morning may please the court in council a mark novel representing mr martinez escobar i'm going to mainly talk on about the warrant issue in this case there's three points i'm going to try to make in the course of my presentation first is that the w lays out some facts of the investigation to get an interest or search or so from what would be in a regular search warrant well the there has to be probable cause for the triggering condition and that's what there isn't probable cause for there's no basis to conclude from reading this affidavit that on august nineteenth or twentieth jesse garcia was going to drive from minnesota to this so called stash house in wisconsin and pick up drugs going to go over there pick up math and then the triggering condition would be once we stop him we're going to try to stop him and if we find math then we get to go back and search the house i mean that's just it would have lewd any reasonable conclusion that that would happen just we don't need any reasonable judge now what was going on here was the judge there given the judge one set of facts but the officers were operating under another and the other the fact that they didn't put in the warrant were that you know we have a wiretap going on and from the phone traffic we're getting it looks like in the next couple of days you'll probably go over there well they didn't put that in the warrant some of the facts sneak in there because you'll see on the second page of the affidavit they talk about picking up fifty pounds of methamphetamine well there is nowhere in this affidavit you could glean first of all that there's going to be any meth there at all the second fifty pounds where  from out of this well that's that leaks through that's that got in there because the agents know that there was a phone conference or a phone conversation on august eighteenth where they discussed fifty pounds so that got in there but that tells you what's gone and on here they're not putting in the facts that they know that they're operating on to think that garcia is going to go over there on the one nine hundred twenty s i mean they didn't waste their time trying to get a warrant think out of the blue that when they made the stop they would find drugs in the car that could be fairly traced back to the house yes but that that's the problem they didn't have a basis to get the warrant  judge that that triggering conclusion or the triggering condition was likely to have since the judge did approve it why wouldn't leon apply well leon doesn't apply because as the district court concluded  doesn't matter the these officers knew all the facts that i've just discussed and they can consider those facts in other words the phone conversation talking about getting fifty pounds shortly before august one thousand and the judge says well the officers knew those things even though they were in the weren't the officers were operating in good faith because they had a basis to believe that it would happen but they also don't get to make themselves judges and that's what they did here but doesn't leon contemplate totality of the circumstances well not if they're in them weren't afton in the supporting affidavit but here the officers didn't do that and then that gets us to the problem of why why good for the issue of why good faith can apply here i realize this court's decisions indicate that the officers can't consider facts that aren't in the warrant affidavit but that was that  had an unsupported legal basis the first case they did that was united states versus martin and they cite anderson versus creating well if you look at martin when they talk about creighton they don't say anything about it being a civil qualified immunity case involv anderson versus creating gifs imported into the criminal realm in martin and again is there's no indication that ok we know that this is a civil qualified immunity case and it doesn't involve the same concerns that prompted the  supreme court in leon to say well we think we can authorize you know a good faith exception without the warrant process basically you know suffering for that but here it is because they're not good faith isn't being assessed by the officers reliance on the warrant it's being assessed by what the officer subjectively knows and didn't tell the judge but what do you want us to do about mark well well bedded in our case law right yes see a way to distinguish any of those cases here you really just saying that maybe we ought to take a look at that as a court  i'd like to get it resolved before this panel but unfortunately judge called and i think you're right on this court does have precedent that says that holds that if there's intervening supreme court precedent we can we're not bound by current circuit  rulings well it would seem to that would seem to include the fact that if we're not bond to a pull current release by based on intervening supreme court precedent we can also say if we misapplied precedent to begin with or didn't take it into account thought about that before but i don't know if you if you say well the first panel misapplied an old supreme court case so we can i don't know what's the intervening circumstance other than we disagree with the first panel well i would just characterize it as if an intervening circumstance can justify not following pownall law then certainly preexisting law that wasn't apply could but i realize that's a stretch it may have to end up being on rebuttal time i had one more quick question suppose they didn't put in the affidavit information that would show probable cause that garcia was going to make this pick up but even setting that aside they put in enough probable cause to search the house and therefore it isn't looking at it that way it really isn't anticipatory is just standard probable cause to search the house warrant if there that situation if they if they had probable cause to search the house but they miss characterized it as anticipatory or unnecessarily characterized it isn't what value what fourth amendment value would be furthered by pressing the evidence well because just looking at it in terms of does a state probable cause just to go straight over the to wisconsin a search of how it doesn't state probable cause even if you look at it