distribute five kilograms of cocaine and for possession with intent to distribute five hundred grams or more of cocaine he now asked this court to reverse his convictions and thirty year sentence based on violations of the fourth amendment by relations of his rights to the process of a fair trial and his right to confrontation jones also submit that there is insufficient evidence that was presented in the district court to sustain a conviction for conspiracy in particular and the other brief is very long and i think here in this court for reading it that mr jones is has has his life on the line and there are significant issues in this case the first basically said there the postal worker and all of their called inspector notified a policeman who happened to be there at least with the opinion and the policeman did sees me at least as much as was done here by to look at the address return address and whatever else he did why is that a fourth amendment issue well i isn't banlieu in pretty close to the well first of all if you're going out with a better way it's probably not saying it right if i think i can answer off the rails here ok it's the supreme court seems to be clearly said you can take all the time you need to pick up and why a package lookouts wrapped look at the address i don't understand why picking it up carrying it over his show to somebody else holding it for six hours when you call check on the return address that's all a seizure under your theory in the supreme court did not consider that a seizure well and going back to re georgia and some other cases where similar things that had you had there has to be a as a pulse still inspector inspect a package on the outside of it the white habit the address see the return address without picking it up and looking at it well you're saying the only way you can ever look at the outside side is you can't pick it up i guess to weigh it and that does it for instance they pulled it from the meal shoot what they sold out of the mail the mail bag they just said you know we're going to go through every package today in the say i would ever back and then that we honor what difference does it make i understand your point your honor but i would still i cannot concede that this is not a seizure in the fourth amendment because he walked into the he's standing in the post office waiting for something to happen and he simply says someone walk in place a box in the mail should place two boxes in the mail ship and that was  something something about it a gut feeling a hunch as what his testimony was so he went over and picked it out of the ocean and only sees that at that point there's no doubt of finding out so much but my concern is how do you distinguish the case that we're talking about the reporter to as well is different about that case that douglas didn't say reasonable suspicion but he does at some stage say the only thing suspicious so he uses the word somewhere in the text are you saying that's a reasonable suspicion case and this one isn't or just i'm jealous how you distinguish there's no reasonable suspicion whatsoever for him to pull the packages at all and so what about the prosecution of privacy in your mail that your delivery you cannot i would i would the return address i agree with you you know that would be an easy question but that's not what we have here well and i'll go on to your next point your honor because i think even if that wasn't an initial seizure the the the  and those labels yes they were at different addresses there is a name in the package from california with a mississippi return address however there are other cases that also talk about the fact that this is not are the you know i think the issue here is with the maybe reasonable suspicion was ultimately justified you're found especially after the dog sniff occurred especially after they went and checked the addresses and i agree with you at some point reasonable suspicion existed but that entire time they had the packages they'd seized the packages they had mailed them to inspector k in mississippi a upon at the moment those packages were seized at some point this constitutes a seizure you know you can't i don't understand how it can be argued that it's not a seizure when the boxes are out of the mail for a couple of days or a  are you saying it's when there was a meaningful interference yes and now it's absolutely correct i would say that the root is the reed versus georgia case united states versus more and united states versus meaningful interference with ok but that wouldn't sound like it it 's the taking it out of the chute well and that's the first part of my argument yes your honor and i believe that when you eat they get the read case talks about the fact that if you poll something from the mail you have to have a reasonable suspicion to do that i understand or in a time when there's lots of reasons to inspect the mail but there's still we have to weigh that with the with the ability to to at least sustain the fourth minute someone's expectation of privacy with the mail that they're they're sending you know click and ship labels labels with different names of fictitious names on them that may be inherently suspicious after you realize that there's probably cocaine in this box or reasonably suspicious if those other factors to bond with that but there aren't any other factors that additional so you just because time's ticking you you have a bunch of other arguments next i'd love to hear you explain a little further is what what is your argument as to a constructive amendment and the forum for be intrinsic extrinsic yes they did those