l are participating as most of the court has been doing for the past year by video and counsel are doing likewise i thank everyone for for accommodating goldberger let me just say at the outset that of course we know that this case must go back for recent and saying that the government has conceded that which leaves the three issues or you have raised and for my part i am not especially interested in hearing arguments on issues number two and three that is the issue of the bateson issue and the issue regarding the instruction but in part that's because you have raised a considerable number of questions with respect to insufficiency and i think the panel is going to want to inquire quite a bit into into that issue unnecessarily into facts or evidence that has been presented and avenues perhaps that have been left open and i expect we'll spend a considerable time on that so if you right and and well we could discuss technique some other time but i when there's a good sufficiency argument i think it always belongs st because it's the greatest relief that would be granted so it's logically  st in any case and with respect to the government's concession let me say that we do have a dispute about the scope of the remain and i don't know that they fully conceded everything that i said about aspect of the aggravated offense so the question is how did the government how could the government proven in this case did they prove that the particular heroin  which i can see that they did show was sold six days earlier by my client to mr collins and then by mr collins to the young woman who guided  indeed the cause of her death the the principal weakness in the government's case has to do with the inadequate investigation by the pennsylvania state police of the crime scene evidence before the d a got involved yes let's let's start there have that setting the scene by describing the area where ms alley was found dead describing the evidence that was found there and collected yes well she apparently administered the fatal dose of heroin sitting on her bed and then fell when she went into shock and then died from the overdose and fell off the bed and so the st problem and this is not a police error of any kind with the kind of crime scene investigation that is used  help determine causation is that the nine hundred and eleven operator advised her boyfriend her roommate to move the body twice understandably in an  effort to revive her so that precisely where she fell and how she fell might have been of great value to the at least for the medical examiner in drawing conclusions that evidence was was her proximity to a ticket or evidence that's correct and possibly even more possibly where her arm was extended to or or anything else yes that's right  that's the st thing that's the nd then is the state police and the local police and the state lab shows to test well let me back up a step in the room there were three different kinds of heroin  two of which of the three were tested and one test to the extent it was tested indicated no fentanyl so into the one that wasn't tested what we've called the the viking or skull marked heroin wasn't tested at all but is in a purse also within reach seemingly within reach of where if you got a bag that was tested that came out of an account if it came out of the person it was on the floor it was on this rescue and it was from the purse so they did not test anything from the trash can didn't test anything from the floor the floor being the most likely site i would think of the exact package that ridge she used is probably there a lot of syringes in there you know i think the other strangers were in the persons i think there's only one on the floor ok i think i would give them that inference a thought was the right syringe right and were there also paper packets wax paper packets that contain some residue that were not tested this isn't very well explained by the witnesses to those of us who are not experts you're familiar with the way heroin is packaged and used but mike i gather that it's there's a wax packet with a small amount in a class in a small plastic bag and then there are a number of small plastic bags you know larger plastic bags like a sandwich size bag and then a number of those might be sold together at the same time in some other kind of packaging so it's not like chinese dolls you know several smaller but the smallest of those is the wax paper akhet and that's the wax packed paper package that has to the to the jury as to how they should determine whether or not the fair playing that was done gave a sufficient reliable result to conclude to some level of just being whether or not th cause of death came from the boulder bags right and i think back to the next point i was going to make appreciate that question that the next problem is the testing of one out of some fifty packets when the undisputed testimony of the government's expert is that the mixing is so inconsistent in the when heroin is cut that you cannot extrapolate from jacobs ever sold the viking bags they could have died from in the biking bag you know but you said she died from heroin is that correct no no no i'm sorry that was a misstatement that the somewhat different focused way and that is to examine your position in light of what is a fundamental practice of putting together a prosecution and st conducting an investigation and that is that investigators and eventually prosecutors ought to be establishing a case of ensure louis and preparing it cased by excluding other possibilities which of course will have enormous implications and may here for whether the standard of proof beyond a reasonable doubt can be met so if you would please we you look at the government's case with that focus and that is examine what the investigators and the prosecution failed to exclude as a possible cause of death and which therefore might have stood in the way of a beyond a reasonable doubt termination the bulldogs heroin by testing only one bag of it finding that little bag that little packet didn't have any a witness i mean he didn't view it as an extrapolation problem but his testimony defeats the extrapolation assumption that the government's case depends on that is that when the heroin is cut it's not uniformly mixed so that you could literally have and he said this exactly it's just the money you could literally have a packet with no fenton the linen and yet it was fentanyl in the back of the government's argument all the evidence that was presented all of this evidence was presented to the backs not immediately before her death so what's