rational jury could have found that the government had not proven intent to distribute beyond a reasonable doubt applying the standard in berms this court held the instruction was required when the defendants flew from san diego to denver with triple beam scales rented a hotel room and bought thirteen thousand four hundred dollars worth of one hundred percent pure cocaine in trujillo the instruction was warranted when the defendant had a handgun a spoon with cutting edge and residue and one hundred and twelve grams of seventy nine percent pure cocaine packed  c depending on the amount yes it he had a he had a fifty one dollars that's why his mandatory minimum was ten death that's right i believe it was fifty grams in the indictment but it was it was a detectable amount not actual that's depending on how they charged at it changes the mandatory minimums as was what was the evidence that he was a user well there wasn't evidence affirmative evidence that he was a user met a problem for him i don't think it is because the standard is whether or not a rational jury could acquit an irrational jury can acquit the government doesn't prove intent to distribute beyond a reasonable doubt on the facts of this case what really jury couldn't determine that he didn't just simply because well the evidence was bas evidence of distribution was based mostly on the agent the expert testimony a rational jury could have discounted that expert's testimony for various reasons well that's what i meant you water the reasons why i'm trying to get them and let me try so specifically the jury could have found that he was inflating the number of the amount just watch lee had the car while simultaneously understating what a user would have so let me start with the st one where you and i are reading the same facts of this case yes yes we are examination he says wealth and sperry possible that they could have had not just less but a lot less when he's talking about user amounts on direct he starts at three point five then across he says well maybe seven on redirect he says well maybe ten actually i'm back to  got to focus on what a rational jury could have found the minimum quantity to be here and there are some let me let's sort of go backwards here do you agree that a rational jury could have found that he possessed with intent to distribute sure of course ok and the amount you're talking about here that was actually recovered fifty four grams right plus or minus and in addition to the fifty four grams that was recovered i think there was pretty well undisputed evidence that there was an attempt and possibly a successful one to destroy some of the mathy yes i mean i would even i would even concede that he did destroy some of it i mean there's a meat meth bleach slurry as the officers describe it the problem is we don't know how much that was we don't know how long it took him to rip up in these bags or the bleach in the trash cans most importantly we don't know how long it takes bleach to dissolve math there is no evidence of about how that process actually works i mean they didn't they didn't work some of the meth we're talking about here it's not something that was skimmed off of the bleach is it no it was ok that's what i'm that's what i'm saying i gree that some of it was dissolved we just don't know how failed it wasn't for distribution and so forth if the test of when you're entitled to a lesser included is that the jury could have disbelieved the government's evidence then you would always  hundred percent of the gun just a minute yes intitled to a lesser included because always a jury to disbelieve the affirmative evidence of the government so you are you have this huge gap though that you don't have any affirmative her lesser included would be and you'd be entitled to it in every case i understand where you're coming from my argument is not that the jury can automatically disbelieve any any witness it has to be there has to be a rational basis for the jury to dispute there will always be some kind of an argument that the rational because you might not believe this guy he didn't seem very credible on the stand i mean apart from kind of the subjective factors that don't appear on the on the appellate record i think that it's fair to say that on appeal when you're arguing with a rational jury could whether rational  period but you can't get up and say the jury could a rational jury could disbelieve this witness because their internal inconsistency is in the witness's testimony there's almost no way to some some way to cross examine or witness and it was hardly ever trial where there's not ten grams as an absolute cap seems arbitrary and cock and contrary to common sense why would somebody who can go through two grams really quick limit themselves to ten grams if they have the money to buy more you've there's every incentive to buy if you've got the money stocked buying drugs is legally risky so mixed and since the stockpile presumably it's cheaper the more you buy that's just how the sale of goods works legally or illegally but there's things in the just internally in this expert's testimony that could have given the jury a rational jury we're case is sort of based on what the cops didn't find in his car right no gun hardly you have no scales but you know i mean reasonable doubt can be was armed but that but it was dark the victim was on drugs no gun was recovered that a jury can acquit on the armed part based soley on that without affirmative action this wasn't this isn't a case of you're quitting this is a case based on your but it's less time in prison and you know i mean he should've at least the jury should have at least been given that option that was his defense i mean granted maybe the evidence is weak he did not testify he didn't ok so aren't is there any case on the basis of what i hear you argue you which you would never say that the court heard in failing to give the lesser included offense on facts like this well i mean pacheco i think is a good example of when the instructions not necessary because the evidence of distribution was absolutely ever wyoming multiple containers of drugs text messages indicative of drug dealing multiple purchases of distribution on of these you know plus think that guy's defen wasn't that he had the drugs but they were for personal use and that he didn't he didn't know about them at all so we're talking about a rational trier fact on the basis of what you just said we have a eighty five mile an hour chase for ten miles with things flying out the window the i mean that's what i'm saying on the facts that you have right then you say is are rational the jury could do that that were i'm having the trouble not even is applying the totality of the thousand dollars worth of one hundred percent cocaine that they flew halfway across the country to buy this court said that instruction was