forget about whether they had a basis to or you know stopping garcia there is there is just too far removed the circumstances here from making it reasonable to conclude that there was going to be math there they talk about two hundred pounds they don't know where that is they don't know that's at the house they admit that they thought they speculate that well there's two hundred pounds out there somewhere according to this informant maybe it's at the house that's all they can do there's just nothing to link any math to do that make good morning in may please the court counsel my name is kelly even i'm an assistant federal defender and thank you for the opportunity to present argument on behalf of the appellate jason jackson for i began i like to acknowledge that his mother is here in the courtroom today supporting him there are five issues that we raised in our appeal your honor we raise the nile of mr jackson's motion to suppress wiretap evidence and the denial is motion to sever count three from count one we have challenged  admission of prior convictions per for four b the sufficiency of the evidence for the verdicts on count one count three and also the reason as of a sentence but for today i'd like to focus my argument on the wiretap issue and the the four four b issue unless the court has questions on the remaining issues specifically as a wiretap issue i want to jump to the government's argument in its brief to me on  that was raised at the very end of its brief i did note in my reply the government didn't raise that in its objection to mr jackson's oh in its response to mr jackson's objection to the report recommendation the magi affidavit even if it fails to satisfy the necessity requirement is not well founded because more was a case that challenged the facial sufficiency of the wiretap application based on the fact that the judge hadn't or five one eight of title eighteen that is something that this court has found to be significant in the case it's a case i did not cite in the brief and i'd be glad to provide the court that  authority in a twenty eight j submission however i do think it's important that the court considered which is that six seventy six f third seven thirty four o'malley concerned in argument that two five one eight one eight was part of the judge versus the officer in the melody and significantly this court held minimally the no wire tap applicant can in good faith rely upon a court order authorizing the wiretap when the applicant failed to comply edicts of the federal wiretap statute in procuring the order and what that boils down to is whether someone be the president of the united states or my client jason jackson if the department of justice is going to seek a wiretap on that person they need to comply with the edicts of the statutory scheme and that is where the district were clearly erred in finding that necessity was met in this case as we have shown in our brief there were a number of traditional investigative techniques that were floor shing and the government failed in its affidavit to show that as this court has held the wiretap was necessary and reasonable magistrates are pretty thorough magistrate judge appeared to adopt some conclusory statements that traditional investigative techniques were going to be insufficient to serve law enforcement's interest in this case and what's significant is that time and again throughout the wiretap application it's noted these techniques were actually succeeding and in many places where the magistrate judge latched onto  a shortcoming those were simply statements that could apply in any case now the government thought that us for this argument in its brief stating that the use of such believe what's being represented and thus is making a credibility assessment of what the officers are presenting why wouldn't that be something that would be appropriate to give deferen to the magistrate all of the facts that would indicate what the magistrate is being told is not true or only viable so the standard of review is clear and the court has determine if the magistrates conclusion clearly erroneous were not disputing actually many of the facts that were adopted in the report and recommendation because the affidavit touted how so many of these different techniques were succeeding and it also talked about how counter surveillance techniques that were being used were thwarting some of the efforts of their traditional methods it mentions that such investigation was advancing there was a number of leads that were showing the scope and nature of the drug trafficking organization there was sufficient basis to continue the investigation and it's been noted by the courts of appeal that you know there are many cases in which a wiretap application alone without the traditional masticated techniques would not resolve an investigation and here the bottom line is this court's precedents holds that the government has to show that the  syrian reasonable to justify this extraordinary intrusion into a citizen's otherwise private phone calls and that wasn't meant here turning to the floor for b argument your honor i just want to focus on  finding as to what the purpose that the government was offering the evidence for and the district court did not find that the evidence was more probative than it was prejudicial no i focused a lot in my brief on a seventh circuit case called united states versus lee that lamented the lack of a record made by the district court as to the grounds for admissibility of four for be evidence but in preparing for the argument i came across in more recent case from two thousand and fifteen out of this circuit united states versus turner seventy one f thirty three seventy four which again i'd be glad to submit if a court would like in a twenty eight j letter that case really question this court's prior precedent that allows drug priors in to conspiracy cases and question that by saying that that precedent shouldn't really allow trial courts to passively treat the federal rules of evidence specifically the court noted that intent and knowledge are always going to be a issue in these drug conspiracy cases and the government can't simply say well that's the purpose were offering it for intent and knowledge is what the jury