actually saw all the defendant makes some a positive step towards commission of an offense either in the form of a mirandized statement from a defendant or from a confederate or an undercover officer or a confidential informant there was someone that has seen something and why why would this be different from all other law where circumstantial pro is permissible because it seems to me if there's a charge of attempted possession with intent to distribute a controlled substance here methamphetamine and we have evidence much of it circumstantial but we have evidence that the person took enough steps toward doing that to acquire the drug that is then going to be distributed and a rational finder of fact could understand that this was not a personal use amount and what judge i think you're probably referring then to the parts of the recordings where there's a mention of white boy and others writing down the  the possession of commercial quantities if you will possession beyond personal use quantities why isn't that a very substantial step toward the completion of the invent offense which is the actual distribution now possession with intent to distribute so maybe you don't even have to go as far as i'm saying i think there are several reasons why not first in the quantity itself in cross examination special agent we testified that the average methamphetamine user uses between two and four grams per day if you multiply that out by that fourteen grams in each sale this methamphetamine could have easily been used within a period of three and a half to seven days for both sales in addition to that there is nothing in the record to show that calvin brown attempted to negotiate a deal to sell with anyone there's nothing in the record that he attempted to meet someone for delivery there's nothing in the record to show that he was on his way either to or from and possessed either narcotics or money but he doesn't refer to having a great use his colorful language but he has some people i'm jack you know he's got customers waiting meaning of that there's a lot of you know it's not like iron clad but it seems to me to be good circumstantial evidence that he's acquiring drugs and his intent is to  drugs even though the government doesn't get as far as proving actual distribution well the judge judge you know you have a decision where required more than talk in order to substantiate a conviction absolutely but don't we have more than here well i don't think so i think what we have is i've see this case we have a case that stretch the limits of what can we establish without a defendant actually be seen doing anything we have a small window of three weeks of an investigation and that the special agent testified that he wished he had spent more time on the case investigating mr brown and you in fact have a decision out of this in the circuit where it suggested that the investigation should have gone further for instance and i say that for this for he never just seems that if i were the special agent and one of my officers came to me and said ok i've got this these four points that we've pulled off of the recordings why don't we go find the woman who was overdose that should be simple enough he could have despaired someone to terre haute regional hospital found the woman and asked her where did she get the narcotics perhaps even the doctors might have even asked it already and  provided the answer another example would be if i were the agent let's find out who the white boy is or let's front let's see if we can come up with calvin doing something they had no trouble finding him when it was time to arrest him he didn't run and the agent testified that he was arrested along with everyone else they knew who he was they knew where he was so they had access they just that there is no attempt defense here that eight forty six has been understood to create an attempt to fence and i think that's uphill battle well here is the practical reality of that a client asked the lawyer to show the statute under which they're charged and the lawyer brings in the substance of the underlying statutes brings in a forty six brings in case law from this court but no  statute it doesn't really only forty six why is that not enough and because it's just a sentencing provision or are now it's not it makes a difference it's like many other federal crimes and say do this here's the punishment right but it doesn't define attempted it's left to the courts to have course it does and it doesn't define conspiracy either right but you're not suggesting conspiracy is unconstitutionally vague or you know an attempt is a pretty well established concept proof in this case of your client's actual possession of methamphetamine know what do they have are concession a trial which says where but it was it was assuming that he made these two purchases well take that back on the tape recording there is some there is some indication that he acknowledges receiving the two deliveries ok that's the extent of the evidence ok so that's it's out of his own mouth and under circumstances where he's he's buying a half ou methamphetamine each time so he's in actual possession of arguably at least of amounts that are read your e could reasonably finder for distribution i don't understand what more is needed here i mean i don't understand what more would be needed here i also don't understand why this wasn't charged as actual possession with intent to distribute but that's a different question from a strong smell of it but your honor i had it just strikes me that delivery is a much different mindset that you're crossing a more substantial line if you deliver than if you possess there was no evidence that he wasn't an addict and there was no evidence that he was in that way so we don't really know how that small relatively small amount of methamphetamine which it used to have to demonstrative exhibit a trial of a tube that was two inches tall and one half inch wide that help precisely fourteen grams of sugar which i equated to the  math and again from the mathematics we know it can be consumed we don't know it necessarily is delivered by and it doesn't but he's not charged with a completed offense of actual distribution now he's not even sure he's with the completed offens possession with intent to distribute the system which i again i don't quite understand but i've got to say it does seem to me that the inference of intent to distribute is reasonable from the quantity and w i think we all recognize that you and mr wrong and all of us have seen a lot stronger bigger drug cases before this is at the tail end of it and it is ok but why is it not legally sufficient because because it still requires evidence beyond a reasonable doubt and while it's evidence my argument is it never rose to the level of being beyond a reasonable doubt in this case and in fact the judge even said as much she said her hon that all of mister all mr brown did was simply make two purchases of narcotics and nothing more that's in her and should've been charges and possession with intent i want to just point out two facts that i don't think the record does sufficient justice to first of all there is crop aeration of mr brown's purchase and  distribution that he arrived there's a video of him arriving at the house this is the perry house incident yes roger exactly contemporaneous with the conversation with hammond that he is going to go by methamphetamine he arrives at the house within an hour or so of that conversation goes inside stage for five minutes and leaves and also his oxendine who testified she was intercepted in the same time being referred to as coming to pick up methamphetamine for sale she also testified contemporary that she arrived at that house contemporaneous with mr brown that within that same context to pick up methamphetamine and bought methamphetamine for distribution i'd also note that on the amounts i don't think i disagree with mr bernstein's characterization about amounts i think both cooperate or specify that they would typically by roughly a quarter or a third of a gram for personal use what the record doesn't capture is what i would suggest was compelling testimony from both of the cooperators about their experiences street level dealers of methamphetamine the tragic experiences of lengthy tragic experiences with street level dealing and compelling testimony the judge credited that a half ounce was not only inconsistent with distribution but was just implausible i think personal use excuse me with personal use i think they both thought that was if you've seen their testimony was preposterous completely inconsistent with their experiences so your proof of amount is what you're proffering here as proof that there was intent to distribute you would have had that much basically if you were intending to distribute it yes and then of course the wiretap testimony which is of course distribution along with then all the conversations that strongly suggest that that is exactly what mr brown was selling this just like the cooperators testified you were likely to do with a half ounce of methamphetamine  i would point out that the miss oxendine has no connection whatsoever with mr brown and there really isn't necessary i mean it's it's a it's just logically not consistent to equate her who doesn't know mr brown or ever having been around back around mr brown as having the same financial resources or lack thereof as mr brown might have had and it's extremely important that the fronting issue which happens in these cases over and over and over again did not occur in this case he made these two purchases allegedly and he paid form a legit lead that's what you're looking at when he came out of mr perry's house we don't know what they discussed we don't know if it was just a purchase in his house we don't know if they discussed delivery that the truth of the matter is we really don't know more than we know and that's the argument why it doesn't rise to beyond a reasonable doubt and and with that i'll say thank you all right well thank you and you have our thanks as well i understand you took this