recurring one and drug cases and it almost doesn't matter whether it's a possession with intent to distribute or a conspiracy both of which were at play in this case and the issue is comes about frequently in cases where the evidence is all circumstantial and that the the issue that is recurring is where do we draw the line between justifiable inferences and speculation and that's what this case comes down to as have many of the other case now there's no direct evidence that mr cook ever possessed any cocaine or heroin or any other contraband in this case there's no evidence that he ever distributed any and there's no overt evidence or direct  evidence that he conspired with the codefendant to commit this offense the government is essentially trying to cobble together a bunch of this route pieces of of  circumstantial evidence connecting him with the codefendant hoping that the amalgamation of all that circumstantial evidence creates and he creates sufficient a case can be based on circumstantial evidence and circumstantial evidence is is entitle to the weight that the evidence warrants based on what the circumstances are but in this case there was no evidence i think the judge said that the most logical in ence is that in response to the call mr cook collected the drugs in the guns in the trash inside the apartment put them into a pack and had the minor child leave with them well that's possible it's possible that did occur but there's no evidence supporting that proposition that that in fact is what occurred the child was never called there's no indication the coke ever touched anything in the bag there's no physical evidence connecting him with the bag it is in this case pure speculation to believe that is what occurred i ask procedural question sure there was a pinkerton instruction given with respect to all three of the position with intent to distribute you know you don't challenge that instruction that was certainly not part of our brief i don't i frankly do not even recall that at this point i might take your word for it but i i disagree with you in hold it there was sufficient evidence of a conspiracy isn't that mean necessarily that there was sufficient evidence for this three position with intent to  the what the scope of that conspiracy was as a practical matter i don't consider that there was no evidence that there was any agreement between them the agreement is all being inferred from conduct well what i'm saying isn't that  instructed that they could find position with intent to distribute based on the pinkerton theory in which is that that each member of the conspiracy is responsible for crimes committed by the other members as long as those crimes were committed to help further or achieve the objective of the conspiracy and were reasonably foreseeable as a necessary or natural consequence of the agreement that set s a six hundred and eighty eight in a similar language appears when the verdict for for the position counts particularly for the position cow for the cocaine possession with intent to distribute cocaine base of twenty eight grams or more and so what i'm saying to you is that the jury had before priests i guess my response off the top of my head is it would depend what they found the conspiratorial agreement was to be found for instance conspiratorial agreement applied to that only which was within the backpack then that would exclude the possession of the time since tribute for the drugs that  to indicate that mr cook exercise i mean a control over any of the contraband in this case that was recovered and that was the basis for these charges and i think what we what we have here is analogous to the situation at the close of the government's case there was not sufficient evidence and it should have never gone to the jury but that evidentiary gap was filled in and certainly the government is allowed to rely upon evidence that is district that i introduced by the defense but in this case i think what happened is very similar to what happened in the ziegler case where the defendant put on a defense that was not credited and the jury drew adverse inferences to fill in the gaps in the government's case because they did not credit the defendant the i'm sorry the codefendant witness who was clearly trying to exculpate mr cook as she had done from the beginning when the case st came in at the preliminary hearing she went to the prosecutor and said he didn't have anything to do with the drugs or all money and she testified throughout was clearly joining creditor on that but that's where the negative and i'm sorry the missing gaps in the evidence came from the impermissible drawing of negative of a to the government and nd you have to look at all of the evidence in the case not the evidence piece by piece and the evidence as a whole here does strongly support a conclusion that the defendant was working together with rice to distribute drugs you've got the phone call when reisa stopped by the police where the person who she decides to call at that point is the defendant and then the defendant seems to help dante her  out of the apartment with a backpack full of drugs and money and then wise to the police afterwards moments later when they ask about the child's whereabouts and you've got the recorded jail phone call where the defendant is discussing knowledge about the taste that only an insider would know and then you've also got the fact that there's a bag of evidence recovered at the waldorf house which is a drugging crusted  x that's the defendant's house in waldorf a drug incrusted hyrax cornelia rice's old school bus driver ivy and the commercial money challenger and related to the commercial money counter you've got unexplained wealth of the defendant particularly thousands of dollars of unexplained cash deposits and there's reason to think that's linked to the apartment given that his a t m card for that account is found in the apartment  using the a t m that's closest to the apartment and then you've got his general ties to this apartment where there's drugs out in the open he's got a key he's free to come and go and so based on all about me do you think there's sufficient evidence here we think it's similar in many ways to the evidence that this court went through in or the types of evidence that this court went through and gaskins that's typical in a drug conspiracy that was found lacking in gas and is present here we think it's similar in many ways to the evidence found sufficient in childress in terms of circumstantial evidence of course circumstantial evidence is just as valid as direct evidence the jury was instructed to that we do think there direct evidence in this case