goes but there are two classes of evidentiary error that this case presents among other issues the st is those dealing with the exclusion of all evidence relating to state law crimes also the government's experts as to the st issue evidence of state law compliance was excluded on motion of the government on day five of the trial after they had put on evidence of state law seizures and that the seizures that the they put on the evidence of were state law seizures we contend  it the seizure policy that they put in evidence was a seizure policy pertaining to state's laws and had nothing to do with any federal law or whether or not something was controlled under the federal federal law  prohibited and during the argument on june twenty six i specifically told the court i said well they've already put in evidence of shipments being seized but they were not seized under federal law they were seized under state law and to allow them to put that evidence on without the explanation is misleading it's misleading i mean they have evidence that shipments were seized ok and to just leave it there without the explanation that they were seized pursuant to such of such a state it's misleading as to the purpose that they were seized and you can bet that they're going to argue that he had knowledge of the federal she said at your seventy four and there's a lot of evidence of seizures in this case a lot of evidence there were seizures two up in smoke in january of two thousand and thirteen there was an e mail relating to seizures of mikes in w i as you heard from mike so honey testify he's from texas he was a big distributor he was a big buyer of zen by a products there was an e mail relating to the seizures of product intended for brothers boutique and for real deal you heard from rachel templeton that these seizures kept escalating and they didn't get their product back knowledge that their product is subject to seizure by law enforcement is strong circumstantial evidence that the defendant knew that five if you are when for for was a construct was a controlled substance analogue we were not allowed we had witnesses for the defense and so what would that rebuttal have been what would your witnesses have said ok they would have said that these seizures so far as they knew pertain to seizures under various state's laws that different states had different laws that regulated substances like this that under some states laws it was legal and other other states laws it was n and the emails that were ordered ix excluded in redacted those emails corroborated what i'm telling you is that the stale sales staff was kept up to date on what's it's just different states positions where if it was risky or questionable or illegal they were directed and it's in the e mail they were directed not to sell to those states and so they only sold in states where it was lawful that's so far as they knew and example some of the testimony that we were not allowed to develop was rachel templeman and she testified on day twelve of the trial and then she goes on and she says or about january twenty five two thousand and thirteen did you come in contact with former g e a special agent claude cosey yes i did how did you come in contact with him the person i was dating at the time had concerns about the work that i was doing and had made contact with the da did you meet with cozy i did on or about january twenty five two thousand and thirteen yes i did did he tell you anything about the legal of what you were doing yes he did what did he tell you he very clearly stated that what i was selling and what i was doing was illegal as a result what did you do i quit my job told  i wasn't coming back the next day and did you quit i did she knew about these seizures which she had testified to and which the government had cited in its rebuttal argument but to her they were  state law and as soon is da but she's talking to a federal agent or me she's talking to d h that's what i'm getting at when she talked to the federal agent who's telling her that it's illegal she quit right then and that supports what i'm saying is that all of this excluded evidence went to the issue of their actions that they took the seizure policy warning people all these actions were taken in relation to state laws and they had nothing to do with whether or not they believed it was federally controlled or was an analog that issue is noted in mcfadden dermont case that i cited to you where they're talking about the proper instructions to the jury it was cited in the unpublished case united states versus bay where they're talking about whether or not the error was prejudicial and the defendant in that case pointed out that yes he had said that such a such substance he thought it was an analog but that related to an analog under state's laws and the appellate court said well  we're going to reverse and that's not the kind of thing that we consider in a harmless error analysis so this defense that we have and we had e mails we had witnesses who were going to  we were not allowed to put this on and and we were not allowed to rebut the government's circumstantial evidence case which was as i just quoted knowledge of seizures is knowledge of federal analogue status that's not true not in this case anyway knowledge of seizures with knowledge of state prohibition whether any federal seizures apartment where there are any federal seizures there was a seizure of products in the vadra before my client came along by the da and that was in bulk there was no federal seizures in the record that i'm aware of there's no federal seizures of retail product product that's been