necessary well but this guy if he had a gotten all the way across the country and sold it he might have had that much money it would do well who knows i mean that's what i get if i don't we're talking about what a cutting edge on this course still so that the instruction was properly it wouldn't we expect in this case actually let me let me rephrase this so what what was the evidence at trial that your client was a user there wasn't any evan other woman if there was no evidence that there was no affirmative evidence that he was a user there wasn't but there there was you i think have to agree evidence that he could have been had this for purposes of distributed shares of course but it's just whether rational jury would have had to reach that conclusion whether they were compelled to and i think given the discrepancies in this expert's testimony the kind of seeming the arbitrary number of ten which isn't even ten all the time sometimes it's three five sometimes it's seven that a jury could be like well we don't really know if we believe this i know this jury clearly did it i mean don't you don't you have to have some evidence i don't think that the test that the evidence there was inconsistent with yes that it that it was more consistent with distribution there was no evidence to that if to that point also in his very specifically very importantly in berms the government in its own briefing painted itself into a corner in that case but i saying this while obviously the jury was not compelled to draw the inference from the evidence that burns and underage had a specific intent to distribute cocaine sufficient evidence was before them that would allow them to do so based upon that concession in the brief the court said well what was the evidence in birds that it might have been for  there wasn't so then why isn't that case or is case with or i'm sorry why were we if there was no evidence there of use why isn't that case that very much on point authority for this situation again your honor the court made its finding based upon the government's admission that the statement was that the jury was free to draw that inference or the free not to draw that inference inference and that was based upon the government's admission in his brief in here the government's not admitting that that that that that the jury could have made that inference you know rational jury could have made that inference based upon these facts as the court mention in question counsel about these the on the based on these facts of the gentleman who had traveled a number of miles picked up a significant quantity of methamphetamine you know in a i agree we don't know how much he destroyed but he was obviously trying to destroy it he had put place it in the trash cans with the bleach much of it has dissolved the vehicle overturns and there is a slurry throughout the entire interior of this caught the troopers try their best suit to collect as much as they could but the trooper admitted it would have taken multiple hours for us to try to scrape all of that off the interior of the car what they were able to do to collect was some fifty some odd grams and based upon that position that there are no rational jury could have drawn the inference that the government in berne said that they could do you know of a case from anywhere that would say that the defendant that there has to be some affirmative evidence of witnesses did not testify that the amount of cocaine seize was consistent with distribution and inconsistent with personal use in here the government's witnesses government's agent testified that this is in is use one judge can you go back to one of the cases of which is back from one thousand nine hundred and ninety one u s versus leopard where in that particular case the court said based upon the government's testimony that the cases obviously the pacheco case is well two switches court decided no input checco there are some distinguishing factors there was a firearm there were some there were the text messages so there were some additional evidence which were was not finner raise that issue lower court asking for the lesser included instruction there is a subset of possession is a subset of possession with intent there is a dispute now there is no evidence in the record that he was a so yes that is the th felony now under which i go the court stead said we may only reversed the district court's denial of this instruction if we are convinced a rational jury could convict on the lesser charge and acquit on the greater record based upon the facts in this case that no rational jury could have made their finding now counsel made one statement admitted a couple of different times both in his brief and also oral argument regarding what the the expert witness the government's expert witness talked about the quantity which was potentially when those in within those sealed backs he testified that in that they would contain as much as six pounds but conservatively speaking raftery pounds of methamphetamine now one cross examination counsel the defense counsel ask him well would you agree with me that there's a possibility could have been less than that a lot less and his answer was very possible very possible but which time defense counsel began with the next question in the context of what his testimony was he was saying this expert opinion was that based upon how much was recovered from th based upon what was already poured into the bleach over this multi mile chase that there was obviously much more than fifty four grams that was was recovered i am sure it could have been l was me it was the government's responsibility to follow up a cross examination to get that has money out there i do not disagree with that your honor i don't have to you can't just say well let me tell you what he would have said eddie been asked if i do not disagree with i wish i had had a better and then he said well could have been less all of europe possibly could mean but it was when it was cut off so i think in when the jury when they heard that the court when the the court heard that that's the court's incineration that no rational jury could have made  know i don't have much time i just want to make a quick point about that leopard case that it does hold that instruction didn't have to be given just because it was lower to middle distributor quantities that's inconsistent with burns completely inconsistent burns st it was thirteen thousand four hundred dollars worth of one hundred percent pure cocaine and the instruction was required that's a clearly a lower or middle distribution quantity plus there was more in that case there was the scales there was the travel everything so you know this course precedence clear the case decided  st when they're inconsistent that one control so leopard just isn't good luck thank you thank you the case will be submitted in council or excused