dealing with impeachment evidence the drug quantity issue the issue is whether the government can use future projected transactions to reach the one thousand gram threshold or any w threshold if we were to expand this necessary to establish a mandatory minimum sentence for the crime of a conspiracy to violate the controlled substances act and run a jackson standard here hundred here where we are but i think there's some some have to look at the evidence in the light most favorable to the government absolutely or on any conflict might be there you resolve in right and that's all true but i think there are some some legal principles that do apply to all this and the legal principles that i talk about the most in my brief are principles relating to conspiracy that you know there has to be an agreement obviously to commit a crime and the agreement has to encompass the full scope of the crime which in this case is one thousand grams now traditionally when you look at a traditional well established conspiracy law it's well established that the government may prove a conspiracy through inference as it does it doesn't have to be a sit down meeting of all the conspirators where they hammer out an agreement obviously but what the courts have done in those cases if they will look at the conduct the conduct proves the conspiracy and the scope of the conspiracy if you have a bunch of individuals transacting a certain amount of drugs over a period of time you can infer that they agreed to deal that second is did they conspired to do drugs in at least a minimum one kilogram correct and you're as i understand your argument why i'm asking you're focused on the second question did they enter into a conspiracy to deal in at least one kilogram of drugs within the time period of the conspiracy which ended in june but june eighth yes they do and it is and twelve so is it your argument that what the evidence has to reflect is that they actually agreed at the outset or at some point during the conspiracy that they were going to go at least to one thousand or are you agreeing that the inference approach that you described with permissible with regard to the first question that was there a conspiracy at all that that can also be used that you can infer from circumstances that they must have agreed to or they contemplated doing  is true with regard to drug quantity and not just the existence of a conspiracy but when you look at the cases your honor with that talk about this the inferences are proven the inference is s the size of the conspiracy in terms of drug quantity are proven in one or one of two ways either they have transacted they've actually engaged in you know transfer series of transactions up to that date where they're arrested or they've at least talked about future transactions have yet to occur or you know they find drugs or something like that there's at least tangible transactions that half have occurred drug seizures that have occurred or there's at the very least a discussion about ongoing behavior so in turn are the court said you know it came down to discussions just simply discussions not actually a plan not a negotiated deal or anything just discussions about future conduct and we don't have that in this case they consistent but a pretty regular pattern of activity of buying and selling well some way there were some breaks in the action because there were some bad drugs for a while for a couple of weeks and the primary witness who testified for the government  testify that he wanted out of this he didn't want to do this anymore and that was kind of the idea that he might the way he would do this for a couple months and then stop so sure but you would have that in any case involving a person who gets arrested for distributing drugs and if the government has evidence that the person had been engaged in handyman transactions for a series of for a period of time and had a regular supplier you mean if this person here can be chargeable with one thought thousand grams of coke heroin or any other substance that hasn't yet been reached or not even discussed what's to prevent the government from charging a guy on the street corner  the same crime even though he hasn't reached that one million one thousand grant and so that's wait do we could the jury of given to the fact that there was this compartment built into explore your concept of what you would consider would be evidence of and to dissipate a future conduct that the jury from which the jury could and for that there was an  talking about capacity you're always going to have capacity you're always going to have a drug lab you're going to have some other and disha found at the defendant's house of drug dealing so the compartment proves that he or was evidence that he was dealing in drugs but it doesn't go towards the idea that he reached an agreement implied agreement suppress agreement asked a quantity question just moving away from with the future analysis at the district court relied on i have a question about the district court's math and of course we have a poll that is record on any basis so that the district court look at the amount that was found way i would answer that question is to say that you know and that aspect of the court's opinion it's really it's a little unclear as to whether he's including those seized amounts into that seven hundred fifty gram amount  what i would say is obviously the judge didn't believe that the seized amount should be included in there otherwise he wouldn't have gone to the next step to consider you know future transactions but then it's like you forgot about the two were found on arrest well i didn't do the math myself you're all i'll have to confess on that i but i think probably that aspect of it was just a little unclear as far as what he was including  in in his mouth you know whether the the seized amounts were included within he examined the evidence both from the perspective of mr ramirez receiving drugs from arias and then he examined the evidence from the standpoint of mr burr burns receiving drugs from mister ramirez and he came up with similar amounts six hundred ninety nine and seven hundred and fifty so he did a very careful analysis of this your honor and so although it is not completely clear i don't believe he just you know forgot to add in those seized amount is there anything in his opinion indicating  twelfth he refers to the two hundred seventy grams while also talking about the six hundred ninety nine grams that so i guess i would i would point your honor to that  where he is taking into both into consideration both both types of evidence so yeah i would just i would just say that this is a unique case in this regard there are not other cases where the government is relying on just sort of a projection of what's going to happen into the future in the absence of any actual discussion even minimal discussion about what's going to happen well and the answer to that your honor is again it comes back to conspiracy with are i think the best way and first of all i don't think the record is that clear that it was that regularly yeah yeah and i don't know whether three well i think the answer is you know and this is you know it as i already in my brief you can infer and and and the core question here is what was the conspiracy in it the question is not what would have happened has it had it continued it might have reached a fountain of the jury might have concluded that but was it fair for them was it reasonable for them to reach the conclusion that that was indeed what they agreed on either impliedly or expressly and so that's that's if you want  'll save a minute or two thank you may have place where kathleen vickers for the united states your honor is have already fastened on to the most critical parts of the government's position in this case and beginning with the fact that we're looking at th evidence in terms of whether any rational trier of fact would have found it sufficient to find the one thousand grams beyond a reasonable doubt i like to think of a rational trier of fact i did it for many years tell me how you how how do you count you know if you