team conspiracy involving all these different actors but why isn't the evidence at least sufficient that to suggest that he conspired with reals to distribute the simple and then that's it and then there's no observation of what you have i mean this is a it's of a sufficiency abbott the evidence channelers you have real zone testimony that he was home to point three grams of heroin i mean i think that's overwhelming not just substantial evidence of this acidic transfer so if you were charged with distribution that would be fantastic evidence but charged with conspiracy to white why doesn't why doesn't that also show a yet that is not sufficient evidence to meet a good spirit can counsel that that gets to the whole case i mean we do appreciate the by some point that's rock solid for you but when it's a sample we i think wouldn't you agree let's let's say this was there's one difference in the case that he was fronting the point three you would agree that would be a problem for a conspiracy was across the board ok when i came to conspiracy lot my i thought you know anything that goes in the way i'm not i would have thought it was pretty straightforward it doesn't mean it's a huge conspiracy it may still be small the way obviously we know for a fact that real's gave it to malaysia to try so there was this further distribution i would think if we eat gave it to rio was knowing that real is was going  perhaps a pragmatic instinct that the way you test a sample is to try and sample so why why would it be enough to think that he's giving the sample for a jury to conclude that he knew that he would give the sample to somebody else try well respectfully do appreciate it was a simple well i mean if you need answering judge murphy's question for me would it make a difference that we knew real city would know that he wasn't not picked and so that would suggest reals wasn't doing the sampling you tell me poke holes in what i'm saying i would say affronting situation where everything's the same it's this case you don't know about rd entities but it's agree that it's fronting so we just fronting this amount he's getting no money in return and the reason it would allow it seems to me the inference of the conspiracy see distribute is how else is the are you ever going to get the money back unless real says proceeding to sell the somebody out so that's what that's what implies there's something broader going on that counts as a conspiracy so if that's true so just accept that for the sake of argument no no point has in the briefs and a point challenging that but if that's true why isn't sample convey a similar point that you just as you wouldn't just give it to them without expecting something later it's similar with a sample why would you want to do this if the whole point wasn't to buy it in the future and for their own personal use as opposed to sell it you know there are any number of isn't point three a lot for of that point three grams person use i'm not sure that's in the record right so i'm not much right to make that natural inference i think the logical another logical step from the court's questions though together and if the process that resulted to mr weight but is what is the prejudice from the charge large conspiracy and maybe proof that trial the smaller conspiracy because the indictment clearly conveyed except for the fact that it said sell versus give a sample the indictment clearly conveyed the underlying acts that british you d so it's not like this is a situation in which you were caught off guard by a unexpected evidence they think into the trial and you are defending the case that mr we is not part of this large conspiracy and that he simply did not have to we did not have the knowledge to distribute or conspire to distribute this you know large quantit drugs and so when you remove the drug quantity from what goes to the jury the prices that's visited upon mr we is then of this a race that a part of the defense actually in part of the think that's that's what we wanted argument and that's what we're really struggling with not to we've got the other stuff down pretty well so if you could focus your energy on that there's not a lot of sample cases out there  finds oneself a little puzzled why it couldn't just be charged as a straight up possessions distribute but the government for whatever reason started out with a conspiracy and kept that all the way through  we don't have evidence of the sampler earl maybe you can tell us why the judge the jury could infer that there was this sampler out there help us out that's what that's what we're wondering  what your honor so that the government's position that the evidence was sufficient in this case because we just the one that is contacting is acquaintance reals there is testimony that they occasionally would have drinks together  and he says i came across something in your field at the time real this field was heroin and cocaine and there's a very there's some specific questions about what quality of this cocaine was or cocaine i'm sorry five real's is very interested in whether or not there's cutting agents that have been added to it and he says you know how is it and we sense you tell me he's inviting him to test this substance all right let's let's let's say everything in the case is exactly the same except this that it's actually buy sell another words we actually give some point three he's paid fair market for it and says yeah few if you're unsure do what you want but give me the money and that would just be when that be just pure buy sell at that point now because i think he knows officer but a conspiracy requires an agreement magine the hypothetical was there was one additional call and the call was from reals to we in real said i think the sample was awful i will never conspire with you would you say that there was sufficient evidence of a conspiracy just for giving the sample i mean on weeks part i mean there would be your conspiracy to provide five the drugs for potential distribution  you know the fact i think that ties right into the fact that real did not alternately by drugs but there was separate in there is that a concession that there only a conspiracy that is potentially in play here is the conspiracy to distribute the same pool and neither can a larger conspiracy to agree to exchanged greater quantities of drugs real's was definitely interested in and  trial that he never purchased or never considered or at least never purchased from we and so i would think that my hypothetical to the extent it's analogous to my hypothetical of where he just gives the call back and says i'm not interested that clearly would not be enough to show a larger conspiracy so i'm not certain that there is evidence to suggest that he there was ever an agreement on the other side for anything bigger well i think that i think definitely was invalidate evaluating that substance that he received for the possibility of buying a greater amount and that's why he minutes later our cases say negotiations are not enough to prove agreement and i think the conspiracy charge is different a regular charge because if you prove the conspiracy you're on the hook for all the conspirator lacs that's why you charge the higher oddities that's why it's so important it seems to me that we stick to the key elements of a conspiracy which is agreement and i saw an offer an attempt to agree which is a solicitation of common law but there was no agreement on the back and ok i just i'm losing track of the conversation i can't tell if you're debating the charge that the government know because he's inviting reels to test the quality potentially greater volume from him when he's saying out you know how is it he says you tell me you know are there any cutting agents you know involved and he says i don't play it like that and he says they said it was nice so he's got another source that he's getting these drugs from and he's clearly trying to get into the business with his acquaintance who he knows his field is drug distribution  it's but you responded to joe sutton's question judge sutton's question was is there