government to succeed especially on the conspiracy charge initially that the government must prove that the a defendant knows the essential nature of the conspiracy is surely the same analysis would apply to c have some difficulty with your case is everybody agrees that he there was enough evidence that he knew something illegal was going on obviously the question is whether he had durie could reasonably find from the circumstantial evidence that he knew it was counterfeit currency that he was paying the money for when he got there and it seems to me like a reasonable common sense in france for the jury was that someone who was as experienced in crime as his codefendant was not mr blindness but his codefendant was wouldn't have been trusted him to go in and pay the money if he didn't know what he was getting and couldn't check to make sure he was getting what he was getting in other words he wouldn't send him in there and said they'll give you something for those all these thousands of dollars and just bring it back to me that's not the way criminals work he had a jury could recently found that he had to be instructed our new or there's a reason a basis for believing he knew what he was to get so he would check it before he left there and left the money with the people who were selling could you respond to that yes your honor and first i want to clarify a point i think the evidence does not support an inference that this the five thousand dollars was by money i think was very clear that the five thousand dollars was a courier fee for mr you said because that's what was negotiated between the codefendant and mr you say to i didn't really a phone call but i think there are several responses i have to the court's question in the first is that if that is so that it would have made sense for mr kobe to ask to see the money at the fair he never did  to so it is they handed the money over he got arrested do you know who actually he prompted the undercover agent to count the money from he could have said before i hand you this five thousand dollars i'm with one with the undercover going back to your intermediate point why would the undercover agent have been counting his courier money that was purchase money down payment purchase money anyway but again the conversation was that the five thousand dollars was transaction is five grand in real money is exchange that the same time for six hundred twenty five thousand dollars in count of that money if mr kobe to knew that he was receiving six hundred  twenty five or whatever the you know what let me get back to judge conses question why can't a jury reason a belief in far not that it had to but why couldn't the hey if they drew every inference in a light most favorable to the government that he knew the exchange was for counterfeit rather than for drugs are there a bronze or something else because i think this court's case law would prohibit that specifically what scene is which is cited not brief and which is the primary case that we rely on and where did more team is this not specifically address owned he has a crowbar and then the most important part of the case for our purposes is that he took possession of the suitcase but where was the codefendant during all this with him where was the person who idea what was going to get no idea at all he gives the money over and then they give him a box with three huge watches in it says here's what we agreed upon and he goes back and by the time he gets across the street the people who scammed him of the left no no no criminal with the experience that this codefendant has is going to send somebody there without him knowing what he's supposed to be getting i think there's a reasonable  e that he did that exactly to cover himself and i think that's why mr kobe didn't know when to cover himself because there was another element of protection a prophylactic between him and criminal responsibility if mr kobe that did not know able to get away mystical then you could only say i was there to pick up something what kind of inference can i draw our jury reasonably draw here mr cohen from the fact that cobain  interested not just with five grand in cash but is intrusted with the possession of six hundred twenty five thousand dollars in count of that money which has a street value of about one hundred twenty five dollars we've said repeatedly at least in the drug smuggling context that it's reasonable to infer that if a person is intrusted with possession of a long arduous some of contraband it's not likely they would have been given that without having knowledge of what it was they were possessing could not a jury reasonably have an furred that he would not have given the five been given the five grand in cash and perhaps more importantly possession of which obviously day and  dissipated six hundred twenty five thousand dollars in counterfeit if he didn't know what the nature of the transaction was and simply was operating under the assumption that there was something illicit but i know not w it just seems strange even for a typical type of transaction or for a seasoned criminal like george korn is referring to that there is not any utterance of the word counterfeit at any it was never mentioned in his presence there's no evidence that was ever mentioned it's a different thing is it not but this is the evidence that you're asking us to take the fact that there was no evidence because everything wasn't record it wasn't a confidential informant present at all times that it didn't happen where it really doesn't have to infer that we're asking the court to find out that would have been speculation on behalf of the jury it is well but what what significance of an jury attach not that i would wear that you would but that a jury reasonably could attach from the fact that he speaks to cabeza sixty one times during a four day period many of the calls were for a very short period and perhaps more significantly the two of them fly down from new york on the other guy's dime to meet during for this exchange on the eleventh of april so for they're having an awful lot of conversations and they're on a plane for three hours between new york city and miami before they go to the restaurant the money is flashing the exchange is supposed to go forward is there any significance to be attached from the frequency of the contacts and flying down together on the other guy's dime from new york although not by me in this court i think that the second circuit analysis which is also cited in this brief which talks about there were contacts on the days before between mr rodriguez and the organizer and several contacts on  day and the terminology that the court used there is the content of those conversations was critically absent because you know but i guess what i'm asking the difference there from that case and this is these guys fly down from new york city together sit next to each other on a plane maybe they were talking about the new york yankees in the sorry state of the miami marlins i don't know but could a jury not infer from that sequence of events something well i think they can do for something more than that but not specifically that it was counterfeit again they're flying to miami which unfortunately as we all know is a city known for a robust drug trade as special a this is what i need for you to do this is something going on we're doing