is absolutely fully prepared was absolutely planning and intent to be here and unavoidably because of unforeseen circumstances was not able to be here today but he is participating fully he will of course listen to the audio as soon as it is available for all of the oral arguments in today's proceedings that will participate just as fully as a member of the panel as if he were physically present so i do want all the court should overturn the conviction of mr carter for two main reasons in this case we have a fundamental problem with the analytical framework when it comes to dis conformance with the pattern instructions of the circuit your honor i have to double check on that that i believe that is true because of the fact well actually i don't know the answer to that but i do know so what we are facing in this case is it comes to the panel to reconcile the precedents and the circuit you have multiple cases you have ivy itself we have evidence we have mcintyre we with the buyer being a consumer of the product it doesn't say if the buyers going to redistribute it and the buyer seller rule would apply so you are you seeking to extend our law your honor i don't believe it is an extension and i believe that each case understandably has been decided based on the facts before the court for example and i have even though you're dealing with the end consumer the court acknowledges that the government has to do something more than just the buy and that is a recognition of the facts interestingly enough if you compare the situation in our case versus mcentire which is actually identical and we rely on mcintyre and saying just apply that but comparing it to  and consumer and i have the so we have presumably the conspiracy among the sellers and then you have the end user who's buying it and the courts as that one person is not a part of a conspiracy even if there is a conspiracy here just by the mere fact of buying you haven't become a part of it unless the government cruise beyond the reasonable doubt that there was that agreement to conspire to do this so our case is the reverse of that so we have all these guys that the government had met have been the real people in the conspiracy in the drug dealers that they caught all of them there peer out and then we have my client at the end of this who had defense then we have the issue of sufficiency of evidence which comes down to the same analytical problem both as to the conviction and as to the sentencing and then i was going to get to the second fundamental problem that i was going to point out to which as you have been and i'm hoping that i'm pronouncing the name of the case correctly only in that the supreme court recognizes the fact that when you hire have a part that is an  appears that the jury and the government were focused government focused the jury on whether there was evidence of five hundred grams that is not the issue the issue as whether the jury that the judge actually asked the court for finding that there was a conspiracy and agreement to distribute five hundred grams or more how do you deal with your government's argument that if you look at the part of instruction twenty five that comes after which you have quoted with the special iraq a jury that in combination the jury was specifically asked  beyond a reasonable doubt so didn't it complete the combination comply with a line it is not your honor because the combination was asking how much do you think was distribute it that is not the standard the are not dealing where the government proving and getting a conviction for distribution of five hundred and of course i have an issue with that too that is my last point but the most important part of this is that based it's not a question so i'm sure i understand your position are you saying that the conspirators have to agree we are going to distribute more than five hundred grams rather than we're going to distribute drugs and we're going to do it until the last crowd eyes and that's probably going to be over five hundred but maybe not young or if the charges and the trigger for the mandatory minimum starts at a conspiracy to dispute the truth to distribute five hundred yes that is our argument that i don't wise if there was anything less an agreement for something less the sentence for my thank you have been less and based on and that is exactly the analysis when it becomes the element then it has to be given to the jury and specifically the jury should be asked to find and get their finding that they found an agreement beyond a reasonable doubt for that amount that didn't happen but even if that was not the case  quantum itself as you have raised this was not an argument that was raised that there was an additional conspiracy was really there is no evidence do you do you concede that's not our circuits law right now and you're asking us to extend the law to make it that or do you contend that's brief one was more of a minor correction on page seventeen i quoted from exhibit eleven a that's an intercepted jail call in which miss eichler one of the co defendants actually said there was one thing that was able to be put away in the brief i quoted at it as something so that's just a more minor correction a more significant factual issue your honour's that i'm actually going to withdraw contention i made in the brief is that as the court will recall in this case toward the conclusion of the case mr eichler arrived at a motel in wyoming on may the twelfth intending to pick up an associate in mr flores in fact that was a st and in the brief i made the argument that the jury could have inferred that in so doing she intended to facilitate a methamphetamine transaction having reviewed the record again your honour's in preparation for oral argument i don't think that there was any methamphetamine transaction that had been arranged at that time mr flores certainly had spoken with savant carter about obtaining marijuana at that time and then in a recorded call that mr flores made after his arrest he and this is government's exhibit fifteen a he essentially told mr carter that he had a little bread to play with so you might as well bring whatever you can and certainly that could have been inferred to include methamphetamine but in terms of the evidence your honour's the evidence would have been that at the time all that had been quote unquote arranged were discussed was marijuana the government would still submit that there is sufficient evidence to find all the elements of conspiracy  defendants but in terms of the argument that miss eichler intended to facilitate a methamphetamine transaction that day the government will withdraw that argument your honor is turning now to the issues that have come up in the argument so far first let me address your question judge bacharach about the affirmative defense issue