charles thompson in this case the willful blindness instruction issue i'd like to address first is a very powerful instruction to government recognizes that in fact in the its response brief the government the third charge in conference did the court agree to give the willful blindness instruction but the fact that the government asked for it at the very first charging conference demonstrates how powerful the government recognizes instruction to be and it's important point this out because in its brief the government doesn't rely on anything other than mr thompson's testimony to suggest that there were predicate facts to support the the instruction but there were not sufficient predicate facts and as the supreme court put it in global tech the defendant must not only believe that there is a high probability that a fact exist but also must take deliberate actions to avoid learning of that fact and in this case as i indicated there were not sufficient facts and in a very close case as as we saw mr thompson was a ninth furious type of person someone who didn't get into other people's business that he was indifferent in his thoughts and the law does not require more than that the law does not require that a defendant be a detective doesn't require that he look into the packages to see exactly what he's delivering now it was his understanding that mr jeremy other women's merchandise shoes and purses and clothing that was his understanding based on what mr anderson showed him and what mr anderson told to and in fact when mr thompson arrived at the warehouse in california in november to transport the load of what he believed to be merchant legitimate merchandise across the country he looked into the warehouse so contrary to what the proverbial ostrich does by i assume sticking its head in the sand mr thomson actually stuck his head in the warehouse and always saw regard ridgeback and there's no evidence that he smelled anything or saw anything that would suggest that this was an illegitimate operation and there was no evidence to suggest that this was that that these activities which were being conducted in daylight raise his suspicions whatsoever so after he looked inside the warehouse the government relies on the fact that for a few minutes mr thomson sec is heading to an am meeting  deliberately avoided nothing all he did was leave while packages were being put on his frock it in a void watching packages being or merchandise being pack the fact that he left for a few minutes to attend in a meeting didn't allow him to afford anything there's nothing that he would have seen just the argument the right you never know if you get out of the room at the right time you may avoid a package that's the that's the law that if he thought he might see something he doesn't have to be right that's correct your honor but putting everything in context the fact that he stuck his head in the warehouse and saw nothing was it your position then that someone for the willful blindness instruction to be appropriate someone has to sort of consistently all the time stick your head in the sand no you're in the sort of  the first occasion he there was evidence that he was suspicious and he walked away and then he did it again on the second occasion by the third patient he stops acting in that  way it may be sufficient if there is evidence he was suspicious but there is no evidence in this case that when he arrived at the california warehouse in the middle of the day and stuck his head into that warehouse if there was anything suspicious if the government put on evidence that mr thompson was at the warehouse and knew wiley said charlie let me tell you what's in these packages and mr thompson had said no i'd rather not know but that's the kind of evidence we're used to seeing in the willful blindness instruction contest in this case the government put on no evidence of that it was only when mr thompson testified that he was relating what he did that day that he looked in the warehouse and that he went to in a meeting only then was the willful instructions given did you have any influence i did hear you did i did yes yeah well so you know i mean you know you take the bitter with the sweet when you testified right yesterday and i'm sure you informed him  if you're going to be testifying you're prove you're putting me in your version of what happened and you may be subject to skepticism i may not hang together as far as maybe you'd be better off i mean i'm sure you know you're going to know you had that chat with him and  although the district court did focused in on the on the going to be a meeting it seems to me that he didn't particularly find him to credible i mean he's getting a lot of money for transporting this stuff to to address your last point your honor he wasn't getting a lot of money and that's part of our objection which we've raised in our forty thousand dollars he  was there was testimony by neil wiley who was permitted to leave an impression with the jury that mr thompson charged a rate of forty thousand dollars as we address in our reply brief sixteen fourteen to sixteen fifteen contrary to the government's partial quote mr wiley was permitted and this did testify about a rate that mr thompson allegedly charged we objected because that testimony lacked foundation now rather than argue that there was sufficient