government did not prove the constat conspiracy existed mr adie's conviction on count one should therefore be reversed his case remanded for further proceedings this court's cases recognize that the grand jury may charge a specific conspiracy or a generic one example of the specific conspiracy is in iraq which is cited and discussed in the briefs of this looked to me like a sanders ind and these are the distinctions with with sanders your honor of mr ickes indictment mr ickes indictment has two paragraphs the st paragraph charges or defines the crime what conspiracy is being charged and the language that the st paragraph uses is that mr ag did conspire to distribute and possess with the intent to distribute a controlled the crime but i mean we use the involved in the indictment and sanders also involved that also use that involved language and we said that it is a charge the generic right and the reason sanders char's the generic is because the st portion of that indictment alleged that there was the conspiracy to knowingly and intentionally distribute a controlled substance that was the generic allegation involving language goes definition of the crime the penalty of this st paragraph of the indictment is zero to twenty years this is the charge crime under the statute it's a conspiracy to distribute the name distribute a controlled substance had a lot it was intended for human consumption that's generic except it goes on and this is still huge involvement with which involve right now that's the same kind of language just sanders it is except for in this context and i'll explain why i'm reading it this way in this context mr ickes indictment this st paragraph is charging the charged the defined defining the charges conspiracy it's not the penalty provision like the involving language and see ender's under because it's not until the nd paragraph of mr ickes indictment that the penalty enhancement is charged so the st part paragraph is defining the crime and we know that too because this is exactly how the government presented its definition of the conspiracy to the jury in closing argument and all refer to document ninety one dollars at page thirty this is the government's closing argument young lawful purpose of that plan was to distribute or possess with intent to distribute it to controlled substances we've been is that the indictment charge that that the defendant with conspiring to possess an end tend to distribute knowing that the listed chemical would be used to manufacture a controlled substance that is paragraph it is the allegation is that the analog intended for human consumption but the analog uses which rather than that but is which violation the were defining the of the indictment or indictment and in fact this is where the penalty and then i'll refer to the nd paragraph of mr ickes indictment this is where our indictment just reinforces the the defined charge conspiracy is is because mr ag is charge specifically with distributing and possessing with intent to distribute that is not that is the same language in iraq so that fentanyl because that's the substance that he is alleged to have distributed and conspired to distribute that resulted in the dugout so taken together are indictment charges a very specific conspiracy to substances and then the penalty provision does so as well as it relates to the so the tetra fentanyl in particular in this case the problem then is that the government did not prove the charge conspiracy and and i think at this point i'd like to reverse and i started earlier explaining the indictment as to the overall charge conspiracy but i'd like to start with the insufficiency as to the death conspiracy and that is because and just point this out i pointed out earlier just the conspiracy alone is your to twenty years but the death is a twenty year minimum mandatory to the maximum life and as we have laid out in the briefs the government did not prove it did not provide sufficient evidence that mr ag conspired with somebody else to distribute the tetra fence and all that caused the death but what about what about ls because my understanding of the record in is that mr ag told law enforcement that he directed the chinese suppliers to ship in small increments to avoid law enforcement detection why isn't that evidence and more of more than purchases your honor i this court's case law does recognize that a buyer supplier relationship does not constitute a  conspiracy that's right but it seems to me that this goes beyond that that evidence i mean this was not a one man operation right i mean so he's getting one hundred orders a day he's paying others to break it down in large larger shipments into smaller shipments he works with a reseller to whom he directed customers who wanted to barges smaller quantities there's no question that there's evidence here about his his  wife being involved then there is evidence of a kind of a conspiracy was someone isn't there the problem lies with the lack of evidence as to a conspiracy or an agreement with respect to the specific substances so the reseller that's a different substance or if you believe it was a wife there's no evidence that she's in a conspiracy as a release to the charge substance i still submit us to the well let's say if so if this is sandra situation and not a risk in iraq situation then then what you're saying is there is evidence of a conspiracy if it's a generic conspiracy yeah your honor i would submit that there maybe as to the underlying overall distributed the drugs what's missing asked at the death is the conspiracy the agreement asked to that tetra fountain all i go back to my question with respect to the chinese supplier and i understand that that relationship did involve the the  it why is that not sufficient the fact that the supplier was told to shippen smaller increments to avoid detection your on our i have to tell you i don't recall that testimony so that's who i am a little but struggling because i know as it's been brief it was in what what mr morning your honour's may it please the court shawn and for united states you're exactly correct that this is a sanders indictment but at the end of the day that doesn't matter because i think the government did prove the charge indictment even under the most significant and the most pervasive of the individuals or entities with whom mr ag conspired and there are several points in the record that illustrate this and that would have supported a reasonable inference the jury could have drawn that mr eighty was involved in a conspiracy to distribute controlled substance analogues including the two alleged in count one in february two thousand and seventeen at the time that the t h s sentinel charge and that count killed christina gorman the st point as you mentioned your honor was that in government exhibit two mr ag told d who is the individual who testified at trial about how he had originally sold his eddie king alphabet username to mr aiken d d mr ag told d d in his online dark  the investigating agents that he frequently ordered large quantities large distribution quantities of controlled substance analogues exceeding a kilogram and he asked his supplier to break it up into multiple shipments because