do you think your honor of the court was the berenger on behalf united states the court erred as a matter of law when it set aside the jury verdict for count two in this case it was either operating under a post trial relevant timeline in this case after the defendant filed his combining rule twenty times rule twenty nine dollars i rule thirty three dollars motion and which he did not notably challenge the leader sufficien is district court held a hearing at which it stated it was and then and then excuse me and then the court granted the motion without reason at a hearing a couple weeks later the court stated that it was granting a new trial motion because it did not want to days later at that conference however the court returned to its original rationale for the granting of the motion for a new trial as stated that it was it was basing it on the sentence and it acknowledged even that it would be case if the written order controlled it appears that the court did not understand the appropriate legal standard for knowledge which is not require the government to prove knowledge of dr type if the oral statements control trial or some sort of a bit injury deficiency counsel what if you read the written order not to say that it's about drug type but just say that it's not about specific knowledge that there is marijuana that it's equivocal whether he actually knew there was marijuana why isn't that a legitimate way to read the order and why wouldn't that be subject clearly erroneous standard and why would that not a clearly erroneous urine or the court logical concern but knowledge if that was the only evidence with knowledge perhaps this would be a much closer case but this is not a closed case there was a tremendous amount of knowledge in this case about the defendant's knowledge that he possessed a controlled substance in addition to the state suitcases in a bag and then and to take to the byway house he concealed the drugs in the attic of a friend's house and lied to his friend about why he was hiding the drugs mess house and what was in the suitcase and most telling me if you look at exhibit twenty seven in this case these bundles of just high old into these three suitcases and bag they're all one pound they're all very similar i mean there are slight differences in how they love but they're all very similar si and they're just piled in these and and had to go over to the buyer we have he had to pick out ten of those bundles he happened to pick out of the one hundred and three bundles ten bundles that happened to be the exact quantity that was requested by of all of this evidence the court i mean that there was some sort of rule thirty three situation that the wait was not significant not addressing not other evidence especially in light of the context of the court statement but that th several suitcases immediately moved them to the byway residence away from the tell the family that he believed they contained something illegal but if anything marijuana but this was insufficient to  the statements that the court made about why it was really granting that yes it would be under clearly erroneous standard but it's clearly wrong if here he only addresses one fact of the knowledge the defendant statement never opening the bag frank how how did he to order a new trial if you think that's appropriate under the standard but since the jury found the facts why do we were you you know it was a district judge can say well i make a verdict because it's against the great weight of evidence but in doing so is he actually making findings about what the facts were or more just saying the weight of the evidence was against this verdict that distinction makes sense well the core is allowed to make something argument goes that you were to prevail and i'm not foreshadowing what result because there are the other parts that you have to peel not what we have in this case it's rule thirty three is not unbounded it is a rule that doesn't just allow the district court to throw out the verdict and satisfy the jury's function any time it disagrees here we had strong questions i would just and i mean under their eyes can i just clarify again the standard overview for us here is not whether it's against the great weight of the evidence the standard of review in reviewing this particular motion the motion standard program people need trial and i think in a case like this it's very important to think about why the court of appeals defers to a trial court the trial court has the ability to observe all of the evidence has the ability to observe the demeanor of witnesses to make credibility finding with respect to those witnesses did you try to have that same ability yes we do yes they certainly do they certainly did so to the standard of review i don't get is disputing it's abuse of discretion but the underlying trial court standard and musters a procedural error like evidence was improperly admitted or where there was some kind of  misconduct the standard the trial court's looking at is was the jury's verdict against the great weight of evidence so our question is did the district court abused its discretion in finding opening very they also i mean and in argument they talk about him the judge using the incorrect legal standard as well and missed understanding mcfadden misunderstanding the knowledge requirement and with respect to that i just have to say the judges memorandum opinion he sets out the correct legal standard he identifies it he set it up correctly that mcfadden says you either have knowledge of a drug or drug or he was or you have knowledge of the identity of that drug the judge has never said orally or in a written order that the person has to have knowledge of the specific drug it's a it's a two part thing with mcfadden that so i think it says specifically for instance that someone had when it wouldn't be a defense to say gee i didn't know it was on a schedule so it's a two part thing in the church correctly identified that and he never said that if mr crittendon believed it was some other kind of drug that his defense and i sort of feel like that's a herring out there i think it's very clear the judge applied the correct standard so i shall be greeted marijuana is on the schedule just like now there's not even movement to take it off but it is currently on the schedule right yes yes i do the testimony the judge did observe all of the testimony although he did not make specific credibility findings he certainly is entitled to do that and one of the things the judge said is that even if mr crittendon said he believed it was marijuana belief is different than knowledge and and i understand that sometimes you could say i believe there's marijuana in that bag and there would be sufficient facts with lead you to believe that sort of like you knew or should have known but a belief in the absence of facts does not create knowledge so one of the things the judge said in his findings and i think this is perhaps the most important of his find said in his memorandum opinion he said the evidence shows at most that the defendant believes the best in something illegal he says at most and i think what the court is saying there is that maybe somebody could have b but the great province of the evidence wasn't there but maybe somebody at most could have shown that he's goes on to say more specifically if anything the defendant believed it was marijuana and those are two phrases the judge that the government consistently omits from their summary of the judge's findings that he found at most he thought something illegal if anything marijuana and of course a judge can set aside a jury verdict willy nilly just because they disagree with it but we have to remember a judge can grant a rule twenty nine motions the government at the close the government's case judges always have that option to do that they don't  generally judges don't abuse that but the government can't appeal a directed verdict because of the evidence i think that one of the things another reason we defer to courts is because they have experience with factual patterns and i think the court  take note that this is a district judge that has been on the bench over twenty five years and probably tried thousands of drug cases some of the facts specifically that the judge noted were facts about how that crittendon did not open the bag did not have an opportunity