d right this used in this case is whether there was sufficient evidence to convict mr mottos of conspiracy to commit wire fraud wire fraud and aggravated identity theft whether the district court abused its discretion in meeting evidence that my client had participated and prior fraudulent trips before for argument there were six individuals charged in this case four of them went to trial and two of them pled guilty prior to trial and testified on behalf of the government this case was built upon circumstantial evidence and the testimony of the to cooperate in defendant's well how is that not sufficient to sustain a conviction under our standards in the supreme court's case jackson case and our nobles case there's a lot of evidence there you can argue that it should have been believed but the jury didn't believe it and we're not redoing it we're asking ourselves could any reasonable jury  honor and i understand that i think that the evidence in this case my client made no admissions to any participating or having knowledge of any fraudulent scheme in this case he had two people testify against him directly who were involved in the scheme and i had him all over videotapes i got to say and i didn't try to find out what argument was made to the jury but what explanation could there have ben for what he was caught on video tapes doing and w as it seven different walmart's in the same day really you know that's that's nobody go shopping in seven different wal marts in the same day you know that it's correct my client was on video camera at seven different wal mart's through the boise area on this particular case so what's his explanation for how he's not involved in a conspiracy to commit wire fraud you know and i think that there's a difference between my client in this case and the two particular defendants in this case that cooperated with the governor just he's on videotape that's correct around seven different walmart's same day two guys testifying against him what's his explanation what's his defense what does say to the jury an explanation for this conduct your honor that he did not have knowledge that the cards that he was using at fraudulent account and that's why he had to go to seven different stores on the same day and sometimes try multiple cards you this was the first time that he had been on a trip to idaho it doesn't take a genius to figure out you don't go to seven different walmart's on the same day to run cards through to get gift cards i mean you don't understand  demonstrates was actually going on here as far as my client's concern was only in the country for approximately four months at the time he was arrested that he was shopping this was a time that was close to christmas he was asked by his friends particularly martinez marquez and  were married to attend a trip with them to idaho and that was to attend a baby shower when he was arrested in this case he was interviewed by law enforcement and he was asked well were you doing here night oh i was asked by my friends to a company  them on a trip to tend to baby shower he made no admissions that he knew that there were fraudulent activity when he was arrested there was a wallet on his person there were gift cards that were in his position but none of the these gift cards were examined but none of these cards actually had progeny or stolen account numbers on them and there was no individual's name embossed on these on these cards as the core pointed out he was seen on video at approximately seven different walmart's making purchases but there's no evidence that when he was making these purchases with the cards that he had that any of these cards had names of other individuals and this is similar as well to the transaction terminals the transaction the terminals there's no evidence that a name an individual's name was actually presented on those terminals when he was processing these and fact a loss prevention employee from one of the wal mart testified that yes the wal mart terminals don't display name there's a signature lying and this is similar to the receipts that the customers receive as well that he offer an explanation as to why he had to go to seven different stores and that's the part that  bowls me over your honor it's can i can imagine an innocent explanation for going i have enough trouble going to one of wal mart it's you just got everything your honor and i understand that and i'm not going to pretend that i can  or even speculate on individual shopping habits habits in the study doesn't that we can your argument that there is no rational explanation for that doesn't that support the jury's verdict in well i think that the evidence that they had is he did not have the knowledge that based upon the cards that he had these were gift cards and in the name implies it's a gift if you received a gift card you're not going to have knowledge of whether that card hasn't hasn't coded number that why do you go to seven different stories to use the gift card use the gift card store number one oh excuse me for he needs he made several purchases he did make purchases of gift cards but in addition to that he also bought food items water i think there was a anything that was the first  wal mart or the second or the third or the fourth you know i don't know whether what was available to all these walmart's i can't answer that to return though to judge clifton's comment we have testify that matter was herrera you use the encoder and hid the encoder and again we're back to the standard of any reasonable juror this jury apparently believed the coconspirators in the context of him using the encoder in that hiding it within the super yes your honor and i would agree with that position i do feel that the jury did consider the evidence the testimony that was presented by the to cooperate in co defendants but the jury also submitted submitted a note after the fact that they didn't believe their testimony when reasonable eight jurors submitted that that's correct but how does that relate to our standard for sufficiency of evidence is not whether this jury but whether any reasonable jury could have found basis to convict and at least for the jury's didn't sign that note so how does and that just even if we can consider the note what gives us the basis to decide other jurors couldn't have reached a conclusion separate and apart from what these eight decided about the credibility of the two witnesses thank you