can consider this for without releasing more the court this court said intent to join drug conspiracy in two thousand and fifteen if the only answer is that the prior conviction shows that he intended to commit another wrongdoing in the twenty fifth the conspiracy than the evidence is simply propensity evidence and it's not allowed under for for be that is united states versus turner seventy one f third three seventy four twenty fifteen that's judge kelly writing for the court in that case you know and really it it becomes when the government says this is offered for intent and for motive it's kind of like dog whistle for for be the the government's offering it for those purposes without really stating exactly why the priors are relevant and so for those reasons we  the court ms bell my name is bruce nestor i'm here on the half of catarina cruz who was sentenced over twenty years in prison on the basis of hearsay statements made by his codefendant which admitted by the district court in which even if those hearsay statements are admitted for the truth of the matter asserted in them were insufficient to establish that catarina cruise ever engaged or had an agreement with jesse garcia to distribute a specific quantity of meth and felony i point out mr catarina of cruz a sentence in this matter only because i think it emphasizes what this court has recognized sin hundred seventy eight that even as other courts relaxed the standards for the admission of coconspirator statements this court in united states versus bell recognized the requirement of independent evidence of a conspiracy between a defendant and a coconspirator who statement the government's law to admit that that requirement of independent evidence as a precondition to admission of the statement was an important substantial safeguard that is particularly true in a criminal case and particularly true where such penalties can be implied can be imposed now the government response to this matter argues that the statement that the independent evidence essentially consists of one mr garcia was a drug trafficker and two he had he had contact on one occasion with catarina crews when there was surveillance conducted by the government and it's of important in terms of other cases which talk about independent evidence that surveillance did not reveal any evidence of drug activity nor was there anybody  inside or as part of that contact that can testify that drug activity happened on that occasion and then the second factor is that cruise's statement themselves as admissions of a party constitute that independent evidence but cruise's statements can only are not truly independent they only acquire meaning because they are intertwined with the statements that were made by mr garcia and which mr cruz never got to question or cross examine or challenge mr garcia about and so there is not truly independent evidence when the statements of mr cruz are intertwined with the statements of mr garcia this court and i think you are on the panel your honor said back in the united states versus spencer five ninety two f thirty eight sixty six now that wasn't actually a coconspirator case that was a case where the law enforcement was doing the controlled by and the confidential informant wasn't available at the time of trial and so the confidential informant it obviously wasn't a coconspirator because he was a government agent at that point and the statements of the coconspirator on the wiretap that he or the wire that he was wearing during the controlled by could be admitted to establish context but here are the statements that the government offered i mean and the government  what i think is what bootstrapping the admission is that you're then using your then using mr garcia statements and the truth of those statements to explain and amplify whatever mr cruise's admissions might be so it would be our argument that the mere fact that garcia is a drug trafficker that in that mr cruz is talking to a drug trafficker that even if you look at m mr cruz a statement and you don't consider the truth of mr garcia statements that's not independent evidence they're not independent or it's not so it's a substantial independent evidence not sufficient to justify the admission that you agree it can be independent of the coconspirator statements what about wasn't there some other g p s type of and some surveillance and so forth there is a claim in the government's brief i believe the g p s show that mr garcia went to mr cruz's residence i think in may in june of two thousand and fifteen there's no indication that mr cruz was present at that point in time there was no surveillance conducted i think they just had a tracker on mr garcia's vehicle there was other evidence  trial that mr garcia did was involved in a drug conspiracy with a stepdaughter of mr cruz who lived at that residence and so there but there is no evidence that mr cruz was present the only physical meeting between mr and mr garcia was a single incident of surveillance where the government followed mr garcia the trial testimony indicated no agent saw anybody carry anything in or carry anything out in terms of drugs or money or and there was no one inside to testify what the nature or or purpose of that meeting was played the government represents that there may have been as many as three physical meetings between garcia and cruz based on tracking data and i think that's what i just summarize your honor was that there was one meeting that there was testimony that the government that they surveilled and saw mr cruz actually go to mr garcia's home the second was that there was a reference in the brief t s tracking that mr garcia was president mr cruz's residence but there is no evidence that there were they actually met or circumstantial evidence and since cruz's home and he was seen meeting with them on another occasion so one might reasonably infer the argument i suppose would go that even when he went there you his meeting with cruising cruises house you could accept there was this clearly a more substantial relationship with admitted where he's speaking to an unidentified male who the government believes was located in mexico and in that statement he talks about i'm dealing with some other dude doing ten or the