enough evidence of a narrow conspiracy and he responded by opening up to the broader conspiracy of whether there was an agreement this or bit larger amounts and i agree that there was clearly an intention on your client's per week part at least of the evidence could suggest there was an intention to distribute those larger amounts but all he did was distributed a sample and i don't see re agreeing to anything larger so i think that goes back to just sentence point that all we have is agreement to distribute this simple an agreement to distribute the sample for testing for a potential greater do you  t i think that's a fair inference that that's exactly what was going on and you need evidence of a rd party to have a quick nice simple conspiracy to test a sample or cannot be a two person aren't federal drug conspiracy rule it seems to me is that a conspiracy must be more than a then the acts that the agreement that is necessary for the substantive crime and if the substantive crime is a distribution that's going to be a to b so if all you have is an agreement from a to give to be the war it was rule would suggest that that is not enough to show a conspiracy and you have to show something more than an agreement that is required for the the fact that he gave him three tenths of a gram of heroin that is probably were between twenty or forty dollars you know he's not inviting him to do you know to have take recreational drugs together he's saying you know take this sample test follow up on jack murphy's question does it matter what what purpose well as for why the purchaser got the drug because in the typical case when you say when we say that you cannot have a conspiracy from to distribute drugs in the future with this seller and that could be an inference so i guess my question is is that would that be enough that that that's the motive here that a jury could find for the purchase or is that enough to was in the drug for just for personal use but to determine whether or not sell drugs in the future from this seller ok that i'm going to push that was that's kind of affects a friendly question for the gossip and i would agree with that because what fade law enforcement had intercepted real's before he ever could even call malaca to say hey i've got something for you i want you to test this that's enough to have you've got t offer to provide the sample you have the meeting that's enough in this case it was just to clarify that so that means you think that there is enough evidence of an agreement not just for the sample but  agreement to distribute larger amounts of drugs yes and i guess i would say would with heroin and i believe it's on the record that you know it is very common to have a separate tester with heroin you know highly addictive at the time i think they test quite a lot of this was was not and a couple of big controlled buys involving rails were not so it's not uncommon to have a separate tester and in which it was your answer so go back to my hypothetical i just  want to it's just because it was an open ended indeed with your answer be different if i if my hypothetical final call came in where real said i'm no i'm not going to buy any further drugs from you so there was there was never an agreement t buy more drugs there is just an offer a test and a rejection under that scenario would would you think that there d would be insufficient evidence now here and i still think that at one point it was still open ended where he  to testing yet to determine but that's going to the latter and saying no no you know risk quantity is terrible i'm not buying this but you still have an agreement to provide the drugs to potentially distribute to other customers and that would be enough it would not matter as the what it was i'm that's like that's what i'm confused by why what is the agreement that is necessary because that suggests that there were never was an agreement because there was an offer by we but then real said no i'm not going to distribute drugs with you i'm i understood understand we are the agreement was the agreement was to provide a sample the sample for potential future drug transactions between the two that was the hope that was weeks go on and that is what the evidence established you know whether or not real's was intercepted before he could call malacca that would not make a difference the fact that he ultimately decided not to buy you don't need to have that you don't have to have an overt act  satisfy this and it was sufficient here that there was this agreement to provide there was an offer they did need and he did provide the sample you know the fact that it turned out to  be fronted drugs versus selling of drugs was you know a difference without consequences in this case were you just use the word front do you really do you think sample in front of the same analysis for both i  do think it is the same analysis you know it could be to a person it doesn't count as nearby cell and the reason it doesn't count is nearby so is the nature from which usually is beyond well that's the whole point you wouldn't you if you were buying it to consume you would be fronting you would be paying for that point and so that's it and then that can be to person also just doesn't matter if the evidence shows there's more it doesn't matter if later on they say enough is enough in fact i take an assignment saying you could later on reject doing more business and then pay at that point without undue the fronting if they if they decided that i think is long no i think what they're what matters is the intent at the time and effort time here it was to determine whether or not to fire a greater quantity but if you were intercepted before like you were fronted before you could provide you know you could see that reese distribute been controlled substance to your customers and were not in a position to think back that wouldn't matter what mattered ben said sorry i found somebody out so we don't like the sample here's thirty dollars i won on an honest businessman you would still say the charge to be upheld and still suffice epa time t was to provide a sample for her to evaluate for greater for possibly engaging in future transactions together and i do believe that is sufficient your hours and i i see my time is out your honor let me just wait just make sure bills because of the issue of in agreement if you're going to quote something to someone you aren't necessarily having the intent and this is the way the law as you know having to be until that is later going to be sold because you of it was just saying i don't understand how that's very different from this case the point is you know way it's free so that's what's one i think it's fundamentally different from the states subtly different from distribution and that we are going to have a relationship in the future that you're going to sell it and then you're going to pay me back what i've printed here in this particular case that they have a clear realty were never contacted that he was going to say that to a rd person so the sample in fact if you look at the actual telephone call mr we you tell me you tell me not you go get it tested and tell me you tell and what about what if i changed the hypothetical that i asked opposing counsel to real saying you know i thought i thought the heroin was pretty good i just don't need  any heroin right now but i'll keep you in mind when my supplies go down for future transactions do you think that would be a enough to show an agreement  that i think that is that's speculation and i think that's a potentially a discussion we're going to go she ation about whether or not there is going to be an agreement have a business relationship in the future but it's not the fact that there is a business relationship that there is a conspiracy and that it's a conspiracy that is defined and it's done you know and i don't think that would evidence that would be sufficient evidence for agreement  answering questions it's a tricky case so we're really happy to have good lawyers so thank you very much to both of you case will be submitted and the court may turn court