proved beyond a reasonable doubt that my client was involved in a conspiracy in western washington for both methamphetamine and heroin i gave you supplemental authority for loveland and the reason i did so is just because the case w similar in the fact that they ruled on a lack of evidence for a conspiracy procedurally the facts are different the outcomes different because they didn't also charge an underlying crime in that case but what the court ruled is conspiracy means an agreement to commit a crime without an agreement there is no conspiracy is your argument that there was no there wasn't sufficient proof of a conspiracy or there wasn't sufficient proof that your client was part of  people meet that criteria because you're talking about actual controlled by and transactions and other people supplying the drugs to western washington state and stash houses and being sold so i think the government has a pretty good case that there's a conspiracy in western washington that there was one sort of constellation of advance that seemed to connect to your client and i wonder if you'd comment about that there was evidence of trip to california that was going to take place that was part of the conspiracies planned and your client asked mr ray has about whether he was the one who was going on that trip which suggests that he u what they set up because that is in the light most favorable to the government so if we could just go through that i'm looking at page five of the state's answering brief and what it's really talking about is communication between raz and christia we barely have any conversation between any evidence of any conversation between anita's and my client the only thing we have is hey dude old man call me  that's the only evidence we have what we do have two very easy as you bring him here and come see me so we can talk talking about my client and then he's wondering all the way or not he goes ok he's here bring him and he will travel to moore he perhaps will be traveling to morrow at that time he does say you know are you the one going to california perhaps and that's important perhaps i'll be the one that will give you something in california so i think that easiest way to read this is he's going up there for the first time we have no evidence that he's ever been in western washington before to meet the need to and maybe benito's wants to have some kind of heroin supply the person who gave my client the heroin in the first place but that agreement hasn't been made yet what it talks about is  actually saying i don't know the trip down to california hasn't been set and my client say well perhaps i might be the person who gives you things in california isn't there something else here your client  i understand it is found with drugs in a bag of potato chips yes and other people in the conspiracy they are shown to have transported drugs that way you know it's true and it's not i think it was in his pocket it wouldn't seem very probative but right bag of potato chips although i will say i've been doing drug cases for twenty years and that's nothing novel it's something that's done readers are very popular i think so too you know and to point out another thing that the government is focused on in this case is how there's the stash of cars that are being transported in and my another way of doing it is to just bring it by transportation into this into the  western district of washington well there's barely any other way to do it except for mailings so it doesn't really add to the commonality of purpose when you're saying invoke this guy does things totally different by actually taking a bus into western washington or everybody else the evidence shows that the bringing in stash cars with lots and to how how firm does the connection to the conspiracy have to be part of my question about your position is that i think the law is that the connection to the conspiracy need only be slight yes yes but it has to be and if that a reasonable juror could find beyond a reasonable doubt i just i just do not think you have with that ten minutes of conversation that was made between mr binney tess and my client and with a very small amount of evidence of actually what that contact was what you really have here and i think an objective read of this even inferring all the possibilities to the government is that you really have these two people my client and benito's meeting for the first time and they're going to talk and there might be an offer of going down to california there might not be but that's what this whole conversation is bring him up here we're going to talk you know if he's going to be he might be traveling to the south tomorrow to do it but there's nothing to say he is traveling in south there's nothing to say but then the conversations with radios suggest that there's traveling to california involved and maybe he's going to be the one yeah if there's an agreement reached with the nita's it does seem to me that the seventy one year old senior citizen from california is a mule to bring drugs into western washington he is going to meet a kingpin supposedly of the western washington in tacoma mr beneath us for the first time after he words that was true we have to determine whether it reasonable juror could determine that it man listen alvarado knew that there was a pattern that race was going to come down and that they were going to be part of the scheme i have trouble seeing why a jury couldn't reasonably determine that alternative scenario which which is all the government has to write well and i think that's what i'm trying to suggest is that there's such a small communication there's about five different sentences made and all those sentences point out to future possible agreement are you the one going on to california perhaps i'll be the one to get you something in california and nothing else you know there's nothing else to say and i will be the guy who you'll see he's about to meet this person in washington for the very first time and it's not an agreement made yet as a prospective  bring drugs back if you're going to be a source of supply in california we just don't know and when you look at the different you know we're talking about the scheme the nature and scheme of the conspiracy but the most important went to me is the one that talks about the duration the frequency and all of the of the transactions what's important about that factor is transactions means more then contact usually it means a selling or delivery of goods what we don't have here is any communication even as evidence between the two except haled man call me that's the extent of the communication between the two and then there's a small amount of additional evidence that suggests that he might after talking to his be a person that could be a source and you have about a minute left if you'd like to or razor and and that's the court has any