time or ten or the time for cash money and that really azza relates to the third argument because that's really cited by the government as proof of the quantities involved that's almost the only proof of quantities that the government offers and it would be our argument that that statement is not in mr garcia to get drugs from other people so they're all part of one conspiracy that would basically be akin to saying that all drug dealers are in a conspiracy with each other because they all want drug users to be out there buying drugs there's just no evidence that there was a conspiracy between mr garcia and the unidentified male in mexico it please the court counsel i am leon balun i represent the united states of america in this appeal i also represented the united states in the trial court below this morning i plan to address a few of the points i raised by defense primarily issues anticipatory search warrant mr and i will sort it out discussing the fact that no reasonable judge could find probable cause in this anticipatory search warrant and the fact of the matter is that three judges so far have concluded that there was probable cause in that search warrant the original signing judge out of the state of wisconsin the federal magistrate judge and the district court judge and in light of the fact that three judges have concluded that there was probable cause that warrant it is eminently reasonable for probable cause to believe that garcia will travel to the house on august nineteenth or twentieth to pick up fifty pounds of math so as i set forth in my brief the garcia and sets out that he has been meeting with them to exchange money and then there's information that he's getting drugs shortly thereafter and then meeting and then again that  pattern that's in the warrant and garcia's interactions with those folks that there is probable cause that he will travel to that house again no i do concede that there is the source is not in the warrant the source of that information the officer say based on information gathered during the course of the investigation and of course we know now that it was because there was a wiretap and there were concerns about putting information from a federal wiretap in the state search warrant but the fact of the matter is on the face of the warrant based on what was in there that the officer acted reasonably in good faith with respect to the argument so assuming that on it face there isn't good faith which i think there is but assuming that there isn't and we reached the issue of the addition of evidence i'd like to address the the argument by defense counsel that is in conflict with leon they're not in conflict when you look at them because what leon says is we're going to look at what whether or not an objective reasonable officer would rely on this weren't on the signing judge then i kind of refer to that as the hypothetical reasonable officer prowl says we're not going to make inquiry into the subject of beliefs of the officer about the reliance on the warrant but we are going to consider what the officer you're still in the opening the officers good faith i believe are good faith through the lens of that reasonable officer but you are adding factual information not subjective belief but factual information consistent with this  so the district court didn't abuse of discretion in making the decision that in fact the good faith exception applied given the facts that had before it that it found on point and therefore there's not a good rationale in our circuit for this rule do the other circuits well describe it in a way that would be helpful do you think or you know i have additional information known to the officers and i just don't think that there's that conflict i don't think leon was setting up a conflict he points to footnote twenty three in leon which talks about the fact that the court says we're not going to ask a district court judges all over the country to engage in a series of hearings attempting to ferret out the subjective intent of every officer with the suspect every warrant the court can do that analysis without holding the hearing because we're going to use an objective reasonable officer standard i don't think that's in conflict with those circumstances when there are facts known to the officer objectively that an objective reason the officer had they known those facts would have found everything but it would have been a reason objective lee reasonable i suppose you could say well the officer knows the magistrate judge thought there was enough based on what we told him alone and we know we have even more so right i mean i think  the magistrate because we know it's even better than what we gave him correct that's certainly one possibility well  now with turning to mr jackson's argument related to wiretap necessity he correctly stated that this court is conducting a clearly erroneous review of the district court's findings related to that  and there was extensive writing done by the magistrate judge and adopted by the district court in this case about the necessity and i would just point out sort of a simple point i think but that any wiretap application is going to have some investigative success you're required to have probable cause and so there has to be at least that level of investigative success to get the wiretap in the first place and so to say as as i think really mr jackson's argument boils down to that claiming any prewire tap investigative success negates necessity just simply can't be true you have to have probable cause and you have to have had some investigative success in order to get the enough that they'd simply continued with traditional methods there would have would have been unnecessary i think that's maybe step two of argument and i i disagree when you look at the actual wiretap affidavit for example jackson points to controlled by that there was a controlled by done by c s one if you look at the wiretap affidavit it explains vs one's position with respect to the conspiracy namely that the s one was able to make a buy but was losing the trust of the organization and was not able to enter duce new people was not able to produce undercover officers for example and couldn't get above the level of people that c s one knew