were you going with the sufficiency yes i think the you know particularly absence of an overt act requirement under federal law of the evidence was sufficient in this case to prove conspiracy but my contention based on this court's decisions  even this court's decision and marquez which i grant is challenging for may when read together with the other two is that the evidence was insufficient to prove possession and distribution of drugs on march eighth which was the count of conviction counts number twenty two and that's really first simple reason which is that no one saw any actual drug at any time in this case no drugs were sold or bought from my client no searches were conducted no control and so there was no explicit confession in marquez that the defendant had illegal drugs they have a pronoun it that one can reasonable assume that bit in market for drugs as well the distinction in march has was not that over the question what does it mean that the distinction in work has as compared to haul a badge it was a plan in the future to buy direct evidence of possession need a statement from a defendant they were viable unequivocal statement as how murderous thoughts of the soul so you're not challenging that you can get a conviction without actual proof of drugs you're simply challenging the government's lingo expert as to whether it was sufficient to to result in the jury finding that this language was the explicit statement of current possession of drugs i would modify that slightly or i have to mark as i have to agree that you can have a condition sustained absent evidence of drugs i have to between marquez is that and mark has the defendant in minutes to present possession of drugs and here we don't have an admission from the defendant of that sort and if we don't agree and if we don't agree that i think i'd lose the sol that you know that is what it is but i think the language of the calls is crucial here because on the march eighth call there are really two calls we're talking about a market there are five holes in total market but we're talking about two and that's exhibit nine a and my client is in charge of cooking that crack cocaine and the crack up it's are attracting pain and that's why the government and made in closing that and make a whole lot of sense for the nonsense it was that wasn't there another sentence or something that could have been related to raindrop it if he wasn't if he didn't at that point have have material to if it was all already converted into crack wouldn't be of said what do you mean what i read rob is already crackers already raindrops instead he just let that conversation pass so isn't there a inference that could be drawn that whether he had crackers he must have also time i just wanted to briefly mention an evidentiary issue because i think the evidence or issues are related in this case because of the weakness of the evidence of possession and what you alternately ask here from case a began the testimony and was the second to last the governess to testify were personal opinions from these agents about the defendant's guilt saying we determined i believed the task force what i really thread that pulled up the jury instructions in this case and to systematically because i had some concern show me the best evidence that you got of the three things that the defendant actually possessed a controlled substance that he knew he possessed a controlled substance and he intended distributor dispense controls of those of the peas that i've got in regards to this the about the district judge and they can sort that are it's difficult there are some contingencies here on what the decision were to say but it is unusual in a distribution case for the government not to have drugs on the table i can see planning and most of those cases planning by drugs and there was not adequate evidence so they answer otherwise to suggest that anything ever came to fruition that is not the case here these transcripts said might be relevant to a distribution count and you just said it's none of disregarding you yes it's count twenty two is a possession with intent to distribute yes and so baggage in hall specifically say that unless you have direct evidence of an observable narcotic the evidence is going to be insufficient so how do you survive a baggage hall on a possession count with all of the specifically said that duran head the drugs that had come with he said i want you to raindrop it that it's got us that he has will and in addition of course to the expert testimony about what they were really talking about in this case we have later call after march eighth where the men are intercepted talking about the cocaine that birch had made and they talked about how much they had left and cocaine they were very conventional that on march eighth he had powder that he met with birch that in exchange took place and that's the inference i agree that well that's the point that is valid on a friends judge  so do you can see these were that on march eighth to convict on count twenty two did there was a requirement that the jury draw an inference yes and didn't bag a hall specifically say that which by definition is not a record of it i don't think the cases went that far and marquez explicitly rejected that interpretation and said the interceptions themselves on the on a wiretap if they are sufficiently expressed as of this all is very fact specific i give the court that when it comes down to the facts of a particular case but if those who are interceptions are so sufficiently specific about the possession of drugs and the