arguments kind of go together i think in and i think first of all we would argue that the and this was argued at length and pretrial and post trial level and i before i even answer this question i want to say the judge in this case did not rule only admission of the california evidence or the lay for evidence as to why it was being admitted intil post trial motions were being ruled upon and with this one in this particular instance we have extrinsic clearly extrinsic information or evidence coming from california  of a separate investigation we have x and you say the judge didn't rule at the jury charge conference when you say you want the law abiding citizen struction did you say to the judge i need a decision not for a for b i want to for a for failed to instruct the jury or the parties that the evidence from late here in california was admitted under four or four big that's correct and yet a for a for b instruction was given that's correct and at which an instruction was given which the point of that argument is what evidence did that apply to the jury you're saying the party of flight of the california evidence it came in intrinsically in the issue before us is to decide is it intrinsic  error is it the failure to rule on you or that's part of it well ok part of it go ahead because these are all separate arguments that because it tells the full story because when you get to answer this question i was first say there were several pretrial er four four beat you didn't ask for it in the jury charge conference you didn't ask the court to particularize this applies to this i understand that that may that may be a fault and in the district court in terms of how the arguments were presented at that time thirty three time period because counsel a last realize for the first time you tell me where in the record you made an objection to the court's failure to rule on the four four b where is it th wouldn't say that because first of all the argument has been raised at the pretrial level it's been raised there and there are continuing objection was it was levied before the trial even started and then it's raised to draw underlying first struck intention is t california is different than mississippi correct that the california drug happenings are not collectively extrinsic from from because the judge found them to be extensive in his post for my question is did you ask for a multiple conspiracy instruction  there was not a request for that on the record i cannot determine that from reviewing the record and that's the that's just the simple truth there's not a jury instructions  with the fourth or b evidence in particular this is proven through the construct of them into the indictment the california evidence was not charged in the indictment although the language that that covers all of the places was included in the indictment but the legal so again it was outside the signal that it does you can't move on to another argument when you say it wasn't charged they said and elsewhere and you didn't move for a bill of particulars why didn't that why doesn't that comprehend the beginning and ending of the whole drug traffic you're informed you can ask for more details this may be the case however i'm going with the record that  in reviewing it however the construct of the construct of the movement happened as a result of the admission of the core of or be evidence because all the evidence from california and i see my time is almost because of all the evidence from california post office that to please the court i'm greg kennedy and i represent the united states of america also briefly like to introduce with me the trial counsel in the district court below the syrian chalk in this keesha middleton also we have a distinguished guest with us today the united states attorney for the southern district of mississippi a microburst is with us today as well in addressing the court's concerns about this mail inspection i think the ban the well in court is exactly comporting with what common sense would dictate when an individual places a piece a parcel in that stream of commerce it travels by plane right interstate commerce and there is a duty to inspect and find out what's going on with these packages but the fourth amendment applies when you put something in the mail you have an expectation of privacy and as to the contents and its delivery i thought the supreme court said the war is not and then we reiterated in our daniel decision that the government can't meaningfully interfere with its delivery and in this case there was no meaningful interference because if you'll notice the mail was posted as priority mail which based on the testimony would give approximately forty five days from the time to transit from california to mississippi but a criminal investigator taking mail out of the chute based on gut the appearance of the sender how does that pass what we said in daniel a you know i'm particularly like you to focus on the daniel decision and our suggestion that you need reasonable suspicion to take mail out of the normal flow so if a criminal investigator take something out of the flow why doesn't he have to have reasonable suspicion to do that he does have to have reasonable suspicio up there is a oh well in saying that again first part there's no meaningful interference if we talk about the timeline involved because it was express mail the next day for him to take it out of the chute and look at it cricket suspicion what he did in this particular case is that when he saw the boxes being distributed in the mail what was not mentioned is the fact is that's individual had over thirty