good morning your honors i may please the court my name is jason swore gold and i'm an assistant united states attorney in the southern district of new york i represent the united states on appeal and i represented the united states at trial after a jury found john palling guilty of conspiring to distribute one hundred grams and more of heroin the district court erroneous lee vacated the verdict as to drug weight under rule twenty nine the evidence at trial proved that pauling and one of his suppliers actually sold over one hundred grams of heroin and that their agreement contemplated sales of over one hundred grams of heroin but let's say that we accept your assessment of the july third phone call you still need to prove that lho right conspired with palling to distribute fourteen grams i notice that you you spend quite a lot of time looking disputing this courts the district court's reading of the pinckney but didn't side and the cases supporting your argument that lowe's involvement can be inferred because he is a reliable supported you have any legal support for that proposition i do your honor so first i would point to this court's opinions in thomson which is six thirty three federal appendix five thirty four cirilo which is for sixty eight f second twelve thirty three and united states versus seal vehicle number one which is for forty federal appendix twenty two those are cases that first of all stand for the proposition that you don't need proof of specific transactions in order to attribute future weight to a drug conspiracy but how is this i mean i'm not i'm sure the question of those cited in your brief the time you're under of the table of  in your brief so it's difficult to know whether what you're citing to us now is is in brief that the thomson cases cited in our brief the other two were not sealed vehicle number one is cited in our is in the appendix it's cited in our opposition before the district court there were two there was a reasonable inference available to the jury that lho was the supplier of the fourteen grams from the prior sale and the  the district court completely overlooked that evidence wiretap showed the close working relationship between polling and low polling knew the details of loads operations he had visited his stash house he had seen the stash he had worked with one of lowe's other workers an individual referred to as playboy they had mixed heroin together that was captured over the wire on numerous occasions and had plans to continue to do it what is the direct or circumstantial evidence supporting the theory that lho supplied the drugs for the the particular transaction so on the two other occasions when that particular customer named steve placed orders with palling lho was the supplier was the supplier for all of the orders they came over the wire that had those large quantities anywhere from fourteen to thirty grams and this particular customer consistently ordered around fourteen or fifteen grams  the nature of their operation show that they had a preexisting relationship on the first wire call were appalling in speaking with low of outsourcing a thirty gram sale they had already known each other he knew where the stash house was he knew who the people were who worked for low he owed him money so there was already this preexisting relationship so based on that evidence and the fact that then in subsequent sales for similar amounts from the same customer lho was the supplier the jury could reasonably infer that lho was the supplier provided assuming there was the prior fourteen gram transaction it's because he did other ones he must have done this one is that it's not the reasoning no it's not your honor so first of all with respect to conrad there's no evidence in the record that conrad could ever successfully supply palling even though appalling reached out to him conrad was a middleman who tried to then source the drugs from somebody else and was never able to and there's evidence on the record of his apologies to palling because he was unable to come through whereas lho was somebody who continued to be successfully supplied palling for similar orders from the same exact customer so that is a reasonable inference could it could a jury find beyond a reasonable doubt that it was low because there was no evidence that conrad actually succeeded big they could your honor based on again based on the nature of the relationship and everything that the jury heard about how much low supplied palling during pool the portion of the conspiracy after that call but even again putting aside that fourteen gram sale all of the evidence that we've just been discussing would also port the inference that the conspiracy existed beyond the eighty nine grams and on the conspiracy the alternative theory there's certainly lots of evidence of interactions between lho and palling they mixed drugs together they discuss pricing  evidence from which one can infer quantity for example mixing i mean do you mix if it's only one gram or do you mix a few usually it's ten grams or any evidence in the record along those lines that would help us conclude that a jury could have found another eleven grams from this other activity there is your honor so there is an instance in which palling mixed ten grams that he received from low into thirty grams that was one of the sort of transactions that was the basis for getting up to the eighty nine grams there is again the fact that the pattern of conduct between palling and low were were weights from anywhere from fourteen grams all the way up to thirty grams that's the type of transactions they dealt in there is the call that any smaller transactions not with her sweet n low no not with respect to low orders that were placed where there was calls to low placing orders were fourteen grams fifteen grams and thirty grams there's and then there's the call that you're on a reference which is the one where two days before polling is arrested they have a call in which they talk about the fact that they just mixed another batch of heroin together lo references the fact that there's a nice amount left palling tells him that he's going to work with him to sell it that's not the only instance of them talking about the fact that pauline has customers of nice amount to anything in the record that will help us determine what that is i think based on their course of conduct and the fact that the amounts that they've been selling together start at fourteen grams and go all the way up to thirty grams they're not