they place the court my name is lydia brandt i represent mr bays i would like to ask the court to acquit specifically on counts three and on kill who are which i'd like to talk about count three is the conspiracy to distribute controlled substances and count is the use of a firearm in further in so count three to drug trafficking him the government has conceded that the jury charge lacked an essential element the knowledge element in it but the government is arguing that the evidence is overwhelming with respect to proof and that's just not the case because the standard it's using is not the correct legal standard throughout the briefing specifically if you look on the government's brief pages forty nine fifty fifty one the government continuously refers to the fact that bay's quote knew that they were analogs of a controlled substance or alternatively that someone told mr bays that these chemicals were analogue the supreme court decision mcfadden requires not that an individual know that a chemical is an analog but that the individual know that that chemical is a controlled substance in this case of the time of distribution and more importantly the government has overreached because the first predicate for a valid conviction is that that substance actually be a controlled substance the government has pointed to two or three different points in its in its prefer sed it saying of august and december twentieth eleven and twenty two a one did not become a controlled substance and wasn't listed on the schedules until july ninth of two thousand and twelve and in december of and eleven he had stopped using twenty two zero one and so we don't have the underlying first element which says that in fact it was a controlled substance and then we don't have a showing that he did not know that it was a controlled had the second one that the government was saying that he knew it was an analog in september two thousand and twelve and at that point in time x l r eleven also was not a federally controlled substance it was controlled under state law and that's the confusion that the government keeps reaching into saying that he knew it was an analog it's not that it was an analogue it's not that it was a state controlled substance xcel are eleven was not a controlled substance under federal law until may and they point to a text message and i don't believe in response to your question did he know was there any evidence that he knew i don't believe that that text message proves that he knew that x l r eleven or p b twenty two were controlled substances the these particular drugs became controlled substances on may sixteenth that text message was sent i believe it was may fifteenth from a chemical supplier and that chemical supplier was saying we have a quote reliable source but we don't know what that source wires that these particular drugs are going to be listed and they will become controlled drug drugs the next day may sixteenth but that text message also specifically states we can't verify this anywhere and so i don't know how you could say that mr bass knew that these were controlled substances when what you have is this text message that then also referred them back to the d e a website that didn't say anything about these being controlled substances which are take on a standard we're looking at you mentioned  earlier but what do you take overwhelming proof to mean is that nothing more which is pretty high though of summary judgment that there's no dispute that it's clearly proven one particular way or another just what are we looking for in these text messages an other was about the clarity of his knowledge of the clarity of there's no harm to the well i think what we look to the standard is the mcfadden standard and it is only the standard with respect to knowing that the well you take overwhelming proved to be analogous and a lot of analogous to if anything how would you flesh that out for me i think they they cannot be analogous to in chief justice roberts made that clear in his concurrence what he said was it's not enough to know that these analogs are analogs or they'll give you some kind of high in the example that he used was the cough suppressants there were two different types of drugs one was an actual controlled substance the other was not in merely because there's some kind of proof that they're an analogue or that they give a particular effect like this euphoric effect that's not sufficient to prove actual knowledge i mean if we had mr basing this is a controlled substance i know it's controlled substance and we had text messages to that effect i think you're going to have to go probably the but then the evidence in this case is very cloudy because we had different chemical suppliers stating to mr days that these chemicals were quote controlled or analogues when in fact they were not and the reason they did it is because they wanted to move mr bass to purchase a different type of product from him a product that to the chemical supplier was going to be more lucrative than the one that was to be as wanted to buy so i think you're going to have some actual showing here that in fact he did know not merely that we're drawing inferences and we don't have that anywhere in this  inference to that effect because when you have the statements that were made with we can't verify this anywhere and we don't know what the properties or i think that shows you that he didn't have the know the third one that you mentioned he says has been determined of these particular substances are analogs of the other relevant one and explain the structural similarity and then one of you make of the rest of the message which you want to emphasize to us  me part of what i was asking earlier is just what extent do inferences fit into overwhelming proof to what extent is it clear in the rest of this sure looks like just trying to cover himself or maybe purposes like we're looking at right now it is all that part of what we can properly consider under under the standard of