below if i can watch the clock carefully i'd like to stop enough time that i can we leave some time for my rebuttal of i want to begin with discussion of conspiracy law and count one of the indictment and then i would like to spend some time on count two which is the issue about chain of custody this case is different from most conspiracy cases because of the testimony of the principle prosecution witness christine fitzgerald her testimony was a window into the actual conspiracy agreement that was the basis of the conspiracy count in this case her testimony was not only not contradicted by any other witness her testimony was presented by the prosecution as testimony they should believe because they argued strenuously that she was credible in light of the fact that the codefendant in the case who i had to try this case with was arguing that she was not credible with respect to conspiracy law i this case goes back to some st principles of conspiracy law and the fact is under st principles of conspiracy law the basis for the conspiracy especially in a illegal substance or drug case is the agreement early oh all of the major early conspiracy cases talk about the agreement the agreement is the graph a moment of the offense and in drug cases there's no overt act so really the agreement is in fact the the criminal act that is what creates it do you contest that in fact mr starr was in a conspiracy even if it was just in the days before and up to the day that he was caught with the pound and that i mean you know we  agree that he was part of some conspiracy but an undue charged conspiracy that existed in two thousand and sixteen ending when he was arrested and prosecuted in kansas yes when you say and charged the conspiracy that you and i are describing the smaller conspiracy that's within the terms of the indictment as one of the dates of the indictment within the dates of the indictment but not within the terms of the indictment the terms of the indictment i would argue i do argue but i do i do argue that the terms of the indictment is the over arching conspiracy that lasted all the way into may of two thousand and eighteen that what the that is the issue really in this case is that when the government chooses to go to the grand jury and ask the grand jury for an overarching indictment they make a tactical key tactical decision in many cases the defense can't deal with that argue that because we don't f somebody like christine fitzgerald whose testimony actually establish is the parameters of what is in the agreement and the fact that there were at least three separate agreements the basic law why weren't why don't we have plenty of circumstantial evidence of those three separate agreements were in a related or were part of one overarching conspiracy because the facts don't establish that for example we've gotten same group of participants with the same objective selling say selling methamphetamine across state lines we've got and ultimately we got your client arrested on porch which is she was kind of the leader of a lot of the early years of the conspiracy he lived in the same neighborhood that he clearly had significant contacts with these folks what  why don't why can't we put this all together because the evidence doesn't establish that judge the evidence for example is broken in the middle when the quote object of the conspiracy to sell drugs turns into a robbery that one fact alone breaks the breaks the chain of well there are very related to a plan to sell drugs to the person and that's  with go back meaning that it's all related to the drugs right she had the money the person who was robbed and assaulted had the cash because she thought she was going to be purchasing the drugs that's correct same group of people decided to instead rob her of that money well it's not quite the same group of people because my client was not part of that group and i would urge this court if terms of looking at the record that there is not circumstantial evidence that the for example that the reason he was at the house at the time they went there to look for drugs following the may arrest transaction involving one member of the group there was no evidence that there was a group at that point in time  sorry it's is it your position to be part of the overarching conspiracy and properly found guilty of that there has to be evidence that he was involved in every single episode every single agreement or transportation of drugs no no up i understand conspiracy law i understand the case law in this case i don't i don't say that he has to be that well what would suffice for you then what would suffice for me w would be that they're number one that christina fitzgerald did not testify that there were three separate agreements that's why i keep wanting to go back to st principles but that's got i thought i be fitzgerald described three separate agreements to buy drugs that were not interdependent and not linked and anyway and that was direct testimony and it was not contradicted and all of the quote circumstantial evidence that's normally brought forth in a conspiracy case to show what the agreement was is did not did not hurt her credibility or hurt the fact that there's direct evidence of the nature scope and participants in the agreement that's the key to my argument i'm not saying that you can't use all of that circumstantial evidence in cases where you don't know what the ammeters of the agreement is or where nobody testifies to it this case is somewhat unique on the facts because of the presence of the testimony of one of the conspirators to the nature of the conspiracy the other point does philips that i in terms of what it were my position is is totally based on the language of the th circuit pattern of struction to call and to zero and if i could and i'm sure the court has seemed to call in t zero but it says clearly if you find that the defendant was not a member of the conspiracy charged then you must find the defendant not guilty even