dealing in small one or two gram transactions there is a case like this where a jury can determine that a nice amount means eleven grams well your honor i would again  cases where you don't need a specific transaction in order to get over the threshold for example in the sealed defend the sealed vehicle case there were only forty grams in the transaction and it was reasonably foreseeable to the defendant that the conspiracy involved one hundred grams or more i would also point to some of the cases cited by the district court though i think they support the government's argument for example navarette aguilar which is an out of circuit case the there the relationship could not have been seen to extend beyond the actual transactions because the court said it was a temporary and unstable relationship and the defendant had sort of substituted in for his friend who was the real deal or in the transaction but that's not the case here head low and palling had a long term and they plan to continue their close working relationship palling is there any evidence showing who purchased the thirty grams of heroin that paulin june twenty seventh two thousand and sixteen no there is not he makes a number of sales after that so that if there is no evidence of palling selling those drugs why should the jury and for that that he needed a low or con read or anyone else to supply the drugs for the prior transaction that was referenced in the july third phone call isn't it possible that he was about to fill that order with with the with the drugs that he cut just a few days before it's it's possible if you were to infer that the that the purchase happened between those two time periods but again all of that evidence firm and i think i see my time is up if i can answer please all of that evidence still goes to the alternative basis that the additional eleven grams a rational jury and this jury could reasonably conclude was proven by the fact that they specifically contemplated working together with a batch of heroin and based on their course of conduct and their plans to continue going there were interrupted by the arrest that it could have gone from the eighty nine grams of which there is no dispute to the one hundred grams there any evidence as to who the supplier was for the one gram the quality of which was criticized the buyer no there is no evidence as to who the supplier was for that transaction thank you thank you existence of such a transaction but even if it existed there really is no evidence at all as to the supplier of that that deal let's back up a little bit about what about low load does not show up even in the government's investigation until the fourth month so the government has been investigating mr pauling since february and the wiretap goes up at the end of may palling does not show up i'm sorry mr low does not even show up as a supplier until the end of june until about june twenty  sixth so there were but had been a number of sales all the sales to the u c for instance the three sales that you see the the sale to the woman in february about fourteen grand totaling at least forty one grams and then at least six transactions  six sales by mr pauling after the tap went on the record indicate that the suppliers for those earlier sales was someone other than low or is it just unclear if there's no evidence about there's simply no evidence at all it would have been low it could have been low it could have been kinder and it could have been someone else but we do know that there were a number of trying to get i think the least six transactions that were caught on the wiretap in which mr mr pauling filled a customer's order after the tap went up but before i even cho of disorders contract not not look and so i think that this this doesn't strays that on the alternative theory that there's a conspiracy there there certainly is evidence that  g and lho had many conversations did things together they mix drugs together palling went to the stash house palling dealt with playboy and palling says several times i'll help you i'll help you why given the pattern including thirty grand sales such a why would it be a reasonable inference for the jury to conclude that all of that activity must have generated at least eleven grams the closeness so yes we don't dispute that there was a conspiracy to distribute between paul and lo and so you know we argue to the jury at trial that this was merely a wise and a reasonable for the jury to find  given all of that activity nice amount the number of times they've had this context there must have been at least eleven grams we aren't you know a gap is a gap in the evidence even if it's not a canyon ok and you know we're talking here  about proof beyond a reasonable doubt writes the criminal conviction for an enhanced offense carrying enhanced penalties in the society's condemnation and it's just not enough to say that you know in common parlance or four in the hallway we can say that you know it's probably true maybe it's even likely appalling and low mix some quantity of there was originally eleven that they mixed to be fifteen so they took a leaven and sort of diluted it by adding these mixing agents to get up to fifteen and sold fifteen to  and then the cotton the nice amount comment was that all we had a nice amount left from that again is that eleven grams or is that only three grams foregrounds five grams there is not evidence to support that and terms of mixing you know drug dealers the argument based on specific transactions we think that pinkney is is the best is the best case that there's simply no evidence that it's low rather than another supplier regarding the government's argument that because that they had this close relationship that that means that that  mere fact that the defendants involved you know the doubling up two and a half to five so that was a real stretch it's true you're here it's from eighty nine to one hundred it's less of a  also two point five by the defendant but the larger organization had distributed least forty and the relationship was also much much closer i mean that the larger organization paid the defendant they all gave him drugs on credit gave them a gun gave them a car so that the relationship was much much closer but this court still said just because you're closely related to it to a large steel distributor doesn't mean that you've joined that organization and then finally in terms of this the third argument which is i think it's you could split it out that the government is also arguing