good morning your honor at more baggage for the appellant defendant apache junction arizona your honor when the congress elected to combat drug trafficking they passed the controlled substances act and eight forty one created six separate offenses which go from one the early stages of drug trafficking right up to the final stages these are the manufacture of a controlled substance the distribution of a controlled substance and and dispensing the controlled substance and the next three offenses are the possession with intent to do each one of those first three offenses that are just named in this case number five if you use my numbering it's a possession somebody who possesses with the intent to distribute a drug  these are separate into an independent criminal offenses that they overlap they blend yes they go from one end to another but they are still separate offenses this case involves conspiracy which is eight forty six it states that anybody conspires to commit any offense in this subchapter the commission of which was the object of the conspiracy and that is the essence of our case today the charge rendered by the government in the original indictment is that the defendant mr espinosa was conspiring to distribute a contribute to substance marijuana the charge and the proof in our view does not not does not macs match up the government's case as i understand it is that this guy knew or should have known that the organization whoever was moving all this drug through the desert of was going to distribute it and certainly he has to be charged with that knowledge and should be charged with that knowledge that this is not for just a big pot party obviously there's four thousand pounds of marijuana involved in this case but that the intent of the possessors is to  district to other people for her to make money it's a business the defendants however was charged with being a scout throughout this whole thing the whole case the government is are again oh this guy's a scout this guy's a scout that's not an  fense being a scout what is an offense is conspiring but what is the object of the conspiracy the government i think had a fairly easy case to show that a scout aids and abets or assists agrees or plans to help the possession with intent to later distribute all this poundage of marijuana and that's what a scout does them the role model the job description is that the scout will assure the safe passage of this marijuana through the desert up to the point that he can't see foresman anymore but the whole job description and we have the government's expert here who doesn't mention even a word about the later distribution even though the defendant knew or should have known i think we all know contemporaneously with any drugs any place else this is a case that's very unusual it's a it's a nothing case and there's no drugs there's no money there's no weapons there's no discussions there's no communications no nothing intercepted nobody says anything complete silence it's a very unusual case just a nothing case no case none of the above so no our objection here is that the defendant was convicted of something that he was not charged with the ruling of the trial judge which we strongly disagree with was that it's not necessary for him to distribute any drugs and all he and his agreement to join the main conspiracy was sufficient to charge him with  four thousand pounds which is what the organisation with the evidence in agreement that he was a scout that the that this is just because it's a conclusion with the evidence of a group well i don't think that there was any alleged in the indictment and there them because unfortunately congress wrote the drug laws in a way that you don't have to include over x book there has to be evidence of an agreement between more than one person to distribute or to import but there was none of that the agreement that a jury could reasonably conclude existed was to possess with intent to later distribute possession is not the same thing possessing with intent it blends in of course but it is a crime different and separate from distribution and i think that the best case that explains that is loveland which is not exactly our case but their loved one possessed with intent to distribute a large quantity of illegal drugs but the judge but the government didn't charge him with that they charged him with distribution conspiring to distribute and what the court said is that's fine but there has to be an agreement to distribute other than to possess a large quantity even though you intend to later distribute it and we submit that what this is is a case of the government proved one thing but charged another well according to the expert witness which is what they rely on that the scout is the job description is to ensure safe passage in the desert namely to aid and abet the possession of whatever group they may be talking about and we never did know the one fact that's really alleged in the indictment as the conspiracy ended at the date of the arrest october twenty sixth now if they're talking about the center low a cartel you can do a google search and they're doing fine that didn't end with this guy's arrest so we never really did know and the government never did explain what the conspiracy is or the nature of it and they don't have to give us names but they could should give us functions who would is some sort of parameter so that we can defend against this case and that was my objection to the indictment at the very beginning so i'd like to reserve just a little bit of time course morning or honors broke up sherry for the united states this court should affirm the convictions for conspiracy to import and serbia marijuana the defendant below did not dispute the existence of a conspiracy to import and distribute marijuana very significant amount of evidence showing that the defendant joined and knowingly participated in an established conspiracy to import and distribute marijuana what what ok what conspiracy that he joined in a conspiracy to conspiracy the government did not identify the names of the other coconspirators however the government did produce sufficient evidence that there is a conspiracy to import and distribute marijuana in arizona that came to the testimony o only scouts for drug trafficking organizations carry he admitted that four months prior he was trafficking marijuana himself in the same court or so he knew he he knew that there was marijuana being smuggled through this corridor and by acting as a scout by acting as a lookout he knowingly joined in the conspiracy is drawing a conclusion and probably people who lived in the neighborhood knew that a lot of marijuana smuggling was going on doesn't make them all conspirators that's correct however by virtue of being near a scout camp the defendant joined the conspiracy being near the scout camp that is evidence that the defendant joined in the conspiracy because scouts are very protective of their