a warming proof i think if you're going to draw an inference you would have to do something again going back to justice robert mcfadden when he talked about if if this is something like heroin it's generally acceptable or it's general knowledge that here only has a controlled substance these analogs don't have that kind of general knowledge and that goes back to the suppressants i mean which one of those two cough suppressants are controlled substances so i don't think you can draw a an inference that just because we knew that that chemical suppresses coughs and if those chemicals are used for recreational use in one is a controlled substance and one is a that we can therefore infer that that that is a controlled substance right now but i do know that repeatedly throughout the trial the the defense attorney was very adamant that the government did not prove knowledge and that that level of truth had to be in the jury instruction and it was not thank you very much you have some time left for a bottle mr anderson for mr coleman specific intent to defraud and or mislead an identifiable agency in the indictment identifiable agency is the f d a and they had one individual come down to testify from the f this disparaged him both on this point that it's not the customers that it's a governmental agency that has to be devoted there is within that case itself a statement that the indictment in that case alleged last the court actually makes that ruling on the evidence and the such ruling was made or the case has to go back to the grand jury now this case went to the grand jury four times before we got strong i think they had refine have to let somebody who paid money got the fraud that was there any evidence of it no there was no evidence from any consumer any buyer any person who knew and hel these substances that they were anyway defrauded so they seek to shift again the argument that that's not even choir but it is required so on counts want to see both of these individuals should be acquitted now i've got to address something i heard the court talk about in regards to the standard the what should be done in these cases regarding same mcfadden this case or this law will never be straightened out until the one court and the supreme court gets to the supreme manner until this junk science is removed from the court room in a criminal case if you read the testimony of the government's two witnesses and the two witnesses that were called on behalf of the defendants there's no question that this is nothing but junk science based on the feelings they got that six rats who were ingested some of these materials and for other rats who didn't react whatsoever i cited as junk science and my time as  behalf of the united states i'd like to begin by answering to davis question about whether mr bass argued knowledge to the jury and absolutely he did the district court allowed this evidence in because she found that it went to the  mens rea a for the conspiracy whether he joined a conspiracy knowing of it's an unlawful nature it's an awful purpose and with willful intent to further that unlawful purpose and so yes he did argue that to the jury one of the things i want to clarify upfront about mr basis argument is that it confuses the issue of what is a controlled substance and what is an analog is absolutely correct that am twenty two a one for example didn't become a scheduled controlled substance until july of two thousand and twelve and at that point it stopped being by definition an analog but prior to being scheduled and listed as a controlled substance it was an analog and the evidence is overwhelming in showing that mr bayh's knew that it was an analog meter to ask this can you distinguish the stanford case i mean to me the stanford case will even stronger distinguish that can certainly there was no attempted in iraq a tory peer had the court done that i'm confident that the jury would have found because the facts here are so much stronger then and stanford in stanford the government was prosecuting someone who was on the periphery of this conspiracy someone who the best evidence the government had for showing that mr stanford knew that these were analogues revolved around meetings that he had attended where those that were in charge of this conspiracy discussed the specific chemicals and their properties and things like that but even then the record wasn't clear in showing that he was even at those meetings at the relevant time yet but i mean we don't want to hear a thought about it and couldn't be clearer that the jury was satisfied that that he had knowledge yet we said because that wasn't a charge when you have an beyond reasonable doubt it but it can't be a firm yes and there what the government i'm sorry what the court had before it was a record that showed either he was or there's some evidence some affirmative evidence that he wasn't there at those meetings at the relevant time the jury chose that to believe that he was there at the relevant time but on harmlessness this court said there are really two versions of the facts either was there at the relevant time or it wasn't we can't at this this court cannot choose among those two two competing versions of the fact we don't have that here we have one version of the facts the government has shown i mean what was said at the meeting that nailed four for our case for base we have three first with respect to am twenty two zero one alex reese testified he said that by august of two thousand and eleven he knew that i am twenty two and one was an analog he had had a shipment of chemicals come into the country that were in a septa by by customs and customs warned him this is an analog well that caused him to reformulate his company shut it down reformulated it's a different company in his words under the radar and he warned all of his customers that these were illegal in fact he specifically recall two the second chemical five f u r one forty four x or eleven in september of two thousand and twelve we