illegal transaction between a buyer and seller is not sufficient for a conspiracy conviction and i do want to apologize to the courts we did just submit new authority to the court this morning  i just learned about this case during my final review yesterday we did email us a mr matas yesterday evening so i do apologize for the late notice to her as well this case is not now so introduce any new charge it's a question whether or not there is a conspiracy under which the hearsay evidence can be admitted and if there is no conspiracy then the evidence cannot be admitted under the coconspirator exception to the hearsay  committed felony possession of methamphetamine with intent to distribute well telling aside the facts of the case for a moment because your time is short ultimately on the conspiracy charge it still is sufficiency of the evidence yes right so you want to argue that the relationship between mr hayes mr white is merely that of a fire sellers the evidence is insufficient to sustain the conspiracy conviction is that your argument buyer seller transaction and actually go to conspiracy is whether or not there is any fronting whether any of the illegal goods are sold on credit to the buyer in this case there was absolutely no evidence that hayes fronted any of the goods to white another factor that's commonly used is whether or not there is a shared stake for example a shared profit in the goods again there was absolutely no evidence in this case of any shared profit that only suffices for the buyer seller transaction it's the equivalent of a drug court seller selling to another drug called seller as happened and the loveland case and that was how it's not be he's made a whole say i'm sorry the seller yes the sale so white white we sold those items that does not form a conspiracy though what we are focused on is the transaction between hayes and statements and for the roots of a conspiracy theory of conspiracy from conspirator exception to or two people was entered into an agreement and therefore essentially their partners whether it's to buy and sell their vendors through an agreement where one steals and sells stolen property to another you could call it buy or sell or what have you want and this is the concern the exception of statements in furtherance of the conspiracy that the statements made by one and further it's of the other are admissible but i understand and i understand your argument as well your honor i have not seen any authority that uses a different definition of conspiracy for the admission of hearsay evidence as opposed to the offense of conspiracy itself if we were to accept your argument i was thinking of the many other contacts for example selling illegal arms to iran or to north korea and if i and your theory then they arms dealer in clear violation of federal law would say well i am the seller and the  arms agent in north korea is the buyer and so we yes we have an agreement to evade the export loss but because i'm the seller he's the buyer it's not a conspiracy is that right that's the law as it stands right now which the buyer seller will has been applied including cases in which a conspiracy conviction was found to not be sufficient based on the evidence and i do want to point out even a seller has knowledge that the buyer intends to redistribute it's not sufficient for conspiracy quotes with out and tension and agreements that they would distribute to others so without any agreement between again though as this case says knowledge that the other person is going to sell or resell the guess i should say is not sufficient for a conspiracy there has to be an agreement between them that the second person is going to resell and there was no evidence of an agreement here none of the text messages between white and hayes even reference any of the firearms there was no indication of what their discussions were no evidence of what their agreements were and without any evidence of an agreement other than a speculated knowledge that hayes would have known that white was through selling that itself is not sufficient for a conspiracy well i'm looking at the indictment and the objects of the conspiracy to steal our theft of firearms which have moved interstate commerce receipt and possession of stolen firearms source for the stolen firearms inference is can be drawn from that in the jury that's what the jury accept it so you've got a pretty tough argument on sufficiency of the evidence don't you are you referring clearly states that you need more than just a wholesale transaction to elevate the offense to a conspiracy right you're down to three and a half minutes you want to save balance yes i would think you know let's hear from the government driver curtis hayes as the curtis who was white source of the seventy two firearms and other merchandise and as your honor one pointed out sufficiency of the evidence is in fact the key inquiry into day's argument and consistent with the standard of review and nevels and began the government presented a chain of logic that proved defendant's guilt beyond a reasonable doubt and i'd like to take a moment just to go through some of that evidence that was presented at trial excuse me first as your honour's are aware and as defendant didn't really touch on in either the briefs or in argument today it was the testimony of several live witnesses against the defendant first p known firearms dealer who was a cooperate or in this case had conversations with white prior to august two thousand and twelve when he was arrested were white told him that he obtained the firearms from somebody w in fact curry testify that he sold eight to ten new browning pistols that were given to him by white and that those matched the firearms that were eventually found in his residence and white talked about and sent curry tacks including photos of the kimber forty five firearms for curry