in the conspiracies that he had and in to get into a certain level he was able to do it by from jesse garcia but had no way to learn the source of jesse garcia's methamphetamine or multiple sources as it turned out no way to get information about the distribution  garcia was using because this fiesta was connecting with mr garcia directly and so if you look at the wiretap one of the things that you have to look at is what are the goals of the investigation when you're evaluating necessity this investigation wasn't to prosecute just to garcia for a single controlled by this investigation involves determining the source of that methamphetamine the larger distribution network any money laundering activities that were taking place and so because that was the goal all the stated goal and the ultimate goal in thi when we look at the broader purpose of the wiretap which is to learn far more than just just the garcia the fact matter is the affidavit goes through each of those techniques talks about what was done i think the other place that i take issue with defense argument is that there were just mere conclusory statements there certainly were statements about why the techniques frequently don't work but this wasn't an instance where the obvious or simply just said we don't do surveillance because people cannot counter surveillance affidavit actually sets forth multiple days of surveillance and specifically details why a surveillance was ineffective with this particular organization and so that's not a boilerplate statement that's not a generic statement that's specific to this case and i think if you look at the affidavit as did the magistrate judge you'll find that those points are laid out with respect to each   good faith in its initial response that the district court docket for twenty five and then when the district court issued its ruling and the defendant objected he simply refiled the brief or the was about two pages that he had filed initially and the government said there's nothing additional to respond to you haven't identified anything that the district court got wrong either factually or legally and so the position of the government still stands that the wire taps would not be suppressed so good faith wasn't frankly considered by the district court because they found that the necessity requirement was more than that in this case that said this court can certainly consider it and i'm not entirely sure  certainly a substantive part of it and from the perspective of the goals of suppression and the goals of leon and the purposes for climate good faith exception there's certainly no reason that the government can conceive of why that would not apply to necessity very briefly with respect to the admission of the prior convictions defendant this is the first that i want to be issues was going to be the brevity of the district court spots it's not raised in either the original brief by mr jackson or the reply but any event i can tell the court that there was argument had on the activity is so mr jackson had a prior federal drug conviction for which he was actually on supervision at the time of this the found and then he also had while he was on pretrial release on his first federal case he got his hennepin county possession of methamphetamine conviction so the government offered those convictions as to the intent and knowledge of mr jackson the issue in this case through how is it relevant to the to the charge at the time mr jackson prove the charge without any reference to those paragraphs and i think we did prove the charge without any reference to the prior crimes i think that the district court was considering the defense that was raised by mr jackson was an ass and i don't know anything about a drug trafficking i don't know anything about any drug trafficking that's mr garcia's business and i'm i'm that's not my world and so the district to the argument usually when there's a knowledge argument it's i knew that what i possessed was cocaine or something like that you seem to be saying it's broader concept of knowledge in this case well s to the purpose of the agreement that i was joining well you know you have to prove that in a great spirit suit case but you say i didn't know anything about drug trafficking that's mr garcia's world is it really that  it was argued well how mr jackson had a number of telephone calls with mr garcia and during the calls of course they didn't say the words methamphetamine instead they talked about things like i have all of my money towards i have all of my all of the money towards the debt and jackson argued we don't know what that debts for the debt could be for anything and then he says i have all the money towards the debt and some he says well it's all about some other object or some other unknown thing and when mr jackson is talking and then later when mr just mr garcia calls mr jackson and says they have fifty pounds they want us to get our hustle on the argument was that that was mr garcia's business that was what he was doing and he was just telling mr jackson sort of information that he was being that was being shared that he had an understanding of why that would be shared what why that would be important for jesse to share that with him now turning to mr cruise to be clear the government is not offering the coconspirator statements themselves for the truth but we are offering them for cont for what mr cruz is saying and i think we agree that mr cruise the statements are admissible i think we also agree that the case law allows us to look at the context of the conversation to determine what mr cruz is in fact saying t and what his his statements mean oh wait a minute why do you say you're not offering what garcia said for the truth of it i mean if it's if it's a non hearsay coconspirator statement then it is admissible so the truth  use what mr garcia said for context so for example mr cruz's admissions are admissible and mr cruz said things like are they paying or what when they run out i mean you're man don't forget i'm checking on how you're doing look at things the context of the conversation so for example on august thirteenth mr cruz says i'm checking on how you're doing i called to check on how you're doing and mr cea then went through a l why