wrong with that argument with the way we framed it in the reply is that the disagreement here is between what's a reasonable inference and what speculation aren't contention is that that kind of argument by the government is depends on speculation not inference you can't just guess that we can't put the jury in a position of just guessing and then on review call it in for a reasonable inference by the jury there isn't evidence from which the jury could conclude that she took focus on the way judge smith asked it didn't get to use of the other heroin that's in the most important and interesting point here is that we have an addicted person who kept a lot of supply of various kinds that she clearly bought in different places at hand this doubt that jacob saul and if there was only one kind of heroin at hand in the apartment that would do it for the government but the key what the main thing we discover is from the search of the room is that this is a person who did not use up her heroin and then go find more this is someone who kept the law i on hand like a pantry in your kitchen  and so the fact that that the heroin that she most recently bought appeared to be the heroin for traceable back to my client does not mean it's the heroin she used that night it the jury even have to determine that she kept this entire inventory couldn't the jury have believed that she had access to or shared an inventory with someone else and that doesn't hurt you if that's true although the roommate testified i didn't think particularly credibly but i was in there to watch him that he was consults not a drug user but i've not accustomed to hearing you referring as i assume you know you knew to mr cain were yes that's right and i have to say when i read that i just rolled my eyes but that let the jury could could have found that either way but in any event there was supply at hand whether it was hers whether she was a want to bought it whether he you know it was red it was at hand and certainly it would not have been reasonable for the jury to conclude that she did wasn't aware of it it was all right under and b contain sure sure and then if it wasn't for the other supply that was untested or inadequately tested that would have been it we wouldn't have this argument at all but if the there it's no part of our argument sorry but if the testimony was that everything that was used by her sole source was collins cohen sole source was jacob that's the problem if you can you get me around you don't know that the jury could not have concluded that that was her sole source it was her frequent source but there were two other kinds of heroin in the who did testify would be competent to give that to give you confidence that that summer she died and we know that she really in the last year or so was frequently buying a couple of years i think frequently buying from pollens most dangerous but not every day and that there were two other kinds of heroin in her room by the ban on it let me again focus in a different matter which is in this case to ask you mr goldberger to play ship self in the position of the prosecution and tell the panel just how the government could have avoided the predicament that you're suggesting they're in here now what what more perhaps what little bit more could the government have done to remove the reasonable doubt that we necessarily would have to find here in our inquiry to justify setting aside the verdict well i've never been a prosecutor i'm not sure i can do knowing if the during your i your good lawyer or you're making the argument if you can i  wouldn't it i would say at least they they should have tested a sufficient number of packets from all three types of heroin and testify because he's the one who according to the testimony took halley to meet dealers when cain wasn't present so it raises the biking was probably who knows but you know he may well have caution is that if you're going to test less than all of a batch then you must you the government must present some basis for the fact finder to reliably  we were going to be sending it back resetting in any event but if we were to sustain your position with respect insufficiency then the b one c component is out and there would be a anything getting on the phone and saying the lab look at the syringe give me a quantitative analysis of what was in that syringe go back to the other better bags get me and i don't want to know what  samples a viking in sample the the bulldog and then let's talk about getting ready for trial and that wasn't done you know we have syringes not looked at we don't know what bag was in close proximity to her at the t death because the body as if he said the body was moved twice the to makes it even worse the bag that was analyzed wasn't were we were presuming even though the betty was moved the body th heroin that she consumed last would be it was my st was it from the floor of the top of the trash can i mean the problems abound and it seems to me that what we're being asked to do is affirm based on rank speculation  so long as the jury conclusion is not irrational so that does play a stand an important part here now if i can go through it your honor i started with talking about not putting the syringe and alleged inadequacies apologize if i misspoke i said john and i thought i meant jonathan collin testified that he thought the butter stamps her went from him so she bought that on an which but a stamp did she buy did she buy all of it from him the bed the butter on the floor but of the trash can the butter and the perv because that would give an amount much greater that would be established by anything he says the money that she would buy from him in a single visit your honor i believe the testimony was that she thought five dollars bundles of heroin a day there were i think i think what i had what i would characterize what i'm saying is that there are multiple ways of proving something obviously i think in our in our modern society and with scientific method testing is incredibly helpful from when she purchased from college was there any testimony of that sort your honor if your whether there was any i think i might have misunderstood the question i didn't ask you for i feel it's not your fault i didn't ask it with my concern upon one sample that was drawn from a scene that contained other her when they can't be tied to cones you're asking them to conclude that the fat in all the killed her came from col because there are other bags at the scene that you can tie to cones but there are big on the scene you can't tie to cones and we don't know