to sell so in addition to the testimony of pure curry your honour's we also have the testimony of when each of cash and miss cash testified that the curtis in her text messages who was the source of the toys or firearms was in fact white's friend curtis she had never met curtis but she knew that he was white's friend and associate in addition your honors we also have the toll records and evidence of that in this case that the only u p s employee in white's contacts was curtis hayes the defendant and we also know your honour's that curtis hayes the defendant spoke with white on each day of the thefts we also had cell site information your honour's and that focused on the defendant and white being in close proximity to each other on the  in addition we had testimony from two u p s officials marie gomez and antonio pueblo who testify that the defendant not only worked on each day of the thefts but that he was only one of three drivers who worked on those days that he worked in the bay that was closest to the bay that delivered to turner's outdoorsman which was the store where the firearms were stolen from where the firearms were stolen and that he was the designated overflow driver for turners and the designated driver for cosco or point out any new law here in fact it does not apply the buyer seller rule beyond the drug contacts and in fact your honour's there is no case law applying the buyer seller rule beyond the drug contacts and edition as your honor pointed out theft and receipt were both objects of the conspiracy here this was not about just distribution or sales as was true in loveland and in the cases cited by leveland in the cases cited in the defendant's brief truck context but i think judge owens example was a very good one in any transaction then that we would have whether that's between two arms dealers or in another context those would never be considered then anything beyond a conspiracy it would be just be on the buyer seller will it would be a mere conspiracy and here is judge korman pointed out it's obvious that the purpose of this transaction was to resell the firearms these were seventy two fire arms often multiples of the same weapon this was not for personal use and distinct from loveland and in some of the other cases that were cited the court noted in loveland that loveland who was a purchaser methamphetamine was free to shop anywhere for his methamphetamine but as your honor pointed out whites only contact u p s and his source of the firearms was curtis hayes so this is  maybe child pornography could be an example where someone would sell child pornography to someone in the end user is the one who buys it but in this case i think it at least from the time the evidence you're saying that these guns were not end user they were to be done something else with what they were stolen and given to these guys absolutely honor and that was the evidence that was presented at trial consistent with that sure it may not fit the facts of this case but as a theoretical and analytical mattered could could apply outside of  the of the drug context so if you basically go out in the street and sell a single buyer a firearm and the government tries to charge a conspiracy count based on that single transaction couldn't the defendant then say well wait a minute this isn't a conspiracy i just went out and bought a gun or respectful your honor that particular situation that you're pointing out is not the situation that we have here we have so i  mean i think the party cut you off i think the concern that we would have to court is that for example we have these swap meets where people buy two dollars copies of d v d s that are counterfeit and you know we want to be careful to say they can under the government's theory we're not going to be able to charge case i'm not even sure that that would meet federal guidelines for prosecution but but i do agree your honor that you would not need to reach that far in this case if your honour's would like i can briefly address the four a four b argument as well i don't have any questions with regard to that you judge korman such a limbs all right if your honour's don't have any more questions i would respectfully submit thank you thank you there's a little first like to state that i did not hear a compelling reason that to why the bias so well should only be applied to drugs i do understand that the case law has focused on drug transactions but the issue here is whether or not the sale from one person to another person of illegal goods constitutes a conspiracy and case most four cases have how it that that that someone from u p s had supplied the goods and her second main point was that when he said cash had sent a text message referencing toys from curtis the fact that she mentioned these two points both of harmless these were the first two key points of evidence that she raised in her sufficiency argument and not to the seven not to these pieces of evidence along with text messages sent by white to other individuals should have been admitted under the coconspirator exception because there was no conspiracy well i understand that other evidence was presented at the trial beyond this hearsay evidence the other evidence presented with primarily circumstantial and i do not think that the introduction of this evidence can be considered harmless in light of the fact that the other evidence was almost exclusively evidence i would like to also point out as far back to the question whether or not there was a conspiracy to begin with there's also no evidence here that has had any obligation of ongoing and future sales to white assuming arguendo that he provide the goods to white knew that white is going to resell the goods that and then of itself is not sufficient to establish a conspiracy thank you all right thank you very much counsel for both sides for your arguments that are submitted