questions i reserve the rest morning and brian walker i have a practice in vancouver washington i represent p b involve the well being of pres i would like to reserve about two minutes if i if i can possibly manage that mr perot's appeals his convictions on the four counts that he was charged with and that's a conspiracy to distribute controlled substance and the three possession charges which all arise out of the search of the trailer on june twenty seventh of two thousand and fourteen the i'm going to that conspiracy as be a discrete conspiracy if they don't have to show everything that he did it but they have to show that he is has some kind of knowledge of it that he helps support it that he helped that help move it forward there are five factors that are listed in one of the cases i cited the let me ask you the same question i asked your colleague yesterday i take it you don't also don't contest that there's sufficient evidence of a conspiracy is it your position it is not just sufficient evidence your client agreed to join it that's correct  believe there was at least one conspiracy i think there were several conspiracies and kind of dovetailing on what council said if there were a conspiracy involving his client was a very minor one that didn't involve a lot of the other players and my position is that presents not identified with any particular conspiracies kind of a dark shadowy figure in about half of the ten transactions that i've identified the case but i do believe there's a conspiracy so i guess what i guess what concerns me about your argument is sort of the parsing of the conspiracy the one that exists and into various jobs so if one looks at a conspiracy and one is is picky enough it says well there's a conspiracy to transport drugs is a separate conspiracy to leverage them there's another conspiracy to manufacture them if if if a common core of folks is at the center of that conspiracy why does your client have to agree to do much more than what he did well it's  kind of goes back to the case that i cited that talks about there can be thirty two conspiracies there might be one guy at the very beginning of a construe that's the case and yet you have to show that there's more than just involvement of each person with the center at the hub there so there can be a lot of conspiracies but you have to establish that there are at least a member of one of the conspiracies that they're charged with here all four of these people were charged with one common conspiracy in this case and i don't believe that the government satisf them he in one he's shown coming out of a jack in the box with someone after control by then he receives an envelope they don't know what's in the envelope in one transaction he seen going to the trailer that was later searched and there's also a bunch of communications that referenced that drugs or ten be understood to reference strikes give it now there was one just before the jack in the box episode your talk i think you talk about judge where the there were sort of some kind of conversation about pretty girls or something like that the thing about that though is there's there's nothing that links that conversation which is kind of cryptic as all these these kind of conversations are nothing that links it to that that jack in the box transaction there's nothing that shows that what they're doing is in furtherance of his contact with mr rodriguez or goes with mr perot's who is the first informant or mr lopez who is the second informant rate of the trailer mr both of you knows is clearly present there's no question about that he is present but but they've established that he's present but just mere presence what we have is a trailer and i'm just to go through some of the factors that i located they find in there they find drugs they find cutting agents they find scales they find two firearms one is under a pillow in one bedroom one is in a closet in the other bed and they find men's and women's clothing in the club in one of the closets men's clothing in the other one they don't find a promissory note in the with with the alien alias on it that's correct and then they whether or not it's the  think of a name oh my name is mr glass because they say glass on the table maybe he saw that and that was the name that occurred to him to use it doesn't shill francis but a reasonable jury would not have to come to that conclusion  but but at the same time they don't know that it was a key in actually the case but it's but at least you but at least he went into the place that earlier date he did but whether or not he had a key it wasn't his first rodeo in this trailer he may have been there before but there's there's nothing that suggests that he had a right to be there they never check to see if he's the owner if these the registered occupant of the space they're the utilities we don't know whose name they were and there's really nothing connecting misusing your theory what was in the trailer  it didn't belong to him but he was he broke into it to sleep in there well we don't we don't really know the judge in my in my position is that the burden wouldn't be for us to explain why he was there he was present he was merely present what more would be needed in your view to establish that he had dominion and control if to use legal terms over the trailer well i think if they had found fingerprints on one of the firearms that they'd found fingerprints on some of the scales the packaging material something like that if they found clothing in his size because you're making an insufficiency of the evidence are i am here i am here and so i'm trying to figure out you know in your view how much of the government have to prove other than they've seen him go into trailer several times he's there he's he was in there we just have mere presence the government has to prove more than your presence that's pretty clear the case live believe so are there more questions on the kind of want to get on the my i don't believe there are you have another couple minutes left so i'm going to use forty seconds to talk about that the radiation here this well when you talk about that issue would you talk about materiality findings or prejudice because t speaking only for myself that there was no prejudice from the late disclosure right well he hears here's my response that the judge found this to be clearly brady material and i suppose that had the attorneys not been so capable had they not been able to scramble on their feet at the last moment like that he would have found prejudice because they might have stumbled the over the information or not found an effective way to use it so i guess there's kind of a show of a policy concern that i have  violation we can condemn the government but i'm not sure we should reverse if it really didn't hurt you from judges we will never know what the effect would have been because they