years of experience as a postal inspector over twenty of which working narcotics investigations and having worked over five to six thousand cases dealing with narcotics gas you to pause because i think it makes it a problem case for you i mean my memory of the facts here is it's hard to say he had reasonable suspicion to take it out of the chute unless we just say thirty years experience means that gut is reasonable suspicion i would think you would have to say then luhan allows anyone connected to the post office to turn a box upside down to look at an address there is no suspicion at all that is needed but but but but but don't just agree with me because a second ago you said he needed reasonable suspicion and i don't mean to confuse it in the sense that once it turns into a signature at the time he takes the box and looks at it to hunt it over and look at reasonable suspicion is not required all these doing is expecting inspecting that's consistent with daniel correct is to look at the outside he's  doing anything other than a normal postal person would have done had they not used click and ship labels and taken it to a a teller who would then looked at it weighed it make sure it had the correct amount of postcode alert gives a p c to go in it right down the road in all the irregularities once he's looked at it and they've sent it on there's nothing there that are gives you reasonable suspicion to detain it and bring the dog the real difficulty for me in this case is with our daniel decision can criminal investigator take someone's mail and study it whereupon they get reasonable suspicion and to your point there that that's why it's all about the time what did he do it a specific point removing it from the mail sheet itself does not require reasons ocean the reasonable suspicion occurs when he looks at it what did he observe click and ship labels ok there's already been testimony that said click and ship labels will allow any individual to come up with a fictitious name corporation release not the suspicion that arises once he looks at the box it's what can he do to be a look at the box efficiently to create that suspicion and it seems to me van leeuwen dated not used and the terminology perhaps a bit be using today seems to support what's going on more recent case law that looks at meaningful interference what you're suggesting to us is that we need to draw some sort of line of time or degree of interference or maybe tied up in the word meaningful and decided at least what was done here was not meaningful but it seems to me that that's that's the whole slope that sometimes gets slippery of just how much involvement in somebody without any suspicion and with respect i think least for now the best way i look at these facts is no suspicion as a hunch and maybe something behind the hunch is not a record but has no suspicion of that that would be recognized on the constitution i think and so  what is your best explanation for why a suspicion less looking at this package taking control of ever so briefly by this individual why is that not a fourth amendment question how else will they deliver the mail someone is not a delivery person that's the problem he's a law enforcement person for law enforcement purposes as you want to handling of this there after which is unrelated to law enforcement in the fourth amendment but we're at the fourth amendment look looking at it through the fourth amendment lands so that's the key i mean when you're the logic of your position mean that if the sheriff walks in and says i want to look at this too and customs officials walk in i want to look at it to just temporarily i i should none of them of are covered by the fourth amendment or is it critical that he's a postal employee so therefore he's part of the delivery even if he's a criminal investigator see my question i do so ok and if not necessarily part of the deliver he's part of the overall system where there is the intake of mail from the time someone comes into the post office till the time they actually distribute that mail it then becomes in the charge of the post office to get it to the right of us huston's official who said i want to take out of the chute they'd have to have reasonable suspicion they should not have to have reason they wouldn't either under ban willing to stop they should be able to look at that package i mean even in today's time when we look at packages the way they're they're able to observe someone's going to be there to look at that mail and obviously there are random checks periodically as the mail goes through looking for any oddities or profiles that might fit a drug profile terrorist profile of what you might even be there isn't circuit law on this in there isn't much i mean then you'll daniel the phrase normal flow you need research reasonable suspicion to interrupt the normal flow it would seem to me letting criminal state federal other stop something that would not be consistent with our daniel decision but i don't know what the absence of circuit law means here maybe people do just look at it all the time whatever their purpose and again to in a situation like that you have a reasonable expectation of privacy there's no doubt and when you put it in there in this particular case too we have to consider the fact that his name was not listed as the sender or the recipient where's his standing to even be here to challenge this to begin with case if you can have a dog sniff or a post office to sniff every package i don't have a case on that that says that i'm not not with me right now because we weren't really focused on that but i do know that as a matter