who is appealing his conviction on two counts after a jury trial in two thousand and fourteen arising from facts that occurred in two thousand and eleven count one was possession and attempt to zeshan with intent to distribute more than five kilograms of cocaine and cantu was conspiracy to possess with intent to distribute more than five kilograms of cocaine mr patterson was convicted after a jury trial he was sentenced to one hundred twenty concurrent and then this appeal arose first like to address count one which is the possession or attempt to zeshan with intent to distribute this was a reverse sting operation in which rather than the government attempting to buy cocaine from my client my client was enticed to buy cocaine or was offered to buy cocaine from the government there was an involvement of agent of a c i mr niro and as part of this this operation the government did what's called a flash which is a marketing ploy where the government met with my client and showed him showing that they had product to sell that there was product to sell that occurred when the cia and my client went to a designated place the  agents undercover agents came up pulled up next to mike next to the car in which my client was a passenger passed a duffel bag with twelve kilograms of cocaine in it to my passenger through the passenger window to my client who was sitting in a pasture si n at the urging of the confidential informant the bag was open my client examined the contents he was ordered to slice and dice it by the confidential informant he opened one of the kilos took a small amount put it i a dollar bill rolled up a dollar bill and put it in his pocket in less than four minutes and thirty seconds later they dumped the bag was sealed and reserved and put back the past back to the  of the agents are content our contention is there was no possession in that scenario that possession can be actual or construct correct an actual possession but constructive possession requires that there that there is an act of dominion or control control in the the minion part i think implies when we look at the definition of dominion it implies some type of temporal element beyond a mere it examination of the product to see if it is worthy of trying to go on later and in attempt to make some make a deal to at a later time but there was not as as a officer husband testified to the agent in this matter there was never in any intent on his part  let mr patterson leave with that cocaine and that with fact you have the video that you can watch there was never any intent on the part of mr patterson to buy the cocaine in fact that particular cocaine in fact mr patterson was surprised at the amount of cocaine that was shown on it what about the attempt well for attempt i would refer the court i would refer to the fifth circuit  pattern jury instructions on attempt which says which requires that in order for attempt the defendant first the defendant the during the spine that the defendant intended to commit in the  would be possession with intent to distribute which there was no intent to possess that cocaine with intent to distribute and second the jury would have to find that they are the act that constitutes a substantial step towards the commission strongly corroborates the defendant's criminal intent and amounts to more than mere preparation i would submit that all that is present in this case is mere preparation and i referred to the court to for cocaine opened up a base rate case cut it in real briefcase and locked it and was ready to leave with it that isn't a fact and an example of exhibiting dominion or control over that cocaine that didn't happen in this case yeah but it can't negotiations constitute a substantial step i don't think this was a negotiation as much as in fact the agent in his testimony called it a flash his his no possession when you're making an examination of the drugs that's what occurred to make sure that they to form my client my client intended to establish that a there was a product of sufficient quality that he could go on and try to find people who would come he was a middleman he was this was a new if there was no physical position for the brief time it was because this was a step in the united states in the agents convincing my client that there except there was no intent to do that that day in fact there was nothing inside the devore timing that day we will concede for argument that there wasn't any possession that was just this one of them and they got it and i and so let's talk about a tip to possess i mean to me the most evidence of his attempt to possesses his statement that he intended to possess it i want to i'm going to ban i'm going to bring the money i want this flash was for the purpose of determining i guess the quality of the product is this something i want to back that will get these other people to to took the bundle their you listen to the telephone conversations at a curve when the cia and the agent the cia is pushing my client pushing my client these guys are going to go it's get you know do this deal get your guys patterson never had and he he  let's take an endless address let's address it can't you know let's address the camp too because i agree there was a conspiracy there certainly was a conspiracy to possess with intent to distribute but let's take the worst case scenario the agreed upon price is twenty one thousand hundred for amounts eight or more all right there never was a meeting of the minds as to how much was going to be purchased patterson was puffing over they got a hundred they want to buy thirty a week they got and there really is never and still not enough to buy