didn't receive these until several days into trial after we present been testifying for several hours already how on earth are they supposed to react common sense tells us that you have to have at least two weeks before trial so you can do your own investigation it wasn't provided till mid trial and not until ordered to do so in this is because the government chose to believe the d a when they said there was no contract because it was just an agreement as he said that was just one of the things going to get back to judge gray brisk questions are what was the proud yes i mean i think you're doing a capable job it seems to me of telling me that one could imagine that there might have been prejudice but what was the prejudice i guess judge all we can say is is we will never truly know we had four people on trial for very serious crimes they all got to be sentences for this matter and the government just kind of casually provided this stuff halfway through trial the prejudice is that they didn't have time to do any trial we can't say well i would have done this and this and this because the counsel said that they said we would have conducted additional additional investigation if we had had time they simply didn't in fact some of the information they didn't even have a chance to look at it until in court just before the person testified so i think that the prejudice is inherently is no time to react and we can't possibly know it's kind like it's measuring the mass of a moving particle that we it's i don't know how on earth we're going to know under those served as i have ten seconds left any other questions yet if i don't believe so thank you ok thank you but but i will know one thing that i think is not clear from the briefs in this case is that two weeks before trial i mean the reason that that agreement had brady value is the impeachment value that existed in the two provisions of what the court found that said there was consideration exchanged or this and that that was it until he was convicted of a crime leader that was really the only impeachment value in that agreement and two weeks before trial on april twenty first defense counsel received the immigration status of riots he received the total payment i had made to him and they also received information that he had cooperated in order to help us by potential drug charges two days later they received an updated criminal history they received us i ninety four b c documents they received information that they got a lot of stuff yeah all on first not to prejudice but it's the government has a confidential source agreement with  witness correct that's that's the kind of stuff that should be in the defense's hands asap correct yeah i don't know so what's sort out with the notion that this should have been disclosed earlier yes it should have and under this circuit's president you can tell by the fact that whether it was used at trial it was not only used to trial it was used throughout the trial with multiple witnesses and referred to repeatedly in closing arguments i mean they and they had all of the actual impeachment value connected to that agreement in two weeks before trial so really the only thing they didn't get was the agreement itself but they knew that agreement existed which is based on the information they received this that they had that he was cooperating  paid him and was helping him with his immigration information which they had prior to two weeks prior to trial so i think in order to show prejudice he has to show that he wasn't able to use it at trial he can't show that and in this case we look at the  it looks effective on paper and therefore there wasn't burgess i mean he had the opportunity to use it effectively and i think that's all that matters in this case i actually think it was used effectively and i think that that that's clear i mean in closing arguments there are ten things you need to know prejudice me i'd appreciate your addressing the sufficiency argument with respect to mr know i'm just speaking for myself i found the evidence very very soon in terms of connecting him to the conspiracy ok so i would know that one thing that wasn't that didn't come up earlier is i mean he was have the surrounding evidence that texted an address tereus to go pick him up and bring him in said we're looking into that thing about the ride south to see if he leaves tomorrow he also said maybe he will travel tomorrow dude and we know through other evidence in testimony that conspiracy members referred to trips from mexico california area with drugs as the ride and that's from other evidence so when he's talking about the ride that's what he's talking about we also know that riots had been discussing with south and that this text exchange suggests that lozano rado was at least aware that this is a question was happening he was a he was at least aware of her broad project involving others to bring drugs from the south to distribute in washington and he took a step toward accomplishing that goal by getting on the bus and agreeing to be paid a thousand dollars to take heroin to be discus theo he also the chip bag came up that's another piece of circumstantial evidence that the jury could infer connected him to the conspiracy and he was also carrying heroin and we know the conspiracy deals and heroin and i think i've cited samples of that in our brief so i won't go over them now  of that part of it to the extent he suggests he didn't know that there was anything in the bag i mean i think all of us well that's certainly true and then i mean yes there's plenty of evidence from which a jury concluded could conclude that he had her i knew it but i have the same difficulty here yes and this judge her word since having seen an agreement and were evidence that he was part of a conspiracy as distinct from simply being a mule well i would only have his comments that he made to riots which the court takes as credible because the jury found them credible which is are you the one who's going to california clearly he knew that someone that he's involved with the person who's picking him up to take him to beneath theo is maybe the person who is going to be going to hell fornia who a little is on our own and then says that he was probably going to be the contact with that person going forward he's aware that this unlawful conduct is happening and he is taking steps to to further that objective and that's enough of the com favorable to the government sure what do you have to show dominion and control as opposed to mere presence well i really i would know that his arguments on sufficient evidence regarding those counts are not sufficiently preserved he did not raise them in a timely fashion for a district court judge in his rule twenty one motion in and the courts should not have reached them and this court doesn't have to reach them at this court disagrees with that analysis and