i'm not aware if there's any case that is found by or seller to be an affirmative defense but certainly the government's position is that it is not an affirmative defense is when a defendant essentially says government even if you prove all the allegations that are alleged in that charging document i am none the less not guilty because dot dot dot the quintessential example would be self defense another one that comes to mind is to rest but the self defense example i think is useful say i'm charged with aggravated assault some variation of intentionally causing serious  someone else if i raise the affirmative defense of self defense i'm essentially saying yes i intentionally caused harm serious harm to that person because he was trying to kill me i was acting in self defense therefore if all the allegations are true i am still not guilty the buyer seller argument is merely an argument it's not an affirmative defense it's merely an argument that the government didn't prove all those elements in other words in seeking to could be found to have been conspiring with one another or that mr carter well dismissed mr carter could be conspiring with mr gilson to sell for mr carter to sell for mr gilson to buy it but that that is not in that that was an element of the good spirit of the charge of conspiracy that they're saying that if that that that cannot be a under under the law a conspiracy based on the seven circuits for example and so they're saying that even if the jury no i understand the question judge bacharach i think and i guess i would answer that by saying that the existing jury instructions were perfectly adequate for the defendants to raise that argument if in fact that  was the defense that there was no that between say mr carver mr gholson that setting aside really the government's primary theory which was that mr carter missed i  the government really as as the evidence developed trial the downstream folks as conspirators became less important really but mr carter could have made that argument with the existing instructions that he and mr gilson had no agreement they had no interdependence they didn't have the same objective the issue with the buyer seller instructions is as has been observed here and as the government argued below and on appeal that they are inconsistent with this court that at a minimum a buyer and seller a buyer seller instruction that was offered to the jury in this case needed to contemplate this court's limitation or this court's holding that it doesn't apply it only applies to end users  but more fundamentally because that buyer seller instruction didn't it's because the buyer seller defense quote unquote is simply an argument that the elements aren't satisfied that so long as the elements are adequately instructed on that that additional instruction is unnecessary and the court therefore didn't abuse its discretion by declining to give it you had asked judge philips whether the instructions conform to the pattern instructions i believe generally they did there  one area in which they did not which was in fact in so far as quantity is concerned the this court's pattern instruction on quantity is arguably not sufficient under the more recent case law looking at instruction two point eight seven this is the court's pattern instructional quantity and the language suggested is that an element would be that the overall scope of the conspiracy involved at least amount of name controlled substance which under ellis would not be sufficient it doesn't have that foreseeability limitations so the instructions that the government offered in this case that the court offered oh instruction eighteen coupled with instruction twenty five coupled with the special verdict form that you mentioned judge bacharach really went beyond the pattern instructions to in an effort to satisfy us that foreseeability requirement and a lien so the instructions i believe were an accurate and accurate were accurate under this court's under this court's precedents in terms of that foreseeability requirement and i don't think that this necessarily matters but the verdict believe at least one of the defendants raised this argument or raised this point as well instruction eighteen is somewhat in artful i believe for the same reason as i recall i'm not looking at it right now but before setting forth the elements of just the underlying conspiracy which didn't have a quantity element there's a mention of the charge being conspiracy to distribute five hundred grams and certainly if i were redrafting that instruction today i would remove that and i agree with your observation judge phillips that the white may cite i don't think it meant anything to the jury because i don't think they would have appreciated that the want it was the five hundred gram provision but certainly i don't think that that should have been included in the verdict form again i don't think it had indictment charges a conspiracy in wyoming how is are the sales for mr carter to mr gilson at the mid they will utah home how are those within the jurisdiction of the district of wyoming and how do they feel how do they support the charge as alleged in the indictment your honor my understanding of the minimum requirement to establish venue for prosecution in a conspiracy case is that either the agreement would have needed to be formed in the district of wyoming or that any member of the conspiracy does any act in furtherance of the conspiracy in the district of wyoming so the government's theory for venue essentially would have been that miss eichler actions in wyoming established venue for prosecution of the conspiracy despite the fact that those later sales as you observed took place in utah despite the fact that mr carter himself never came to wyoming so so if if so now the words the government's position is if there is a conspiracy that involved some participation in wyoming that you can then include within the quantity and the base offense level for mr carter any kind really anywhere in the united states why the analysis of the idea itself when the court said the buyer seller itself is not enough you need to prove more even though we don't say affirmative defense we are saying it what kind of a conspiracy would it be that when you find somebody else was giving you a better price you just cut whatever relationship this is which couldn't have been anything more than a buy sell and move on charge based on that so what is happening is that there is look at this case what are they haven't said was presented to the jury there p s i ordered government's arguments on appeal there's nothing more than a  biased relationship between mr carter and any of these individuals there is no mention of any agreement to do anything more to for him to benefit from any additional sales for him to even be aware of