packaged and shipped to customers and to which the customer return policy applies the only product that w was from burton richie's drying facility that he had in nevada and then he would take that book product and ship it to florida where it was weighed in packaged for distribution my client was not working at that time he testified that he was not told by burton richie about that seizure he did know about it and burton testified that he thought that that seizure related to a different cozy and met with him the next day at his florida facility and he gave him samples of the product he told him that it had he called it five for one for four but he told him that had x l r n eleven in it anything illegal you tell me and i'll shut it down right now agent cosey testified to that and so did mr ritchie now agent cause he told rachel templeman that she was doing something illegal and she quit right the and what happened in this case is that mr ritchie told my client jason of his conversation with mr causey and i mean nobody was arrested  and so i had no idea that this was any in the claimed analog of unclaimed controlled substance under federal law the there were some ramifications from  all fifty states and he would put on their legal risky illegal depending on what state it was and when he got to go to  maine and the state to follow it i forget they had no law and so he said default federal and then he put legal and what that meant to ordered excluded and all we were left with was mr dan dars opinion on pending prospective legislation but not his opinion on existing federal law laws you know there was quite a discovery dispute concerning dobber and there was a dispute concerning dr arthur barrier the former d a forensic science division senior barriers former position basically he was do go to guy in forensic science on whether or not the chemical structure of a suspected analog was substantially similar to the controlled substance and his role was to act as a consultant to the d r e division of the da which made the ultimate determination and what happened was that the court ordered  i was not allowed to brother the court would not accept my offer proof that dr berry or her would testify that he was originally the go to guy on structural similarity with rendering opinions asked for a free six ion spite the d r e division and dr barrier explained his role outside the presence of the jury and the court said that is not where we are going i couldn't even get dr barriers experience and his prior qualifications and his prior job responsibilities of being the person that forensic science to the nd opinion would come from can i go back to the your argument about excluding evidence that the seizures were state law seizures i mean the government does not have to show by direct evidence knowledge or should have had knowledge it can do best circumstantial evidence with mr not only who owned the company at the time and they made arrangements to ship it through an alternate carrier such as fed ex or something but left out of the government's brief w our brief we misstated the nature of attorney dand are the letter that has been the subject of much talk in this case a letter that was not even received by the defendant until well into his  it did offer an opinion that it was legal however it was qualified in the letter it stated this correspondence does not serve as a guide or opinion as to the norm for human consumption does your honor that makes it if it dog food is not is legal but is not food for human consumption it true but we're talking about analogs and of something meets the definition of an analog and is intended for human consumption then it is treated as a schedule one ok so i think it would be a pretty mild qualifier you know he does also spin to kate in the letter that the laws are constantly changing and that you should only rely upon this letter as of the date of the letter which was way after many of these seizures occurred but no debate let's go back to that point because it's strikes me as a valid point these seem to be state seizures the question is law it did yeah it does say it was legal there were numerous and what was the state of evidence in front of the court was a letter properly represented in federal court yes it was to court just reference to state laws was redacted not federal law and the letter i say that again i'm not sure i understood so references to state law or mr dan arce opinion regarding state laws on this particular analog that was redacted evidence was excluded that would have told the jury that all or most of the seizures in question were under state law and whether it's legal or illegal under state law there's at most a tangential relationship to others illegal under federal law what evidence did you give to the jury that said it was for which the jury could have concluded that it was illegal under federal law and that the defendant knew that besides the fact that there were who was caught at a small shop it was actually investigating d j smoke shop in arizona mr schneider walked in to peddle this he samples of popery and the dea agent ended up of product in vegas mr ritchie testified at trial that he specifically told mr away that d n a had ceased product and that his manager had been detained in vegas and that was the beginning of when they decided to shift operations to california and the other well the twelve kilos seizure of pure x l r eleven in fresno was initially by fresno county sheriff but immediately they turned it over to the feds in him mcfadden the supreme court did to talk about seizures as being relevant evidence circumstantial evidence