that we can reach we can bridge this you know this evidence by looking to these sort of the chatter about these unconsummated but sort of contemplated transactions about the guy from queens and a nice amount and stuff like that you know we have there's this plenty of cases on that i would say should new be that this court has long required even in the context of the guidelines this court has been very vigilant about making sure that if there is specific evidence of dru findings which has been longstanding but it's also you know this court should be wary should be to look very hard at the government's effort to try to reach the enhanced penalty threshold based on aggregation of small transactions now you know the government concedes that if this if these are simply substantive distribution charges as opposed to construed as opposed to a conspiracy charge you can't aggregate small sales to reach the enhanced threshold now i understand the conspiratory there's an exception because it's conspiracy here and this was conspiratorial liability sort of an end run around this idea that you can't stacked individual small quantities to reach enhanced threshold because congress intended those and enhanced penalties for major traffickers and kingpins so again we're not saying that you can't do that for conspiracy case you can but still congress is intent in a conspiracy case is for people who are agreeing to the should be a large quantities not people like mr pauling who's sort of get threshold only because of he doesn't get to that special but if he does it's only because of these small quantities they ask you about rule i'd like to ask you about rule thirty three as shown in the district court's discussion rule thirty three it found that the government's charts regarding the drug quantity that were attributable to the palling low conspiracy was misleading because the charts with steves june twenty ninth are water a gram of heroin but if if that transaction wasn't linked to low why should the government have it have included it in that particular charge john or so the charts misleading in and  think two different ways but but if i even before getting to that that transaction should have been included in the other chart right so there's a chart one which just is about to the polling low conspiracy that they purportedly get one hundred three but there's a chart to that includes all of the purportedly that looks like includes all of the transactions including even minuscule amounts of several one gram transactions but again the june twenty ninth transaction is missing and the government still has never explained why it's not in either chart so let's so going back to the question why is it why is that misleading it's misleading because if it in two different ways you can look at two different ways if that chart is supposed to list all of the transactions between polling and lo it says you know that there's one one line accurate chart but because that last time transactions never listed in there everybody look it isn't clear that that was low the one gram transaction well but it's the only last time transaction your honor and you know this this really is an instance in which it's not always the case but this is an instance which the absence of evidence of a prior fourteen grand transaction is really proof of absence i mean there's you know of the transaction between mr pauling and steve before and after the july third transactions are captured fully on the wiretap and this idea that there is this missing transaction that somehow completely underground is pure speculation that they somehow met in person or used another phone there's simply no basis to say that it's only reasonable to infer that there was another transfer thank you it was well studied the buyer for the one steve the one who complained about the quality of the one gram  one gram but why would he be referring to the one gram of if he was unhappy with the quality where he could have been referring not to he didn't want that specific type of heroin but he still wanted heroin and sort of cocaine i think that's that's what we would say is that that's what that statement is about but the one gram wasn't cocaine yes i know i understand he just but you know all of even the you see testified to this is that you know mr pauling's heroin even though was on heroin very  quality because he gets it from a bunch of different people so sometimes it's good sometimes it's not and so the same thing as last time i would say is he wants heroin instead of cocaine but not necessarily that particular brand or type thank just a few very brief points picking up on the last question there is no evidence in the record that he was selling steve anything other than heroin and the the one group the one g called doesn't undermine the same thing as last time because the context of that call when he says how much do you want the same thing as last time polling says i don't remember what that is he says fourteen which is the reference to fourteen grams there's only one meaning for that call and have evidences to coded language that was used in it's traditionally used in road transaction rules we actually had specific evidence of the code used here because what steve says in that call is he says same thing as last time and then polling says how much and he says fourteenth floor and then the very next call is from polling to his supplier saying yes somebody wants fourteen grams so it's very clear from the evidence here the other thing is that there actually is evidence that polling was using another phone government exhibit seven seventeen and a seventy eight he references the fact that he has another phone that was off and then you see my times of the finish your thought the thought i was going to make was with respect to the thompson case the nature of the relationship in that case wasn't actually about the drug dealing and they give him a gun they gave him a car they paid for for bail here all of the evidence about the relationship between paul palling and lowe is specific to their drug relationship and in the thompson case the issue is whether to hold the defendant accountable for what other members of the organization were doing that's not what's happening here the government's argument is that pauling is responsible for what he and lowe were doing which is all the evidence suggests exceeded the eighty nine grams beyond the hundred gra m threshold thank you thank you thank you both for your arguments the court will reserve decision