rebuttal this case calls upon the court to give teeth and meaning to the fifth amendments command that no person can be convicted except upon proved beyond all reasonable doubt the government cannot rely upon building inference upon inference piling inference upon inference any inferences that the government relies on must be reasonable and they those inferences cannot be attenuate the evidence from the element that requires that that needs to be proven if the evidence viewed in the light most favorable to the government supports equally or nearly equally an inference of innocence and guilt then the jury has to accept the one of innocence and the defendant has to be acquitted in this case the issue is whether the government has sufficiently proved that mr lew wee had knowledge of a conspiracy not just any conspiracy but a conspiracy to traffic in narcotics and whether the government adequately proved that he had knowledge that there was cocaine wrapped in these of cargo but not imported cars a coworker or three things that the government or i think those are three things that the government is relying on but ultimately this court has repeatedly and consistently said that presence together with association is not sufficient to prove knowledge of a conspiracy or a substantive offense of possession with intent to distribute the court has gone we have presence and association so he had a he had been seen at this shipyard some fifty to one hundred times before this particular day he had identification as a port employee he was an employee of mr borge allah who was the person who own the an assist celia and he presented himself openly and notoriously when he appeared on the day the first day where they took a photograph of his driver's license and allowed him to come in to provide food to the ship members who had been quarantined on this ship it what about the line of cases where convictions have been  on the drug mule cases on the basis that the elder had and trusted someone with valuable merchandize drugs in that case and therefore the jury can infer a relationship between two that that is not a reasonable inference if a court looks at one of the fifth fifth circuit cases i believe it's a fifth or ninth a case called the trial where the court looked at that particular driver and said it's a tactic and strategy of conspirators to end to provide drugs in involve people who have no knowledge of the crime that's being committed w understand that the that he was only constructively in possession as they put it in his car for virtually moments before he was accosted by the police and as judge wilson says he fled and so what's the evidence about flight so here he was accosted by three cruisers lights and sirens blaring the agents jumped out plainclothes the agents guns brandish and he fled so he may have very well fled because he thought he was going to be a victim of a robbery he was being accosted by people he didn't know he may have had other problems in his life but there's nothing there's not as scintilla of evidence in this record that he knew that these boxes in his car contained drugs for instance they could have perhaps contained art or other commercial that there's a relationship they have between the two and those convictions have been upheld how do you distinguish those cases i've cited several cases one that i think is particularly good is the pace case out of the eighth circuit where pace was the driver of a vehicle from california i believe it was supposedly headed to chicago he was in the car with mace and there were two hundred keep pounds of cocaine concealed in the back of that car in two duffel bags that were on the floorboard of the back seat and another belt full bag and piece of luggage that was in the partially concealed rear compartment of the car he was the driver of the vehicle he had a suspended license he was stopped for speeding and very quickly he consented to a search of the car they found the drugs which were right there in a duffel bag unlike in this case where they were in a sealed box sealed with clear plastic and tape and rapped again and they even pointed out that that pace was nervous when he was questioned there is not even any evidence in this record that the c b p officers who had been surveilling the shipyard and had watched this ship and had searched it from stem to stern had even noticed mr lew wee untel the very moment where he drove up to an area nearby where these boxes were located and the boxes were placed in his car he never even once touched the cargo here they were they searched it for fingerprints and d n a there was no evidence that he had even touched these boxes in the pace case the court said that even that really the evidence boiled down to mere presence association and the only way the government could make its case was to pile inference upon inference in this case there is no direct evidence that lou we knew that this cargo ship contained any kind of contraband remember he was not even charged with importation jell o was charged with importation in connection with the two hundred seventy five kilos that was later found on the ship they didn't even charge louis with that he was not even held responsible under a preponderance standard for that cocaine found on the ship so there was definitely an absence of evidence of knowledge there wasn't a scintilla but before the government can get its proof that he knew there is no evidence that he knew there was contraband but that wouldn't even be enough because the government would have been required to show that he knew that there were