of practice they rely on  circuit authority and i haven't seen it in ours where that's exactly what they would do they do random checks of the mail with canines to make sure that's not happening the world of random checks is very different than a targeted  right i would agree with that as well but it would in this particular case when he targeted that deal he went outside and he looked and he saw the california license plate when he momentarily looks at the label just to see does it confirm his suspicion based on his training and so discrepancies then a guess at that point surely it moved into a seizure when he contacted mississippi in that express my older overnighted it to get there to then do the drug dogs which then led probable cause warrant but that package in any privacy expect a sions would not have been breached until they failed to have probable cause or once that package was actually opened and that's what they did in this case you saw you heard my confusion about right ok so so jumpy if you don't mind jumping with the it seems to me but disagree if you decide if you do who that the government at least in closing argues unequivocally the california evidence comes in and you can use it intrinsically that was the government's position from the very beginning during trial they told the district court judge yes that this search warrant in california is in transit these are government argue that always but the district court at the rule twenty nine stage  denial said i get that i only admitted it for four or four be it he said also if you look back at the record he said i think i agree with you government that it would be intrinsic but out of an abundance of caution i'm going to allow this in his pool or b to show knowledge intent or for any other purpose under forty four b but the government's position was that it was always exist intrinsic because it's not cool for b this is not a case where they were trying to prove a prior bad  closing told the jury they could use it for guilt in the case in chief well if they did they could use it for purposes of showing intent but that's not what they said in closing right unless i missed that i did not see them search in california recovered ten bottles of what was getting to the charged amount we gave and yet the district court said absolutely not i only admitted this for for for be in this particular case this court can affirm on anything supported by the record and show that the district court this was actually intrinsic evidence in a way how do we know there was jury unanimity we presume a jury follows the instruction the jury is told who are for b that's right that's a problem right isn't that is put certain precedent that we specifically asked about whether he knew about those packages he specifically disclaimed any knowledge he was asked if he knew anything about the drugs he disclaimed any knowledge he was asked if he was a drug dealer and his response was i've never been convicted in any state court in the united states so the jury heard evidence and judge his credibility and determined what he was saying was totally was so his denial that those drugs were attributable to him or part of that single conspiracy they could take that as substantive evidence outside of what the courts a tricky one they i mean the government can't just in its head think well this district judge is wrong i know they're in admitting it only for four for b but i know it's intrinsic i do not believe that the prosecutors would argue in contradiction to the court it may appear to be that on the record and again just looking from the co record it might look that way but i don't think they would intentionally say this in transit we're just going to plow right through this no i don't agree with that at all but in the heat of making a closing statement it might have gotten close to that point but again in the totality in the whole of the trial all of the evidence that came in it most it would be a honda serious situation because  court found when they looked at it this this individual was responsible for a vast cocaine trafficking network with a lavish lifestyle with stretch limousines no real way to report his income was uncooperative and the court had no problem finding that there was nothing underfoot in this particular case about trying to shade the evidence or do anything else to make sure that this individual was convicted on anything that was wrong you you touched on standing quickly but in yes library they say you didn't preserve that below and there's his circuit all that you can't argue that what's your thought on that not exactly right are away one thirty six the record on appeal is where they filed their motion to suppress and within that motion to suppress they stated that they were taking the position for purposes of that motion only that he had standing but did specifically say quote they intend to vigorously dispute at trial close quote that the packages were attributable to  the government then in its response it record on appeal two to three said the government didn't challenge standing for purposes of the motion to suppress so the government wasn't conceding it but for purposes of that motion at that particular point in time his fifth amendment right was protected at that point because he was allowed to challenge the fourth amendment without having to affirmatively state on the record what his position for standing was but when he chose to waive that fifth amendment right to take the stand in his own defense trial that issue then took its self off the table and when he waived that fit the memory right he specifically said