though the defendant may have been a member of some other conspiracy this is because proof that a defendant was a member of some other conspiracy is not enough to convict then so there is proof that he was part of some other conspiracy and i would say that you know and the jury rejected that the jury was instructed properly you're not challenging the jury instructions they understood they had the option to fine that he was a member of some other conspiracy that these conspiracies were in a related and they rejected them i my position is yes the jury was instructed with that instruction correctly but even though we give great deference to jury verdicts juries are not infallible juries fail to follow instructions rarely but sometimes juries make mistakes rarely but sometimes and appellate courts traditionally  look to whether or not a jury can make a mistake so for example in in the spillover cases you know we look at whether or not because of the evidence that was admitted against somebody that was not part of the conspiracy or part of some other conspiracy whether that's build over to such a degree that it would taint the jury's verdict so yes the jury was properly instructed but the only way i can explain how the jury came to his conclusion based on the overwhelming evidence in the case is that they didn't follow the instruction because of all of the evidence of the robbery the evidence about this chase through bennett colorado with drugs flying out the window which which took up a majority of the trial days that the evidence in the case did not show a chain of custody now normally i agree chain of custody relates to weight not admissibility chain of custody relates to credibility the finding of fact of a jury this case again is somewhat unique on the facts because no reasonable jury could find that the government actually proved that the evidence that was exhibit seven examined by the chemist in california was the examination of the same drugs seized in two thousand and sixteen in kansas and was tried to be sent to california so the similarity in the weights doesn't matter that it's not the it's because that's not the exact number i don't think you can say the similarity in the weights we have that kind of similarity in approximately a pound in hundreds of drug cases as four grams or so and is that is that an amount that was testing i believe it was three hundred and seventy or three hundred on that knocking about that difference the difference between i think is about ten or twelve grams i don't i don't have that in front of me at the lectern because i think i better stop if i want any rebuttal very well thank you thank you from the government judge philip since you were talking about the chain of custody i guess i'll start there and then back into the conspiracy here's what the jury the jury heard they heard that the the  the methamphetamine was tested in kansas with a way to four hundred and thirty three and a half grams and that's that volume five pages three hundred and twenty seven and three hundred and thirty there's no dispute about the chain of custody from the point where it was retrieved from the defendant's vehicle all the way to being in the kansas evidence locker at the point where it was requested by the da again  eight teen on july th special special agent campbell in denver received at that was friday so he testified that he knew the lab didn't receive shipments over the weekend so he secured it over the weekend and then on monday he came in and sent it out now he weighed it when he received it it was for the gross weight inclusive of the packaging was four hundred and eighty grams so the net weight was for thirty three dollars and a half coming form called the d e a seven and he had reviewed that before him before he came to testify but not having the form in front of him at the time he could not recall the person's name so wing testified that he weighed the entire park parcel before he opened it it was four hundred and seventy nine point nine grams so it's a th of a gram different than the parcel that was weighed in kansas before or i'm sorry that was waiting in denver before it was sent the california and the meth that self was four hundred and thirty point six grams so about three grams difference in the actual math so what the what did the jury hear st they heard that there were standard procedures that were followed up one side and down the other there was no intimation by anybody that that they were sloppy that they mishandled that there was an attempt to tamper with the evidence and that evidence name of the person at the front desk at the lab in california who received it i don't want me in generally when a defendant won't stipulate a chain of custody that's a red flag that all the links need to be supplied you know the  missing piece here is the name of the person who received it an unforced error in baseball terms i think that's i think that's a good way of putting it but there certainly was enough evidence here the jury could reasonably find that the chain was was solid and it is certainly if you look at the cases we cited in our brief particularly the lat case in the th circuit in the lot case we didn't have testimony at all about you know th narcotics were here and they showed up here and that was the th circuit found that was sufficient to at least sustain a finding that that the chain was intact so i think there was enough here is there anything else and chain of custody before the ok thank you asked of the conspiracy the conspiracy here involved the same core group of individuals whose roles remain similar throughout and all three transactions were carried out in furtherance of a single criminal objective ok there because that's where i have a question and doubt is i understand the principle that once you're in a conspiracy you're until you get out but organized it and then roman was i'm sorry who was the one who finished out the transaction and the next day after the defendant was