drugs and cocaine on the know there's your argument is no evidence but in order for the government to convict them beyond a reasonable doubt the government had to establish that he knew that there was a controlled substance on the schedules and the boxes  tent are specific intent crimes and the government bears the burden of showing not merely that he was an abscess in it in an atmosphere of sinister conduct but that he specifically knew this was a conspiracy not to smuggle out commercial items from haiti not to smuggle out art but that the conspiracy and the drugs that were in these boxes were actually drugs and narcotics and there is not a scintilla of evidence about his knowledge in that regard and that's why this court in hernandez citing to him graham said that the government bears a particularly heavy burden to show knowledge by clear and unequivocal and the cases like pace and the other cases like from this court like oh hey and which is cited in our brief really zero in on the fact that it's not enough to show a conspiracy to do something illegal you have to show knowledge that this was a narcotics offense and again the government cannot get there without the inference that he knew there was some kind of contraband that he knew that contraband on the ship was narcotics that doesn't even get the government where needs to go they then need to rely on the inference that he knew there was some kind of contraband in these boxes there was there was no evidence of that and then beyond that they need the inference that he knew that contraband was cocaine the flight was inherently ambiguous and again this court has repeatedly emphasize isn't association and flight are simply insufficient to a stablish that that heavy burden of demonstrating knowledge and i urge the court to look carefully at the case of pace and also judge cho flat the case of charles which you were on the panel of which i think also provides a very strong analogue that's a case where the government had video of a meeting with an informant including el st there was no sound at that meeting and at that meeting they planned a home invasion robbery for to steal money ella st with the driver drove the conspirators to the place where they committed the home invasion robbery and was arrested at that scene and that court in charles said that the evidence was insufficient to a show that ellis st the driver who was present at that videotaped  meeting where there was no sound much like this case where there is not even any conspiratorial conversations that implicate lou we he never made a post arrest statement even when he gave his when he pled guilty never once implicated lou we and in that case the court found that the evidence was legally insufficient against l a saint and i submit that that case is also a great analog to this case level thank you mr langley morning honors matthew langley for the united states i was also the prosecutor who tried the case at the district court level and may please the court the public makes two arguments regarding the sufficiency evidence first that the appellant didn't have the knowledge of the conspiracy requisite here that he was merely present and then fled and second that even if he did have knowledge of the conspiracy that we couldn't have proven that the contraband inside the boxes was in fact cocaine and i'd like to take both arguments in turn first in regards to just the mere presence in flight it's uncontrovertible that the evidence show that he was not just a merely present there but that the opponent was an active participant in the conspiracy devon show that he worked at the shipyard for more than a year with the codefendant and with the very ship that was used to transport the cocaine mike to tommy the shipyard owner testified that he had worked there since july of two thousand and fourteen that need a fact had an office in the building at the shipyard the only office at the shipyard that he was a liaison between the code fendant and the ship agent for the ship that was used to transport the cocaine and mr thomas testified that he had seen the coke the appellant on the ship in and around the ship from the time that it came into port in the miami river until finally the cocaine was loaded into his then are they and if are or were when i got where would i go in the record to find some evidence that he knew there was a controlled substance cocaine in those boxes certainly there is more than enough evidence for the jury to have recently concluded that the appellant knew that what was in those two boxes was a controlled substance and i'd like to start here that it was testified and the evidence showed that it was commonly known that coastal freighters the same ship that was the end of the celia the ship the transport of the cocaine that were traveling from haiti to the miami river were commonly used to transport narcotics c b p officer gianni domingo has testified that he had seized cocaine from four vessels coming from haiti to the miami river that year alone and he testified that he had worked at the shale same shipyard at the miami river where the talent worked where the seizure took place his sight special agent you can say that about a lot of rivers around the state of florida ok incomes and when i'm looking for some evidence that this guy and certainly you said it was commonly known but what about mr weeks where is the evidence that he knew the well the jury heard anybody just about the testimony didn't there was no recording of the appellant it meeting that he knew that there was cocaine in the boxes but the evidence showed