united states versus millman arguments in our brief in chief but unless your honour's have other questions i would like to focus my argument on two primary areas first the district court made clearly irania factual findings and insta nial of the motion to suppress warranting reversal and second no reasonable jury could find beyond a reasonable doubt that mr miller he was responsible for more than one hundred kilograms of marijuana so start with the matter of suppression in this case the government conceded that there was no reasonable suspicion for agent dr i at contact with mr mil me instead they insist that it was consensual well there's also a dispute in the evidence isn't there one says one thing one says another and it's a motion to suppress hearing the judge chose to believe one over the other yes your honor the judge only the judge can't do that the judge can certainly make a credibility finding and that is what he did in this case however the judge ignored the physical evidence that was consistent with what mr milly testif which was that he pulled over because agent doctor had engaged his front grill emergency lights the physical evidence that the district court ignored never even mentioned in his findings of fact and conclusions of law is a photograph presented showing that the front grill emergency lights were on at the scene that's exhibit one team it was a different time taken a different time though that photograph was taken approximately an hour after the original accidentally turned them on when i was in my vehicle i don't remember turning them on so even though he did on fiat did originally testify that he did not turn on his front grill emergency lights it was not until  i confronted him on cross examination with exhibit nineteen showing that his front room urgency lights were on and that he had to concede that he did turn them on and the question was when did he turn them on and while he was pulling him over he was quite certain that he did not activate any light it may be that some point before that photo was taken an hour later that he did activate the slights and he basically said i just don't remember but he did testify specifically i did not during the pursuit or while he was pulling over that's on the record in the trial court made that finding in response to a leading question from the government  say yes ma'am i have never turned on the lights right i'm in a time but why wasn't the district court entitled to rely on that he found the officer more credible i think there is other physical evidence in addition to the light being on that is important to consider and that is the manner in which mr manley pulled off the highway and exhibit twenty is indicative of how he pulled off the highway and that was parallel to the highway and he pulled i perpendicular to the actual parking spots at the rodeo tavern consistent with someone who's being pulled over and not somebody who he is who is trying to go to that tavern and that it was also a  misstated mr millie testify that he was not stopping to get a drink if he had wanted to get a drink you would have stopped at the grocery next door that he had been to the day before and the manner in which he got out of the car to you is indicative you say grocery next door there was a drink he had been followed for one and half to two miles the testimony showed he was not speeding he was not driving erratically and he thought according to his testimony that well this a gymnast is following me because there's something wrong with the back of my vehicle so he gets out he goes to the back of his vehicle immediately to check out what is wrong with this seven hundred fifty dollars ford explorer i've just bought in addition your honor skink remind other agents never testified erroneous because mr mill means testimony that he was pulled over my eyes in front grill emergency flashing lights in the physical evidence that the light was indeed on the agent didn't know when he turned it on and the way in which he par there was consistent with pulling off the highway in response to being pulled over rather than going to frequent the store shows that the finding that the agent never turned on his front emergency lights while following  was clearly erroneous if your honour's have no other questions i would like to move on to my second topic like your son my only question is your position seems to be that the judge should have believed my client in conjunction with the physical evidence if you believe that it was the client said that it was on before he pulled him over but it was not on before he pulled him over your back to the same situation respect to life the court affirmed the denial of motion to suppress and find sufficient evidence for conviction we asked the court to read man for essential thing on the quantity of marijuana specifically for less than fifty k marijuana zapped because they didn't chest every every bundle we're not saying that the government necessarily had to test every bundle but i think that we can all agree that the bundles in this case were in appropriate handled even the district court did admonish the government for cutting open those ten untested bundles during in the courthouse during the defense case in order to try to field test and reopen the case the government court wouldn't let them do that they did reopen the bundles the court did not allow the government to reopen its case however the government realized that after agent hopkins took eleven samples from only and i will fight to the united states versus garner from two thousand and seven in this circuit that a reasonably reliable technique requires random selection of samples to determine or to extrapolate the identity of the whole the government is trying to say that we can they can use a specific percentage of the whole that was tested but that's never the test in any of the cases and in no case except for one unpublished pena happened where eleven samples were taken from only one bundle out of the hole and in that case the judge dentist found that the in his dissent that the principles of random sampling and logic were violated when only one bundle was tested and that the mere fact that similar size and wrapping applied to the other bundles