foundation to government first response to our position is that mr wiley did not testify that mr thompson charged a rate but they they used to listen to remove that exchange where mr wiley did testify to that and that's i think that's critical because when the government's best defense to our how are argument that that there was no foundation for this testimon is that there was no such testimony that suggests that even the government recognizes that they have a weak argument when they say that it just simply didn't happen and the fact is it did it's in the record twenty thousand and sixteen fourteen sixteen fifteen  now related to that testimony mr wiley was permitted to conclude that mr thompson must have known that he was transporting marijuana because the amount he was getting paid as judgments you just indicated permitted the government seems to want to have it both ways on one hand the government says wiley didn't testify that charlie thompson was paid a particular rate yet when mr wiley testifies and concludes that mr thompson must have fourteen to sixteen fifty fifty the question was again end of november two thousand and twelve what was discussed as far as how much it would cost to put the entire load of marijuana on the street conscience trailer answered by mr while jeremy anderson had told us mean can be both it would be forty grand question and that was four hundred pounds of marijuana and three guests and this is the part that was a little seed out to make up the word question what was the standard rate based on your conversations in november two thousand and twelve did you know whether that was a standard rate that mr thompson charged we objected the court sustained it and the question was was asked differently did you know whether how did you know what the rate was that mr thompson charged again an objection that this was overruled and the court now asked how did you know and mr wiley answered all i knew is what he was told what was told to me by jeremy anderson and so the version that's in the response brief is not complete and what i've just read is there is the fact that mr wiley was permitted to testify about a rape but there was no foundation for that testimony and he should not have been permitted to test with respect to the other evidence about a well i'm sorry help me with this sixteen fourteen what was the price that mr date say that was going to have to pay to not purchase the trailer but use the entire space to transport forty thousand mr day's answer and there was an objection because this was this was not in for further is of the conspiracy and for a while the judge that the district court seemed to to decide that well it was made during the course of the conspiracy and we didn't we didn't suggest it wasn't me during the course of the conspiracy but there was no evidence that it furthered or was designed to further which is the critical language and us vs shores there was no evidence that that information that in response glickman would give him advice which wasn't always followed to the point here is that there's no evidence whatsoever that this exchange was designed to further the conspiracy mr whitney knowledge is that when he says he as i think to begin with the most critical point to be made is that mr de had a serious problem and mr thompson was the solution to his problem mr de was was of always upset this permeated the wire taps and all the testimony by all the cooperating witnesses that all the deliveries were too small or took too long and there were various reasons for that but the point being that up until the point where mr thompson joined the conspiracy effort for sixteen months prior to that mr de received approximately a thousand pounds of marijuana in those sixteen months in the twenty five days that mr thompson between the two deliveries he delivered five hundred pounds in twenty five that's so he was clearly the solution to mr day's problem now also to put context on this mr thompson who carried eight hundred pounds four hundred pounds the first time four hundred pounds the second time the first trip two hundred went to mr de and the other two hundred went up to philadelphia the second trip three hundred went mr mr day and one hundred went up to philadelphia mr thompson carried eight hundred pounds of marijuana which cost the buyers collectively based upon the evidence a trial somewhere between one point six seven million dollars and two point seven million dollars depending on how much they paid per pound the sellers in california were owed collectively a return of somewhere between three million dollars and three point four million dollars so just to put a point at a pebble in the pile the magnitude of the value of what mr thompson was carrying cannot be ignored now the evidence a trial and this is sort of to answer both the sufficiency and the willful blindness argument because the willful blindness argument o willful blindness instruction requires three things and i would submit to the court that the facts establish that mr thompson was subjectively aware of a high probability that this was a drug operation and that he was hauling these boxes of marijuana him from the government's case the other two pieces and assertion that he had no idea and that he purposely avoided learning the facts came from mr thompson claire new jersey police officer and so we