of knowledge and they relied upon a case it's us versus  mcfadden you're on it or were you in the so it's in the footnote there's a footnote i believe it's both one in four of mcfadden discussed the nature of circumstantial evidence that can be with i decline to establish the that helps you much it refers to footnote one i believe which also discusses the specific types of evidence that can be used to establish knowledge and it refers to seizures and in that footnote refers to the director circumstantial evidence direct evidence could include for example past arrest circumstantial evidence could include for example defendant's concealment of his activities there is a behavior with respect to law enforcement knowledge that a particular subject produces a high similar to that discuss seizures of caught by state and locals and not federal in any event the m w why mr what would have been the harm to have admitted the seizures under state law in your view i believe it was irrelevant just as it is irrelevant in the marijuana cases the and the th circuit your this court has  issued several opinions in that context california medical marijuana law california law is are relevant in the context of a federal marijuana prosecution that's gilmore morales rosen bother with but those are as under state law there's a question here is guilty under state law doesn't mean guilty under federal investigation question well your honor mr way is our position mr wade testified that he believed that he was doing everything legally it's our position that the jury rejected that position and it's a credibility issue the  i mean it's illegal under federal law is illegal under federal law whether it's illegal or legal under state law i totally get that but the argument as i understand it on the other side is that you kept introducing evidence of seizures th state law and you were encouraging the jury to think that those receivers under federal law and that should have put him on notice that he was violating federal law that's the argument i understood so from there why why why what what would have been the harm for you to allow the clarification and said well here we're seizures under federal law arizona and las vegas and then maybe that earlier one and all the other seizures were under state law and the fact that it was a seizure under state law he introducing the stage seizures and then suggesting to the jury that that contributed to his knowledge that there will illegal under federal law is totally irrelevant all you do that the but again  mr ways position was that his job was not to do to develop to do diligence with respect to compliance he said that his testimony was that he just kept everything in place he relied upon what mr richie the former oney owner had indicated that everything was legal state law was not really at play in that case the evidence of the seizure there w didn't allow him to different well if the only case that the defense has relied upon really that's applicable is my car but it's distinguishable and in that case  is related to this case galecki and richie were partners and coconspirators of the defendant in a lackey the court decided the forts for circuit decided that my car was not relevant  customers retailers wanted to get their product tested they didn't know what was in the product they wanted to do for me if the product was legal under state law in our case the defendants were submitting pro the pure substance to this and i buy a tech lab to get does contain reports and does not contain reports and those reports specifically reference federal law not state law it referenced the synthetic drug abuse prevention act and this is noted in each of these does contain and does not contain reports that does not contain reports ended up going to the customers while the defendants kept at the manufacturing lab the does contain reports which show that the product tested positive for x l r l f n in so there was no reference to state law in submitting those samples for yes yes so so my car wanted to determine the retailers who didn't know what was in the product wanted to know whether the product was legal under state law here are our defendants knew what was in it they knew specifically from the lab tests and the defendant ordered xcel are eleven from the broker large quantities of it it's distinguishable mccarthy only authority that has sided with respect to the state law again we do refer to the marijuana cases in the context of relevance now last year on or has further questions with respect to state seizures oh i do have one other federal seizure was mike's mike so honey mentioned by mr quinlan the owner of that that company that was purchasing large quantities of one of the bigger customers  was speaking only for myself we don't conference on these cases until after argument and i'm inclined to think that i will affirm but i have to say that i would feel much more comfortable about that if you had allowed the defendant to put in the evidence that you wanted to put him and then let the jury make of it what it would because it was evidence favorable to the defendant and you somewhat misled the jury by saying as law enforcement without allowing differentiation between federal and state law and i don't like that much i understand but that was an unfair advantage in advantage but the issue was not what they were that's violated state law well of course it wasn't but by introducing evidence of seizures under state law without will without allowing him to say they were seizures under state law you allowed the drew to think that they might have been seizures under federal law there