number fourteen five two seven six united states of america versus jason anthony carter arguments not to exceed fifteen minutes per side mr lynn or for the  if i can reserve four minutes please for mobile thank you very much my name is dave leonard i represent jason carter as the court knows mr carter was convicted of conspiracy to manufacture methamphetamine and also creating a substantial likelihood of substantial bodily injury during the manufacturing process of methamphetamine this is one of those cases where we have all the courtroom observers and they come up to you after the closing arguments and say you've done a great job there's no way the jury will convict and of course we've all been there  you get convicted with little fanfare and that's exactly what occurred in this case i have three issues today the first issue is sufficiency of the evidence and no the three of you look to hear those all the time and the we have a great likelihood of success on that issue nonetheless i think it's important to bring up a few of the issues insufficiency to sort of help me along the way with four for b and also the issue concerning the sentencing in this case both convicted felons missed and had just recently within a few weeks of this methamphetamine lab explosion then released from federal custody actually and she was at it again at the end of my cross examination of mr steadman he pretty much admitted that he told my client and as the court may recall my client was present during a pretty bad explosion that occurred in parliament complex in tennessee ne tennessee mr steadman basically admitted that he had told my client that there was a grease fire in the kitchen and to get out and he pretty much as i've said in the brief several times let the cat out of the bag it regardless of his admission that he was not forthright and forthcoming with my client my client was convicted if you look at the testimony you look at the credibility of these witnesses and i'm talking about the two co defendants in this case with their prior convictions no way that any rational trier of fact could find my client guilty of this offense and that was one of those on cross examination that we all like where we end with a strong question he admitted once again that  you look at the proof in this case there was test my concern the fact that the stedman's were basically homeless they did have the apartment but they were they were coming back from some bad patches that my client help them get food there are various questions asked  concerning my client's purpose of being at the apartment complex and there was some testimony concerning the fact that the stebbins were there to cook him a meal to thank him for his service as the court knows from from looking at this the without financial resources my client did purchase the box of pseudoephedrine there was some discussion with detective grant concerning the pseudoephedrine and my client  at first of course did not tell the officer investigating the case about pseudoephedrine but nonetheless he did purchase it he told the officer after the issue came up about the ingredients of methamphetamine exactly where he purchased it how much the purchase one box one box two point four grams of pseudoephedrine that twelve twelve caplets or some twenty four tablets enough to make you know a small amount of methamphetamine certainly not enough to make various products that you need to manufacture methamphetamine and this was the one part method we can do it there was testimony concerning people actually manufacturing this in bathrooms so it's not like a lab that we see on these t v shows and that sort of thing and the officer was not able to locate any video from wal mart we know wal mart likes to videotape their customers and there was simply no videotape found with my client purchasing batteries or fishtank hose or anything else needed to manufacture methamphetamine that was the last thing fish tank goes it's they use it for the breather for the one pot method you have to relieve the pressure off of the methamphetamine pop that's that's correct case that he would not want to be up in the six circuit defending this on appeal he said that point one it's almost as if the four four b became an element of the offense and in my opinion at least this is not a harmless er and if you look at his testimony also it's unclear whether he actually observed anything concerning my client supposedly selling at this homeless shelter the strips suboxone strips suppose  if your characterization of judge greer's attitude towards the ruling swayed one would think that he felt bound by some case of ours or the supreme court to rule out ways that the case well basically his position is i practice and for good or for a long time  unless it's something very extreme it's coming in because time and time again he's told us as the defense bar that it's a rule of inclusion which would drive or stay and it is but in this particular case it was a different type of drug it had in my opinion at least no connection between this supposed to methamphetamine production and some instance of my client supposedly selling suboxone strips that we don't know when it occurred the case law that i generally have seen concerning  be on the circuit deals with very similar drugs you know marijuana versus marijuana conspiracy cocaine versus cocaine conspiracy and wow you know we try to find reason that similarity doesn't or could be the criterion on as i understand it that i want to be educated is that if if it's similar it