no conspiracy to possess with intent to distribute without more in this case does not have that without more now the government says that robert is a distributor of methamphetamine but they did nothing to prove that at trial the drug weight involved they argue is sufficient to show that there was a conspiracy to show the intent to distribute because they say it's just abuse in weight but what they did is they failed to provide expert testimony that would allow a jury to decide whether or not it was use or weight versus distribution weight they cite several cases in their brief in response to the brief and as i pointed out on page two of my reply brief each one of those cases they cite not only had an expert witness testifying that the amount was more likely than not distribution of weight versus use of weight a but they also had other in disha of conspiracy such as they had baggies they had other drugs they had guns they had large amounts of cash all these other indicia of distribution that are not in our case when the government law enforcement agents went and executed a search and arrest of mr roberts they searched his townhouse and all they found was a weapon and some personal use marijuana they didn't buy any other this other indicia of drug conspiracy of any drugs at all in fact the only reason that we know or we think we know that roberts was a drug drug distributor is because wilson s he is there is no other evidence in this case that shows that he did any distribution again there was no indication of drug conspiracy or drug distribution found on him at time of arrest or at his apartment where he supposedly carried out these various actions counsel i thought that the record shows that shavers drove around with wilson and robert selling meth prior to the transaction it is you what it does show your honor is that  some point in the evening after it became dark before the time of the drug distribution but with milton it shows that they went and picked up shavers at wilson's mother's house and then they drove around wilson at that time was selling methamphetamine not either one of the other two they just happened to be present while he was doing his thing the reason one of the reasons we know this is because he specifically testified wilson specifically testified at trial that he and robert had their own things going they did not in a react in or act wilson sold methamphetamine robert sold only cocaine and crack cocaine they did not share in profits they did not share customers they did not share people that were selling the drugs to them they were merely friends who hung out together they had their own things going on so milton is the one driving around selling methamphetamine at that time not roberts in any event they also mention the fact the government also mentioned the fact that there was a scale at the apartment complex where the drug sale was supposed to go on between milton and roberts that scale however belonged to milton and that was his testimony again no other in disha of drug sales associated with robert's now on the other side of that i said you had or had to show a conspiracy between milton and robert's distribute or you had to show a conspiracy between robert and shavers to distribute the way the government tries to show that there is a conspiracy to distribute between roberts and shavers is they rely on the testimony of wilson's mother the meta jackson she testified that in the afternoon prior to when wilson and roberts came and picked up mr shavers at her house that roberts was blowing up unquote blowing up marcel shavers phone number one the jury completely discredited miss jackson and her daughter testimony they necessarily had to in order to say that my client was not guilty of the murder he was charged with in count two of the indictment more importantly though the government had physical actual evidence that they presented to the jury in the form of phone records belonging to wilson and roberts and those phone records do not show the existence of any of those phone calls or any of the text messages that were supposedly blowing up mr shavers phone but she says that the phone was blowing up the phone records from those two gentlemen to show that she was lying furthermore i specifically cross examined three of the detectives who investigated this case during the trial be detectives fogel nelson and martin all three of them agreed that when they reviewed the phone records when they st were conducting their investigation that there was no record of any phone calls or text messages between robert and my client mr shavers so that the only time that this the only time that they could have determined that there was a conspiracy that there was some sort of communication between roberts and chambers was when they were picked up in the car and they were driving around but again as the record reflects robert said to milton i got to go to the liquor store real quick and holler at that dude from earlier from that the government argues that my client must have known not only that he was going to do a drug deal but that roberts was going to buy drugs from milton for the purpose of redistributing on elsewhere he had to know the amount involved and he had to know that robert was going to meet with period but wilson himself who was present earlier in the day when they st met specifically testified that he didn't know if roberts was going to buy drugs or sell drugs he didn't know whether it was going to be marijuana or cocaine or method that i mean he did not know that in fact it was built and that roberts was going to meet he just knew that he had to meet with someone back at the liquor store where they met earlier in the day and that is not sufficient to show that my client had knowledge in any way shape or form that there was going to be meth and that i mean involved in this case and that it would furthermore be redistributed especially since mr roberts did not  sell methamphetamine as his common practice he only sold cocaine and crack cocaine and i would like reserves or mine or my time but there's no question we will mr hurst at what was at stake and what we're looking at we're not looking at the question of well did the jury get the quote get the answer right here or we're not looking at the question is did the