something illegal i just need you to take this money meet with these people and then grab whatever they give you and bring it back to where i'm going to be sitting in the car across the street was in his car with one hundred eleven bricks of cocaine hidden in boxes in the back seat and although his codefendant boss was walking alongside the car he could have taken off at any time and in fact he did take off when he was confronted by the police and yet in that case the court specifically rejected the entrustment theory that we're talking about this morning specifically saying that his presence with the boxes was only brief in that he was never left completely alone with them and again i think the only fair inference in this case is that mr kobe in his possession of whatever was given to him at the truck if it ever took place that  be only brief until he got back to the car where his certainly we for not six hundred twenty five grand was consigned would have been consigned to you to your client the other guy was a block or burra way sitting in a so he's given a very valuable frame to this hour yes and i don't think there's any question that mystical beano realized he was receiving something of value i don't i think the question is whether he knew what a value he was receiving and again and mr doing this at all times when he was in this car was his car beyond the vision point of the of the entrance to the restaurant well the transaction was taking place that inside the restaurant it was in the the parking lot where they transaction was going to go down did i have that wrong maybe i miss apprehended that my reading of the record is that he was parked on the northwest corner of the same intersection where the restaurant was so he was across the street really morning your honor we set read the united states of america and i have with me countless table drop peoples who was part of the trial team on this case evidence definitely supports the jury's conclusion that bass a and kobe into doing us were working as a team and all of the points that your honour's emphasized but they could have been working as a team to consummate some other illicit transaction what you've got to prove beyond a reasonable doubt is that the defendant knew this transaction involved funny money it isn't enough that he knew something bad was going down he had to know that the substance of this transaction on the four seventy one four seventy two involve the movement of counterfeit money absolutely  and what makes this case in couldn't he have inferred from this yeah there was something going down here but wasn't clear that it was money could have been drugs right because we don't even know what was how big the suitcase was whether it was big enough to contain two bricks of cocaine worth three hundred grand or anything like that what we don't have to do is look at every conceivable possibility what we have to look at is the evidence in front of us and determine whether based upon this evidence the jury could reasonably conclude beyond a reasonable doubt that he knew the purpose of this conspiracy and here's what takes this case out of the realm of martinez and lewis our particular defendant is given the five thousand dollars and he's sent by himself to the parking lot to finish to conclude to do the most crucial part of this transaction if he is unable to determine what it is he's going for and why he's there then the entire picture is that different in kind of a degree from a circumstance where coconspirator who knows all about the transaction is seated in his car after he consummates the transaction verbal in the restaurant and then he leaves and has the other guy is the front guy and he's parked nearby in his car at the end of the intersection do we know from the facts how far away cabeza was from the parking lot and whether it was visible to cabeza from the parking lot that we know when us was involved in this transaction in that light at that time we know that it's described as approximately a block and a half away and there is no evidence that he could see that could be said was in a point where he could see the parking lot there was no way evidence that he could or could write no evidence that he could or couldn't but the evidence does seem to say so that he couldn't because the officers first during the takedown takedown they take down and when they find qubcois he simply sitting in the car waiting for government's interest meant they're at they can't they can't see if he could see would be the problem is interest meticulously requires that there be some distance between the the kingpin and the guy you're interesting because if you're walking together you're not really in trusting him you're right there right where there has to be some degree of separation seems to me this is kind of unique spin on interest money transmit usually means i trust your loyalty to me i trust your faithfulness to me that you'll carry out my plan and i can do that by proving i trust you i will need to be right with you don't force it in this case they may have been close enough that it would be unlikely that  but that i trust your competence i trust you to know that you're buying and getting what i'm giving you this money to buy and get and so i don't know that any entrancement case in the eleventh  has yet gone to intrust might not have your loyalty but rather to trust your competence but it seems to me he had to have trusted the competence of doing this because otherwise duane is going to give the money and then be the seller cabeza could have easily fled he knew the town he probably had his own car and then the money would have been gone so do you have any case where entitle meant goes to in trusting the competency vehicle conspirator as opposed to interesting calmly in his car waiting think that he could trust coke away to come back with the money but also he knew the complain and knew what he was doing or else he wouldn't be sitting there calmly and that's the key difference  question is do you have any cases of entrancement where there never was any physical separation that is i didn't worry about the other guy fleeing because i had the only method of fleeing that he had which is i had the car but i had to try something else about him not that he won going to flee but that he was not going to screw up the deal that he was competent to know what he was getting it's a question i can do some research on that and prepare something for your honor but the top of my head i'm not sure so many of these cases are very fact specific that it's hard to draw that actual distinction between entrustment i see your point and we know how much time elapsed between the time they bust the defendant in the parking lot much difference in the time your argument is the inference ought to be drawn in favor of the verdict right absolutely and this court has the right so the argument to draw the circle complete is that the very fact that he did not flee after the other guy was busted in the parking lot suggests that he was sufficiently far away that he lacked that kind of control of dominion over the guy to whom he had intrusted five grand and presumably had planned to entrust six hundred grand more absolutely ok was the arrest outside the car yes this happened outside of the van so while the gentlemen are all standing in the parking lot and there's a video of this so