shows that he knew what he was doing right so that it what he did but if he did it so that they could cure their cold it's not illegal so it all depends on so if it the trouble i have with relying on how close it was to the same crime  starched it could look like that's propensity like well if he did this crime this exact crime before so it's more likely that he's willing to do that exact kind of it and that's the concern you always have for for be obviously in this case and all my cases i've got doesn't even that doesn't even work whichever way you do because it wasn't very similar that's correct and then if you look at mr stedman's testimony he i think it's it's  dangerous to allow a codefendant with a lot to lose to testify concerning for forby i'm not saying it can't happen i'm just saying that it's dangerous i think when we have a code if an offering for four b i think we need to look at that more closely especially  you said it's particularly troublesome or it is because i am trying to understand this codefendant had a lot to lose and he had already been proven by his own admission that he was a liar and if you look at that you look at his testimony where it's not like it's an officer only to how relevant it was but whether it happened at all that's correct that's that's exactly right that's the first problem of the test this court look says whether happened at all concerning an by someone it's not exactly clear that there was a family with modern children present in this apartment complex was it six or seven unit apartment complex and because the judge felt that the  my name is look like lorne and i'm here in behalf of the united states the defendants convictions and sentence in this case should be affirmed because the government presented ample evidence for any rational jury to convict the defendant of the charge of fences and because the district court one did not abuse its discretion and admitting the evidence of defendants prior drug dealings into did not clearly err in determining that children were present at the apartment complex on the day it exploded such that a sentencing enhanced meant for endangering the lives of minors was appropriate i want to begin with the sufficiency of the evidence issues i think that the defendant talks about how this was a somehow a closed case for the jury but in the government's view there was quite overwhelming evidence of the defendant guilt you had testimony from two separate coconspirators describing how the defendant knowingly and intentionally joined this conspiracy to manufacture math with the purpose of that with a plan to then sell small amounts of it to make money to help the stedman's pay their rent that was the plane in the purpose of the conspiracy there was testimony from two separate coconspirators that it was going to be the new person here and participate in this conspiracy to help just to help t and this court case was very clear that even uncorroborated testimony from a who conspirator enough but we have more than just uncorroborated testimony we have the fact that there are pharmacy records that confirm that the defendant bought the walther tablets the very  they used at the very walk package that was found at the scene of the crime he bought that on the day of the offense at a pharmacy very close to where the offense occurred and then when he was confronted about that fact he lied to police off cers he would initially said no no no i didn't ever buy any sort of header and then he comes back and says no i did buy it but i swear i bought it a week before well that was contradicted by pharmacy record evans all that together corroborates the testimony from the coconspirators along with the fact you had several witnesses saw the defendant at the scene of the crime on the day of the explosion rushing away from the apartment right after the explosion we submit that in light of all of that evidence any rational sure could easily have convict the defendant now i want to address a point the defendant made he said somehow there was some  big mission or that the james stedman let the cat out of the bag in his cross examination what jim stedman actually said in this is on page eighty five one thousand is when he was asked about what he told that if anyone is he didn't say no i told the defendant it was a grease fire he said i told him referring to the pain and i told the cops it was a grease fire so that they wouldn't know that it was meth that's what he told that's what he said on cross examination that is hardly a smoking gun if anything that makes the defendant look culpable so i don't see anything in this cross examination that would have been a big aha moment that that any rational juror would have had to look at and say well we can't convict this this individual in light of the overwhelming other evidence we submit that th ese convictions should be affirmed now turning to the forum for be issue i first want to there's several parts of the four for me now since the for and defendant focuses primarily on the first part whether there was enough evidence for the court to believe that these prior bad acts had actually occurred he says well there there was any credible evidence that the james then when the person who testified about it really had no idea what he was talking about that's blatantly contradicted by the record i'll point the court to page idea you number forty five and forty six that's where this testimony came in at trial james stedman testified they not only did he see these pride drug sales he was the recipient