was apart there there are even judge draw said it was a unique case there were many novel issues that degree of confidence in the evidence of knowledge about federal you should all let it come in and just let the jury decide what is going to decide i respectfully disagree i don't think judge dros did to abuse his discretion and exclude you know that's a different question i understand i would just like to briefly touch upon  it's our position that the disjunctive language here did not connect two separate offenses it's important to distinguish between offenses and elements and the destructive language here applied to the means of committing means of committing the offenses there was no use of destructive language to combine two different offenses and because of that that the indictment was sufficient the grand jury found based on the elements that the crimes charge were committed the purpose of the indictment is to provide notice of the crimes the defendant had notice of the crimes charged he didn't contest the sufficiency of the indictment until about three or four years after the original charge and ultimately the the jury a trial made findings with respect to which drugs were involved whether it was and twenty two or one or x l r eleven of say because there were many e mails that were admitted that reference seizures there was this policy that they implemented by a seizure policy that was in existence when the defendant was working there whereby it didn't matter whether was there was a seizure by state or federal or local law enforcement officers was policy was to refund the customer one time i th may know they may be and may be able to answer the question you have a chance to answer it now but if you can't answer your own i can't tell you exactly we had a handful of witnesses law enforcement officers who testified to seizures at trial  both federal and state but there were e mails many e mails that referred to multiple seizures as rachel tell about as to which there was direct testimony of seizures rather than simply references and e mails it was vegas and feds testified about that there was m w y which was texas federal agent testified that that was his case was that his case but that was a state or federal seizure was on federal seizures and that was a federal seizure there was arizona was a federal seizure nevada was a st federal seizure north carolina was a state seizure and we were not that result in a state prosecution which we didn't touch at all and arrest and we didn't touch that at all and i'm trying to remember if there are any other state seizures rough well besides the fresno ca sure what started the federal investigation yeah i bet if there are more i'm sure you will your honor with that i don't believe that there are any issues regarding discovery i don't believe that the district court abuse discretion that was dr berry or had no opinion regarding r levon when he worked at the e p a and my time is up thank you very much thank you how many state all of them all of them were state seizures to my knowledge at all is how many whatever they put on evidence of it was my understanding that they were state seizures and the reason that i say that i give you for example  counsel says mike so honey of him w i testified he did testified but they didn't ask him any questions about seizures he said that he was a big retailer of my clients products but they didn't ask him any questions about seizures the arizona sample i already addressed in my reply brief and i explained how it was not a seizure at all it was these guys from da showed up and they want to know what this was and i didn't know what it was and that was the end of that how do you how do you get my knowledge my client's knowledge of federal seizures from that kind of evidence  can't you can't get there none even if you were to assume that there were some federal seizures and none and there's no evidence in the record that my client knew that my client disputes the one seizure of the gross product in vegas he disputes knowledge of that but there's no evidence whatsoever in the record that anyone claims that he knew of some other federal seizure is just not there what they also did was you know your honor sort of indicated to us your thoughts on this but this is th amendment stuff i mean we're being precluded from calling witnesses we're being precluded from asking witnesses lines of inquiry that help the defense we're being precluded from  offering corroborating e mail or lots of them they're all excluded e mail that details how my client's been in contact with mr dan darr about north carolina or some other state is going to get back to the sales staff about that all of these e mails are excluded and so we submit that this should be looked at under a harmless beyond a reasonable doubt standard and we submit that under any standard i mean just the wholesale denial to us of the ability to present our case and we think that that was prejudicial ok thank you thank you very much thank you thank both sides for their helpful arguments and i say it's versus way now submitted for decision that concludes our arguments for this morning i know it got a lot of students here we're going to conference and then we'll come back out and talk to you i don't quite know how long the conference will be and i realize it's getting late i don't know how much time you have  until two o'clock is that right until two o'clock well we'll come back out of after we conference we'll come back out and talk to these dunes in the meantime if you'd like to hear from our law clerks who can not now tell you the real stuff ok with we're now on a