could not prove beyond a reasonable doubt the contents of all of the bundles nor could a jury reasonably determine the weight of even a single bundle that was the same in this case the government never presented any testimony as to the size or weight of any one bundle but  with yes your honor the only quantity that we have is that the case for the chemist testified that one point zero three four kilograms of marijuana were actually tested they came from one bundle we don't know the size of that bundle really not a point the government there was able to prove the identity of seven the identity of the drug and seven cocaine transaction side from the one in which there was actually testing done based on physical appearance testimony of physical facts of the substance testimony of how the substance was used the high price that was actually paid in the seven other instances and the substance being called cocaine in the defendant's presence here the bundles were all still sealed there was no evidence of the high price actually paid and no evidence of the substance being called marijuana instruments present in addition the smell and appearance is not going to be sufficient to build a term and the substances in the other ten bundles first of one could see into the bundles they remained wrapped in duct tape the entire time and in terms of the smell the district court said himself i can't tell if the smell that i'm perceiving is coming from one bundle or from all eleven bundles and the agents they testified that they smelled marijuana but there's no testimony that any of them isolated the bundles and smelled them individually so that they could tell that it was marijuana and in addition your honour's there's no indication that all of the jurors knew what raw marijuana smells like that's really building inference upon inference for the jurors to determine that all of these bundles more marijuana so your honour's the main point of this is all of the case law with the exception of that one unpublished fifth circuit opinion requires random sampling in order to them and you pull out random samples of the pile that's the kind of case you're describing here we have individually wrapped bundles is that a differen packaging and you know what's in one isn't that circumstantial evidence we know everybody all other bundles of the same if you could see the plants that would actually be more evidence that they were all tired out trying to get to your point of the random sample idea those are the cases where you have a large amount of something and so you go into different parts of that  try to determine what what is the whole here we have a different situation because you have separate packaging and i'm here on ars and we cited multiple cases where there are bundles versus  plants and even cocaine rocks and in every single one of them more than one bundle with tested one bundle has never been found to be sufficient in a similar case as three out of ten was found to be sufficient but  also have no evidence that this one bundle was selected randomly so we would ask the court to abide by its previous decision in united states versus garner and follow the reasoning in united states versus p actually described that story as a fantastical tale now he tells a story about numerous errors that he allegedly occurred at every single stage of the significant proceedings in the district court both the district court and the jury rejected his fantastic and the error the alleged error about the sufficiency of the evidence on drug quantity i think the panel appropriately pointed out that agent f i s testimony was entirely clear to support the finding that the district court made the relevant finding here was that agent if i had never activated his emergency lights or sirens while following or while parking behind me and agent if i had just when he was clear on that and further it's not surprising that the district court didn't discuss this alleged photo that was supposed to be the smoking gun on that issue when agent if i had testified that that photo wasn't taken until an hour after the events about which the district court was making the finding and so the district court's failure to discuss that specific photo was not clearer given that it was almost entirely irrelevant on the finding that it was making moving on to the issue about the sufficiency of the evidence on drug quantity it's settled law that the government can prove drug quantity through circumstantial evidence not just through direct scientific evidence in the form of a chemist testifying that i've tested these bundles and they contain marijuana nomi argues that the procedure here wasn't random but the trial evidence actually does give rise to reasonable inference that this was random all the bundles were taped and they looked exactly the same age and hopkins that the case agent who extracted the samples when shown initially a photograph of the bundles that act trial testified i can't tell from this photo which bundle i took the sampling from and it wasn't until he was shown additional photos with other parts of the bundles that he was able to identify which bundle he took the sample from and so given that they all looked identical and that agent hopkins traditionally tell which of the eleven bundles the sample i think it's a pick the one that looks the most like where i want to because they all look the same and he couldn't even tell from the photograph which when he took the sample from how much did each bundle way there was no there's no testimony and there's nothing in the record indicating how much each individual bundled weight however there our position is that the direct scientific evidence wasn't up in this case just based on the percentage of the sampling the fact that it was only one bundle of eleven is still about nine percent of the substance that was tested and again the fact that it was just one bundle doesn't make a difference when passports have affirmed smaller percentages of the total substance that was tested the fact that it was one of eleven doesn't make any difference when for example and march on the fifth circuit affirms twenty two a four hundred ninety  that's a smaller percentage the fact that it was twenty two rather