transfer of drugs that is direct buy drugs but there was no surveillance or falloff or suggestion that that ever happened see isn't the key to those two pieces that they were talking about that the statement by the defendant was  i am going to have these drugs for e a trade as certain place it's a future prediction and we've said that that's not enough but in in  market is there was actual then possessed drugs and or cases then possessed drugs and so that isn't that the distinction you're trying to draw yeah i think that's a balance is going to go to any other distinction you would propose no i think the distinction between intending to possess drugs and possessing them is a valid likely because most of things can go wrong with your executing your intent absolutely in the drug business never happened but it something here probably half an ounce left we have a future and we have interceptions on the eleventh after the meeting observed by surveillance on a about what they did on the way which hall you know how when i'm not we the jury cannot reasonably interpret what was going on without listening to both sides of the conversation it's part of the one conversation this is the position of intent to distribute and the distribution so none of it's true that none of this makes sense without considering the entire conversations and by the way that's what the prosecutor met in closing he wasn't saying it makes no sense if saying listen to them this language a script it and it ought raindrops drop tops what are they talking about when i services folks that doesn't they did i don't recall i don't sorry i don't recall there's a jury instruction i can construct a possession i knew it one time and i made a conscious decision not to argue that because that's not our position our position is he had stuff that he did deal with yeah you don't work no where are you going to be at i'm in the hood and then other companies that are getting lost in then i'm tired more obscenity we're about to see some work about i'm about to see grigory it's all future i don't see end in march eight any statement where durians is i have i just don't see it and i've got to find it on the marquee transit transcript i can't find it on the other transcripts because the march eighth is a very specific date for possession correct but the jury was free to consider all the evidence and deciding whether on march eighth he was asked it but the only evidence you got is this transcript and i don't see how any reasonable juror limited on he could be guilty as could be about drug transactions that's what all this other stuff is all about but for the particular charge of position on the eight the only reference is i am about to see that for that day says he had it as opposed to having it and if you don't allege constructive possession or conspiratorial position with them about that i am i am troubled will judge it as i've already indicated the the question is whether he possessed it on march eighth that the jury was fully entitled to consider all of the evidence including the way or interceptions where they discussed the transfer and crack to but there was no argument either below and there was an intentional decision not to argue on appeal what do you think he said he's not relying on its records we put it aside i think you can put it aside and i don't think the government's theory below it was ever that  client was responsible for drugs possessed by on quiver on walls and in addition even if that were an argument to consider we don't have a statement by on the same i presently have the raindrops so we don't even have that type of statement that can be attributed to on i still have that statement in market and that's what this boils down to i think marcus it's hard to reconcile with passion hall but to the extent you can reconcile it it says in the absence of observed drugs you for those reasons i think the evidence was insufficient and if you look at the home price will just say this briefly there are there were actual confirmed by those and drugs in those cases outside the date charged and that was still insufficient we don't even have mr still stand even if we agree with you is the outcome possibly of syncing going to be any different than the census on these counts for all concurrent they were all the same length forty two months or forty six the sins we see we can determine that it wouldn't make a difference and really we can grant you relief but but just i think it's fair to say that it wouldn't make a difference in this case or honor it in a different case i might ask for a remand but i also think time frankly by the time my client is already served with persons confinement credit but he's more than halfway through i think the practicality is that he might be he might fish distance by the time the was always that mr duran was purchased supply will but if we read the end if we read did the transcript of him say that there is sufficient evidence for the jury to reasonably conclude that this or birch direct evidence of an observable more product by a third party but no i agree that there doesn't have to be observable substance for a conviction under forty three forty three b my point is simply and so on a forty three b if there was or telephone calls to facilitate mr burgess commission of a felony conspiracy then you lose on counts thirty five thirty six right i get where i want to say yes but my  but whether or not if we were to reverse on count twenty to do it if he would see you'll want us to remain and for three sentencing or not your for the better be appropriate address