to see inside i understand the government use the evidence differently but those are findings the court made from observing all of the witnesses observing the meaning of the witnesses and those are the conclusion  the court drew from sometimes conflicting evidence but the court can do that and it is not clearly erroneous if they make their determination i do want to address i'm sorry do you rea think that it would be inappropriate for the district court to made this decision based upon concerns about the students being too long with the mandatory minimum respect to his his comments is oral state of the judge's oral statements a couple of things one is his written orders thorough his written order i don't believe confusing i believe that the cases generally say that where a court order is clear you don't need to go beyond that to look at sort of like a statute you don't go to legislative history of the statute it's clear i think the same thing is true of order now there certainly are cases that say sometimes judges say things that do not completely reflect their measured judgment  that certainly could be the case here but let me say specifically a couple of things about this one is that the court had an opportunity and this is one of the bearings there's review of the procedure at the beginning it's important that that theory was tested because the st step act came into play after the granting of a new trial but before the judge reconsidered the granting of the new trial so when mr crittendon was originally facing sentencing he had a prior conviction that was eligible to enhance the ten year minimum mandatory up to twenty years the judge would have had to give the minimum mandatory twenty later when when this court remanded the case back to the district court to reconsider the motion when the trial the st step act has passed and that prior conviction which was a probationary sentence no longer qualified as an mandatory did not get up to twenty the minimum mandatory was down here at ten years so i would say the government had a chance to test that theory to see whether that was what judge order relying on his previous order the nd thing about that is that his comments as i said i don't i don't think that they can contradict what's in the order but if you are going to look at  comments there are a couple of times the judge voiced concerns about the weight of the evidence during the trial and i would say when he talked when a motion for judgment could or was raised at the close of all of the evidence that the page six or seven of the record he had questions about his knowledge and intent and he said the judge said to defense comes you can argue to the jury and then the judge said maybe i'll take it up after which i understand that you mean if the jury doesn't do what he thinks if the jury does not acquit he will reconsider judgment acquittal again during the charge conference of following day at page we filed in writing with the government's opportunity response so this was not a ringback shoot from the hip i get i get the present report and i'm troubled i'm going to set this aside he was concerned about the of the evidence during the trial as the evidence was coming out i do think that some of the judge's findings well i guess i'd like to go back to just why why we defer to a court the judge did not make specific credibility findings he did not say i credit some of the stimming with the testimony but not other parts of the testimony one of the things briana's has the opportunity to use his judgment his experience to understand what that meant in the context of the whole scenario and the government says that reply brief the best state has the wisdom i would say and the experience to understand what a comment in an interview to a resting age or not arrest he was not arrested that point what a common agents the weight that should be accorded t that comment the government says that that statement in and of itself is enough to support of verdict and i think the judge leon is a better position to say that no that that is the strongest piece of evidence the government had and the great weight of preponderance of the evidence goes against a conviction in this case he specifically says belief does not amount to knowledge and i am and i am expanding on that in my comments but we know that you could have a standard of you knew or should have known but when there is which by the way that instruction the deliberate intent instruction was not given in this this arguable confession to the side and what do you do with the evidence that you've got over that house to begin with in on the testimony that the pain didn't want the drugs in the house and then he was able to his wife to think that he might have but she doesn't know she says that she does not know who i guess i heard the record wrong and i thought that was at a minimum a reasonable inference to be drawn that he wanted to retrieve that since he put put the things in the bag and said grab the i don't remember the colors but just you know grab the red suit for me bring me the red for me i said you know there's not i honestly if there was evidence that he had called bundles out of one container and put them in another container then it the judge wouldn't have granted this motion that bag but this was this business of putting bundles and something in selecting number that he must have seen it because they were the actual bundles that is not supported by the  happened i think what what i would say is that this is where the judge gets that he thought there was something illegal i don't think that there's evidence that he thought it was drugs at that point something illegal and the judge's finding was that at most he believed it was something illegal and at most potentially marijuana i think honestly the judge's findings were very specific it is kind of a complicated record  trade it is the story goes back to where there is a new do might be drugs well but then that would go back to a conspiracy charge which isn't being even raised on this appeal of course but you're right that would potentially involve them in a conspiracy charge but if it was good and that would they would be able to have that in their house for a day because of his prior that's correct because he is a convicted felon at that point  think it's the end of the day what we have is a judge with with a lot of experience who's presided over a lot of cases and i know if a judge had said on the record i'm not doing that because i disagree with this guideline and judges certainly do that sometimes they say i don't like the law don't like the sideline but that's not what this judge did he said i can't stand this man has much time and maybe what he meant is that i need to correct this injustice maybe what he meant is that this is making me look at this more carefully i'm going to go back and look at all the evidence and get the transcript of it and look at everything and he made very detailed considered findings factual findings and if the court were to reverse him in the end of the day what the judge said is he aside what the jury's function and role was make the fact finder and so this court should engage in a rigorous review of its factual i mean especially when it's written decision for august is on one statement of the sentiment ignores all other evidence and doesn't address it and i'm in the context of the court statements of thing hearing that this is really will not buy it is granting a new trial both before and after its written order that there's there's just something else going on here is for the experience of the judge asked judge agreed on as is a very experienced which is why he knows and he says on the record that this court were the st time because he's still experienc happening a tryout that caused prejudice to the patent which was a joint trial although i did note as one of the factors in that prejudice is that there was very little evidence of the defendant's conduct so when we look to to rango it's more a model of that other entirely use their jury function or do it for grounds that are not committed under rule thirty three or runs just because he believes the court believes there's another outcome that would be better  it's just any trial is given and i'm not sure those got you bring it up i i'm just it's part of the testimony at trial but there were photographic exhibits that