than one makes no difference when it was still a smaller percentage of the overall substance that was seized that was tested and so the direct scientific evidence by itself is enough to show  enough for any reasonable jury to conclude that all eleven bundles contain marijuana that's getting to be one hundred kilograms or more threshold but even aside from the direct scientific evidence the court heard and the jury heard and received ample circumstantial evidence that the remaining bundles contain marijuana first they heard that they were wrapped identically and that they that they were all seized from the same place they heard testimony that they feel smelled consistently with the agents experience in america like marijuana or an agent that said that he smelled or she smelled each bundle and said they all smell this again i think it's a reasonable inference from agent hopkins testimony because he was the one who physically took custody he took custody of bundles along with another idea agent from border patrol when the case was transferred from border patrol to the he was the one who extract example and then took physical custody  and he testified his his testimony was that the sample that he there the bundle that he took the samples from smelled like marijuana and the other ten bundles smelled the same now i think you can really infer from that that at least there was one bundle and then another ten that al old i think that he probably mistook a requirement that he take one sample from each bundle and instead thought that he could take them from one bundle but that doesn't necessarily mean that the evidence was insufficient for any reasonable jury t contain marijuana and the jurors actually got to experience the bundles of marijuana themselves they got to see the marijuana from a few feet away the district court described in the record the jurors impression upon that marijuana entering the courtroom they said  person but this report didn't abuse his wide discretion in making either decision and even if it did the errors were harmless regarding the out let's see how is the admission for missing the admission of testimony regarding for that reason it was actually not offered by the government to run for by the codefendant or to the codefendant argued he argued that it went to his credibility in the sense that it shows that he was on hard times and that he would have a motive to traffic drugs and and that's not that's really the grounds on which we're defending it here and it wasn't the district court rule in accepting that evidence he stated that he he simply stated that he believed that this was classic horror for the evidence and so it was going to come in  have it probative value substantially outweighed by the so that's what we're supposed to understand he meant well in fitting that it's classic for for be evidence i think that may have been more a statement about its relevance because of course it under for or be it has to be offered for conviction in a current drug trafficking trial but it's the civically noted that lack of the state was not an issue in the case and like a mistake was it an issue in this case and edwards it was a defendant who was charged with possessing ecstasy with intent to distribute it and there was that was based on ecstasy pills found in another person's bedroom and his claim a trial was i never possessed that ecstasy in the first place it's a much different case here millie of course had to acknowledge that he suggests the marijuana that was in the back of his yesterday the only contention was that he didn't knowingly possess it and that he mistakenly believed that it was hey so lack of mistake was indeed a critical issue in this case he acknowledges that he transported something and the fact that he possessed heroin on his person i think just based on that's more that evidence that somebody possessed heroin tends to show that they are familiar with the world of drugs and that when he claimed i thought that that those bundles in the back of my s u v smelled like hey that that wasn't true in fact he knew that the in french then ok but even if if even if it were it was harmless because of all the overwhelming evidence listed in the united states briefs that would probably take five minutes to recount here in further because he introduced his own evidence that was just as and i think that it's actually milne who's misreading the case now if true enough hooks said in that case involving p c p and a hidden compartment in a car that without any foundation that the defendant was for miliard with the smell of p c p then it couldn't be enough by itself to provide sufficient evidence to convict him for knowing possession of p c s but then he went on the rest of the opinion to state that that evidence could be considered along with all the other circumstantial facts in this in showing his knowledge and then it went on  smell of that marijuana along with other circumstantial evidence of which there was plenty in assessing whether he knowingly possessed the marijuana further it wasn't the bundles weren't misleading without the pass without the burlap backpacks in which they were seized partly had knowledge himself that he could smell what was in the back of his s u v you just find that it smelled like hay and so that made the qualitative nature of the smell rather than just the smells intensity relevant at trial and one of the agents  that there was testimony that removing the burlap backpacks didn't change a qualitative nature of the smell it was relevant for the jurors to actually smell those bundles and assess for themselves whether they believed me that it smelled like a and even was a foundation showing so so the the purpose for which they were offered they were still interest angela same condition even without the backpacks given that now these backpacks there are this is a glorified burlap bag that had been tied together so they can be carried yes your honor and if so it's the generic burlap that is usually a breathable burlap as we normally think of burlap yet there was just ordinary burlap and you can tell from the photos and do so on the straps don't they do yes and then thank you both for your arguments this morning the case is submitted