may please the court there are two issues in this case first whether the evidence is insufficient to support mr zamora's salazar's convictions for conspiracy to import and for importing methamphetamine versus paul where this court held that a conviction for importing drugs requires proof that the defendant knowingly played a role in bringing drugs from a foreign country into the united states and a conviction for conspiracy requires proof that the defendant agreed to import drugs into the united states and knowingly and voluntarily participated in the agreement in paul the court found the evidence was insufficient even though the two defendants went to a ship in new orleans to pick up cocaine that eventually from deonna the first defendant was arrested after he picked up the cocaine and the second defendant was arrested in a hotel room with ten thousand dollars and directions to the ship as a part of the evidence was insufficient here because the government failed to prove that mr some ourselves are not only fair that played a role in bringing the drugs into the united states and agreed to do so i point the court although i'll go through the evidence of mike's insufficient initially i'd like to point the court to the two record a page eight thirty the government's closing argument where the government argued that it basically admitted the importation was committed when the u p s truck crossed the border into the united states and the air conditioning unit arrived at the port of entry and that the person who shipped the air conditioning unit committed the offense of importation the government then goes on to try to tie mr zamora salazar who is in houston throughout this  gave his half brother a ride to hill road to pick up the ac units after the agents had placed replace the methamphetamine with mud at the border and he did the same thing a week earlier with a box that contained a water cooler the person who received the methamphetamine used in cruise basara said he never testified he never communicated with mr somewhere salazar and never told anyone the packages came from the united states mr zamor and anyone showing any knowledge of importation or intent and has in this court's case in campus in the eleventh circuit's case and bone injure whatever knowledge d s had if any of the  he knew what he was doing because he done it before that there was labels on the on the package that showed it could come from mexico and that is codefendant had contact but it was it because it was his cousin in mexico said that there was contact with someone in a foreign country there was a label from mexico on the package and this was not the first time it was evidence of a second time and that that distinguishes it from the paul decision could you comment on that here first the first package with the water cooler and it was never recovered so what label was or wasn't on the package is not them it's it's just the christmas spirit testified that it came to his house and i think the agent testified that they never recovered the package so there's no evidence of any label on our package second the only evidence about the label on the package when mr  salazar was involved with the package is that from aerial surveillance they saw christmas erin diaz messing with the package and then there was cellophane on the ground but there was no in there saying whether he saw that the label on the package but in addition the evidence still even if he saw the label on the package the evidence would be legally insufficient because as in paul i mean let's go back to paul yanna cause paul calls paul in britain in new orleans and says the ship is coming in to new orleans pick up the cocaine and britain does and this court still says the evidence is legally insufficient because paul in britain did not play a role in the importation and did not agree to import so just as in paul this just assume or un doughy all the governments facts are true britain in paul still legally require the reversal of the conviction because it's not what you do after the fact it's whether you knowingly and voluntarily agreed agreed to play a role in the importation the government sites israel twenty j letter which i know that i believe the motion to strike is still pending but they say cases that say the conspiracy continues but those cases are completely and absolutely i mean in those cases all the defendant clearly were involved in the agreement to import for example in great to defend this brought the drugs into mississippi and transported him down with amma in oz good the defendant was a pilot who participate in the go go she asians to import the drugs and delivered the defendant what was said to be the original financier of the importation of cocaine from jamaica and actually went to miami to help pay for the cocaine when it came in from jamaica so this case is distinguishable from all those cases and as i said i don't think the facts show that mr zimmer salazar knew that the cocaine came from outside the united states but even if they show that he knew britain in paul borg giving instructions to get to the ship and one of them went to the ship and because they played no role in the importation they were not guilty now the statement that mr cruz more than made also shows that he had no role in the importation because he says throughout he was working for the people who are going to receive the cocaine that was picked up in houston so i had even charged with possession with intent to deliver we might have a different story i think he just asked the sixty four thousand dollars question your honner or maybe these there's a sixty four million it sure is puzzling why the government charged importation when the evidence only shows that mr cruz m r was involved in houston when the cocaine came across the border and stopped at a port of entry was taken out and mudd was put in the a c unit and agents entries pointed to houston i don't understand it perhaps on remained a jury will still find him guilty or jury could acquit him of of importation i don't know but i think your question is a good one for the  government for all these reasons the evidence is insufficient if there are no further questions on that issue than i briefly like to address obstruction with regard to obstruction the this court's case law requires to be enhanced for obstruction of justice the doing about how there could be problems later on now mr cruise to sarah never said i felt threatened he never testified i took this as a friend threat he never testified i was afraid he never testified he thought it went to his family members or anything like that the only testimony on this is about did i know what i was doing about how there could be problems later on with no other context that could be about anything in the case as i in my brief it could be about why don't we get retained counsel why are you taking appointed counsel why are you in your counsel stipulating to something i think it could be about anything and we don't know