good morning may please the court my name is and i represent the appellant given salazar there are two compelling reasons that this court should vacate the convictions with regards to mr  statement to law enforcement this is jury question right i'm sorry jury question this is a jury question this is efficiency argument we can see though that there was some evidence certainly some evidence to support the idea independent of his confession that this was in fact cocaine right you just don't think it was enough yes judge it is a price in price we said a defendant may be convicted of  followed for the past twenty years and by looking at the facts of this case and if accepting that what i believe boils down to just a description of white powdery substance it would erode the standard and this is  this is why i believe that the only description of the substance was white powder that was the only description given during the trial of mr croy first off no foundation was laid to describe what cocaine even looks like there was no testimony from an expert or law enforcement to describe cocaine in general or even or even being a white powder that mr you know x anyone who's watched television can fill those blanks in that there's there's also a dozen other white powdery substance is that it could have been and so i believe that when you look at bryce there needs to be some more even though bryce doesn't lay out a formular checklist it does give a standard to look  species for a gun that was worth three hundred dollars it was in a parking lot in a car in a parking lot and every indication of this transaction indicates that it's an illicit substance right the gun the gun itself i would argue doesn't have any value to mr crow act he made clear in his testimony that he needed to get rid of it in addition he didn't treat the substance that he received with any value and didn't even treat it like cocaine he said that he gave away half of it and then could last the rest of it he never used that these people exchanges and white powdery substance that they were believe was a cocaine transaction where that was determined to be not sufficient rice in this case all we have is probably x testimony saying there's a white powdery substance the issue is whether or not that's sufficient to prove beyond a reasonable doubt that in a jury package cocaine i think he said this was the packaging for cocaine in his own experience right he referred to it as standard package packaging for buying saying that he had bought many times before multiple times before i guess he  bring this white powdery substance into the united states when put in a mortgage it to people in a sign that task one person confesses and then the other person takes the stand and said yes we were told we're going to give three hundred hours to bring this by powdery substance of the united states that you know you're saying there would be enough there yes just because again it's the owner that's a standard airport case but it still has to be proven that the substance was a controlled substance dollars you're saying that's not that's not enough on the price it's not not under bryce a bracelet is not a standard again if you if you look at the facts of this case compared to the standards set forth in brice then there was no care high high cash paid for for the substance they never there was no testing of the substance he had never tried it no testimony was given to anyone sample the substance mr gun arguably didn't have any value to mr corey act he didn't treat the substance as if it had any value the transaction it's self took place in an open supermarket parking lot there's no indication in the oven in the record i'm sorry in the car inside of a car but there was no indication that there was any police surveillance coded communications between the two of them nothing cryptic in nature except just a straightforward transaction  numbers of transactions take place in car cars all the time from e bay and craigslist in supermarket parking lots is not something that's necessarily devious in nature but again this is s the standard of review here when you look at what the jury found i think you also have to look at what what ties in the nd point that's that's been briefed there's two main pieces of evidence that the jury had to rely upon to make a determination one is a description of white powdery substance and the other was the impermissible statement that crowe yack made that he had purchased cocaine in the past f when you look at those two pieces the judge struck that nd the statement because it was impermissible and you're asking the jury to literally take fifty percent of the evidence that was presented to them and set it aside and make a determination just that beyond reasonable doubt that it was cocaine just the description of white powdery stuff and it was just a court ruled that that evidence would be impermissible character evidence  why was it not permissible for a for be evidence given that you establish the relationship between the two individuals and and would have helped explain why relationship in the past the judge made a specific ruling that it couldn't be used and so so it was it was impermissible in every murder thank you me please the court my name is shawn alger german assistant united states attorney for the western district of new york i represent the united states on this appeal and i was one of the attorneys who represented the government at trial at the district court below the trial evidence especially the written statement of the defendant mr salazar and the testimony of cooperating witness kevin crowe yack was the individual involved in the transaction was