good morning your honors may please the court federal defenders of new york on behalf of kevin fagan in this circumstantial case the government did not introduce sufficient evidence for a rational jury to find beyond a reasonable doubt mr figgins knowledge that his suitcase contained a controlled substance in particular as opposed to contraband in general the government offered none of the forms of proof approved by this court's concealed contraband cases no drug related conversations to which mr fagan was a party no documents or drug records implicating mr fagan no evidence that he enjoyed a position of trust or authority in this criminal enterprise no payments to mr fagan reflecting the value of the cocaine packed in his suitcase no explicitly self incriminating statements no cooperating witness testimony and no physical or forensic evidence tying mr fagan to the cocaine hidden in his suitcase what that does show is the defendant's sole possession of a valuable illegal commodity which we have set in our precedent can support a reasonable inference that the defendant knows what it is he is with which he has been entrusted we said that in andersen that case collects the other cases why isn't that enough so i think the andersen case refers to sole possession inference of knowledge in andersen the court was i was a position of trust hundred thousand dollars worth of cocaine so that evidence on the value of the cocaine covered a wide range it was nine thousand dollars worth of cocaine in st lucia where it was presumably packaged and the government told the jury and some asian that mr fagan was quote on someone else's time and quote not calling the shots here there was other evidence and he  considers the totality of the evidence in the light most favorable to the government of course the phone calls or rather the voice messages and whatsapp messages with mr mccurdy i think can usefully be analogized to the phone evidence in this court's decision  rodriguez that isn't run three goes this court said that where there was extensive phone and pager traffic between the defendant and the principal in the heroin distribution conspiracy and a jury could reasonably infer that the parties discussed a series of phone calls as to which a jury could reasonably have inferred that they concern the mechanics of a drug transaction and the effect to ration of a legal scheme but not that the calls concerned controlled substance in particular here we actually  contents of the communications so in that sense mr faking his own stronger footing than in the fence then the defendant in rodriguez we know that the calls didn't concern drugs by name as to mr figgins conduct at the at the airport judge chin two points  one mr fagan visiting his son he did have contact information for his son's mother stored in his phone and it would have made no sense for someone mr figgins position to conceal that fact but he did conceal it and the inference that can be drawn from it is that he knew that what he was doing was trafficking contraband and he didn't want to implicate family members in it so he didn't tell me he didn't provide the contact information to the authorit i think i think that the reasonable inference to be drawn from that evidence is that a person who is visiting a son who is celebrating his sixth birthday a few days later and who does hold a plane ticket that will cover his stay through the child's birthday and who has been in contact with the child's mother and who has texted family members while in st lucia to indicate that he's visiting his son for his birthday and who doesn't factor stay with his child in his child's mother during the pendency of the trial in this case the only reasonable inference i can draw from that is that mr fagan like most people with a cell phone does not have a phone number on the top of his head for even a close friend but even if your honor is correct that mr figgins answer demonstrates this in the light most favorable to the government absent that the view would be that he did not disclose his contact information and that that is further evidence that he understood that he was involved in illegal activity so and accepting the premise of your honor's question that a rational jury could infer its evidence that mr fagan was aware of his participation in some illegal activity and you start put it together with he's been entrusted with a a hidden compartment two to two responses your honor first backing up to the the sole possession and the anderson argument i did want to articulate that the distinction was with anderson first the cocaine or the ecstasy  really a hundred times with cocaine in this case was worth if you're using the st lucia value and the us wholesale value was between eighty thousand and one hundred forty thousand and again looking at it in the light most favorable to the government he's been interested to come to the united states with an item that on these shores is worth the larger amount fair point your honor anderson also said in the majority opinion emphasized that there was testimony that the princip vatican spirity in particular would not have been trusted contraband of that value to someone who was not trust and and the court emphasized that fact at least a half a dozen times in addition the contraband in anderson was easily accessible in a duffel bag here the contraband was secreted in a hidden compartment that would require disassembling the suitcase to access i'm not sure how that helps you concede that he knew he had contraband so i would assume the question is whether he could have thought that the hidden compartment had diamonds or whatever else you know contraband would be but but the point is that in these circumstances we have said this combination of factors present here is sufficient so to two responses your honor i think the relevance of the fact the contraband in this case was inaccessible is one that diminishes the strength to be inference that he enjoyed a position of trust in anderson this court said that because the career could have opened up the duffel bag and inspect it or otherwise dispose of the contraband that suggested trust i understand that argument if you agree that he knew that the evidence supports the had contraband the fact that it was well it doesn't have anything to do with whether he knew what it was it just means that this was a more sophisticated group than in andersen or that the contraband had to be well hidden and its nature concealed from him because he was not a principal in the secret part of the suitcase so mr mr fagan turned the testimony was in the video reflects that as customs officer valve very began to unzip the lining mr fagan stood up turned around and sat on