that was there a witness who got on the witness stand and gave any kind of evidence that the jury could rely upon the conclude that he knew that there was cocaine in those boxes certainly well any controlled substance would be enough to satisfy the standard here and who were witness would say he knew there was any control a controlled substance in those works so i would submit that you know when an agent gets on the stand and says that he's made narcotic seizures on a coastal freighter the same ship that we see here that was traveling from haiti in the bahamas at the shipyard that we were at and the miami river that it was reasonable for the jury  knew about these it's drug trafficking for may well i think it's reasonable for the jury to have to conclude that i'm not talking about somebody told him right lots of circumstantial evidence that he would have been aware of that well mr louis had worked at that same shipyard where his eye and c b p agents had made seizures before for more than a year the same shipyard in the miami river he was a liaison for the coastal freighter the same type of ship that was used to transport narcotics that coastal freighter that he worked with as a liaison traveled from haditha haiti and back the same ship the same type of travel that was used that was testified was used trafficking he did indeed and one hundred eight months in prison and the government felt that it was able to prove its burden of knowledge of the conspiracy and knowledge of a possession of controlled substance  without having to put the codefendant on the stand and the jury looking at the evidence recently concluded and agreed that mr boyd gela and was looking for some something on the record that connects up the knowledge inside his head check off every one of the facts that you say to get certainly the start of this loose argument sure number we need these cases there and you draw inferences about all kinds of things right it comes from what i call grains of sand little little facts that bear mad to the ultimate conclusion that you haven't been taking them off it so all we know from your argument so far is that he worked there for a year that drugs have been coming into that that port off and on from haiti it did he have that was the liaison with with with the with the officers had searched that ship when the ship came on board so he knew that c b p was looking for something on that ship the same type of ship that he knew was used to traffic narcotics third he knew the ship was empty he knew that c b p hadn't found anything and so it's reasonable to conclude that whatever when those two boxes came off the ship and he was there at the moment when they came up how did he know that how did he know that the ship was empty now how did he know that the ship had been searched for drugs and they didn't find anything they had that seems like that's evidence in his favor but but in any event work how did he make where's the evidence in the record that he knew that the ship had been searched for drugs mr pierre louis showed up on september fifth and went on board the ship while c b p was searching he interacted with the c b p officer who was searching during that day and searching for a cut searching for narcotics and the p didn't find anything because the ship wasn't seized the no one was arrested and he would have known that because he was the ship liaison for that ship he worked for the company that owned that ship and i think the final and maybe most important inference that we known that it was he was it wasn't because he won on the ship as he went on to tell us that they could because he went on the ship he knew the ship was empty because he was on the ship and he knew the manifest and everyone testified that this ship came in empty and left full and he would have known that because he worked for that ship and finally where it's reasonable what if he thought that there was something else illegal in the boxes but not a facts counsel and so when he was intrusted with one hundred thirty six kilograms of cocaine or three million dollars wholesale eleven million dollars on the street those boxes were loaded into the back seat of his car taking out was a word that well when the forklift what on the ship he is as at the spot where the boxes are seen being lifted up and carried off the ship the exhibit to the pole camera shows that he's at the exact spot when those cardboard boxes are lifted off the cardboard boxes are brought down the gangplank and are immediately covered what was he interested to do he was intrusted to takes sole for mere minutes and the reason the reason why is because before he c b p officers could continue he fled if that and where did he have some instructions as to where he was going to take this when you say interested was he going t it to another county another country or just down the street well he was going to take it off the off the shipyard that day that's for sure he was he headed in the car he was headed off the shipyard describe the shipyard was and the shipyard is very large and the steps around it is going through a gate what right and the ship is at the end of the shipyard the to huge boxes of cocaine weighing two hundred fifty pounds taking up the entirety of his back seat of the body interested cases have to do with somebody who takes possession and is on his own for some period of time to go to one of the countries something else and you can infer from that that's a relationship if this fellow was just taking the stuff down to another aspect to another place in the shipyard that's that's a different