and so there's no evidence that it's a willful conscious deliberate intentional attempt to obstruct justice and the second point i would make is the way i read the district court's comments in response to the objection i read the court's comments as i was there a trial i heard the evidence the statement isn't b s or was what was said a trial and so i deny your objection that's how i read it i leave it to the court to read it whatever way it thinks but if the court reads it that way then it was error for the court to use the statement in the p s r because the trial testimony was completely different your honors if there are no further further questions i would reserve the rest of my time for i will say this not because you're offender mr socolow but because the f b d handles a lot of these cases and i'll say it to the government as well if you look at the court's website we've recently posted only or a note about twenty eight j fox and to the effect that they're typically in so in criminal cases we get a barrage of twenty eight j's there really are not twenty a j in the sense of the rule which is really designed to bring to the court attention recent cases you know westlaw site alexa site brand new supreme court case it said or but in fact what we get is a council in effect supplement briefing that they've done by then citing other cases from our court that are older or other circuits etc and and you know that i mean there's so many offenders until it doesn't point it public defender private attorneys it's just of the way it is and maybe the courts been a bit lenient i'll put it that way in that we don't strike them you know just let him before we read them and so forth but more recently the court has sort of taken a different view on him and so some of these may be stricken by the cork of court but my main point in saying it again this is not aimed at you but yes the point to the website and to f p d s and others j be sure of it here to the rule that really does follow the rule and if it doesn't you know file with the strike and so forth like that so if you would just you know sort of pass that on underwear were aware of that and in fact i filed a motion to strike the government's when a j letter in this case with the court's notice attached so it hasn't been ruled on but now and i'm looking at the twenty eight days up here and we're going to what the government d response which goes into the merits of the cases that the government has found united states versus gray and i mean i'm looking  the cases are that's all i mean your honor if i may explain i think i have the motion to strike in between flying to new orleans and flying to baltimore last week and then on monday a colleague pointed out to me he told me that this was posted on the web site on june third that may or may not be correct and so when i learned of that this week i thought the most mistry kind i've been aware of the courts noticed last week a motion to strike i just say i understand and from now on i certainly will comply and we will comply with the court's notice and i think you're right but i mean you don't need my approval but i think it happens too much and i think my view is necessarily being a motion filed by somebody else or the cork will reject them and all i'm saying institutionally is just just be informed of that not so much a comment on whether this one is broken or not but just because you know you all follow a lot and again i'm not dumb i just crow case i would say it's probably fly more in civil cases than it is in the criminal cases particularly following twenty days of other circuits that are all cases and so on and so forth so no i appreciate your your comments on him being then been up to speed on and we understand your honor and we will comply thank you very much thank you and you've reserved your a rebuttal to thank  sufficient to convict and to affirm the convictions with respect to the importation of the cases properly charge and as shown by the evidence and certainly as shown by that jury's verdict the charging decision was a pressure one against chris out of the half the united states viewed in the light most favorable to the government there was sufficient evidence that the more salazar knowingly participated in the conspiracy to import methamphetamine from mexico to his r houston texas there was also sufficient evidence that the more salazar aided and abetted the importation by retrieving the drug shipments and transporting them towards their final destination first with respect to the conspiracy to import conviction the jury heard from mario cruz the crews had agreed with his cousin victor in mexico to receive shipments of methamphetamine that were being sent from mexico to cruise's residence at one fifty seven held ro the jury also heard evidence that some more salazar was aware and had knowledge of this importation agreement and i'd like to quote to point the court to three types of evidence that shows a more salazar's knowledge of that importation agreement first the timing and the circumstances of the more salazar's retrieval of those direct shipments from cruise's residence shows a concert of activity second the shipping label and the packaging itself timing of the circumstances of the retrieval of the drug shipments the jury heard from mario cruz who testified that when he received that first drug shipment he contacted his cousin victor in mexico who confirmed that it was the correct package in loading those into his ask yes your honor and that's what it was that's in the second shipment he actually did so in this in the second shipment there's there's shown an even greater concert of activity because the second shipment which was a s package which was an air conditioning unit when cruise received it again he confirmed with victor that he received it and victor said in thirty minutes someone is going to come pick up that package is more salazar th arrived at within thirty minute approximately thirty minutes later again in the same escalate truck again with his half brother constantin diaz to pick up that package the second package and what's notable about that is cruz testified that he was aware that they had arrived at the package now by opening a window and saying that they had told him but actually from a message that he received from victor and mexico showing that they had arrived so there is certainly an even greater concert of activity which was now edge of its foreign origin in a couple ways one when you look at the shipping labels themselves and you just heard from a pilot when he said that there was no evidence of a label on the first package i would direct you to exhibit forty three it's our way nine forty seven which is the label from the first package that the jury had those affect shipment it shows that it's from mexico and the asian testify that that was the label on the first package to be clear though the first package the packaging was not actually recovered but the a fedex received those documents and it shows