support the jury's verdict on count one of the indictment because the united states assumed the burden of proving at least five hundred substance and the jury's pacifically found that mr cole did not pass at least five hundred confession a confession to what was charged in the indictment this case is different in that mr cole went to trial and the united states charged more than five hundred grams in the indictment and more importantly the united states committed found guilty of that charge the government must prove each of the people and elements miles beyond a reasonable doubt first that beginning on a date unknown prior to april twenty ninth of two thousand and four and as far back as june amount of methamphetamine and cocaine so by submitting this instruction which was given to the jury the united states actually assumed the burden of proving that a man also they made it an element of the crime  five hundred grams of a controlled substance the second question that was submitted to the jury was did mr cole last more than five hundred rounds and the jury answered no united states brain to charge and then instruc pragmatic practicality didn't the judge give a break to the defendant in this case in terms of the actual sentence and the in terms of what he actually failed your honor it's true that he did sentence mr cole at the low end of the advisory guidelines and he did not take the full informant who testified at trial really he could not do so because the jury could not believe that informant that informant testified that with was a measurable amount only and in order to go beyond that the court should have used reliable evidence to determine the drug amount and factual statements in a recent report amended there it makes no difference whatsoever the fact that you got the trial does not change the elements of the case in the united states cannot change or create elements out of charge simply by the nature of its charging document pretty requires of the united states a way drug amounts are going to boost the defendant into a higher category united i would suggest your honor the fifth case is exactly why it's all over and that the court is restricted in the maximum sentence you can bring that is because the jury found that the united states has not proven five hundred grams beyond a reasonable doubt the court was restricted to a maximum sentence of twenty five years the maximum sentence for a methamphetamine distribution without reference to drug or math and of course mr cola sense within that range so all over would apply would not affect the sense of mistakes with respect to whether or not it matters the difference between the jury cited that there she suggests that the jury did not believe ms say it i don't think there's any evidence for that whatsoever there are they concluded at least partly concluded that there's insufficient evidence to find beyond a reasonable doubt that there was five hundred grams of methamphetamine involved but they also just as clearly came back and convicted him of drug distribution something misael or said happened and i would add they forfeited about fifteen thousand dollars is supported by the evidence at trial or the course conclusion and of course the other part to keep in mind is that this last transaction was captured on videotape as well as audio tapes of mr cole beforehand setting up the deal ordering from in sale or the usual he mr cole has on his person sixteen thousand seven hundred some dollars and so the transaction does not involve actual drugs the police have put together approximately one pound which is what i'm going to say versus was the usual fake drugs i think they used rock salt and put that in front of  sailor during the transaction put that in front of mr cole mr cole handed the money over so that mr cole then testified that his usual was not in the in the palace type quantities but was more along the lines of type and therefore personal use quantities i think the jury did reject that amount and i would suggest the jury found not five hundred grams because that particular transaction was for a one pound according to m taylor which is by about fifty or sixty grams of full five hundred grams so there's substantial evidence beyond a sailor's testimony release there's substantial video an audio evidence that confirms what ms sailor testified to and i think it's i think it's fair to suggest that the jury did not believe in the same way the the the verdicts and even if i can see her beautiful i would suggest that there's an error in the instruction where we had a five hundred grams to the elements as well as asked for a special verdict there was no objection from the defendant with respect to that that five hundred grams and their special bird it was an air of course i'm not making that argument today but i don't think you can quote from any of that that this sailor was unbelievable or that there is insufficient evidence for the district court to have found to dr that's correct your honor from the sailor and from the facts of the french action itself the facts of the transaction are that she has had over approximately one pound of trust and mr cool hands hundred grams and we would have an argument about preponderance of the evidence after booker vs the jury's finding of construction evidence beyond a reasonable doubt of course we don't have that argument but between a sailor and a video and audio tapes there ample evidence to find certainly to find less than five hundred grams and maybe to find more cole was sitting at a table and he had cash in front of him and looking through the cash no money was ever handed to miss tyler and mr cole testified that he had that money because it was cash from  and he was in the process of buying a home the videotape is actually a red herring in this case because the united states dismissed the charges that had to do with the audiotape and  mr cole and the jury disagreed with her and specifically found that she did not sell them or he did not possess at least five hundred gra was not clear about the amounts that she sold to mr cole she varied from time to time saying she sold him one half pounds to one pounds and that that was the usual well it can't be both usual is one thing  told me unreliable evidence the people who gave those statements were not available in court i had no opportunity to cross examine them to test their veracity i e didn't even have an opportunity to question the law enforcement officers who took their and that is what happened here be submitted for decision and we will proceed to argument in the united states versus l