out of the over the counter scale of non prescription cold medication below the single transaction limit set by both federal and state law there's a january fourth transaction is january fifth transaction i find it helpful when thinking about the issue here that sort of set theory or venn diagram there's one area where it is clear that mr kim's conduct would have been lawful under eight  two forty six if it was a sale for personal use no question that the over the counter c e o the cold medication was lawful a sale is for personal use if it's half or below the single transaction prescription you can just walk again and the experts agree here you can walk into a state bar to up to a to a walgreens and you get come come in and buy nine grams walk out come back in and buy another sees what's going on so we're not going to deal with the situation where you don't know what's going on but he sees guys coming and they say i want to cry the whole nine yards and then buy up all your phone medicine you know i can tell you all my co well most people who are average consumers with sinus recall problems don't come in and say i'd like to buy out your entire pharmacy i mean isn't that a tip off of knew or should have known and then you've got to come back  argument then it certainly does meet a requirement that it's not clear that is conscious of lawful i think it's easier i mean if i were going to show sufficiency i have to there's no rational basis for the jury's verdict while i have to do now is show that it's not clearly prohibited by the law and i don't think that it is and that's the problem with the law because if it was sufficient see i'd have to show there is no basis for what i do have to show in order to challenge it it's baked is that his conduct is not clearly prohibited when they come in on january fourth  and they said what about the other day what about the next day he says we're not selling every day we're not selling every other day and then they come in the next day and hedonism there is an acknowledgment there that the record is that one of the agents looks at him and mr kim looks and that's all i'm saying is that it's applied to over the counter medicine that's what we're dealing with they're one of why the over the counter medicine you can have a circumstance where it's big as supply and that's this case i'm not asking  january fourth he looked at these people these tell you know these people are going to use it for to make methamphetamine but they're under the number and i and i and my understanding is i can sell to them so i'm going to tell them that's a part out of state of mind  would that be clear on the cover if he thought that he could sell it to them no matter what even if they're going to use to make methamphetamine that would be wrong and mistake of law would be no defense but he's told and he agrees that if he sells any quantity facts here they shouldn't rise as a matter of law to resume reasonable cause to believe i mean that's really what you're saying i think i may be saying that what i think i'm saying is that with that over the counter medicine right this can be solved with no questions asked when do you cross over from legitimate medical use which is clearly wall to reasonable c in and buys nine grams at a wal mart and the cash register sells it to him that's seals illegal but if the cash register has reason to believe that it's one of these manufacture methamphetamine  if the person believes that it's going to use religion and medical use when you don't have any prescription what is it that that distinguishes between for a legitimate medical use and reasonable cause to believe and i think it and the question is you're saying that the law can't impose a reasonable to believe between these two because the guy doesn't know when what's reasonable and what's not reasonable no i don't think i'm saying that i think that in most i don't know what's going on out in the world but i'm willing to accept your representation that it's they're more likely to go after small practice ownership part promises because they're much easier to prove and that's to not have reason to believe that there are so the question then becomes in the extreme cases it's easy to know when someone violates the law if someone is using seeker transactions if they're selling cartons from the back door if they're purchasing all right well i mean that i mean just because they have the court did say that you're a trouble but this and i do want the court to understand that there was a tremendous amount of evidence that we've tried to illustrate in our brief but let me read briefly from the record of the witnesses undercover officer testified this is a g ok with regard to the earth that it really is a sufficiency argument with the defense is attempting to do is take the vagueness doctrine and then apply it to the facts of this case to say oh look there's factual issues about whether this person should have been convicted therefore he sound let me let me put it the exact way that the that the defendant was polled specifically dennis meaning a pharmacy inspector came into the found its pharmacy four months before these transactions and quote language got in his face and said look if you even think that this stuff is going to be used to make methamphetamine it is a violation of federal law for you to sell it that was whole directly to the defendant and on this date on january fourth when the officers came in and said oh we need something to break it down standing in front of the defendant indicating as the testimony is in the record towards the pills standing feet away from the defendant who's watching and interacting with testified that of these what they're called what are experts termed stock bottles one hundred milligram one hundred count sixty milligram pseudoephedrine they're typically used to fill prescriptions the defendant would sell these directly to the general testify that most of his money was made from prescription sales it was made for most of his money was going from prescription sales profit margin of approximately eleven percent this was his account his profit on the pseudoephedrine bottles he bought them for two eighty he sold them for eighty eight i believe it was six dollars while my numbers might be wrong but it probably is definitely six dollars a pop now if you think about it we know he ordered it and these just bottles he also sold blister packs he ordered five thousand these bottles are in a time period six dollars a bottle but the the difference is this it's not just the facts of the individual transaction in this case we know we have a breath of evidence showing prior to this leading up to this what the defendant's knowledge was he clearly knew that pseudoephedrine could be used to make cuts off saying i can come in one hundred times and buy her care and nothing happens and so their argument is look what you're really killing is you're selectively and arbitrarily evidence in front of them and know that this might be being misused now those stories by the way as corporations and many of them voluntarily took the stuff before it was mandated by law of moving all the stuff behind the counters so at least made it so some  iris you know there's pending federal legislation i believe and i think california has already legislated they need to go behind on the storm in some places that you can buy it out in some places you have to ask that's true and there are some places where you can use  prosecuting the big guys and it really falls to well it is kind of them janish artifact and that's the local pharmacist who gets prosecuted  not the thing that's concerning but found this week is nobody's trying to target individual pharmacists and this statute applies to everybody lies to every individual if i'm a seven eleven owner it's the exact same standard just three points first of all the defendant did report suspicious transactions to the local police officer in fact the undercover agent in this case he made ten to fifteen coss during the year of this investigation where he would call up and say i think somebody suspicious is here so that's wrong the second thing is the cost of the bottles that's sort of what the problem is here right he's in business to make money the bottles cost him two dollars and something he buys the blister pack it's about four dollars and something for the consumer it really doesn't make any difference to a small pharmacy it means two dollars more profit so what does the government do ha that's evidence that he was doing something illegal is he supposed to