of drugs in one of those drug sales that is sufficient evidence for the jury in the record yes the time frame and it helps explain what the testimony was the time for the testimony was that mr steadman stayed at this place the haven of rest from december of two thousand and eleven til about a month before the events occurred in this case so that would have been july and twelve his testimony was that he saw the defendant sell these suboxone strips on several occasions during that time period he could not specify precisely it was you know on july twenty fifth or march third or whatever he could not specify the very precise dates but he specified that it occurred several times over this period at which he would that he even rest so that gives us a span of about at most eight months prior to this incident and so that is well no later than you know so many years or so many months but but less than at most eight months before the charge offense is well within periods that this court has found appropriate and the key question in the  you know is this evidence probative of the defendant's intent and in the looking at that the court's the test that this court is used which is cited most frequently in the haywood case is whether the events are substantially similar and reasonably near in time we've element which we believe is met and they are substantially similar because what the court supposed to do is look at what is the very specific offense which the defendant is charged in which the what the government had to prove the specific intent for here the conspiracy conspiracy that was charged and that was being proved at trial is that these individuals agreed to mean you factor meth with the plan that they were then going to sell small amounts of it what the prior acts evidence showed is that defendant had experience selling small amounts of drugs at the haven of rest he had a mechanism he had a structure set up he had the ability to do this this got to his motive for why he has knowledge of this conspiracy and that that was something the government had to prove that he both knew of the conspiratorial objective and knowingly joined in it and this it let me explain why puzzles me  there's this idea in the rules that evidence shouldn't be admitted to show propensity that right that's a loner intuitive i mean i think most people i certainly interest judging area to life if somebody had done something before and now it's question is whether that person had done it again the fact that he'd done it before would suggest to me it's if the if i was on the fence that would tip me over would be relevant in the sense but the evidence law says no you can't admit it for that purpose is that right that's right look at what's what's the danger what do i believe the danger is the reason what we have fo for b one is to make sure that somebody is not convicted on the theory of you know once a bad guy always a bad guy and that's what we're trying to once a bad guy i mean you could have done it before and not be a not have always been a bad guy but the fact that you did it before suggests that it's more likely if you're willing to cross the line before that shows a willingness generally to cross the line in the future right it's that that that is the idea and i think that crack the folks who crafted the rules of evidence made a policy judgment that that kind of evidence is not the kind of evidence that we want juries rely on to convict individuals and if you accept that i find it hard to accept candidly but we're bound by the law so that  you can't do that this i don't see how the fact that you sold a different kind of drug in a different context does it does have that  propensity inference to it pretty strong let's see how it has any other and i don't see how how it shows that he had the intent to do it this time the way that  selling you know sudafed before and later for and presumably later finding out that it was used to make  man would suggest that when you bought it now you had the intent to have that happen to the sudafed you by now there's nothing like that here so i'm not i'm not seeing how there's anything other than propensity inference that can be drawn from this and you can say well i don't want to call it a propensity inference i want to call it an intent but it's an intent that's derived from propensity or else what does that derive from i can't see what it's derived from  propensity i think it's best to think about this evidence is being related to intent in the sense that it shows his motive and it shows his opportunity inability to join this and the only way it shows those things is that he did it people will know i think it shows his his motive in guy now he's doing it again he must be because he did it before makes sense to me but it sure seems like propensity you're i'll be the first to admit that these are very hard these are things that are hard to then the defendant was going to sell it for them is going to sell them the method they're producing they were also way to take some of it themselves they were all going to take some of it and use it but then they were also going to sell it and i think what this showed is the defendant had a structure in place in which he could sell this small amounts of method they were going to take i think that was the substantial celerity and i would point out to the extent judge riders that if that does demonstrate a propensity does demonstrate something in addition yes i think it demonstrates a motive it demonstrates the opportunity and his ability to