government disprove all alternative theories or their alternative theories that might have been a rational jury could have found now the question that's before this court is could any rational jury have come to the same conclusion that mr so doesn't we're not looking at evidence that that wasn't in the case will get the evidence was in the case trying to see whether a jury could have convicted of possession with intent to distribute more than five grams of methamphetamine based on this record and so i think it would be helpful for the court to maybe take a short summary tour through the events in this case and what the evidence giving all reasonable inferences to the verdict shows at the beginning of the january prior prior to these events shavers and robert were living together were incarcerated together cameron prison one door down for each other and this is important to  shavers motivation because later comes out never once shavers is joining with roberts to help him to provide backup to a drug deal because he wants to help robert and they pay him back because robert's help him or they are incarcerated  on january st robert goes to the this is the st trip to go to the liquor store he goes a liquor store he asks milton out of the blue can i buy some methamphetamine out it's off discussed in this case well the doesn't deal methamphetamine this is he's setting up to buy an ounce or two and methamphetamine as comes out later in the case roberts doesn't use methamphetamine so he's going to spend two for some purpose other than to possess it with intent to distribute it later further at the liquor store he goes and he asked hey can you can you sell me some methamphetamine he'll leave state have a set set of phone calls to negotiate about quantity said to them as true because well look they must not have believed those witnesses because of the other count on which he was acquitted but the fact that he was acquitted on some other count doesn't tell us anything about this count and there's no inferences that the court could draw from that and the question is maybe they would have believed him on some or maybe there's some other element of the jury decided not to convict on but that's not something that goes to whether rational jury could have believed them on this point what about the lack of messages or phone records on the cell phone the council highlighted well your honor i think that there's two responses to that i looked through those transcripts the transcripts are it's a suggestion that they didn't find maybe there's correspondence between those two phone numbers doesn't mean that there weren't additional phone numbers and it doesn't mean that no rational jury could have believed the mother who says that she was blowing up his phone so the question is is there an inconsistency in the evidence perhaps but that fact is that the jury chose to convict based on this with the evidence that the mother gave and this was it explored during cross examination counsel ably brought that up to the jury's attention the jury reached the conclusion that it so at this point shavers his phone is being blown up by roberts and he's asked he decides to go with robert c later tells the mother irish i hadn't done that was a mistake we didn't get no money we didn't get no drugs which is an indication of his state of mind at the time the three of them are then driving around later in the afternoon and they're selling methamphetamine and i do want to point out in that transcript it's not clear at this point that there's just wilson selling it and this is on that transcript page forty seven dollars so three of you j r that's robert's yourself in marcel yourself as well since if you are robert's marcel are in the car together yes you're still in the silver hyundai yes and you said you drove around and made some more movies yes and again for the purposes of clarity the record we're talking about selling drugs yes ok what kind of drugs were we talking about then methamphetamine the thing about this is we know the robbers is a drug dealer and drug dealing is not like the difference between orthodontics and heart surgeons there's not a diversity here there at this point earlier today selling cocaine here the jury could have concluded from this testimony that they were selling methamphetamine following these sorts of transactions that back to the liquor store roberts and milton leave together to go to the to go to apartment and tell shavers you should follow him to provide backup at this point they know they're going to a drug deal to provide backup and at this point when they drop him off to travel to have a quick trip to drop off favors shavers is supposed to follow robert to down to the apartment complex and at this point he's carrying a weapon that's alternately used to murder mehdi this testimony that from the mother and a sister was shavers either hid her laid in the back of the truck from the firearms scales large amounts of cash into ounces of methamphetamine all the in dishes that counsels just are lacking in this case are present right there in a rational jury could have can looted from that evidence that that what was two thousand dollars math it's rational jury would come to the conclusion using their common sense that this is not a situation where they're going to use this drug themselves over the course of some period of time just to get a final on this factual summary moving from here to the there's a murder rational jury could been further that was shavers moved in there and that's in fact the district court concluded that sentencing and then after the shots are fired milton runs away shavers and roberts run underneath the bridge under i seventy the i hop and they call wilson come pick them up and at that point wilson says shavers is upset with robert robert still has his gun and well the robber or she was no longer has his gun he asked wilson to take him back to the i hope to find it and that's ultimately where and where the police found the gun that was used to murder many so i think from the to the evidence that's presented to the jury a rational jury could have come to the conclusion that shavers joined with roberts to methamphetamine with intent to distribute it issue there is no constructive amendment in this case because there is