can argue to me this all adds up what we have here adds up to a thousand grams of heroin well even that one point do the counting for  he focused in on the relationship in the history of deals between a query maris and burns and the evidence was that these were several aunts is sold over a period of time and it was regular there was some breaks for bad dope but it was fairly regular and he it analyzed both of those witnesses testimony and he came up with what he said was a conservative figure of seven hundred fifty grams based upon  i don't think it did and i think that that's why we open with that in our brief i believe based on i think that the seven hundred fifty gram quantity comes from footnote six at excerpt of record twenty and i think the defense at their own brief at twenty eight so much as admits that when the defense indicates when the conspirators were arrested they had dispersed no more than seven hundred fifty grams of heroin over a period of about two months so at some point i think that that was an oversight because it was also an argument that the government was was pitching to him at the time so that we can say conservatively we know there was at least seven hundred fifty grams dealt here and furthermore or the two seventy four has to be factored into that and it's not we don't see that in the record that he and we actually the record that he made of his assessment of the credibility of the witnesses and the amounts looks pretty good so if you say conservatively seven hundred fifty grams then is your honor noted before you add the two seventy four you've got the kilogram of heroin and this jury was bombarded not only with a pattern of con conduct a criminal conduct indicative a very high level dealing i would have to take issue with counsel statement that this could be like any case in any case you're going to have a hidden compartment the evidence before the jury from our experts was this was a very unique hidden compartment only certain high level dealers have hidden compartments like this if you double cross us and so later when remarries says at some point he wanted to get out of this he didn't really appear to feel as though he could get out of it this is not a street level operation this was very high level the jury was bombarded with evidence as well indicating that these gentlemen apparently weren't in a romantic relationship together but they were burning up the phones hundreds of calls with each other guzmn navarrette calls with other drug organizations the jury didn't have to speculate first of all to get to the thousand grams they had evidence hard evidence of dealing they didn't have to engage in inferences of what this conspiracy was and we have to remember that the couldn't pick out seven thousand grams out of air right and they didn't they the evidence that they had was was overwhelming it was a mountain of evidence when you look at it and the reason why the jury found as they did was because they couldn't ignore those facts so not only a rational trier of fact but pretty much any trier of fact who looked at the conduct to do to discern what that criminal agreement was because in a conspiracy it is the agreement to commit the crime and the evidence was overwhelming that this was an agreement to co  it came up short so you have to rely on the inferences that but for the rest they would have kept on going and so that's to say now that the conspiracy was in fact stablished not just as a conspiracy but one where they agreed to all the elements in and just the patient that they would this approach if you're going to drive it over the amount that you so whacked and you're going to rely on inferences about how close are you to that agreement to deal that particular quantity in the evidence that you have and what ends that the conspiratorially agreement occurred that's the crime the fact that the police may interrupt someone who's planning to kill somebody doesn't mean that just because the it's just a suggestion that that the crime would never have occurred you look back at the evidence what steps were taken to carry it out and that's i would go back to the pattern of conduct and how close it was obviously if you're getting into larger quantities if the evidence isn't there if you're not close enough if then you have to speculate well possibly someone what if someone dropped out that sort of thing and you're trying to have say well it's five kilograms which the government didn't didn't say here or you're trying to say it's two kilograms or whatever then you always going to be bound by your evidence and you're always going to be limited by what a rational trier of fact would feel comfortable with at the end of the day so the rule that you have to merge this case of you when you don't have or of the actually got there but as long as there's they get close enough and it's within some reasonable time of the end of the conspiracy that they would have to project into that's good enough for the agreement i don't think you know for the agreement to deal one kilogram of brain right i don't think we need to get to that argument but yes that argument is there i don't have to get there because you think they are what were the calculation of half as ak yes right and and you can't include the grams that were found on arrest in the past transactions because remember the never had a chance to sell those to burns yet guzman hadn't given them to burn or given them to ramirez yet because guzman was arrested and the one hundred ninety grams ninety nine grams were in his car the other sixty some grams were at his house in an jumped into the look at the evidence of the agreement in terms of quantity and the level that these gentlemen were dealing and look at the evidence that nobody was appeared to be ending at anytime soon so i think you jumped a little too early into yeah you can get up by the calculations we've done in my chambers gets to eighty six you get two over kilogram because you wind up  over at that thousand grams just by combining the first part of you don't get to seven fifty by adding in these other amounts earned approximately seven if you grams of heroin well i think that's a compromise figure because when you look at the burns burns's testimony which the judge does summarize you if you believe that they met as frequently as byrne said that they did and he wasn't buying less than an ounce then you could be up to three kilograms of heroin and i believe that judge her glee says it's becky elation at some point to determine how much was that actually distributed based upon burns's testimony and that's where he drops the footnote the only conclusion the current j burns to be fair burns indicates a lot more deals than ramirez does but there is a fluctuating period of time as an excerpt of record number nineteen page sixteen of the opinion a reasonable jury could conclude based upon two point two times per week over a period of ten weeks there were at least twenty t and the jurors were exposed to all of the evidence not only ramirez's evidence but also burns evidence and we don't we're not here to second guess which would juror which witness the jurors decided to believe obviously they credited byrne's testimony to some degree and they could well and were within their right to credit i wasn't aware that i wasn't anticipating that this would boil down to an issue of mathematics not my strong suit but i would just reiterate that you know footnote three which talks about the testimony was such that you know those those those amounts six hundred ninety nine and seven hundred fifty are fairly close to each other and you know there was evidence that well so therefore they're fairly close as is the point i want to all i know your honor is that i think judge fernandez did a very careful analysis here and there is a question there there is some ambiguity there but i i don't think he would have reached the final part of his decision without concluding that based on the testimony is the evidence was insufficient to make ok thank you counsel we appreciate your arguments this morning and i believe that concludes our session thank you very much committed