also had a willful blindness issue there as well but it wasn't until mr thompson testified and supplied the two missing pieces that judge  daughter decided to give the instruction so back to what was the evidence that he was subjectively aware the evidence that he was subjectively aware well and again i recognize that not one of these pieces alone may be a smoking gun if you will but it is the cumulation of the evidence so mr thompson's truck and trailer had no d o t number no company markings no he had no l he had no documentation in this truck about deliveries and both deliveries were made under the cover of darkness the jury could certainly conclude that he might not be a legitimate hauler there was also testimony that mr anderson had to be present at the crush warehouse when mr thompson delivered the marijuana now number one that's completely inconsistent with legitimate freight number two you're hiring a hot hauler but he dictates the terms to you he tells you yes i'll drive across country but you have to get on a plane and be there for me and that wasn't just mr thompson's response he admitted that on cross in fact when i asked him on cross so you made him spend a thousand dollars to be there because you just wanted to make sure that his shoes and purses got where they were going his response was well i don't know what he spent to fly there i mean his answers were were absolutely classic avoidance it wasn't just his avoidance of the subject matter it was the entire demeanor of his testimony he required jeremy anderson to be there and he never goes to the front door to say hi i'm here with a delivery he goes around back then there was detective wires surveillance of him when he left maryland the first time out in his testimony when there was a heated debate between him and defense counsel in cross examination about what you'd have to pay a driver more if he knew and last if you didn't know  glickman pointed out that it's sometimes worse if a driver doesn't know because he won't be careful and then on redirect he explained they don't follow the traffic rules of they don't know they're carrying something that would draw attention in the detective the narcotics detective was particularly struck for three hours right handling fifty one miles per hour going to philadelphia and then you really sort of struck that particular argument strikes me about the reasonable articulable suspicion i mean you're either going to or from of or thirty or you do look nervous or don't look nervous all of those things count against you it doesn't matter what you do so here he said bang the speed limit back out again well i absolutely agree how absurd it sounds but it is in combination that things take a different tone if you will be they look differently when you add to that the second delivery he shows up and he waits in his truck for half an hour he doesn't show up he doesn't bang on the door and say here's your boxes somebody come in and gather him he waits for jeremy anderson to show up and then he goes into the truck with the new jersey cop and one of the other defendants a trial it was actually the three on trial were i'm sorry i take that back was the new jersey cop and jeremy anderson go into the back of the trailer and they are in there for seventeen full minutes on the video that  a very long time to not be talking about anything and that is a very long time those boxes must have been so up and hidden away that it took that long for them to get them out of the trailer again just one more pebble in the pile and then finally he makes the second delivery he leaves he comes back a day or two later and leaves his livelihood leaves his truck in his trailer on the lot and it sat there till january fifteenth from december eleventh to january fifteenth when the police did the execution search warrants and seized it he left it there so again it is not an explanation that makes any sense the testimony of mr wiley was he understood that mr anderson was supposed to drive it back once all the money was collected again just these are these are not things that make any sense what it is because this is where i just have trouble conceptually so i take i understand everything you're saying and so it does seem like it was a really strong case that mr thom yet but it's in this is my concern about the case that you had a really good case that he actually knew what was going on but if the jury wasn't convinced by that he actually knew what was going on then they were supposed to sort of acquit and doesn't the the  willful blindness instruction just give them a way to say well you know it was pretty close you probably knew what was going on so well that i don't think i'm asking this question right but you know what i'm saying so far you show me there was a really good case for actual knowledge but where's the case for will transportation cell if you will to mr de he had a driver they'd been doing this for years mr anderson to mr thompson takes the witness stand and i have that guy jeremy anderson yeah i used to run into him from time to time he always had some hair brained scheme from the minute we started talking about what was going on he was distancing himself in his answers to mr anderson then he describes going to get the now mr wiley met him by accident because mr wiley mr anderson had already packed the boxes the government's