knowingly join this conspiracy and i think that that's what judge greer was focused on and i would point out to the court th the court does review this under an abuse of discretion standard in the fifth eleven circuits a very helpfully explained that what that means in the context of an injury decisions is not whether this court would have reached the same conclusion where it's sitting as the trial judge the question is the a little bit that's a typically strong argument but perhaps not as strong in the context of this case where the district judge appears to be punting a little bit what i think the i think what you have as a district judge was trying to i mean look at these very difficult issues in trying to parse it and as we have and it is this is a very difficult question judge greer thought it was a difficult question i think the question is did judge greer go outside the bounds of the law i mean assuming that we have a little discretion and how strongly we defer to judges but judge conveys the idea that the judge finds it difficult to see but is willing to let the lawyer chances so it's a little bit less genuinely struggling with these issues i think if you look at this transcript the district court judge greer he's very clearly struggling with this he is he is not comfortable with it he's struggling with it he feels though that that the law allows this and feels bound to do this there's an as far as far as we're aware there's no case law that explicitly says you can't you know that in order for this evidence to be relevant you have to have the same drugs or you have to have the same method of of dealing or method of  of violating the drug laws we would submit that with prior drug sales and not be not be prepared not be admissible under this analysis seems like anytime you sell drugs before then you get to show that he's a drug sales person who you know they're accused of making drugs for sale i can't see how you would distinguish once we decide this case in your favor th and then the whole limit is gone as far as i can see any capable lawyer and probably a few incapable ones could make the argument that this is to prove intent and motive and it's so fuzzy that it's impossible to distinguish and so therefore it's admissible i mean it's a different kind of drug we don't know where he's going to sell it it's just the fact that he sold drugs the fact that he sold drugs as can can be brought whenever drug crime is alleged your drug dealer that is not the role that we're asking this court to adopt out we're actually asking what how would how would some situation in the past that be different from this one it would involve a very different specific offense in a different specific prior what we're asking the court to do is look at the very specific facts of this event and the very specific nature of the prior crime we're not asking the court to advocate a rule that says well anytime you have any sort of prior drug crime and you're charged with a drug crime good to go for  precisely not what we're asking the court to to define we're not asking the court to adopt that rule the difference the difference here is that you're looking at the very specific need of what this defendant did what that his sales  was but it was the similarity of the offenses that he was small amounts he was distributing small amounts and he was being charged with a conspiracy to join up i would i would just simply have says that even if the court does feel that judge greer got this call wrong it should neverthe minimized any potential harmful impact it might have had and we think in light of that in light of all the other evidence that was presented of the fenton skillz there is there should be no concern in this court's mind that this evidence even if it should have been admitted the case law cited by the government is brief also deals with similar drugs in the six circuit least marijuana sales marijuana conspiracy meth possession meth conspiracy they go outside the  district or circuit rather and look at other circuits case law concerning different types of drugs methamphetamine versus marijuana and it appears as though the eleventh circuit has a very broad application and the other circuits including the fifth as well  i would ask the judges to look at page the page numbers five nineteen and five twenty concerning mr stedman's testimony about what he told mr carter about the grease fire and  specifically page five twenty concerning my cross examination of him about when he finally told him the truth the other thing i think this court should look at is the neglected to advise a court of this they would would have us believe that this just happened this this one instance on august twenty eighth i believe was the relevant date but there was clear testimony from other occupants of the apartment complex that they had been smelling the telltale signs of methamphetamine production for the week prior to this and that sort of goes along with my argument concerning not only the sufficiency but also the four for b as well is that the simply became an element of the offense when the jury saw and heard that my client supposedly sold so suboxone that was it it was it you're exactly right it became a propensity and nothing more nothing less judge greer never dealt with the the prejudicial effect that this could have in my client h over that and you can you have the transcript and concerning the harmless error if you look at the overall proof of this case including the testimony mr steadman and the testimony of the other