more than sufficient to sustain the jury's verdict that the defendant possessed cocaine on the dean question and the district court did not abuse its considerable discretion when it denied the defendant's mistrial application based on a single stray remark in where the district court took immediate inappropriate remedial action and as such this court should affirm the judgment below in terms of the sufficiency argument the court has already pointed out that the defendant carries a rather strong a very heavy burden as this court views the evidence in the light most favorable to the government and determines whether or not any reasonable juror could have found the elements of the crime proven beyond reasonable doubt and as the courts questions of already focused on mr crawley acts testimony provides all of that detail the fact that he stole the gun he called the defendant to see if he was interested in it they met in a parking lot the gauge in the transaction where the testimony reveals that the substance was a white powdery substance in a bag not off called standard packaging by mr iraq as this court knows in gaskin embrace this court has repeatedly said that lay testimony and circumstantial evidence can be sufficient in and of itself to establish the identity of the substance and this court has declined to set out a formula for what that lay evidence or circumstantial evidence needs to be the brace factors are suggestions as judge bianco pointed out essentially all of them are satisfied in this case salazar's mirandized written statement to special agent o'sullivan of the a t f in his statement he says in june two thousand and twelve mr crowe yeah contacted me about obtaining a forty caliber handgun consistent with was what mr mr salazar tells mr craig he's interested in obtaining that firearm he tells them in a statement they meet in the tops parking lot mr salazar statement says the audio the defendant looked over the gun i decided i wanted to keep it i gave m cocaine he calls it cocaine in the written statement in exchange for the gun and mr crow excuse me mr salazar in his statement also refers to it as a forty caliber handgun exactly what we have here so under this court's pre particularly in irving the confession is proven reliable which i submit it is based on all the corroborative evidence may serve as the only evidence of the charge crime but here we have not only the statement that mr salazar admits to the elements of the crime we have that coupled with mr co ax testimony so viewed in the totality the evidence is more than sufficient to sustain the cocaine conviction and even if we were to break it down and look at it individually mr crawley acts testimony meets the brace standards for lead identification and the statement is sufficiently corroborated under irving lastly the other issue the mistrial application in response to a single question of how did you know it was cocaine mr curry ak responded because i purchased it from him in the past the district court immediately sustained an objection order the testimony stricken i had the same question of livingston had when i was reading this why what seems like the government tried to offer this under the wrong theory under the conspiracy background of the conspiracy trusting relationship theory where the grounds that it would help explain why crony agnew he really was that when a proper judge i got into this case late and i think that would be the better way i think the more straightforward for a for b argument if i could step back for one second and the st day of trial the district court actually ruled that mr cr to only about his prior dealings with the defendant would come in both as direct evidence of the charge and in any event for a four b evidence the next morning the district court reversed himself mr prohack essentially took the stand you know an hour later without a break i it could be why it was cocaine it's do stablish why he knew that was cocaine you have a gun case where you're trying to establish whether a gun was operable or whether it's the same gun the fact that they had prior interactions involving guns would help you to answer that narrow honor i agree with you and actually we did argue to the district court that it should be relevant in terms of the identity of the substance in the district court rejected that there is so in any event i don't think the district court abused its considerable discretion in denying the m good morning mate please the court my name is valued cool i represent the plaintiff appellant mr middlebrooks the district court here err in two different ways in dismissing mr middlebrooks his claims st it failed to view mr middle brooks is claims as a aggregate of an accumulation of events that cause a single a single constitutional harm to which the continuing violations doctrine applied and secondly it failed to he's it's over three years well it would be over three years but two points on that your honor one is that the government has conceded multiple times half a dozen or more times that in fact it is the november  thousand and twelve letter that he got can see there when this summary judgment that's the basis of this appeal happened in that they argued they consider earlier in the case but then when he took his deposition and he admitted that he received that letter then they were able to use that they had no evidence prior to his deposition that he actually received that whether he so you're saying they can't if they take his deposition he tells them i got the letter they can't then argue that that should be the property  one your honor i don't think is his testimony concedes that he got that letter in