charged with a crime is presumed innocent unless and until the government proves every element of the charge against them beyond a reasonable doubt and even on appeal although the presumption of innocence may fall by the wayside requirement of proof beyond a reasonable doubt does not so this should be for this court is whether viewing the evidence in the light most favorable to the government could any rational trier of fact have found beyond a reasonable just some evidence but proof beyond a reasonable doubt that there's the drug but in your view has come in the tape recorded conversations during the course of the that they had to prove here that he had he had possession either had actual possession or he had constructive possession of that right that's why they can't prove actual possession and i certainly didn't prevent actual possession  i don't think maybe the government might argue otherwise but also how do you just to be candid thing that troubles me most about the government's case here is the quantity you have an agent testifying about the purity of drugs in a whole sweep of cases that weren't directly involved in this particular conspiracy or alleged conspiracy it's not a conspiracy here on how do you call it that for whatever how would you help me contrast the difference between the kilby case and the florist case in so far as the quantity of drugs they have to prove the purity and quantity here it seems those two cases are seen purcel something quite different how should i should i  three for just a moment with the notion of constructive possession as i understand it there was this an instruction given to the jury on constructive possession i'm going on the definition of of possession one of the definitions that was given when there was a definition of constructive possession yes and you don't challenge the instruction correct the instruction as far as that elements of constructive  amos his house there were no drugs ever it's unfathomable that that you could someone the possession of a pound of methamphetamine without any methamphetamine just someone talking about having methamphetamine does it make a difference in this case if it was charged as a as a substantive violation of it forty one as opposed to a conspiracy absolutely around with a different the differences with the conspiracy as as i  agreement with the buyer in a possession case well suppose he charged greenman to  about the appeal that the most interesting way or perhaps the most useful way to approach it was to think about the things that are conceded by the defense here and by that i mean there no debate or disagreement about what the defendant said the transcripts and their translations were stipulated by the parties and what the defendant said is not comp e the things that he said that the government relied upon and argued below were plain one syllable words he said twice in two separate recorded calls i ha right here i'm sorry i'm getting a backwards i have it right now and i have it here counsel conceding all that well what really troubles me about this  government offered it be i testimony about the range of purity for mass seal sales in l a he testified about approximately thirty control purchases made in the area from two thousand and eight to two thousand and fourteen and talked about how the what what the purity was yes but there was nothing doing with this particular sale or if there had been a conspiracy as part of  conspiracy how can you how can you prove beyond a reasonable doubt the purity or quantity of a drug when you're talking about a range of sales from two thousand and eight to two thousand and fourteen if nothing whatsoever to do with this particular charge well with respect your honor the government's case was and was just slightly better than your i have stated ok tell me tell me and the point is  and as i understand it from three twenty three through three twenty five it talk about thirty different purchases made by v f p i was restricted to one gang oh no i i believe his testimony your honor was that his squad had made thirty purchases between two thousand and eight and two thousand and fourteen all from m s thirteen although he was that time he honor i think not we try very hard to follow jets o'connell's ruling about gang testimony being allowed to defend i think i understand that i appreciate why you did that i'm just saying is a is an element of the crime you have to show a quantity and i'm having difficulty understanding how that was done when you don't have the actual drugs so you have to rely upon something else and we have case law that says it's ok if it's part of a same conspiracy but i don't find any cases that says that what you've done here is sufficient do you have any such case you know one of the this is a case of first impression and so on or that seems to me there are two sufficiency issues here one is the conviction about which the evidence is i think pretty straightforward and then the point that  has just made that the argument about the purity is entirely based on the government's sample from the wholesale meth market in los angeles county has sold by m s thirteen between two thousand and eight and two thousand and fourteen and agent also if it is possible that the jury's finding on the fifty fifty grams this is not supported by substantial i it's what your honour's are going to tell us we put on what they're if we put on what there is and the jury was persuaded if we were seen we were to reach that conclusion what's the result i believe that grams or more it was your honor and that's what the jury was going to find there was a special finding submitted to the jury about the quantity you know it had to be fifty grams fifty three fifty grams of  says did and that's enough if he says it in circumstances that persuades the jury to resolve all the conflicts in the evidence in favor of his statements being true the statements after all were part of a series made over two days and the half dozen phone calls in which he says will sell two ounces for twenty two hundred dollars i'll do it in two days i'll call you at eleven they talk at eleven he says my guy's late he said i'm going to kick his ass because he's not showing up and you're telling me this is not the way to do business i agree how going after him finally he says i'll make it more convenient i'll have him bring it here and at one o six i have the time right one zero nine he says he's here at my house i'm at the house he's here now and five minutes later they meet and he said i'll give you a sample right here i'll give it to you now but he wanted to sell the entire pound and only give the informant would not do that it's not the way to do business if she takes the sample and then gives the money for a pound who's to say whether the sample came from the pound so the informant would not take the that if the informant took the sample and liked it yes said this is good quality when they met again to deliver the pound perhaps the pound delivered would not be of high quality but you would have more than you have no yes there is also difficulty that was justified by agent call that if the government begins buying a pound then  saying that the second deal well today i don't want to announce it does not look like a serious proposition and moreover the f b i we made thirty buys we couldn't have  in which you argue that the sufficient evidence that he went through what he did in trying to persuade is that he had a point i don't find a single case of it maybe i'm just looking to quickly is there a case your honor there's a there is a section in our papers dealing with the defendant's argument in his opening brief that there was not corroboration and our argument essentially is that the corroboration is required if the statements are made after arrest that is if a defendant says in interview well i committed the crime and the government often is required to show some corroboration that there was a crime not just that the defendant under the hot lights said that he had done it but we cited cases and i think you see in the next  that making the point that corroboration is not required if the recorded statements are during the offense when the likelihood that the defendant has been pressured by interrogation doesn't exist because he wasn't talking to a government agent he was talking only to what he believed was another  i want to get back to this notion that just talking about having it is sufficient and the absence of any other proof the government hangs its hat on those statement i have a sample here and i guess the question is here she said if she said ok i'll take the sample she didn't no one ever saw sample this is let's go back to my apartment i'll give it to you there a case that backs up what you're talking about is no case specifically but there is the cases cited in the brief for all cases where in the absence of either drugs or someone seen something that looked like drugs or could be drugs conduct along those lines that simply talking about drugs arse seeing or hearing people talk about drugs setting up a trade drug transaction that no one ever witnessed or went down is not sufficient so this case falls right along with us that they have an instance is just not sufficient beyond a reasonable doubt to convict this man on a ten year mandatory minimum of having drugs he never no drugs ever show up in this case before the transaction trying the transaction after the transaction three years later they're cleaning up their caseload they bring this man in and they charge him based on a couple statements that there is absolutely no corroboration for