his drug business was struggling he'd had some folks who'd been arrested and some other challenges and mr cruz says ok well i'm just checking on ya i'll talk to you when you're ready the context of mr cru information that he was seeking for mr percy additionally i would just like to point out there is not a single statement or a single act or a single piece of evidence that by itself shows the existence of a conspiracy it is their totality and that's what the district court looked at in doing its analysis the district court looked at frankly just the number the fact there were calls themselves separate from the content just that just because he is communicating with this individual is a piece of evidence that the court can consider in determining whether they have a conspiracy when cruz asks are they paying or what that statement by mr cruz that can be used to determine that mr cruz is making inquiry of mr garcia about whether or not he is getting paid and it is important that mr garcia was shown during the trial through a variety of non  coconspirator statement evidence that in fact he was a significant methamphetamine dealer that colors the relationship between he and cruz given the statements that were made the court asked  couple of questions about whether the stepdaughter and mr cruz sort of were together on the day that mr cruz traveled to meet with the august sixteenth the stepdaughter was with him during that particular trip and i'd also point out in the record there's lots of instances like this which are subtle but were also before the district court when  are discussing meeting crew says should i come to coon rapids to come to coon well there's been nothing in any of the earlier intercepted call which would explain how he knows that and so the judge could rea he's been there before that he knew where it was he was supposed to go he didn't say can i have your address where you supposed to be and so all of the information mr cruise the statements the activities that they undertook the nature of their relationship that could be was the the admits the admission of a statement between mr garcia and the mexicans and points out that that was that mr cruz was not in a conspiracy with the mexican source and i beg to differ with that there was and relationship between them they were aware of each other's existence mr darcy in fact told each of them specific details about each other's existence including the quantity of drugs that he was receiving from each of them there was a film illegal relationship neither one of them objected to or raised any issues with the fact that mr garcia was using them in this sort of interdependent way and in fact that interdependency was explained by mr garcia in his own words in the recorded calls and then last i would just point out that mr garcia the statement that was admitted to mexican co a statement was nearly identical almost word for word to the statement he made to david bennett who was in the conspiracy and had received drug supplied by catarina cruz and so the statement itself is significant piece of evidence in light of the fact that mr garcia made that statement to another person who was in that conspiracy and was not in the alternate source of supply group thank you miss bell which is do these other circuits that have said information outside the warrant can be considered by the office or do they provide any sort of valid rationale for allowing  that no they they don't i mean i in time i can't go through all of them but mackenzie good is one of the cases the government cites a circuit allowing the officer to consider facts outside the affidavit in determining whether the search is proceeding on the warrant this is legal and you know there are some equivocation here they cite in mckenzie good the statement that the question is whether reasonable recently well trained officer would have known that search was with illegal in light of all the circumstances and that's from leon all the circumstances they tell us i asked well if you if you go to leon and that's in footnote twenty three you see that what they're talking about there not is the concept that well we have this rule that you have to rely on the warrant but you get to consider things outside the mourners well if you read for not twenty three that's that's absolutely not what they're there talking about they're saying well maybe if the officer knows that another magistrate previously rejected this warrant that i'm not trying to rely on they're not opening the door to this to this broad assessment or inclusion of everything the officer knows that wasn't in the warrant and then the other thing about mckenzie good  forward to the all decision so marion is is not a valid basis for that rule either because it's subject to the same argument i made here so i think if the court reads those other cases  that the rationale there are simply well we just want to expand leon and that's unfortunately a tendency we see that a rule comes out and then the government just keeps wanting to push it further and further thank  yes and this is for the jury verdict to the special of juror grams or more correctly and even assuming that there was that mr garcia and mr cruz were involved in a drug conspiracy the only evidence of quantity is mr garcia statements to mr bennett into this an indiana five mexican male i was working with some other dude's getting ten or the time doesn't use mr cruz's name doesn't specify a date or a place where he met with this other dude to get his ten or the time that could be corroborated by surveillance or law enforcement observation so i'm willing to say there's some suspicion or even you know that that mr cruz was this other dude assume he was an alternate supplier the government's own agent said drug dealers often lie and they often have multiple sources of supply there is nothing that points to mr cruz being that source of ten time even if you want to believe that that coconspirator or hearsay statement by mr garcia is true they're simply not proof beyond a reasonable doubt of drug quantity for purposes of the mandatory minimum justice act and court expresses our appreciation to you for your service in that regard consider the case submitted will render decision in due course thank you