car last case this morning united states versus macondo number zero nine dash twenty six eighty one mr narcissi and ms stevens negotiations taking place and he was president and it were not quite sure if he's the one that handed over the drugs it was the other person i mean i mean he was present at the creation he was present in the middle and he was present at the end and we understand that mere presence doesn't do it but there's other stuff which is why we write this stuff would seem to show the earliest would allow you to get to a jury and there the bar is very high beyond a reasonable doubt that he was a participant they made that finding and for us to undo that finding is is a as we've said a very high hurdle your honor that this court has already addressed this case in my argument t was a truck driver i think your honor in all situations all we have here is mr ricardo seated in a vehicle we have the repeated testimony of mr knowing it rodriguez knowing is that it no time was there any conversations with m these issues we have nothing further there the cases that have been addressed on the one extreme we have i believe the trooper decision and then on the other hand we have the most recent of boria and then we also have any of the least decided by the government where there is more activity there's conduct their speech there is nothing in these facts as submitted to the jury or that that was him on the you know what your honor i argued that inference and i was concerned about that that takes that totally of this race to thomas line of cases thomas says the jurors are not allowed to a part in for the substance of the conversation between individual one individual to now would would per your question your honor we're even taking the identity of the second individual out of the equation so now thomas not you're not allowed to infer with the substances now you're risking the jury you're say it for who the person is and i think that that is i don't think they can do that i think that that totally takes thomas out of the equation i think that that totally undermines the whole thomas line cases so i think again we're looking at his conduct which was being present in the vehicle are unfortunately really at the no drug dealers in i am glad that it's not criminal because in my line of work it would cause me a great amount of consternation however knowing a drug dealer is not in and of itself criminal conduct criminal liability does not and knowing a drug dealer who's plying his drug dealer trade and if you were part of coles that preceded the acquisition of the drugs and the selling of the drugs or the purport that he was arrested right after that gets you to a jury your best argument to me or your best chance of winning is to say to a jury that you've got to find beyond a reasonable doubt that this person did all of these things and here's why i suggest you should find or here's why i suggest you shouldn't you would say and the jury with that high standard found that he was a participant how were we to say that the evidence was so it was insufficient i realize that there's you know he didn't he didn't say anything here but how are we to say that we should overturn that it's just as a matter of law it can't be and that was it should never have gotten to the jury is what you're really saying these are and i think that was reflected in the trial court has ruled that is your main a jury may not infer what the substance of those conversations were and i'm not going to get into the alternative inference org wizard alternative scenario argument here because that's you know not helpful my argument but the reality is there were four car there were conversations between my client and mr settle obviously my client knows mr soto they're in the car together and he also over he hauser is present while conversations negotiations are taking place he he the conversations yes and he then goes back i mean that you think the ordinary person would say you know what i think i want out of here this is this is not right i want to be but does he come back yet there's a comeback after that yep is that if we said that in this case that mere presence there was just me there was mere presence that's not enough the consequences of that for future cases would be ok as long as i keep my mouth shut as long as i don't say anything as long as nothing's recorded that i do say because these phone conversations were recorded just what i can be there i can see that my stuff gets sold i can be sure that everything's done according to and that's fine i can't be convicted that's a bad consequence your honor i appreciate the public policy concerns here however in this particular case we have government agents observing the entire transaction we have the  government witness testifying to the whole sum and substance of the transaction so that while there may be concerns regarding a defendant's particular product the i believe that there are no other law enforcement tools and techniques available to establish guilt in this particular case is simply going to simply sitting passively by something takes place in front of one if that is the case the government has other tools too and it's a and then switching cars almost looks as if what he's doing in the end is if it's ratifying his involvement you know once if he was there at the beginning fine he wasn't there for the next three times maybe twice that he wasn't there for the next  there as i said from the very beginning to the very end when they were arrested and it's a you have a musher that i don't understand why that shouldn't lease go to the jury especially since you've got the standard of proof on your side i think another factor though to consider and did i think would be helpful in keeping this we don't injure is is the location and i think this would and again it's where we fit within the spectrum of cases mere presence cases that this court has already decided i think on the one extreme we have the most recent court's decision pouria and then we have the wexler cooper sam and thomas decisions jenkins all of which i  of what did this particular defendant do to encourage this particular drug transaction and what we have the way what do you do the sister facilitate this crime yes your honor and in this case the defendant did a number of things the government completely disagrees with defense counsel's interpretation that he did nothing but merely sit there simply because you may be president doesn't mean that you are not doing something in furtheran of this particular criminal activity specific evidence that you did something above and beyond what you are what we know about this case is that mark otto the defendant was involved with this particular transaction from the very beginning what we have in the morning are a series of com a series of telephone calls which initially establishes his relationship with this drug transaction what we know is that prior to august fourteenth rodriguez knew unions had had several conversations with all related to heroin transactions and on august fourteenth was temporarily it raises a question but we don't have you know you don't have courting you know your honor we don't have recordings of those conversations what we do know based at ten o nine two minutes later coral soto halts macondo and they have a thirty second conversation followed up sixteen minutes later with rodriguez knew he has call in chorus sotto again again what the testimony shows is that rodriguez news was calling him related to a heroin transaction and then following that we will ask for that under thomas your honor under time if it does say in that particular case that you can't the jury infer conversations when there's no evidence that the defendant in that case was even aware that there were any illegal activities going on at that time but that's not what we have here thomas is factually distinguishable here because we have a defendant who clearly knew what was going on in this case he knew based on either the calm between him and cora soto in the morning but we definitely know that he knew that this was a heroin transaction when he sat in the