no substantial likelihood that the jury convicted shavers of some conspiracy that didn't also include robert and there's three points i'd like to make about this three reasons why this court shouldn't find a constructive amendment here st i'd like to point the court to a case called leahy and the proposition i'd like the court to recognize from that is we need to look at the structure as a whole and not just looking at the verdict directing instruction that was modeled using the model here is two or more persons looking at the entire set of instructions including instruction number two instruction number two read summarizes press not word for word what the indictment  at the question for the jury here is did roberts and shavers conspire with each other to possess intent to distribute five or more grams of methamphetamine and leahy had a similar situation that arose here where the indictment had three names three people conspired together but at the trial and in the instructions that were given similar to these two or more persons and the court said well this isn't a constructive amendment because here the whole of the instructions including the indictment that was given to the jury and the direction to the jury only try the defendant for the crimes that are listed all together taken all together focused the jury on who was really in the conspiracy and that same reasoning can be applied to this case the nd even if the court finds that as a whole the instructions somehow changed the names of the people in the men and not notwithstanding the instruction to focus the jury on the two people who are named in the indictment this court should a look at a case called johnson and what johnson tells us is there's that the names of the people in the indictment the elements of the conspiracy charge what the elements of the conspiracy charges what is the agreement in the instruction the names are there to help us identify what remains so you know what if we can't follow johnson because of an order case u versus morton it circa two thousand and five which comes to opposite conclusion honor and the substantial likelihood question is a question actually i think focuses primarily on what the facts are and is there a way if you find that this case could not have that there was a constructive amendment here is it still the case that the court or th could have convicted him of some crime other than one that was charged for that proposition and i direct the court to a case called psi on where the court where the indictment said taken by fraud and the instructions said stolen converted or taken by fraud in the court said well the addition of those terms in the instructions didn't result in a constructive amendment here because facts all taken together focus the jury on what was in the indictment and here we have the same situation we have no set of circumstances that the jury could have convicted him of no can spears see the jury could have convicted shavers of it didn't also involve robert roberts was the purpose and who set up the drug deal roberts was a person who involved shavers roberts was the person who asks shavers to provide backup and it's and roberts was the one who was interacting with milton and many and roberts is the one who called wilson to come and pick them up so everyone who is in this circle of affairs  s surrounding this drug deal that roberts has set up somehow dealing with robbers and for that reason there's no substantial likelihood here that the jury could have convicted our shavers of any crime or any conspiracy that didn't also involve roberts and so he was on   thank you very much we asked a quarter from you have about three minutes touching briefly upon what was mentioned a couple things number one the only person who says that my client wanted to help roberts because he had been in prison together mr roberts was the mother and again the jury necessarily had to have found that she was lying to them as was proven in court and so she's not liable and even if this court decides to take a look at her you're allowed under the nd standard for the most a new trial look at her credibility yourself the other thing that the government argues now is that robert does not use methamphetamine that is not what the record shows this comes up in the laundry room where the drug deal was supposed to take place and mr robert supposedly according to mr mehlman asked about the quality of the drugs a which time they offered to allow him to smoke the drugs with a meth pipe he simply said i don't smoke it he didn't say that he doesn't ingested otherwise he didn't say he didn't inject he didn't say one snort he doesn't say he doesn't swallow pills  he just says that i don't ingest it i smoke it and so there is no this i don't use methamphetamine therefore it can't be personal use and then on to the constructive possession with  last bout a minute and a half i have here number one you say i don't think you should consider the leahy court because that's a th circuit case it's not presidential here additionally when talking about that or the johnson case that was raised in the government's twenty eight chain letter that they filed just about a week ago it talks about the fact that the charging document and that case sipek lee mentions that the defendants that were charged in conjunction with other people that are known and unknown to the grand jury got themselves involved in a conspiracy to distribute this case is distinct from that this case specifically charges only two people it charges roberts and shavers with the conspiracy to possess with intent to distribute methamphetamine there is no as i raised in the my objection at trial there is no additional people known and unknown to the grand jury it's just the two of them so when you change the charge that you give to the jury to say that any two people can conspire to distribute and you can still find my client guilty then you've shifted the goalposts you've allowed the jury to find an easier i ask that this court either grant my client a new trial or reverse the conviction with instructions to the district court to dismiss the case thank you  i want to extend the thanks of the court to you for accepting the appointment in this case right is that conclude the calendar of cases for this morning