the labels from the first package the second shipment again has a label on it again showing that it's from mexico and it in addition to the actual shipping labels that show they're from mexico you also have the package itself and if you look at exhibit twenty two which is a nine twenty four it's a picture of the air conditioning unit on the back of the more cells are struck and if you look at that picture you'll see other than the whirlpool logo in the top that he knew that there were others involved that he knew the ultimate recipients were and that he knew the air conditioning unit contain methamphetamine so all of that when you look at the circumstances other retrieval the timing of it that shows the concert of activity when you look at the shipping labels and packaging which shows its foreign origin and when you look at his own admissions to agents regarding his knowledge of other individuals involved and knowledge of the drugs we was the minute that that was sufficient evidence of his knowledge with respect to the importation agr sites towards the final destination and to be clear mario cruz is residence was not the final destination of this package and i think that's a key point with respect to appellant argues that he was not the one that brought it in the united states well what the cases from this circuit have made clear is he need not be the importation of offense does not end once drugs get one inch into the united states the importation offense whether it's ninety two or ninety three conspiracy extends all the way until it's final destination whether that final destination is new york which it was in the states respect are whether it's greensboro north carolina which it was a united states or reynolds whether it was alabama which was a united states or a scrape the importation continues and every link in the importation continues until those drugs reach their ultimate destination we would submit to you mario cruz his residence was not the final destination for those drugs and we know that in a couple ways one even though the drugs are addressed to him and the shipments he doesn't open them when he gets them feel for them for really a short period of time and then some more as a as more cells are comments and retrieves them and what is more salazar do want to retrieve them takes them back to his house and work road opens the package so i would submit that opening the package shows who the where the final destination is and that it has its at the very least at fourteen fifty warwick road not at the hill road address for mario cruz was another important i think fact when looking at where is the final destination is to look at money there was no exchange of money when salazar came and picked up these drugs which shows a good that he's a link in the importation chain rather than picking up drugs to reach the final destination so to be very clear well they argue that oh the this court has said you have to bring in the drugs you don't you have to be a link in the importation chain and you're aiding and abetting by getting it towards its final destination the council has argued the polk case is instructive year what's the government response it's a couple of facts here make that distinguish will it make it significantly different and paul the defendants in that case were contacted regarding the drug delivery until after the vessel reached the united states but here we have some more salazar's and ball movements in the conspiracy involvement in the participation even before that u b s package enter the united states because again the second package was u p s package and in the united states on april second on april first some more salazar had already gone in and retrieved a drug shipment from mario cruz so we have his involvement that predates that second package ever entering the united states which is significantly different than saul which again they were contacted until the bessel had already reached the united states so you have a series of drug shipments here unlike i'm paul where it was just one so it's certainly reasonable to infer some more salazar's involvement for those drugs even cross the border there are also no facts and all to indicate that the ship or the packaging made it clear that it hadn't it had originated outside the united states here as i mentioned the shipping labels and the packaging show that those drugs came from mexico there's also no evidence and paul i'm sorry there was no evidence in paul that the defendants there were even aware of the shipments until miking piano had called them to retrieve it and i think the dates and paul are important because i'm hopeful that ship arrived on february eighth and the defendant's poll in britain the poll wasn't even contacted till four days after it had arrived february twelfth britain doesn't even get involved until february thirteenth five days after the vessel arrived compare that to really the contemporaneous concert of activity here we're talking about a period of minutes between when crews gets package at his residence and once at the seven hole road and when zamora salazar comes thirty minutes later so there's a much more of a contemporaneous concert of activity combined with the fact that he had a gay engage in a series of transactions which the jury could reasonably be reasonably infer that shows him was salazar's awareness of that shipment even before it got to the united states also when told the court took note that the evidence there was insufficient that the defendants agreed to participate or loading transport it towards its final destination he didn't bring money to exchange for the drugs unlike in paul which again i think that transfer of money work out and paul job was to bring money and the drugs were going to be given to someone else that's not was more cells or did there was no exchange of money which in as i mentioned is an indicator that mario cruz of residence was not the final destination so those are those are the i would submit the key differences between this case and states  simple there is also the sufficiency of the evidence with respect to the aiding and abetting now this court has recognized that typically the same evidence that supports a conspiracy to import will also support in aiding and abetting and that's really what you have here a number of overlapping facts which show that defendant associated with this criminal venture again he knew the package contained methamphetamine the packaging showed its foreign origin and certainly look at the circumstances of its a salazar's arrival of cruise his residence both sides also the defendant participated in the venture he sought by action to make it succeed when you look at his participatory acts of transporting the package from cruise residence towards its final destination lowering the tailgate to help load the air conditioning unit containing meth and then opening the air conditioning unit once it arrives home wanted arrived to this more sala now i do want to address something