case where he's going out of the shipyard he go out why and how do you stablish that he goes to the gate the chain of the shipyard is chain a guard gets out lifts the chain he drives through past the chain past the the gate yard he goes out almost to the street and that's when the officers confront him the lights and sirens are flashing and before the c b p officers and agents i officers are even able to get out of their cars he is out of his car running into the shipyard he interacts with the codefendant continues to and as defense counsel admitted he not only fled but he stayed a fugitive for three three weeks you know the two two foot boxes he worked for the codefendant is that is what  relation in in a day to day basis he was an employee of the codefendant and had regular duties yes he had regular duties he was there who pay his salary i believe the codefendant did pay his salary the codefendant paid him paperwork he was working in the office he was a liaison with the ship agent that reported what the manifest was and when the ship would enter and exit he was much more than just work for anybody else at the ship and no he worked well those marines those are the facts that were much different than the facts presented at trial much different when all you have are you guys present video presence at the same in flight well you have him on the ship when c b p officers are searching the ship you have him working for mr george eleanor john had a record more than a year not only had a record but he had a record what what the blue we do know about the record the evidence presented at trial was not about louis knowing about the record but knowing louis knowing that mr boyd jello was a confidential informant had previously been a confidential informant louie away though that louie knew that formal about what role that that testimony regarding you know what specifically the codefendant was his previous record that was not not confidential informant up but what twenty one admitted that the appellant knew that he was a confidential informant and in fact the person testimony at the trial yes the testimony revealed that the codefendant was a confidential informant in fact i guess what we're looking for is some evidence that luis knew that he was a confidential informant you might have some testimony that it was a confidential informant and you might even have some statement by the defen attorney during opening statement and i'm sure the judge instructed the jury that what the lawyers say in the case is not evidence certainly joe when you base your decision on the evidence in that what lawyers say only so i'm looking for some evidence in the record that mr about the relationship between mr bargello the codefendant and his relationship with the very agents that had executed the seizure on the boat and the testimony came out that he was a c i and i it or did not know it well there wasn't testimony as to louise's knowledge but i thought i'd just go ahead counsel the testimony didn't reflect that of whether luis knew or didn't know whether was a confidential informant you know the remarks that you and that as you as you state by the fence counsel are not evidence but i think it's reasonable for a jury to conclude that a man that he your honor the government realized the first thing they said is well of course we know there's an inference here he was an employee of borzello well an employee relationship is the exact reason why that type of association does not support an inference of knowledge of counsel you're making the classic circumstantial evidence argument correct this little fact doesn't mean anything this little fact doesn't mean anything of this will affect the main what's the best case you think the government has the best in terms of adding them all up the best case that the government has is that he was an employee he know the search had been shipped had been searched and that they and we don't even know we don't even know drugs that he didn't know what it was being searched for there is no evidence that he knew what it was being searched for there well the start for something right it was searched for four days and then but it wasn't but it had no cargo at the at that time it that when it first came in that it had no car and no cargo but there was still a third choice on iraq and that search disclosed nothing after four days we understand that lou we was an employee of bargello so he had a reason to be there with regard to his employment there if this was an illegal thing for the boat to be there the ship was there for an additional eleven days after it was shipped it wasn't sent out to sea it wasn't you know they didn't say that it couldn't be there and there was normal activity going on during that time dealing with this ship but there was no evidence that he was intrusted in any way the evidence with regard to the brief moments that he was leaving the ship and going out the yard was that he was driving very slowly as borzello walked next to his car and that was what happened moments before when he was accosted by these ager was bargello when he was accosted after he got out of the shipyard to the best of the record he was right next to or very close by the car that he was seeming to escort very slowly just through the little chain and that's where the confrontation occurred and there was no evidence other than perhaps he was instructed i mean the  reasonable inferences the innocent ones are that he's an employee his employer bores you you need to go get your car i'm putting this cargo on follow me and he did exactly what he was told