not suggesting he went to an a a meeting i don't know where he was i just know he wasn't there when his personal truck and trailer are being packed by someone who hired him i mean that alone doesn't make sense that your livelihood you would park it and say load load your stuff and i'll be back that's just not normal commerce but so then he testifie yeah i got there that stuff going on out i noticed in a meeting bunch of cars what's going on over there i just going to just go do it the way he presented it the judge was just struck by he was almost inventing an alibi or trying to distance himself from what was going on he was never told it was purses and and shoes when he was asked the question what did he think was in there he talked about having seen some of that stuff so he assumed that was what was in there i mean and then the argument becomes by mr levine that that's what he was told and that's what he believed in the facts don't support those kinds of arguments he mr anderson even told explained to mr day in trying to sell the product the they're part of the conspiracy that he'd even been pulled over once dogs and the dogs had sniffed it because they had this absolute guaranteed way to wrap these boxes in tar paper and roofing paper and everything else then there's the fact that the other supplier that was putting drugs on the truck it was it was mr wiley and mr anderson who was getting drugs from paul and mack hall in merrick also were putting drugs in the truck to go to philadelphia hall's the one that fronted the money for mr thompson to buy his trailer again this is this is certainly starting to look more and more like the guy that is the transportation for the marijuana conspiracy and not some independent trucker and again who leaves their truck for someone else to pack the point that he that he always had to be there anderson always had to be there when they dropped it off and then mr wiley also explained after the first load when out the first load of marijuana worth hundreds of thousands of dollars hundreds of thousands are coming back maybe even seven hundred fifty thousand dollars mr wiley knew that anderson drove this money back and one could argue that it was concealed and he didn't know what it was but all the money that was seized in this case two hundred thirty two thousand dollars being driven across the country and another one hundred twenty one thousand dollars being driven were all vacuum sealed in clear plastic so i'm not suggesting that the jury could make that leap but what i'm suggesting is you don't send someone with seven hundred fifty thousand dollars of your money if you don't know who he is and if he doesn't know  other points when wiley hired mr anderson he counseled against using the mail because he had a better way they had never had a problem and mr wylie testified that mr anderson told me that thompson wouldn't drop off the marijuana to any random person without him being there because it's a drug deal and if he doesn't know the people it would be risky just to show up and deliver something with someone you didn't know you could get robbed or who knows what and that was that j sixteen eighty six finally the point that anderson was making at this dinner with day and wiley about this guaranteed way this sure way that they had jeremy anderson guaranteed the delivery he said if if anything happens i will be responsible he was literally  hundreds of thousands of dollars worth of product he was so sure that made him and mr thompson have this thing so well done that he was willing to guarantee that loss and to me again training cutting horses he was developing feed someone stole money from him he moved every five years somewhere else my sense was that mr thompson just wasn't maybe the best manager of life in general he sort of came across that way and he was also leaving on a cruise that that's what he said yes that's what he said so i did want to address the eight zero one the two issues i'm very briefly there's an objection that mr glickman said that mr de and mr thomson paid fifty thousand to drive the marijuana across the country on page eleven fifty nine there was no objection by defense counsel at that time it was only later after heated debate with mr glickman when he when mr levine said well isn't it true you don't have to pay as much to a driver if he doesn't know what he's carrying and what did you say fifty thousand dollars and mr glickman said yeah to curiosity so he asked the question number one number two  the testimony about you don't have to pay a driver if you don't know came out of his mouth so then when it was repeated by mr wiley who who was not in the room at the time who made the same point mr levine is objecting to mr wiley having said that in the same passage mr glickman also testified about blind couriers in answers to mr levine's questions that it's not the right thing to do to send a blind courier  don't do that if it's your driver if you can't tell a driver what's in their load you shouldn't be using him if the driver doesn't know he may not be driving as carefully you don't have to pay him as much if he doesn't know no doubt in preparation knowing that that was going to be mr thompson's testimony well but if you were only paid five thousand dollars why that wouldn't raise any suspicions of mr glickman who had been in the apparel industry