yes the reason that the juror no was included in the briefing in this case is because i think it highlights the fact that the two cooperators their inconsistent positions throughout the trial their testimony near and he has fifth said that he had went on prior trips with all the defendant including the other cook including the other co defended who cooperated and that the rest of the four defendants they were there with him monson tonight this he said the only person that i have ever been on prior fraudulent trips with that was there was also testimony by moms and that they had a discussion in the first night they were in boise while they were at dinner about what activities it they had done that day me as fiz the night that he had placed several gift cards stashed them inside the panel in his in the door of the suburban that he was driving and he said that that was worth approximately sixteen thousand dollars a month and the night that that actually occurred he said that i gave all my cards over to me here is me a said that he never swiped the cards while he was inside the suburban while they were traveling in boise once and said no that's not true i saw him s thought and i saw him handing gift cards to other defendants before they in the store so their positions were inconsistent and that's why i highlighted that what this what this shows is in this case there definitely were two people t gave in this case there is just simply no explanation for the pattern of conduct here it was worse than just seven wal mart's it was a trip from texas where there are wal mart's through montana to idaho to shop at seven different wal marts on the first day and then there was a second day where they hit i think the testimony was four to five all marts then they started going to walgreens because they could get more money that thought and they got caught so just based on the pattern of evidence that the jury saw and there was one hundred seventeen transactions that we put into evidence at the trial the jury had every reason to find the defendant was partisan spira see that he committed wire fraud and that he committed aggravated it and that what's your response to a pulsing counsel's position that the defendant never acknowledged that he was jury saw that proved his knowledge of the again if we're talking about the knowledge that he had there was the testimony by the coconspirators the cooperating defendants that they all knew exactly what they were doing that they had done it before and as they were doing  i do for some of the testimony it was pointed out in the brief knowledge that these coopt wears their testimony i think had different vantage points and so you could look at it as inconsistent in some respects however for the main points they were consistent they talked about the background of the trip how the scheme worked what this defendant's role was in this scheme and for example they both said that he swipe cards through the encoding device and he was the one who hid the encoding device in their vehicle as they were going around town and police did find it hidden in a d v d player ultimately so whether or not there's inconsistency through deliberations pardon me and that brings again to this whole issue of the jury no i think judge clifton pointed out the standard isn't you know did this group of eight people who signed this jury now the question is what they thought about the cooperators the question is could any reasonable jury find evidence sufficient to convict the defendant of the fences be it evidence from the cooperate or switch which we had but even if we set all that aside and we tried to make make this point in our brief even setting aside the evidence from the from the cooperators there was so much evidence in this case if you just look at the transactions if you look at the fence tondo and hiding gift cards and h encoding device and then if you look at this made up story about a baby shower and i just want to be clear there was no evidence in the case that there was a baby shower that they had a legitimate reason to be in idaho the evidence in the any conflict in the evidence must be viewed in that in the light most favorable to the government in this case circumstantial evidence is sufficient to prove intent and the knowledge elements of these crimes and the jury had every reason to find these people guilty given the conflicts of evidence which may or may not exist or to the extent of them those are just in the plural for be evidence i'm sorry ron did you need the four o four b think we could've convictions just based on seven walmart's and one day if that had been this extent of the evidence we could have taken dictions however we wanted to present our full case as are entitled to do and the fact that evidence is highly probative but perhaps not necessary to put the nail on the coffin doesn't make it what would be my response lawyers were belts and suspenders at the same i just wanted to touch on the for a for b just briefly counsel argued that the main points as far as coke and co defendants that cooperate in this case they were consistent in this case and i think one of the main points that's pointed out in the four four b argument is they were not consistent in their testimonies fars prior trips and that was important in this case because that demonstrated as the government pointed out at trial that is a very important to show the knowledge between the defendants because if they're saying that we don't know what we're doing here other than being at a baby shower this shows the fact that they hold on prior trips that they knew exactly what they were doing so definitely wasn't porton for the knowledge aspect as far as the position in this case and in this case on the four for b the government or the court itself had to find that there was sufficient evidence that the other acts occurred the only evidence we had in this case of the other acts occurred prior trips was made he is first saying they did which months and the night he said i never went on any other trips with any of these people he said that mr mottos he actually never even discussed any kind of prior trips so the evidence we had was insufficient for the district court to make the ruling that the four four b evidence was admissible it miscible in this case we we feel that this was heartless to this error was harmless to the client on this on excuse me next case argument is for a bang versus kelly