does decide to reach them on plane air  of i understand your waiver argument and my question is this if the district court nonetheless addresses the the argument on the merits not withstanding the fact that it wasn't timely raised is that mean it's not preserved for appeal i believe so i have to that question of the sort of to respond to the fact that in recent years the supreme court has been working away rather enthusiastically against calling things jurisdictional that are not strictly to i don't know that any of those cases deal with this situation where you've got a reasonable argument they didn't follow the rule but the judge nonetheless said i'll rule on this  be attributed to him so we have yes we have to have more than the fact that he was present we have more than mere presence here we have that he was the only person in the trailer at the time of the search that he was seen using what appeared to be a key to enter the trailer that there was the promis to the window he ran the firearm was located in the scene where the drugs were being packaged at least one of them was the other one was located under the pillow next to a stash of about twenty three thousand dollars so i mean all that taken together is much more than presence you know so he didn't it sounds like you're her human is in part it didn't matter whether he was renting it or owning it if he was using the premises to thank you restaurants he was sufficiently exercising dominion and control that's correct but the government's not required to prove ownership it's just to mean dominion and control and the evidence here was more than sufficient to show that so what were you talking about the evidence would you address that i keep getting to to defend james mixed up would you address the second argument with respect to proof of participation in the conspiracy  be subgroups within a single conspiracy and my and my understanding of both the finance arguments is that they do you can see that the conspiracy existed question just whether or not he was a member of the conspiracy and evidence chronologically i'm surprise to the conspiracy include you know august or september two thousand and thirteen he delivered drugs to a confidential informant on behalf of the need to steal the drugs were ordered from benito's he said he was going to send someone else to pick them up  suppress actually delivered them and then the confidential informant later paid the need to steal for the drugs in december twenty thirteen mr rodriguez rodriguez talked with mr ryan's about making a trip to california using a car with secret compartments to bring drugs envelope and then returned to their trailer text messages between mr spread and gifts and discussing drug deals many of those were introduced at trial and those are described in our brief so i won't go through a lot of them the drugs in the trailer again suggesting that he was packaging for sale that was being conducted by writer guess rodriguez and benito ska studio and his car was photographed at the trailer of the conspiracy was using and then there were never the numb but the sheer number of contacts between him and some the other conspirators suggested that they were involved those contacts happening around the dates of the transactions that were part of this case i can go through those quickly may twelfth there were six contacts or attempted thank you your honor what i would like to say is i think what we have here is a pre agreement a preconceived theories here for my client he's a man who has never had a transaction yet he has never entered washington state yet he doesn't know a single person has ever met a single person in the conspiracy he is bringing hair went up and the government would like it to be for mr benita and for money to be exchanged bring it down but we don't even have proof of  that what we have is that he was supposed to bring this these drugs up maybe he meets mr beneath his and shows them but then sells to someone else we just don't have any direct even circumstantial evidence that that was intended for many to u the only the only way the government can say that it was for the need has is because mr benito says you know there's no drugs on him so that's that's there evidence there's no drugs on him and the only way that government can respond that of course that was meant for him is well he lied it's their evidence they're bringing forward they don't have any expert that says people lie when they're asked if he has drugs on them or any theory presented by any officer at all so all we have here is that it is an attempt to go to washington state and i don't think there might be an attempt to possess and distribute heroin how there is an attempted conspiracy there has to be an agreement and the very language of the very small conversation is my client us he has are you the one who is to go to california and the responses well perhaps i am the one who gave you some things down there so there's not even a discussion about him being the person driving there's only discussion that he's going to head back and perhaps if things work out with the need his he might be the contact person but there's been no agreement yet and i think that's what the evidence shows thank you counsel mr marker your time expired but we'll give you a min and i just i want to go back to the brady issue just briefly here the reason it's so critical in this case is because pereira's who's the one who gives all the information that links mr baldwin is present to the to the so called conspiracy his credibility  critical in this case because without him we don't have if we take his testimony out if the jury doesn't believe him for example if they'd had adequate time to really prepare for this and granted they did a good job but had they had more time perhaps they could have neutralized him we wouldn't have the two thousand and thirteen delivery of methamphetamine and we wouldn't have the nicknames chiquito and talia we wouldn't have that so we wouldn't have the link to all those phone contacts we wouldn't have the link to the person driving the vehicle up from california as being telia because nobody would have known that that all comes mr from mr pearl is and there's an interesting thing about that vehicle coming up from california is that when stopped in ontario california has crystal methamphetamine according to mr  pereira's mr beneath has told him that it was liquid methamphetamine that they were transporting up that it was always kept in the in the in the gas tank of a diesel vehicle that's how it was being transported not that it was crystal so so there's really there doesn't seem to be a natural connection accept for as made by mr pres for almost all the contacts except for when he's witnessed at the trailer thank you counsel thank you case just argued is submitted and we appreciate the arguments from all counsel that's been very