for years said he would pay five thousand dollars for sixteen boxes of purses and shoes that's ridiculous the gasoline in the costs and the wear that's just i mean he just completely dismissed it out of and so then you get to mr wiley statements  i've discussed the secure way it was it was clearly it was so secure that mr anderson guaranteed it the statements that mr wiley made the foundation was made again and again and again the question about standard rate i'm very confused about that the rate was forty thousand dollars whether it was a standard rate or a rate somebody sat to me is sort of like who cares but the point is that the usa who was who was directing mr glickman said was that the standard rate while he just said he didn't know that's what andersen told him if there was no testimony that he said that it was the question of the usa and i'm pretty sure that there's a jury instruction that says questions are never so i'm i'm just not sure the big to do over that then mr wylie testified that mr thompson knew the question was do you know whether mr thompson knew that he was transporting marijuana on whose truck mr wylie said yes he gave us say said how do you know because you wouldn't get paid that if you weren't delivering something but that is after mr levine had already elicited the same information from mr glickman so again i'm not sure how he gets to complain about that finally there's an argument about a cover load the answer to the question that led to the cover load was that mr thompson didn't like driving around with an empty trailer there was no objection the question was why mr wiley is understanding consistent with his experience inconsistent with other state troopers that testified was that when there was a car in the car hauler it looks more legitimate so these were all this was an expert opinion it was just very commonsense answers and it was derived from all of the evidence in the case thank you l anderson and only jeremy anderson to meet him at the warehouse and remember he said that today that he put that in in their brief but that's just not the record mr thompson did not require and did not and testified that he didn't require only that mr tutt that mr anderson be there now if that were the complete story then perhaps the government would have a stronger argument that's only half of what mr thompson said looking at joint appendix twenty nine seventy seven twenty nine seventy eight the question was by the prosecutor on cross examination mr thompson mr levine asked you if you were surprised when you got to crush the chair crushes the warehouse of course in maryland that jeremy anderson was there and syria question and you said no i expected him to be there answer i question you required answer no i didn't require it but i was kind of adamant about not just jeremy anyone i would tell them please don't make me wait around for years try to be on time for whatever it is we're doing and later on and twenty nine seventy eight mr thompson said he didn't meaning mr anderson he didn't have to be there if he would have maybe put me on the phone with someone else and then he goes on to say he would have been comfortable he required someone to be there which is consistent with his practice in delivering other items which he testified to so the way the government has suggested well he required to mr anderson fly across country spending thousands of dollars and mr anderson had to be there mr thompson himself said somebody had to be there either mr emerson or somebody now the fact that mr thompson testified  he didn't know what it cost mr anderson that's not the liberal avoidant it's indifference and the willful bias instruction is not given when there's in difference no mr and mr thompson was admitted quirky guy and he was indifferent to what mr anderson's the details of his business he in fact said i didn't know his business well in fact he didn't know his business is mr anderson's business was the trafficking of marijuana and that's what he that's what he said i didn't know his business but that's indifference that's not avoid the the other part i'd like to respond to my remaining time is that the government's brief conflate the guaranteed way that mr anderson talked about the fact that he and a driver transported marijuana and he guaranteed that it would arrive he said was a sure thing and we kn about this conversation prove neil wiley's testimony and so while he was permitted to testify that anderson during this so called sales pitch told wyley that he had a driver someone he identified as his uncle who had a secure way to transport marijuana and the government sites to join appendix six hundred eighty two but in making this this argument there can the government complaining that conversation anderson does not identify the driver he does not put a name to the driver only later in november at the warehouse mr wiley is asked and did you did you learn the name of mr anderson's driver in november yes that driver's name he says that driver's name was charlie charlie and mr thompson so they're complaining an earlier conversation that mr wiley were strangers in not naming mr thompson just as i have a driver to sure thing and then later on a driver shows up in november but there's no testimony that that driver is the same person that mr henderson much for undertaking representation of this cl