passenger side of this car and overheard these of this transaction on three different occasions and and it is interesting that this all happened out in the public as the defense counsel focuses on there were about twenty or thirty people based on the testimony of the officers in this area and this was a public area your honor but interesting enough i think that's where these multiple cars kind of come in their concealing this drug deal by switching in and out of multiple cars and and the defendant had an opportunity as this court has recognized to completely clear his self of this struct that for the third meeting when the actual drugs were transferred he said that that had to it had to happen fairly quickly which makes sense considering they are exchanging a large amount of hair went out in the public but when you look at all of the evidence from the morning calls plus the transferring in and out of the for the two vehicles in the four different occasions him being present during the actual conversations of the hero until all of those factors really do lead to the reasonable inference that macabre was actually encouraging that he participated in social himself with this venture but there's an additional factor here that i think the court should also pokus on this was not an individual rodriguez knew yes who had been involved with corus soto in the past this was a first time drug deal a first time drug deal involving a significant amount of drugs the government in brief i admit we underestimated exactly how much these drugs were at sixty two dollars per gram for approximately two hundred twenty five to two hundred fifty grams it's closer to closer to approximately fifteen thousand dollars worth of drugs it is a reasonable inference in this case honor that and these circumstances having someone else present would be important either as muscle to make sure that this drug deal goes through particularly given the fact that rodriguez no yes he he provided no money up front for this drug deal this is a first time transaction so mcconnell's role in this particular case and thirty nine and eleven o'clock but never is there a call between mercado and rodriguez noon yes so i mean i thought where you were trying to say  point is that he was in effect the go between but what indicates to you from those calls that somehow he was the he was the link in the chain what your honor the way that i look at the halls in the morning is that it's simply sotto and then the beginning of these drug deal conversations that actually happened in person so i don't i certainly don't want there's nothing in the in the record that says pacifically there's nothing in the record that shows that there was any conversations between rodriguez noon yet between rodriguez nunez and mark otto absolutely nothing within the record however these morning calls as i said before really sets up the beginning of these rodriguez noon yes contact chorus sotto in regards to setting up this drug deal when he shows not to go to new york and to get those drugs from course otoh those conversations don't happen until afterwards but also there are no conversations sotto at all after eleven o'clock which i believe you are on a really aids to a reasonable inference as relates to a later conversation that rodriguez newness has with the so called owner of the drugs because later on in the afternoon rodriguez news has a conversation where core cell to actually puts him on with the owner of the drugs and the owner of the drugs clearly states to rodriguez knew yes it's sixty two dollars per gram i'm not changing the price of the drugs and what we know from the evidence is that more kotto was with rodriguez knew yes from the entire afternoon through out the afternoon and what the government's image is a reasonable inference that could be drawn by the jury in this case is that mark otto was in fact the person that was put on the phone with rodriguez pneumonia so while of the fence counsel argues that what mr mercado did here was only said in the car the collective evidence demonstrates that he did more than just merely being present  nonpresidential opinion this court in united states this versus easter said that presence in a car is certainly can be a factor that a court can consider so in this case we don't just have have so much more evidence in addition to being in the car four times so in this particular case it's enough it may change depending on the facts of other cases but we do find it a value decision and united states versus easter because of that language about presents an automobile being very different than being present in an office building or residence for which you may have some other legitimate reason for being there when you're president an automobile however there are so you usually there for a specific reason and in this case what we know from the evidence is the only reason rodriguez knew yaz was meeting with chorus sot  this is explanation hold water no your honor if you look at thomas i mean the crux of the thomas decision was that the evidence was insufficient to show that thomas knew the purpose of the legal venture he gave it that was the crux of the thomas decision and in that particular case there was evidence that there was phone records that showed several calls between pearson's peterson thomas your honor but in thomas because he had no knowledge all they really had was this and in that case because they had no knowledge as to what the content of those conversations were there simply wasn't enough for them to then make that  of him knowing what was that this involved in illegal then sure to support a finding of conviction in that case but as the government pointed out in its brief this case especially an opposite to thomas and it's undisputed the macondo knew that there was a drug tracked drug transaction that was that was taking place in this particular matter i see the my time is almost up is there there's no other further questions by the court and of the questions thank you so much for your time your honour's the funny just briefly the opportunity or the obligation to leave the vehicle or to disassociate oneself if the court were to affirm this the trial court's decision essentially will be imposing an affirmative obligation on an individual's conduct in this particular with your clearly obviously mr khan who has the opportunity to conduct himself as he sees fit however in this particular case to say hey you know what drug transaction is taking place that's one thing but here you have several hours of activity preceded by phone calls involving four times this person and he's it's like you inch forward you inch forward clearly the phone calls won't go and the first meeting will do it second meeting probably doesn't do it but then the third and then you and then for the final the actual transaction the actual comes from is this the drugs to be handed over and the payment to be made is there he's there and so you know maybe you as a juror might disagree but they didn't they unanimously found that he was a participant in this aiding and and i think that shows the rationale and the reasoning behind the thomas line decisions because you can reach anyone it wants backing of inference is a conclusion regarding these garments and at some point you go from speculation to inferring that he was a participant at some point the line is crossed and for all twelve jurors they believe that that line was crossed and as i said before they believe that by the on a reasonable doubt who are we to interfere with that judgment i would or you didn't end with with the circumstances that the language of the statute the jury charge all address that issue and that we have mere presence from the first meeting to the fourth meeting and we have him sitting there otherwise like a cigar store statute and what the jury didn't believe he was a cigar store statue it but i think in that regard the jury disregarded trial no single arc by itself is not extending all they can reach i think that's what the government's saying in this case no single factor maybe even two factors arguments will take the matter under advisement