you can see this in the record mr quinn to dana's hands the money over to our undercover officer who started counting it and  you you see them standing there in the parking lot and then when you dana says here of course it's all there counted he knows how much the money supposed to be and he says count faster when he realizes that the undercovers actually  counting and then you hear what inference would you have us draw from the fact that he tells the undercover agent to count faster that he's worried about someone seeing an illicit undertaking but does that shed any light about his knowledge of the nature of the undertaking though that fact alone the count faster is not just as it is concern that something's going down that isn't quite right that's correct it's only an accumulation of facts here give us and give the jury the comfort level the reasonable belief that he knew what was going on the amount of time they spent together if you want to point it out about the three hours of travelling the sixty one phone contacts this is a team these are two men working as a team one the money man and one the negotiator and the jury can see that based on the accumulation of facts and that's how the jury can reasonably come to the conclusion that he knew the object of this conspiracy when we talk about the lewis cases your honor brought up there was a big difference where we have a gentleman who we can see works for board gela bordello being the ma trafficker he works as a clerk at a shipyard and so the fact that two boxes of put into a car that he's driving they are sealed boxes is not conclusive of his knowledge in context of consigning drugs to somebody from which the courts have regularly inferred that you wouldn't give it to someone with a great value without letting them know what it was they were possessing has that doctrine ever been applied to a context different from drugs like our affair or berra bonds or something else but not side south west street in ponce de leon and so when you actually northwest corner of the intersection and that being the same intersection as the parking lot in response so the parking lot is on the there was an additional factor that was just knowledge of illicit activity and that's that he fled but lewis is not the case that i was referring to as our strongest case martin is a different case martin is the stash house case where the gentleman actually went inside and took the suitcases well or and right but there is drug me that in martina's he wasn't really doing anything he was just kind of standing around right but he's actually picked up the suitcases while he was armed after opening up gaining entry by kroeber but but here in that case was was i mean the he didn't he didn't act independently in any way did he know he was with a codefendant so the case in response to another question by your honor having to do with cases that deal with interest incompetence not necessarily loyalty i haven't found a case from this circuit but again going back to the second circuit there's a case by the name of torres which is also cited an operative where the defendant there was generally accompanied by somebody except at the quizzical time when he went into the u p s store to recover the packages at that time there was somebody waiting in a minivan outside in a part of when torres entered the store as he had done all day trying to recover these packages that were sent in his name which contained significant amounts of cocaine he was by himself and neck is actually that the driver took off and left him by himself but for a period of time a momentary period of time he was the be but don't you say that the distinction between this case and that case the driver didn't take off here her argument is two possibilities either the codefendant could see what was going on and the van and therefore there's no racial rational explanation for not driving away when they arrest occurred or he couldn't see and therefore you have been trusting of competency as well loyalty that's her logic and it sounds fairly logical to me but there's a third possibility is that kobe's who was arrested before he had an opportunity to drive away this all happened is very sure is there any evidence of that i think that the evidence from agent to roger and i'm not sure the exact number but there was more than ten agents involved in this surveillance there's no question there's a gap in time between the boston in the lot and the arrest of in the car a block or more away and i would have thought that if i was sitting in the car watching the transaction and i see the arrest go down boy i hit the pedal and be out of there awfully quickly arrest signal went down the whole purpose of the arrest signal that is needed to arrest mr cobain he was right in front of the undercover officer the whole purpose of the arrest signal being sent out by the undercover was so that mr could basically be arrested so i think that the inference again is that he was arrested immediately but let me tell you the problem with the it's possible and a fair inference could be drawn our law is firmly firmly established that you don't have to exclude ever reason mohan pathless of innocent so long as there is a reasonable hypothesis of guilt for the jury from the evidence their verdict went whichever way it goes of course we don't review the quibble but verdict of statement or the standard of review that the court applied in lois i have never seen it phrased this way but i think it's very telling the court there said if the evidence viewed in the light most favorable to the prosecution is equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged in a reasonable jury must necessarily entertain a reasonable doubt here there is equal possibilities that this was a counterfeit deal that it was a drug deal that it was a gun deal that it was a stolen property deal so applying the standard that the court applied in right but the difference in the way says that lewis wasn't involved in the were exchanged here you've got your client exchanging five grand for what would have been six hundred twenty five thousand dollars and counterfeit money you don't have anything like that in the us now we don't judge but frankly this whole situation could have been averted if law enforcement at the v a and just said you want to see that when they want to see the fix you want to see what we have in there would be no question the fact that that wasn't done and more importantly the fact that mr took a hand you can't say that the evidence is insufficient because the government could have constructed the case in a way that would have been stronger and i agree with your honor and i would that which led to my final point that i was just and something i had already spoke about earlier if part of mr cabanas responsibility was to confirm that he was receiving six hundred thirty two thousand dollars worth of counterfeit money the simple thing for him to do would have said can i see what's in the bag can i see the money he never did that he offered for the agent to count the money told him to do it faster there was a period of time there but not once did he say at any time in the restaurant or out i want to see the money before i give you this legitimate five thousand dollars in cash and i think that's what distinguishes this case from a lot of other cases like you know we want to run over