have the the text messages again uncontroverted there's no evidence that these messages didn't occur they occurred  in those among those discussions i think it's exhibit two nineteen where mr bass says hey sam i have some five for left over that are ordered from china it's illegal here considered an analog now mr bayh's now wants to insert language into that text to say well what he meant was that it's illegal under in the annulled i don't read that text message that way when he says i ordered it from a foreign country and it's illegal here the natural reading the natural meaning i think given would be that it's illegal here in the united states we don't lose track we had a good i think there's still one more to go and answer and as dave says question but the let me ask you about that which gets back to what i asked mr brown just what are we really looking at when we're trying to decide even though the jury wasn't told correctly everybody can be satisfied that this is the answer the jury would have been given if they'd been given a great introduction so i mean what worries me about each of these is that  baze has some response to that there is something that might make a fact question out of it is a just under state law versus verilog the fact that bay supplier research told him something does that mean it's beyond question that baze had to accept that that that was correct so how do you read the standard that we need to apply is it that there is that that any contrary view of that evidence  simply implausible is less than that no your honor and i would point to united states versus matthews which is the example that i cited in my brief there it wasn't that one could question and i put in a burden without even it being an issue of a bad jury instruction you're putting the burden on the defendant to put positive evidence in the record no your honor i don't believe so the court didn't take that view in matthews and it didn't take that view in the post quantities it was undisputed it was it was an contradicted and that's the same here mr bates had every incentive to do and in fact he did put forward all the evidence that he had  question did your honor you're right and had we had that then maybe we wouldn't be arguing this if we haven't had it properly with the stand burden of proof and things such as that but we didn't have it in matthew's and we didn't have it in  what the court may think is at first blush plausible denial with a i'm twenty two it when he says alex reese was wrong because i am twenty two and one didn't become scheduled until many months later i didn't become scheduled u later but at that time it was an analog in and i think very very important on this point going to exile or eleven when mr bay's tells i send madeleine i have some five for it's illegal here considered an analog let's suppose let's give him the benefit and suppose that he is discussing thinking in his head it's illegal under indiana law well what is the standard for indiana law it's precisely the same for federal law so in mcfadden the supreme court said that the government can show knowledge in one of two ways either he knew its legal status as a controlled substance or an analog or he knew those attributes as properties of the substance that made it an analog so here it would be satisfied a standard if he just knew it was illegal under any outlaw would it he would know that his possession of but when he says it is an analog and he used that term it's illegal it is an analog when he says it is an analog under the standards applied by the state of indiana he knows everything that he needs to know to know if it is an to indiana law is written that way in way that you just should describe it and he would have to know therefore that indiana low standard on analog is exactly the same as the federal standard really are without jury instructions you choose me with coring an awful lot to when mr bay's yes when mr bass says i know that this substance five for one forty four is an analog he just said that so either he knew it was an analog under federal law which is sufficient and conclusively shows he knew or he was saying i know that it is an analog under indiana law and when indiana law mirrors federal law perfectly it would have to know that in order to have the necessary knowledge well that the record again isn't contradicted from the testimony of the participants in the scheme you said we were aware of the analog statute the analog act we constantly monitored the bayh's be acquitted of this if the jury didn't know if the jury truly believe that he had no knowledge that these were controlled substance analogues then as he argued to the jury  they would've would have acquitted him but they didn't and you want that third that third chemical p b twenty two and five f p b twenty two in that exchange one of the things i want to clarify about the record when m brant talks about that text exchange in which mr boyer at mr bay's direction says we have a reliable source we can't confirm it what he's talking about there is what the d a whether the da is going to actually list the chemical not whether or not the chemical is an analog instead for that they point the name of the lab came in chemical they name the lab referred to it as the leading forensic lab in the discussing the chemical similarity or where they are are slightly different but noting that that forensic lab the leading forensic lab has concluded that it's an analog and so there we have even the second way that mcfadden said the government can prove knowledge again this is uncontroverted when we look at those cases where such as matthew's where th convicted of carjacking and the issue was that after trial it became evident i believe from a pretty that the jury did not find that he did were was never asked to find that he committed this often it's as part of an in promotion  f criminal gangs you know my my impression is that this was a somewhat confusing situation with you know with the government trying to stay