and we'll move on to the next case united states versus fernando palomares parra and because one of the appellant's has disappeared we hope you want to jack if we try to hold you to ten minutes instead of twenty no defendant who in particular from having an erroneous decision that there was sufficient evidence and the interests of the government because it only gets to appeal if there ha been judgment of acquittal so the double jeopardy court double jeopardy clause prevents the government from doing self and recognizing that the government rule then places the defendant in a very difficult situation in which having heard the government's evidence under the longstanding doctrine of waiver which helped that if the defendant and a line of cases from this to this circuit most of which predate the amendment of the rule it indicates that this court it's not limited to just the government's evidence that it should consider the tense cases well w interesting because bombers par will tell you that he walked through the house he walked from the garage door of the front door and never saw anything unusual the only thing that he in retrospect will tell you is that when  house i mean as george mckeown points out it seems to be a fair inference that if he was in the garage he wouldn't stay in the garage under these circumstances for two hours that he was in the house even though he wasn't seen so it's circumstantial throw a vehicle from a house where five hundred pounds of marijuana was subsequently found no evidence that he had actually had any knowledge that that marijuana was in there which truck w it was in the truck and in his truck that had been used to transport the wrapping material for the contraband that's correct to the garage in which he was seen at least for two hours that's correct your honor but maybe more  he's charged with at least three things yes and i know you're going to say well what that evidence he should have been on the road twenty nine convicted any of them but of those three things and given what you without you know i'm not going to i know you're going to say that but i'm just trying to parse through the actual elements of their story just like the knowingly making the building available is two hours and not five i don't know but you tell me which of these charges do you think court my name is david flanagan and i'm from the district of arizona assistant united states attorney the question in this case is on the denial of the rule twenty nine motion when the submit because the judge himself if you look at the record clearly looked both at the evidence that the government produced and then went on and said but then also the defendant produced additional evidence so that the judge violated the rule no sir he the motion has been renewed so he's looking at the evidence at the close of the case and then also discussing the evidence that was produced by the defendant because of the renewal ja rule is trust but verify trust that we trust you but we want to verify what you say by looking at the excerpt of record that you file in order to substantiate the points that you make in your brief and and during oral argument yes i am sorry ahead the court goes back and forth in ruling on this talking about what the defendant says and then says but that's really goes to his testimony and without even testimony and looking at the evidence at the close of the government's case his wife testified that she asked him to help her pay for the ranch and that he came up with the money for the december payment of the house i didn't see you just say can look at everything but in reading the reply brief of the appellant and thinking about the issues and really reading the court's decision in this matter i believe that the court himself and i did scrupulously follow the rule and look only at the evidence that was available to time the most was for i wouldn't go that far i'll say that the court did follow the evidence that was available at the close of the defendant's case and then also discussed what the defendant himself said which i think is appropriate because it bolsters it bolsters what the government produced it shows the reason the boldness of a juror the court is looking at what could a reasonable juror decide could any reasonable jur decide that the defendant would have there was sufficient evidence to prove the defendant guilty beyond a reasonable doubt taking all inferences in favor of the government and that reasonable issue can be bolstered by looking at the fact that the defendant himself admitted that he was in the house that reasonable issue reasonable is issue can be bolstered by the fact that the defendant admitted that the five thousand dollars found in the truck at the time the court said that was that looking at a twenty nine motion also made at the close of all evidence right and you would look at the time the court said what you just read to us from the record was the court also considering a rule twenty nine motion that had been made after the close of all evidence yesterday that was that defendant could put on evidence that would clarify certain things so that even though a motion to for a judgment of acquittal at the end of the government's case might not be granted it might be granted at the end of the defendant's case which certain facts were clarified so it is renewed that motion for judgment of acquittal is renewed in the court is looking at both and he clearly indicates that he's looking at both he says you know at the close of the government's case it was of the stretch wrap that that stretch wrap came from home depot where the officer said that they were familiar with people using saran wrap to rewrap marijuana followed in the defendant's truck to the defendant's home to the defendant's garage from there the scratched wrap went into the house fortune itself and that mirage is not detached it's all part of the same house from the house went into the master bedroom that was the defendant master bedroom his wife testified as part of the government's case that she had lived there for a year with him so you have the stretch raff going right there with you and offbeat of where the marijuana you have a third of a million dollars worth of marijuana that's that trail of that stretch wrap ties completely to the defendant and it's what the court is looking at is inference and defense counsel said well that doesn't necessarily show this and doesn't necessarily show inference could be drawn that that five thousand dollars belongs to him and a reasonable this is borne out by his testimony but nevertheless it is his truck and we have now in that we have him somewhere secure ours right well you have him have the agents that they saw the other two co defendants in the case of home depot they followed that truck to the house and they set up on the house for two hours and then the defendant comes out of the garage  and for counsel to argue well maybe he was in the recessed area that was not in their view in front of the house he would have had to go from that recessed area through the front door through the house and then out of the door that led from the house to the garage area going through the area where you have this very pungent smell of marijuana that the agent says is most pungent smell that they've never smelt or if he's in the backyard his counsel suggests the only way he can get into the garage would be to go through the back door of the house through the house into the garage from the door that leaves the ninth circuit case of the united states first fence then she has comments made by defense counsel and opening  so you have that there now of course the government cannot put him with our own evidence directly in the house but inferentially circumstantially i think it can be inferred that he certainly was there more than two hours because the could come from home depot followed the police to the house so he was at the house even before hand who knows how long he was at the house and to to try to say well you didn't necessarily put him into the house  that all three charges can be established by that you have the wife who was called to the ex wife who was called by the government she truly binds the defendant to the house she says that they were buying the house together and that although after the divorce she was managing it via december the facts in this case took place in january by december he was looking for a tenant he had found a tenant he was managing the property so you have him truly foun that house by the wife he was president the stash house for more than two hours as i indicated the smell was overwhelming five thousand dollars wrapped in hundred dollar bills were found in his truck at the same stash house where the gun and the third of a million dollars worth of marijuana was found thank you counsel thank you if you care to respond more call cooper versus travelers