i would leave him at the post office it was june fourth so i know i was on vacation because it was a holiday and disclaimed any knowledge of these packages at all and so at that particular point he clearly indicated i'm now waive him up at the moment right and i'm stating on the record i don't know anything about those packages so he has no challenge or standing to challenge were a fourth amendment violation of his meaning who interference you conclude that evidence should have been suppressed where are we when really budget well you may be good where is the court but do we do  in this particular case the only evidence again is the fact that the defendant was put on the stand if that evidence from california was seized or those of those packages scuse me or were suppressed th course the only thing the government has at that point is the search warrants that were conducted in california based on that investigation is that part of the conspiracy where they did find on follows from mississippi using the same aliases found in the residence is attributable to jones they found the cash money they found mailing labels with why am i incorporated which were the same sender addresses for the drugs that were transported to mississippi  when they ran that as part of their investigation to eight copies plus which is basically another one of these mailbox handling services which again is based on the way drug traffickers typically try to hide assets in their identity by having it come back to a business while in and of itself not illegal it's just one more level that they used to hide additionally they found the identification driver's license with his photo a someone else's different name and he tried to explain that away o your honor the drugs were sealed in the heat sealed the money was actually found banded together in our fellows that were open to the residence and alex said it was definitely a classic drug trafficking where he had ten kilograms they were in california ready to be distributed and then of course had three hundred sixty thousand dollars in cash which they converted the district court it to cocaine using a very conservative amount of like fourteen thousand dollars language that could be interpreted either way when is the seizure when is meaningful interference happen with the mail and i would say in this instance it clearly happened before before the warrants were issued now with respect to the evidence first of all the prosecution talks a lot about the california evidence indeed there was a lot of cocaine money found in california there was never any tying together of whether or not any of those  drugs found in california or being mailed to or sent to mississippi for delivery to any of these other charge coconspirators is simply a fact there's never been no evidence whatsoever presented about the whole jones entry into the post office that's all going to mississippi from california it will the simply because the scientists of in other words if if there's a conspiracy i would counter that with a hypothetical if you have a conspiracy  in california to sell drugs or to distribute drugs in other states so is it every time a drugs are mailed from california to a different state that that's part of the conspiracy with those individuals it's just you can't just mix the states together and say there's a conspiracy there's no knowing the heart of the charges like there is no it but anyway you've got to ask for a multiple conspiracy instruction i understand what you're saying the runner however in this particular instance a i have not found one on the on the record ok but in this instance also counsel had no idea why any of this evidence was being admitted in till after the truck after the t up and make an objection every time this evidence comes in it was i don't want that to happen it at the suppression hearing three or four days before the trial started i think of the day to something like the courts is like use of a trial and so  that judge did talk about when he was going to bring up the motions however there's an order predator part a trial that states were going to deal with these motions on the start of trial didn't happen that morning and and during the  or their order there is a statement made from counsel and from the court i don't have the numbers in front of me but i'm glad to send that from the oro in front of me where the quote is but the the the judge is very explicit in stating were deferred and and and the judge said you do not have to stand up and make an objection every time this evidence comes in and so counsel was handicapped that week or so you were be pressing the government with my line of questioning that as a reversible error you specifically say the court failed to instruct the jury that the california evidence was admitted under four four b so if your statement is right you are not arguing that the government varied from what the court had said was the crime charge there your error is that the court didn't instruct it as to california well there's other alternative ways or green this be depending on the issue so what we have here and i know my time is up but i will simply sta e for final presentation here that this evidence was was was put out if it should have been brought in and mr jones is right to a fair trial was violated as a result of the government relied upon this as intrinsic to the conspiracy is not charged and it's and and it was was the court case if least stated after trial that it was for for be evidence with that we would ask you to please the first convictions mr jones and i thank you very much your honest thank you very much