the counter with his back to the officer as he did so however he looked over his shoulder at the officer he made eye contact with the other officers who were in the vicinity arguably more suspicious and critically he stood back up and turned around to face officer should weigh for much but we have to assume the jury gave it the weight that it could bear and so let me let me turn to train i think you are you want to risk you can go ahead but then you'll use your time now do you want to reserve it for rebuttal or please the court my name is lindsey gardasil i'm appearing on behalf of the united states the court should affirm fagan's trial conviction because in viewing the evidence in its totality in the light most favorable to the prosecution the government presented possession of the suitcase he claimed ownership of the suitcase he said he packed the suitcase the contents belong to him and that no one gave him anything to bring into this country if a defendant possesses cocaine a legitimate inference i would suggest that the jury could draw is that they know what they possess is cocaine going beyond that no one has we haven't always been willing to find that  inference of reasonable when there were other circumstances under someone else's control at same time exactly your honor and this is a sole possession case no one traveled with into this country he was traveling alone again a fact that the jury could rely on in drawing the inference that he was placed in a position of trust second fagan was in salt possession of that suitcase for days before he travelled into this country when he was in st lucia third he behaves suspiciously at the airport telling c b p officers that the purpose purpose of his trip was to visit his son for his birthday yet he did not have an address or a telephone number this court h that when an individual was going to see a casino in an area that he did not frequent that behavior was suspicious and could lead to an inference of knowledge in this case you have something more and not because it's not just suspicious fagan didn't have a telephone number didn't have an address you have a direct lie to the c b p officers under very normal circumstances these were not unusual circumstances that mr fagan found himself and he was at a border crossing this is a typical place a person find themselves when they're traveling internationally furthermore when he lied to the officer the officer was merely moving the clothes from one side of the suitcase to the other he hadn't even begun unpacking the suitcase at that point and we also know that fagan had his child's mother's telephone number in his phone and the maybe he didn't have the phone number committed to memory and although the government does not have to disprove every hypothesis that is consistent with innocence he had his telephone in his actual possession when the officer was asking him these questions you can see him on the video with a telephone in his hand going beyond that the fourth way we know that the defendant had knowledge is because of his suspicious behavior and turning his back as your honor indicated the moment the suitcase was unzipped an expression of essentially defeat and again suspicious behavior given the timing he had been standing there for approximately five minutes and forty seven seconds before he sat down at that exact moment when the suitcase was open fifth the government presented and a ray of corroborating evidence abundance of suspicious circumstance evidence surrounding mr fagan's trip there were the voice messages between fagan and rudolph mccurdy the day before they left for the flight and which fagan was saying we have a lot of things to do and he references the things that they've been discussing for the last two three days which is essentially the two or three days as when they bought their ticket to travel from st thomas to st lucia beyond the voice message we have the what's at messages that were into entered into evidence himself actually net with the person who gave him the cocaine to bring to this country based on that evidence you also have more you have the what's out messages once mccurdy has traveled to the united states when fagan is still in st lucia where he's asking is everything safe there's a note entered into fagan's phone on the day of his trip radisson j f k a hotel that was very close to the airport likely an inference the jury could have drawn as that's where he was going to be delivering the drugs and finally is this court has alluded to you have the high value of the contraband that fagan was placed in a position of trust to transport alone there was simply a tremendous amount of evidence from which a rational injure could infer his guilt and if the court has no further questions i can sit down what's going on today but do blind mules who may not know actually don't know usually what they're carrying or they always company by the actual drug your honor i don't know the answer that question there is no evidence in the record about blind mules for the jury to rely on the jury instead  presented with a significant amount of evidence showing that fagan had his eyes wide open during this trip and that he knew exactly what was in his suitcase this is a knowing courier situation here  vehicle in which contraband is secreted in that case in the ceiling lining of the car was not sufficient to prove knowledge in that case there had to be other circumstances in addition the court in trend noted that the defendant testified in that case transitory whereas possession of a suitcase while it is being transported internationally is viewed as something that someone would not be entrusted to do without knowing what the contents were and a person with so  vehicle containing contraband i would submit is more able to flee with the contraband than them once mr fagan but i do want to resist this broader point about the significance of sole possession and i do want to point out to the court that in both lorenzo and torres there was evidence that the defendants were in sole possession of the contraband and lorenzo the defendants were set to assume possession of what they thought was two hundred sixty thousand worth of cocaine so more than the cocaine at issue in this case possession case but it was the thrust of the government's response and and hence of my presentation today as to the other individual pieces of evidence we've addressed them and i would simply encourage this court to consult torres and then judge sotomayor as opinion in evidence was sufficient to say that you know any reasonable person carrying contraband would be expected to know what it was are you suggesting that this would not be sufficient on a theory of conscious