ahead of the modification of the product circumstances in some cases that may be but when we have mr bay's being told by his supplier who's selling him the chemical saying this is an analog that's not confusing when when we have m drug or a more lucrative drug i think there's no evidence that was more lucrative but i believe alex reese testified that what he was trying to do is move him to a different drug because he accepted that i am twenty two and one was illegal not that he really wanted to sell it but he was making good money and he said he knew he continued to sell it knowing that it was illegal because they could begin gets me to how we are supposed to be making this decision on the overwhelming evidence when in fact this was not a contest and there would be no reason for some of these other points factually to be made by either one of the defense we have before us and yet i mean the record you know i don't have composing evidence because that's not what was at issue i think respond absolutely i think appoint the court to nadir later versus united states in there we see that the defendant even the defendant took a very restrictive view of when a court should be able to find that  instruction missing an element was harmless in a proposed three circumstances one of those circumstances that even the defendant acknowledged so it would carry the day on harmlessness would be when the defendant is the element that is missing would submit that that's what we have here certainly in the instance of five if you are one forty four we have it right not out of his mouth but off of his fingertips we have his admission he understands that this substance is an analog not just that it's illegal he did say he understood that it was illegal but he understood he understood that it was illegal because it was an analog so i'd take you a little bit further  yes i believe so they would go back four for trial also they're supported by count three on count two who is you need to be the target of the fraud and what do you make now of you twenty eight ja fraud on the f d a it was not tried exclusively as a fraud on the f d a and the evidence show the government tried a case that showed that the that the fraud was on those who bought  included those who bought the spice and cowboy or testified that the purchasers the resellers of the spice would occasionally have the testing done on the substance on the material  they would purchase it they would do their own independent testing when it came back to showing that there was a banned substance in it they sent it back they sent it back for a refund or replacement because they didn't want to get in trouble to use call boyer's words and they did that because there were material this representations made our to the problem of our because in two ways one there was the misrepresentation that was not for human consumption but even if we set that aside there was the misrepresentation both on the packages themselves and also in the affirmation letters saying that these are compliant substances da and state compliant so they were representing that there were first they didn't always get what they bargained for because they want to comply in substance and when they didn't get compliant substances they sent it back but also the repurchases and this is what i cited michel tree and the twenty eight j letter the repurchases wouldn't know maybe they got what they wanted in the sense that they got something they could smoke and get high off of but they were told by the packages that these were compliant substances there's nothing illegal about it there's nothing banned in it and that was simply wrong and this mix it was mr green who was making the representation and he had some sort of organic product that he was selling so he made those representations i'm sorry i can't give you a record site right now i do want to go back to the defendant who is conducting an identity theft scheme and it would be impossible for him to conduct that identity theft scheme without knowing that he was stealing the identities of real children scheme could only work if the children actually existed so in stanford what you had is the finding of knowledge according to the opinion was logically implicit in the guilty verdict on identity theft so you could make that inference there you can't make that inference here in the base case merely because a chemical is an analogue doesn't mean it's a controlled substance so you're going to have to have actual knowledge that it is controlled and i'd like to point the court to make fadden specifically chief justice roberts concurrence he said that the majority opinion that says by showing the defendant knew the identity and substances he  possessed he said those statements should not be regarded as controlling if the issues arise in a future case he said the court statements on these issues are not necessary to its conclusion that the district court's jury did not fully convey the mental state required and so we go back to this issue is is is knowledge logically implicit in the verdict in the answer in this case is no there are many many different analogues that may or may not be controlled by state law so are controlled by one state but not other states it was all over the map with respect to what this stuff was and it was very difficult for any of these individuals to keep up with what these chemicals were and what was legal in and what wasn't legal  being fooled i think the advertisement in the websites amply addresses the issue and in fact their own expert dr levy who was from the f d a had said that the intent website which was the contact information that was being required all of that necessary information was in there so we don't have any defrauding or conspiracy fraud the united states with regard to that must know that it is a controlled substance and merely knowing that it's an analog even if he did know it was an analog even if he did know it was a you know in analog under state law that doesn't make it a