apprehended then roman meeting cartman fitzgerald to complete that transaction so that's i'm saying we have the same players now some come and go and that doesn't violate principles of conspiracy law what we had was the same objective with people with similar roles throughout and a variety of transactions can the success of a conspiracy doesn't rise or fall on any one particular member and each one had to fulfill their role that's why after  defend it was apprehended the remaining members completed that transaction and that various combination of this group and others because we have some unnamed coconspirators that surface here and there continue the colorado to virginia meth distribution conspiracy for another year and a half and it's irrelevant whether one never are mr stern never appears again within those next two trends i just not  we know that he was back in colorado that he'd been released apparently on supervision by february of two thousand and seventeen and so and that's the testimony of the probation officer colorado which is towards the end of volume five i don't have the exact page handy here and so we know that because he's applied for transfer of supervision from kansas to colorado so he's back in colorado in february two thousand and seventeen so we know he's around we don't see him in the next two transactions but what we do know is he never w he never communicated to the government or to his fellow coconspirators that he was out and he had an obligation to do that and controlling law and it was his burden to bring forth some sort of evidence in that husband and wife so they go to the home server is there at the house sees the officers and rushes inside now we have evidence that he actively it's that's further in dishes but again what we have is no withdrawal and i'm happy to talk about the melton case if that's of some concern the milton case says the new restaurant or certain circumstances district court misapplied the guidelines by equating the scope of criminal activity mr melton agreed to undertake with the scope of the entire conspiracy that's exactly what we have here now in this case there was no enhancement for any post arrest conduct of the conspiracy with respect to mr service sentence he didn't get an enhancement for the robbery he didn't get a handsome and for any the subsequent transactions he was convicted of a conspiracy of which he was a part which continued testified to three separate transactions she absolutely testified to separate transactions but the fact that they're separate transactions doesn't mean they're part of the aren't part of one conspiracy in both the opening brief in the reply brief  the defense talks about how she said there were separate conspiracies and i'll just well started volume five thousand seven hundred and four dollars question so each time he contacted you you and he entered into a new new agreement right yes or that would be a new conspiracy right i guess so sir page seven hundred and nineteen during that twelve or fifteen or twelve or thirteen months whatever the number is you're no longer part of either of those two conspiracies right no sir so what we what we have is the word conspiracy never leaves that defense that witnesses mouth is being fed to or now she's not a lawyer she's not a juror she hasn't been instructed on what a conspiracy is or isn't and in fact at one point judge brimmer cautioned that this appears to be clearly a backdoor attempt to try and argue legal facts or make legal arguments for the jury so her testimony as to the transactions you know i it is what it is and i think it's compelling the fact that she is getting a little flustered about what is a conspiracy versus a transaction at one point dissipate seven hundred and twenty seven she was asked were you using that term in a legal sense or more of a colloquial conversation sounds and she said i don't understand the question you know so i don't find that that really tells us much about whether there was an overarching conspiracy ha you just had the government simply charge the smaller conspiracy the october th two thousand and sixteen of them or even just the possession and with intent to distribute on that day would it still it than one hundred and twenty month mandatory minimum would have because it's i think the smaller conspiracy would have been of course we are the jury was instructed in the alternative the defense offered instruction  th so the jury had the alternative and in fact i think this could be sustained under under other theory because again there was no sentencing enhanced meant there was in no additional penalty him being convicted of the larger the smaller conspiracy no additional penalty people because of the ten year mandatory minimum and that is i will i will say yes but i guess i'd want to go back and double check that i'd be happy to do it twenty j if i find out otherwise i know the answer the issue the issue about the chain of custody directly reflects the fact that if the chain of custody charge goes away because of failure of proof then the ten year maximum goes away and it either becomes a five year ten year minimum goes away you that becomes a five year minimum or depending upon the amount it's still because it's less than five hundred grams no matter how you that that's correct that's correct that but if we have a new trial you know there could be an issue about what on what the purity of the drugs is again but at least if we if it if there's a new trial  house there were lots of family members at that house and when mr sir was found there it's only guilt by association that would say that the reason he was at that house is that he was part of some conspiracy knowing members of a conspiracy or simple presence is not sufficient evidence to establish that i think i have no time left but we will give judge mckay the op any questions i have no questions on ride thank you both for your thoughtful arguments the case is submitted thank you and counsel or excuse