that chief judge stuart you had mentioned regarding the rule twenty a j i think that our office certainly endeavors to provide this court with the legal authority it needs to render a decision and i respond sprays i don't know why these cases were not addressed in the government's response for it they ought to have been particularly as appellant pointed out these cases were had been issued and were available at the time the government filed its response but this the twenty eight j does not raise new arguments and provides legal authority for the arguments that are ready in the government's brave well it's true but you need not go any further than the first day much of me understood i mean it's sort of twofold if it's making new arguments now would be an independent base to rejected directly you made is exactly or that the issues you know you know weren't raised but i think you get the point again i'm not pointing at you are mr socor i'm just doing my duty as chief judge of the court to elaborate on what the court has agreed to put out last week somebody missed it arguably could be in but those who take care of them sail these cases that are two decades old don't get in by any stretch and that's the main point here vigilance of whoever does the brief writing peller review etc to just not send those up in the other point i was making a circle we're now wait on the other side to found a motion to strike that they're subject to a to the second issue which is the obstruction it's the government's contention that that finding was plausible particularly when you look at the context and the content of what being said in that holding cell so as more cells are had mario cruz had identified as more salazar as the driver and both of those drug shipments that he came in achieve that with that information then nearly a month later as more cells are finds themsel in a holding cell with the person who had provided information to the government the government then filed a formal for a notice before trial alerting to the court of this conversation and then the p s r then  and certainly when the court who had the four or four notice who had been present at sentencing and even taking the version that was presented by defense counsel at sentencing we would submit that that finding was plausible in light of the record as a whole also it's important to note that some more cells are he didn't meet his burden of offering any rebuttal evidence to argue that the p s r itself was somehow untrue and accurate and reliable and r version doesn't necessarily conflict with the trial testimony in the opponent's brief they point to cases where there is some kind of material difference between what was the trial testimony and what the sentencing court relied on here you don't have any material irreconcilable differences when you compare the version that was presented to the court at sentencing which was generally accurate to the version that summarized in the four for those of the p and lastly the district court did not credit the p s r as version over the trial testimony the this record specifically said after the defense counsel had summarized what had been testified to the district court said let's assume as close as we can painting let's assume your version is as close as we're going to get and then the court went on to say and the court and the government went on and i'm sorry i'm out of time we shouldn't the government went on then to justify if the government is correct that worthy government correct that the conspiracy continues until the package gets to its final destination and that he can play no role in the importation but can be convicted if you play a role after it's imported and you could not possibly have the result in paul because paul in britain would have been guilty even though they played no role in the importation because they went to get the cocaine from the ship so the government cannot be runny that is not what paul stands for and that by the way i don't recall him saying it matters whether it's sixty minutes after the cocaine gets here the mess gets here are three days or four days once the importation is complete it's completed the government also mistakes aiding and abetting with accessory after the fact they're arguing that mr zimmer is guilty of aiding and abetting and but what they're really saying about the facts is there he was an accessory after the fact but he was not charged with that and that's not a lesser included  evidence there and how do we is the burden harder i guess to overturn a jury verdict in the indus case you still think there was enough there to say there's just nothing here that shows that he had knowledge of importation yes your hon have a reasonable doubt about conspiracy import and importing and i think it's important to as you said put it on one side conspiracy to possess with intent to distribute and conspiracy and and  n with intent to distribute versus importing conspiracy to import what are the facts that he played a role in the importation and entered an agreement in voluntarily participat the meth to the united states there's nothing showing he agreed for the math the coming to the united states especially since as i understand it meth is made in various places in the united states through  is no crime a very hear about the jury instructions they were given to the jury so having said that is there any argument about the quality quantity or sufficiency of the evidence that you're esther's no jury charge ition the case so taking your sufficiency argument in light of questions as prado i'm only asking isn't your argument to us the panel fully the argument and presentation that was made in the jury trial itself i believe it is but i don't want to affirm that without really looking at the record your honor i can't remember the specific argument that was made to the jury i'm just being honest but my question doesn't go to the word for word my question goes to is there an aspect of the insufficiency argument you're making to the panel that was not made to the jury in order for us to be convinced that no reasonable jury looking at this evidence could convict your client i'm asking you to recite verbatim what evidence or your honor i can't answer because i don't remember i don't recall i'd be happy to submit a letter  don't need to submit a letter you know i didn't expect a response that you're giving me i mean i'm not trying to issue a trick question i just want to know in other words if you're arguing that in essence the jury the government charge did i know for sure he may be sacked argument to the court in a motion for judgment of acquittal which is on review here and i believe he also made it to the jury if you want a one hundred percent positive answer i'd be happy to q this was a fully tried jury case and given the standard of deference to a jury i was simply following up to it as if there was any aspect of your insufficiency argument made to the p and so for our case to be submitted we call up the next