told by the clerk that everyone is present on everything but one of the motions where we may have one attorney who's arguing up stairs and trying to rush downstairs so we will hear the first motion and then decide whether we need to move that second to the end of the calendar argument prepared in light of the time i'm honored to answer any questions that the court might have of the box well the standard here is exceptional reasons right so you're going if you show by clear and convincing evidence that your clients are not going to be a flight risk or pose a danger and there may not be and are an argument to that effect and even if the appeal raises a substantial question so why is this and that sort of upset exceptional case so under the disown the case we argue that it is an exceptional case because a number of our substantial questions go to the the underpinnings of the conviction under the analog act and it is that conviction that gives rise to the statutory requirement for the showing of exceptional circumstances so particularly the jury instruction here this case is coming back it has to on the jury instruction this jury was instructed that they need not be unanimous on whether any of these things are analogs or not  to that charge i wasn't trial counsel but there was no objection but it is so it is plain errants plain there goes straight to the heart of the case really the only issue in dispute in the case the government makes and then they argue in their response of papers that it was not error they make no argument that if there it wouldn't be plainer for the bill and nor could such an argument be sustained so under the just do you contend that each of your issues alone meets the exceptional circumstances or or or would we need to sort of find all of them exceptional now i think that only the only the vagueness the sufficiency and the jury instruction do i think the daubert issue would be to attenuated under the disown mcnutt vagueness for example alone if the statute that gives rise to the exceptional circumstances is all it is facially unconstitutional and therefore anyone convicted under the statute you would say gets bail pending appeal simming no fight risk or are in danger if it yeah if it presents a substantial question i mean i think that each case stands and rises on its own and you have to look at the to tell it he and obviously just because i can articulate and argue if it doesn't seem to have much substance to it i don't think that would be exceptional here i think that the vagueness issue the sufficiency issue and particularly the jury instruction issue but you raise it as a as a facial challenge you say in its right person so again anyone anyone convicted under the analog act assuming  flight risk or danger to your argument i hope would be that this would be the last one because the analog act is in my view the first instance in the history of our republic in which we have imprisoned people for decades for conduct that not only is not a lawful but would be impossible to learn is even considered by our government to be a lawful that's extraordinary and that's what we're doing here you address the jury instruction issue somewhat more depth i mean you're aware of the case in which the government realized that says the that the substance could have been heroin it could have been cocaine the jury the jury doesn't have to unanimously agree on the nature of the substance the plea in opposite in the context of an analog case here the issue is is it a controlled substance at i'm not aware of an analog to a situation where a jury has to make a finding but they need to do it you know out of a sleep now they would all have to and each juror would have to in theory and the judge and the government isn't arguing that this is precisely that case but each juror could individually has to individually determine that this is an analog beyond a reasonable doubt and they have to unanimously agree on which one or ones are animals and that's the heart of it it just won't do if two of them think one is an analog for think another morning honors may please the court michael parries of the united states wrote the brief in this matter and i was trial counsel for the government at the trial co counsel i want to start if i may with two instances where the defense counsel he  tribute ing concessions to the government i believe unfairly first on the plane or a standard in my brief clearly says i'm page nineteen the defendants cannot show plain error as to the district court's unanimity instruction so the government is far from conceding that they would meet the plain error standard if it turns out not to be correct the other issue is on the dangerousness and risk of flight the defense has suggested that the government is conceding that issue in fact it is the defense that has not raised the issue in  before the district court this is document to eighty seven it's in the record in the district court docket page three but no one judge moore do wrote rick when yet does not address the likelihood that he would flee or pose a danger to any other person or the  does apply i just want to point out your honour's that not only was there not an objection here the government put in its trial papers in the record basically asking for this instruction there was no objection to that far from it defendant raymond submitted a jury instruction that tracks about half of the language here and does not west unanimity as to each substance and just asks that they be unanimous that there is a controlled substance analog which is standard in controlled substance cases and then the senate rayman filed objections to the district court's proposed instructions which did not address this issue we had a conference on the records in the trial transcripts on this issue this was not raised so again this this is not some some fancy from the district court this is well settled law this is how controlled substances cases are handled day in and day out see any distinction arising from the fact that this is an analog case as opposed to the controlled substances case well your honor even in a controlled substance case if we're talking about heroin and cocaine and so forth the jury still has to make findings they may not believe the chemist they name may not find the chemist credible they may find that one of the defendants believed that he was distributing talcum powder and heroin whereas the other one believed that he was  distributing cocaine and brown sugar or something like that and we allow that law allows the jury to split in that way we don't invade the province of the juries long as they're unanimous that a controlled substance applies so it's not to say that there are no distinctions between the analog cases in a controlled substance cases but in that respect the jury is well equipped to make those types of findings and in terms of the plane errors when mr films point in the heroin and cocaine example either one is unquestionably a controlled substance but in the analog example if six jurors think the one substance qualifies as an analog and six think another one is no one has unanimously concluded that anything illegal at all happened well your honor it's true that heroin is a controlled substance but if we're talking about the white powder that was in a defendant's pocket or in his car the jury hasn't decided that that's a controlled substance until they go to the back and they make that determination and you could easily imagine a situation where they're tight but every juror will have concluded that there was a controlled substance here it's not the case is it that every will have concluded that anything was illegal well your honor i don't think they could if they followed the judge's instructions here they wouldn't be able to return a verdict unless every juror believed that a controlled substance analog was part of the conspiracy just as in a controlled substance case there are two substances in the car half the jury believes that there was cocaine and no heroin the other believe the other half believe there was heroin and no cocaine we would allow them to convict even they could have a long argument in chambers and say well there was no cocaine in the other side saying there was no heroin as long as they each believe well a controlled substance was there that's enough and here they may have had a disagreement along the lines the defense counsel raises one of them may have said peavey twenty that's a novel issue at best i mean you would say it's not a novel if you're because it's analogous to the controlled substances law but the question of whether that analogy is correct is not one that's come up before  and therefore it's difficult to say the district judge should obviously have known what the answer was exactly honestly my time's up but there's no case law suggesting to be clear and obvious that the district or could have relied on thank you thank you beth take