in particular the recorded phone call from the jail and bad of contraband found in the wild are cows but even if that is all considered recall at this point if i she may have acted as a go between in that case so i i don't have t's maybe exactly on on those d facts but i think  that it is reasonable to infer that the defendant here wasn't possession of the drugs that were in the backpack and so you can draw circumstantially whether or not there's direct evidence of that you can find circumstantially that he wasn't possession of the drugs and i don't think that's right and i'm guilty you know position would distribute twenty grams or more we have to either hold him accountable for the fourteen the i believe there was more than there was something like thirty two grams of crack cocaine found in the in the backpack itself so there was more than twenty eight dollars i believe that correct i would also just thinking based on your prior question yeah i think there were thirty four grams in the backpack but based on your prior question the supreme court's decision in ocasio said that in drug conspiracy case but the supreme court said in a drug conspiracy case there need not be direct evidence or there may not be evidence that the defendant ever agreed to distribute drugs it's enough if he was storing the drugs so i think that is a situation where the court is recognizing that in a conspiracy in order to be convicted based on a conspiracy you need you don't need to actually take all of the  steps of that underlying crime you just need to agree to help someone else commit the crime and i think that is what we have here and just in terms of the backpack and what judge those bricks said about the backpack whether or not the defendant is actually the one who packed up the backpack is not the relevant question the question is whether he is helping dante a skeet with a backpack full of drugs and understanding what's in there and we do think there circumstantial evidence of where we're concerned about a situation where you could you know someone who is a roommate or a house me of a drug dealer and they know that that's what's going on they have no  involvement in it but you know that's that's where they live in there for whatever reason stuck living there they've got a key they come and go they have an association with the drug dealer will for concerned about opening the possibility of liability or conspiracy or people like that i think it's clear under this court case law that that would not be enough simply knowing working in the presence of drugs would not be enough to convict someone of conspiracy i think that the jury was appropriately and structed that simply being in the near presence of drugs was not enough to find the defendant guilty of possessing the drugs and so but i think that ultimately in many of those two cases like that in that scenario because they know there's drugs and the police might be there they need to get him out i don't think we would we certainly would not say that i think we would say at the jury question what the defendant is thinking at that point but we would not conspirators well where no i mean i think that the evidence here that that is what the defendant was doing a stronger because shortly before he peeks out the door and looks for the police take special note of the police and then right afterwards lie to the police about where the child has gone plus there's all of this other evidence but i i think that it is because he knows  listen you know he does all of the kids to get in trouble and end up in foster care so i i think those are entirely permissible jury arguments to be made and i think that were made in this case but i think once the jury has made the decision has rejected that that is what the defendant's doing and i found that that what the defendant is doing is intentionally helping because he has agreed to help distribute the drugs and possess with the intent of that distribute i think appeal this court pass to defer to that finding of the jury on that sort of factual scenario i fully agree that there is a trial jury question in that case and it's just not a  relatives also named edmonds who that issue came up and the evidence showed in that case that not afterwards but during the course of the conspiracy there were recorded calls where that person was discussing drugs warning the police introducing couriers accepting money with her when her significant other boyfriend wasn't around who was the principal there was much more than there is in this case i think that case points exactly in in favor of the defense that because the conversation after the fact was was after the fact it was in and it's unfair to hold that against the defendant that because he knows of the activities of the principal of miss rice therefore he asked to be inferred and it's reasonable or has to be inferred that he is a participant there simply is no basis to draw that conclusion regarding the cash deposits the amounts involved in this case were not i mean the pattern that the that the officer testified to was that before the mortgage payment of nine hundred dollars change was due there were frequently cash deposits to cover that mortgage i would say that that  itself does not establish is not consistent with the type of cash that we see in a drug distribution ring it's something somebody who's dealing with cash as the officers acknowledged there are people who do regarding the and the government places great reliance on this claim that mr her went to the door prior to dantes leaving interestingly whatever occurred at the door the officer didn't think it was significant enough to note or broadcast about until after the arrest of mr c and the officer sitting next to him contradicted his she to contradict did you have the same view he says from where we're sitting the door was closed we couldn't see the person's face the lighting wasn't good enough so i say the court should have some concern about the exaggerations with the other officer regarding the evidence that is recovered from waldorf i'm not sure how far that gets us it's a it's a house and waldorf defendant owned the house but his brother lived there his brother had a record of his brother they they found his brothers and your prisons identification there it's clear that mystical couldn't have been there for at least a week because he was incarcerated so how is he i was what there attributable to him when he hasn't been there there's no evidence when he was there last there's no evidence linking him to any of the contraband that was recovered contraband that was recovered had mr rice's id in it and she says that she was being evicted so she