ere were seven transactions and within those seven transactions there was one new bottle sold its time and each one of those bottles contained a lot of grams in each bottle separate bottles but they were the same or similar weight so with that i think that there is a couple of cases that are instructive and in support of our of cocaine that were purchased very specific repeated entertaining intervals you don't have the entire my career i thought that there was evidence at the trial of sixty six dollars transactions six bottles be same model was was in each transaction i'm saying that's a possibility there's there's multiple differences that could be read because there wasn't that's our nation that was later tried to have our standard of review here though it's i think you have to come up with more than just a possibility right to well on the clear error i think you're out of my problem in this case is that it reminds me of in the civil world which is what i deal with there question about direct person circumstantial evidence and the problem in this case is that the entrances that were made by the government and the court were not reasonable inferences because there were many other possible what i'm getting at is you know the snow falling on the ground if you see it that's direct evidence if you wake up in the morning or snow on the ground yes circumstantial evidence because there's only one explanation this case to me seems more like a situation where if you wake up in the morning there's i'll dirt in your driveway that there's many possible explanations if you just act that piece of evidence along and that's what we have here is that there's nobody testifying about a specific route along the way that was purchased  when the desperate court relied on his recollection of the government's arguments the district court's recollection was different from what i or she'll and redshirt testified to because now we've got the benefit of the transcript but in all i mean it could be something where you're saying please don't tell my friends and family because it's embarrassing to get arrested so i think that there's multiple reasonable inferences and i don't think it's appropriate to jump to the conclusion if the foundation was slated  and i can appreciate mr bouck has gone into great detail on the government's be able to show what is required for that agreement but at best here it seems to me we have this shot talking about things and of course mr basic is there in the presence but i don't believe the government established a concern even circumstantially that there was an actual agreement between mr basic and miss shop as to a conspiracy to deliver all things all this terminal so i mean i know that's probably the weakest argument in my case but i think it's important to look at it issue other then i mean i mean there's case law on the circumstantial there's case law on direct but i guess i would really as at the core look at this from the standpoint of whether or not there was enough evidence on a dyno a standard and i know all he's talking about as nash are coming over and talking about selling drugs there's no you know mr mr basic doesn't say anything to my understanding to to show that he's a part of th well i i mean what if i just asked somebody to use somebody his accountant you know i mean it could happen that seriously get him and the other person doesn't even know about it and i understand and here we know that this base condition cops are merited but but to me there's this no direct evidence there's not even circumstantial evidence that those two has the overt arms together about what they were going to do so gives him the drones now now the court was is holding mr basic responsible for anything that the shah does i think there's a real problem there particularly with all the points that are made from the nose as you walk through them but i don't think it is reasonably foreseeable of you if you look at what she's done and what he knew about it and i and i understand it's not the greatest threshold in the world but reasonably foreseeable but i think the breeze makes a very good point about estimation versus speculation and one to think about all this reasonably foreseeable before we go on of the next issue of it is i think the court was supposed to make three findings i think the brief makes sense for the very good example that i mean basically there's a couple findings not only you know whether it was reasonably foreseeable but the other two requirements and so i don't think the court did this full job of and even find that this was further in some of the criminal activity and within the school i don't think the judge did that and i know are under a different standard now with this issue but but still i without maybe those findings there there is a sufficient basis to hold mr basically accountable for his shah's actions that he did not know about so and then the final issue is of course the quantity which i think all parties are you in a bowl i think mr mr basic doesn't have the bottle problem so much as in the shadows but with mr basic this you know there's a lot of evidence of him giving shots from this parade but not actually giving the bottles and i think words were and lead to making the presumption that these bottles were given when i could be number one in the same bottle and number two it's just shots from these bottles and yet the government is trying to argue the others the bottle and then i really have a problem with each bottle then come to me in this eleven grams later you know the dead just doesn't seem but one can draw a reasonable inference that occurred i don't know how he comes up with that because there wasn't any evidence and i don't even think circumstantially there was evidence that he says the quantities or all of that i'm certain but one can draw the reasonable inference and utilize their thessaloniki to make the approximation in the state of the trial does that and this was the sentencing judge was the trial so what was the testimony that you're referring to that allowed him to make the leap that there was eleven grams in each pot different times when she actually received a bottle from that shop otherwise all sealed testified that she st acquired the opiate also testified that there was another time when the same type of nasal spray bottle was utilized the buffalo wild wings and bismarck where they were all together all arrived at the buffalo wild wings efforts by her that she utilized to transfer this solution so all of those nasal spray bottles either in their entirety or in part were transferred years the scope of her bent conduct was because she was utilizing and transferring multiple wattles and multiples raised from the bottles to other individuals so either iron shield or mr a tremble this is way more than eleven point six nine grams in fact each occasion when we're dealing with a bottle of the similar size the one ounce bottle that utilizes a similar function was wheezing sprays the nose the drouth work was perfectly appropriate and approximating that the solution in each of those bottles was approximately the same and again the trial court was not required to do this by mathematical precision you did not need bottomley that's not required this isn't the sport type of conspiracy with testimony where the where the individuals are describing how the solution in gaining the drug was transferred and then what scenery was transferred in but it also includes quantities that are held by the the spirit or personal use in this case as mr basically is taking a nasal spray bottle and spraying that sprays into the nose of mr again did the same when they were shopping in fargo and again did the same at buffalo wildly when they were at a restaurant eating together in bismarck both of them for your time's up why don't you address the  sufficiency of the evidence with respect to mr basics participation in the conspiracy in the agreement sure you are in there and that and i appreciate this in the table not the trial attorneys who may be may not have out magical mincey and in fact the trial evidence showed that it was her town because there were text messaging and instant messaging from accounts with that same use north dakota together confirmed that the money at that time is retrieve the nasal spray bottle from her purse provided  where she'd to make money putting that all together as well as simply that the trip and the circumstances of the travel to fargo and the buffalo wild wings were always in the basic when the request for profit other people and i know nobody else has really touched upon the issue of the water bottles there were multiple water bottles that were filed in mister with the basic department at the married so he went with the basis apartment over to ms chavez apartment and asked for the water bottle she transferred there was approximately two inches of liquid in that water bottle so it fits within not only the elements of the conspiracy demonstrating in agreement but it's also part of the drug quantity relation the court the trial court took into consideration in approximat all of the water bottles that were there at mr bates apartment so then there was plenty of actual trial evidence for the one of the district or to make the factual fi make a determination the guilt and innocence in almost every case without ever having any sort of transcript the trial just sat through the trial we listened to the testimony just like yours do issue in this case for both of the issues of healing we're really talking about an illusory foundation because there's a simple question that could have been asked you know and i don't know what the witnesses conspiracy is finding there was a common scheme and practice and i think the core had to make those findings under the guidelines in order to find that there was a reasonable foreseeability saw it i think just the lack of a record of those findings is very important the score and then the nd issue again there was a rd circuit court say to those we don't seem to have a piece read on point for the issue of the approximation but but you know this issue about speculation versus the estimation i think is so important because we are speculating on whether or not a bottle was used versus a spray and appreciates your arguments and your cooperation with our doing this by the dio the case will be submitted and decided to do course and further mr zucker mr mccabe we appreciate your willingness to accept