how many of the bags that came from collins had general maybe all of them did maybe fifty percent did maybe twenty a rank speculation where i said it was logical is logical only because the speculation arises from some testimony on the record but whether or not the test when the record is sufficient to support an inference question about excluding other possibilities and i was a prosecutor and i was a trial judge and so i'm trying to understand why not necessarily the prosecution but the investigators and of course the lab were labs were not attempting to exclude as well by conducting tests on the other substances found at t your honor i think without placing myself exactly back in that spot i think the evidence this may not be satisfying but the evidence of this inference this chain of inference donte jacobs distributing the heroin to jonathan concert distributes it to teresa that that habit that she had the fact that the butter stamps heroin was was purchased the night before was used was so strong  the jacobs tells collins that he didn't think that his body bags contained then wouldn't that indicate something other than the butter bags may have killed for certain what is in those potter bags it's a risk he's taking in distributing these drugs he knows that some of the drugs he just tributes do can change that will he make knowledge is that people die from overdoses of these types of drugs every day alcohol can do that one can do that that that doesn't help you and i maybe just spoke in our fleet there that certainly the fact that this is just because people come back from time to time after time i don't know where that gets y certainly more testing can can be done and that is a critique i will certainly take back but when we're talking about a stipulation that does not challenge the testing a clean air review that doesn't put before the jury being the same arguments that appellant counsel is bringing up before the court once again this standard becomes really really important in terms of the other possibilities that your honour's  pointing out from other drugs that might have killed trees alley which i would argue are not even the most likely drugs to a culture research they have to fall to the wayside for the jury verdicts who were properly presented evidence they  and therefore a chain that certainly would have no difficulty passing the low hurdle of propounder and the evidence but we remain stuck on as we must be the question of whether or not it meets the beyond a reasonable doubt standard that's what we're left with your honor and and  if and if evidence found at the scene sufficiently proximate to the body of ms ali was found by the investigators inventoried by the investigators but some of it not tested that also logically leaves open the possibility that those packages those drugs contained fent know as well why does that not raise a reasonable doubt because your honor we're talking about  but i know it's because of me you got all these bags is that what i had to look forward to getting thank you thank you for the warning you know i said rocks that's it that's what's ahead of you you there your honor the ability to test for concentrations of the drugs is a is a more recent phenomenon but we've held we've held defendant was a case where the issue was whether or not there was a sufficient with liability of the weight of the substance to justify going beyond five grams if it was of her went in and we said look the the judge itself challenged at sentencing and that's where the court and announce that when when when something is challenge the judge does have to make certain findings but here it wasn't challenge in fact he was saying today don't they don't you don't have unless they challenge is that we're just going let's say stand up and say specifically that this is not sufficient to tie the drugs to my client and granted they should have done that and we know mr goble didn't try the case that he tried that we wouldn't have this problem i could imagine it's a charge in a jury in a case like this where you don't give the jury some information to determine whether or not they think that the sampling this been done is sufficient to allow them to convict somebody beyond a reasonable doubt or wasn't done here  to your office this is really whether or not is legally sufficient least my themes girl yet acceptable and there's no excuse for it and if it can easily be avoided the state officers they weren't federal officers but the trial attorneys in your office can avoid this kind of thing by just making sure when you go to trial you've got a better job it's done but this is just your honor i will thank you thank thank you thank you ms glad very much mr go all read and i can speak at least for myself i've read the entire bytes intrinsic to the entire jury selection not with respect to only to the two jurors raise but from from top to bottom from banking to very careful review let me just say then very briefly i want use my whole two minutes and all of that it is let's let me start with the stipulation as as the focus of what was cloud is saying that  the defense to pilate is that the methods were valid the method is is gas chromatography and there's nothing wrong with that but it is not on the defense lawyer or on the defense side in general in  criminal case to point out the weaknesses in the government's case and help them to prove to fill the holes before they rest their case it's quite the opposite and so this is not about jury instructions these are about logical holes in the government's case that resulted from and i think we've heard this implicitly resulted from jumping to a conclusion of guilt too fast this is the kind of thinking that results in wrongful convictions and i'm not saying this is a wrongful conviction case but it's the same fallacy is not looking open mindedly at all the evidence and building a case that excludes reasonable doubt here the there were too many other distinct possibilities that were not a vailable just to resolve with inferences yes there's a chain of distribution that's not the problem but the question is whether that drug that was found the chain is the drug that killed the sally and that they did not prove beyond a reasonable doubt so we as you can both see this is a case that raises serious questions in the minds of all three members of the panel who are all concerned about the investigative aspect of this not to mention the complete nature or lack thereof of the lab work will take all of that into consideration in taking the case under advisement thank you very much this matters