five kilos so while there is a conspiracy how can there be a conspiracy that possessed with intent to distribute five kilos when you don't have enough money to buy five and i understand factual in possibility is not necessarily it's not necessarily negative that that verdict but facsimile factually he yeah he could have put one he could put two he could have put ten he put twelve in because that was all that would sit in the actually checked out fifteen kilos but he couldn't get it thinking it was in the bag so he only brought flat that be the focus of the palace questions the government introduced three police officers the testimony of a complex informant in clarence nero and a thirty three minute video of the defendant and mr niro finalizing the preparation of a brokering decision that he probably didn't just kill team but as judge graves mentioned the government can allege in the concept of unproven destructive the verdict form is page three away of the record and it said possession or attempted possession and the government possession the defendant's brief largely when it talks about attempted largely wards want to doesn't address that sort of bootstraps into the possession argument but i think as the panel understood from its questions the attempt to possession was attempt to broker the it was done of ours neither decision addresses attempted possession mr patterson was a broker he was trying to find purchasers and buyers purchasers for the drugs and the record is clear that in his own words he had done the exhibit one b is the video of mr nero and the defendant in the car and within the first thirty seconds he says my people are ready and you know keith he's using the coded language but it's clear from the context he's talking about his purchases and then ninety seconds in the government exhibit one bravo one before the video he gets a call a phone call and he tells nero that's person that that has the broker he along with purchasers would take the drugs in their control i don't think that a defendant say where multiple people are charged with possession with intent to distribute and they're buying it i don't think that you would ever say well the one person that handled the drug is the one that was in the possession of drugs so i know that there was also questions as to whether or not he went beyond their preparation first of all he flew into baton rouge for this and that page seven thirty seven the records that offended flew into town then as i said we know that he laid the groundwork before he met with near zero then the drugs come at sixteen thirty and the government strongly disagrees with the trail of the facts and then when i say sixteen thirty i mean sixteen thirty in reference to the one i think if you watch the video this idea he was surprised is an accurate if you want surprise he got very comfortable very quickly because he had the drugs in his lap for nearly four minutes twenty minutes and thirty seconds you can watch it but he takes one of the bricks of cocaine out of the bag he puts in the center console he cuts it open he tastes it he negotiates the price he talks about the logistics and he takes a sample back f purchasers and at twenty one minutes into the video he says my people are ready to get it all to death and then a twenty three minutes of that the seven seconds to twenty four minutes and seven seconds he says all my guy needs to do is make a phone call things i think there was a question about cupping and and that argument more relates to the defendants i think you made that more in the context of the second count the conspiracy count and first i think it's important to recognize defendant does not test the government established the conviction for conspiracy to possess an intent to distribute it's just a question about the three men on the mound and he talks about how the defendant was merely popping well that i think is less an attack on the the evidence as it is an invitation for this court to sit in the place of the jury they didn't they heard the defense counsel's argument in closing the that he was merely puppet they heard that with this is and they heard the recordings and they didn't think it was really shocking but even if he was popping the reason dollars but it's also clear from the record that he was dealing with multiple purchases and i can give several sites to the court  oftentimes these offenses are interrupted by the police before anyone ever sells up all the money but you know that the instructions for conspiracy for twenty one of us see a forty six don't require that someone raise all the drugs all the money that there was an agreement that would be the practical effect of affirming the conspiracy and reversing the  other factor that i think relates to the puffing and that's a testimony of honoree honoring who is the one who eventually came with the money didn't even have the money he had to go borrow the money from firkins who is also somebody who showed up kind of to watch and make sure that his money in this deal was covered all of those other calls if you listen to those phone calls nero's putting extreme pressure on paterson that this deal is going to go away this deal is going to wait no i got it i the guy in town so that his is his third parties who have to go go only that which is what nero was telling him they were fixing that in patterson in desperation was just trying to keep him on the scene so we could try to complete some kind of deal but that no negotiated deal for any specific amount whatever he could buy and at the point that he thought that the guy shows up all he food buys less than a kilo right thank you mr upton your case and all