territory they do not permit nonmembers of drug trafficking trafficking organizations near their camp so is the conspiracy the government is alleging that the is it the prior conspiracy that he was that that he was just continuing to foolish but what if what if he was what if he decided that he was going to be a scout for a couple of coyotes who thought they could just use the same routes as the drug smugglers and on this occasion that's what he was doing he was out there smuggling people not drugs arrest how do we know that that's not the case you know that's not the case because the expert testified that the expert expert is talking is that's profiling that is drug profiling expert doesn't know anything about this case he hasn't been out there to the area he didn't he wasn't there on the day he hasn't picked up anybody else it's just a profile correct but he's just playing the percentages percentages are pretty darn good again we're not that foolish but well that if i may the expert testify that drug trafficking organizations control these groups that they do not permit anyone smuggling organizations to access them and the fact witnesses testified that the defendant had in the backpack that he admitted was his luxury items that an alien wouldn't have t o's oreo's what wipes those are things that show that the defendant intended to be on the mountaintop as a scout for an extended period of time that shows his connection specifically to a drug trafficking organization in addition to his well again you're just playing  profile of what drug traffickers and drug traffickers scouts look like up there but it doesn't show that on this occasion that that's exactly what this guy was doing and that it couldn't be anything else but that they have to show that it couldn't be anything else in order for the jury to all other possibilities have to be excluded no your honor the government was required to produce sufficient evidence from which a reasonable jury could conclude beyond a reasonable doubt that the defendant had joined these conspiracies the government is permitted to prove the existence of a conspiracy through circumstantial evidence and the government is permitted to prove that the defendant joined in a conspiracy through circumstantial evidence the government does not have to produce in each of these it's safe to come through you haven't got that here i can't find any other case you've got a case that's that's even close to this i can find anything well unable to taurus i don't believe that the government had a contemporaneous apprehension case of marijuana united states versus this is one of the cases that was cited in the court's order that was primarily a corpus to let die case because the defendant there had confessed to being a scout but there was no contemporaneous apprehension of marijuana and of course the government can prove a conspiracy without the seizure of the actual narcotic but in the cases where that happens you have a meeting between two or three people or a phone call or a discussion or something i mean obviously a lot of drug conspiracy cases are proved by people talking to each other about what they're going to do in the future without without there being drug c c's we're going to meet we're going to you know bring the drugs in over the border here you've got a guy sitting under a tree and two other guys sitting standing up further away from the guy sitting under the tree we don't know how long he's been sitting under the tree and then the other two guys run away and that's all you got if i'm a person that didn't see a little bit more in detail the defendant was observed underneath a tree very close to another individual who was seen talking on a radio and looking through binoculars specifically at a border patrol vehicle on the ground now there may have been marijuana being moved through the desert at this very time however it is very difficult for government agents to identify where the marijuana is and apprehend the marijuana smugglers at the exact time that the scouts were apprehended the defendant then was observed leaving the area of the scout camp with a radio in his hand wearing a camouflage hat a camouflage backpack attached wish there was a camouflage carpet shoe when the agents approached the defendant and the other individual who he was conversing with that had been looking through binoculars at a border patrol vehicle they both fled and that the defendant was the only one who was apprehended any admitted that the backpack he was carrying which included motorola radio batteries and a motorola clip was his the defendant foot sign more accurately matching the defendants was found in the scout camp all of this evidence points to the defendant as scout and i see that i have two minutes left i thought the red light was that my time was  up but there is a very significant amount of evidence that the only reason for the defendant to be up there was to participate as a lookout for drug traffickers and drug traffickers specifically because alien smuggling organizations are not permitted to use these routes in fact the defendant himself testified the drug trafficking organizations in this area controlled the routes by violence that was the testimony of the expert and they did not permit any smuggling organizations of people through the area somebody is coming in over the border illegally that just because he's there the odd guy that somehow got through their desire not to have people there doesn't prove he agreed to participate in drug distribution or drug importation you have to prove an agreement to prove a conspiracy beyond a reasonable doubt i believe that the defendant's possession of a radio is very significant because alien smuggling organizations do not use guilty because you told us that drug traffickers don't allow anyone else to be in this area which means it's a status offense to be in the area so they must be drug traffickers by definition right so should the work patrol or da pick them up well there there whether the government has satisfied this burden of proof that the government is permitted to satisfy its burden of proof through circumstantial evidence and the jury was pretty to examine all of the evidence in addition to the defendant's testimony which was contradicted by the agent testimony so clearly in this case the jury did not believe the defendant's story that he was merely present at the top of that now i don't believe the story either but i don't know whether that's enough to to say that the government is  respect to the proof that the defendant was scouting for drug traffickers specifically all of the evidence points to drug trafficking and drug trafficking only aliens while the location of the scout camp was about fifty miles north of the border the defendant's story that he was merely an alien in the area had a walk for two weeks was not credible for those reasons the government 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