april and secondly the district court even found that that can section concession could be binding on the government in this joe chisholm to make the inscription after received the notification of the april th april th two thousand and twelve letter now i'm not trying to split hairs here mr middlebrooks his testimony was that he learned about the april two thousand twelve letter in the november nd two thousand and twelve letter the sequence of events goes like this february th he is denied his rd grievance february th within seven days he files an appeal  the sequence of events and what he's explaining is he did not receive any response to his february th appeal on october th two thousand and twelve he sends another letter asking about the status of his he gets a letter from the government on november nd two thousand and twelve saying your appeal was denied back in april it is then that he goes to joe chisholm and says can you confirm that i filed this gets mr ch write that it was confirmed and then sends it as a way to show that he in fact appealed in a timely way which is in the curd you know six or seven months after yes your honor according to them remembered when he gave them that six or seven months later and wrote it on the sheet is that what you're saying well that is what mr let's the evidence in the record the other thing i would point out your honor is that there the government has been unable to produce this april two thousand and twelve letter and district court found that significant here and they sent this letter they would have been able to produce it the other piece of it too is that there is no date stamp of his appeal under the docks regs when there is an appeal the facility is required to date stamp it it seems to me that if this is april th letter think it's undisputed that there was nothing physically preventing your client even when he was not allowed to receive the special meal in his cell from going to the mess hall and getting that meal himself i mean i read multiple portions of the position i think you can see that he had nothing physically to him in the mass it's not like he thought there's no food for me he knew if you just walked down the mess hall he could get it right what he says testimony is he knew from the paperwork but when but his that he knew that from the paperwork not at the time but i think the more important part of his testimony is he denies that he could simply walk down to the mess old mess hall to get fed and i'm referring here to page four hundred and twenty dollars of the record mr middlebrooks is asked during his deposition and the deposition is somewhat messy cuz there's lots of times where he is interrupted and pages are necessarily in sequence and if i may just complete this point he has asked and from september two thousand and eleven you know that it meaning the meal is available in the mess hall and his response is that's not true because you could only get it one way meaning that if there was a feed in cell water in place and his meals were supposed to be delivered to his cell he did not have an alternate because he missed over thirty meals over a six month period including a period of time where he missed twenty two dollars meals over a period of eighteen days it's not that he couldn't get the meals that they were not available to him and when they were he understood that he says he read the letter in august when they told him he was going to get in his cell so at every point in this case i understand he thinks it's bogus and that it's not proper but at every point he understood where that meal was if you understand that you could get in the mess hall he says yes i could have but i didn't need to so his position was yeah i was in the mess hall but i was supposed to get in my cell he didn't say no i can go down to the mess hall they told me i couldn't go so you're citing a page where he says the on i think if you go down further on the page at the bottom you'll see where he says that song true you could only get it one way what does that mean i mean he could only get his meals one way so when he is ordered to get it in his cell and the defendant prevent that meal from coming to his cell he doesn't have the option of going to the mess hall it is a disputed question of fact on that record thank you good morning your honors jennifer clark behalf of us this court to affirm the district court's decision granting summary judgment to defendants in our brief we provided a number of reasons to affirm and i will jump  st the merits and at the very least the question of qualified immunity here it seems undisputed on the record that there is no excessive risk to the plaintiff's health and safety because he had no medical infirmity that required his food to be brought to his cell as to the subjective pro well there are two issues your honor there's the question of a therapeutic diet which is reduced and if there's a number of things that could be in plaintiff's case it appears to be a low fat diet which he he there was never a point where he was taken off of the therapeutic diet that's at issue in this case what's so there's the therapeutic diet question and then there's the question about how he receives those therapeutic meals and so the only thing that's at issue in this case is the delivery of meals to his cell verses picking up meals in the mess hall i do not understand plaintiffs to be raising an issue with regards to i was given a non therapeutic diet at some point when i should have l i'm not conceding that your honor i just don't believe that's all it issue in this case there's nothing in his complaint that could be construed to argue that point versus the point that he says repeatedly in his deposition and elsewhere which is didn't get it so whether it was available to him that's what your response to your honor i simply don't agree that the record supports that at all to the extent that you can read the testimony that my opponent was citing as mr middlebrooks in fact making that assertion it's completely a it's based on nothing he never attempted to go down to the mess hall to receive his food as he states in his deposition and everything else so he doesn't know that and everything else in the record makes clear that he could have received it at the mess hall there is a forty one dollars in fact in his grievance one of his grievances he himself says i was told my food was down to i was told to go down to the mess hall to get my food so he says that himself in a grievance he testified repeatedly at his deposition at eight hundred and forty one extension zero that he was told he could have gone down to the mess hall and that he understood the multiple responses to his grievances each of which told him that he could receive his food in the mess hall there's a declaration on the record in which one of the defendant says i told him to go to the mess hall and get his food that's it a three hundred and eighty one dollars so it's simply deposition in the the the page that we discussed earlier which i believe is four hundred and thirty eight it seems quite clear that he repeatedly agrees that he didn't fact receive that letter but that's not the only and he had obviously opportunity at that point to say i never got that letter when he files objections which he does filed to the are in are the rd one that comes after that deposition testimony the  magistrate judge puts in his report and recommendation that he received the april th letter and he does not object to that he doesn't say that he didn't receive the april th letter in his objection and in fact there were three rounds of summary judgment in this case in the nd round of summary judgment this issue had come up as well plaintiffs puts in objections at that point and he says himself i received the april letter and in response to that i sent in october letter putting aside the questions of of exhaustion and timeliness if the court has any questions i will address those at the very least here it seems quite clear that that there is no case that would have clearly established to the defendants that  that inmate who had no medical necessity for food to come to his cell could have possibly they could have possibly been violating the constitution not bringing food to a cell particularly after a feed in cell order had in fact been rescinded  the record makes quite clear that that document is is not a forgery that is nothing more than his conclusory allegation to the contrary but if you compare the version of the document that he submitted to the version that the defendant submitted their identical in every respect except for that the doctor stamp did not make it all the way down to the th carbon copy otherwise the curlicues on the signature everything is is precisely the same so there's simply no dispute that that's an actual document grievance in doesn't make a lot of sense to me that you could mix and match to achieve exhaustion could you address that point for me yes your honor to the extent that that is the argument that he's making that he would be attempting to sort of loop in the rd griev process yes that he did not exhaust into the nd grievance which is the only one of the three that he did fully exhaust that's that simply runs contrary to for example the supreme court's decision and ross that made quite clear that there are an extremely limited number of exceptions to the exhaustion doctrine that it's mandatory that in every circumstance with those exceptions to the side that meet exhaust and exhaust properly  and there's simply no support for his i understand the argument correctly and i'm sure i'll get a reply on rebuttal but if i'm understanding it correctly assuming the continuing violation doctrine would apply here for the moment it would mean that you could have exhausted a grievance years before and and have no plea under the rules about exhaustion and the purposes behind them i would agree completely your  honor and i think that if to the extent that is there been a case where this is this is worked as a basis for exhaustion i'm not aware of any case now and it seems quite clear that subsequent to ross it could not so so i do not think that's a supportable my apologies i should ask you the st time around that's ok so the continuing violations doctrine i think the court here made the mistake when it carved up the six month period to three separate segments this is a repeated course of conduct it's like sexual harassment it's like the morgan case where the supreme court said hostile work environment you measure from the date of the last and that it sweeps in all other acts that is the basis of the continuing violations doctrine  the exhaustion in this court's decision in johnson says you have to exhaust and if you've previously exhausted then you don't have to exhaust again and so i understand the court's concern about it having exhausted many years ago but that might be so disconnected that there would be no continuing violations doctrine in other words the prior events may be so far removed in time or circumstance that that if he has an exhausted this particular event but that's not what happened here he's talking about the same meal denials at the same place at the same time so thank you thank you and will take the matter under and thank you for your assistance to the court on this matter that's the