he knew that or at least he thought that a kil was a quote magical weight that would be automatically seized by customs but smaller packages would not and he further told d h that sometimes his supplier did this sometimes they didn't and that apparently happened often enough that that he he was under the impression that customs had seized several packages and not only that but in that same interview mr a q further explained that when he received chemicals from ls he sent them to spain to be tested for purity quote all the time every time again making clear that his involvement with a less research come out was not an isolated one off transaction involving a small quantity of drugs as suggested in mr a he's a public brief addition there's there's also forensic computer evidence that further illustrates the nature of the extent of mr adie's relationship with with his chinese supplier the ls research come in and there are two things on that point if you look at government exhibit thirty eight which is which is the forensic evidence regarding his computer his internet web browser that was recovered after his arrest rose six hundred and ninety four to seven hundred and sixteen and the internet history tab of that spreadsheet show that that he had visited various pages on the ls research camelot website hundreds of times including as recently as two days before he was arrested and then going to the date when he  going to the length of time that he had had this relationship with i last if you look at row one hundred and seventy two of the bookmarks tab of exhibit thirty eight you'll see that he originally bookmarked the ls research lab website on transactions you but seems to me you never presented to the jury or argued on appeal that alphabet a was a coconspirator that right while alphabet a was alphabet a was a a large dark web  marketplace for lack of a better word alphabet was not an individual my understanding is that alpha bay was the name of the website as it were on which this added king store or sub marketplace site or marketplace if you'd like to think about it that way but you know we would not argue that alphabet a the website or the marketplace was itself a coconspirator although i think there is evidence in the record from d d s testimony  right that it's pretty settled in this circuit that all the all the evidence had to show was that the defendant can spired with someone yes that woman hasn't  particularity that would be and there's plenty of evidence here in this record that is at least conspiring with his wife i think the jury recently could have inferred that in addition to conspiring with  wife i don't know that mr a q disputes that but at the end of the day your honor i think the problem be it at the end of the game is and i think the problem with mr one of the biggest problems with mr adie's argument at bottom is that it presumes that a drug distribution conspiracy starts and stops and starts and stops over and over again with each individual transaction and that's clearly not the law getting to your honor's point a defendant's involvement in a drug distribution conspiracy which the jury clearly could have inferred based on the savants continues unless and until he affirmatively withdraws from the conspiracy or abandons it and if the defendant claims to have done so that's his burden to prove this is the harrison case in two thousand and three among others and in this case there is no evidence to suggest that mr ag ever abandoned or withdrew from the conspiracy to the contrary the evidence is there any evidence of the life was ever involved with the traffic no i don't know your honor i don't believe that the wife was charged i do know that  the record does reflect that agent's observed his wife dropping packages off at the post office at least five days out of the six days six or seven days that they were observing her and there's also evidence in the record to suggest that when mr aiki was arrested at his home that you know the home appeared to be an open controlled substance analog processing and distribution distribution and shipping warehouse for lack of a better word and there are photographs and some of the exhibits i apologize i don't have those those particular exhibit numbers in my notes but there is i think significant evidence in the record from which the jury could have been for that seems to me then were to view it as a name rog conspiracy or charge the evidence nonetheless supports the reasonable inference that mystery which would review that for sure the evidence and the question to the court would then need to address is whether it was reasonable for the jury to infer that the th f not know that mr admittedly personally distributed to christina gorman in feb th and her fiance whether it was part of the ongoing conspiracy conspiracy that existed in february two thousand and seventeen with respect to the particular substances alleged in that county is that a sanders or an a rug that i do have to say i don't heart is that a hard question no i think it's a sanders  allegation easier doesn't it i guess that's one way that this court could resign could resolve this case i mean maybe i'm missing something but it seems to me that's just an elementary thing we sanders allegation for the reasons that we've discussed but i the point that i was making was that this court would not need to address that because the evidence was sufficient to support the reasonable inference of a conspiracy at the date charging that count with respect to the particular substances charge but what about with respect to the enhancement as your opponent argues is it still a sanders or does it have to be specific to that drug with respect to that enhancement yes i do  think we we were required to prove distribution of that particular drug and we did so if your honour's have no further but i didn't understand that there was really an argument about the sufficiency of the proof or the is there i'm sorry an argument about the sufficiency of the proof or the enhancement as opposed to the al the how the conspiracy was charged  d i don't think that there's a reasonable to describe just trying to make sure i understood what is she's were actually before us it's not entirely clear to me what mr aiken is arguing i did take his his his brief to argue that that the evidence was insufficient with respect both to the conspiracy conviction in count one and also with respect to the enhancement ok i disagree with both of those arguments ok but i'm it's i'm not entirely clear what he's arguing ok and your honor he would ask that just to be clear we are contending that the evidence is insufficient to both the st paragraph of the indictment and the death and handsome and so at i think at the very least in the government just agreed it would have had to have proven a conspiracy to distribute the tetra fentanyl that resulted in the death and most certainly we are contending the government did not submit sufficient evidence us to that can see that specific conspiracy so at a minimum the enhancement should be reversed the sums on one thousand dollars in that the entire count one should be reversed but at a minimum the enhancement should be reversed now and that leads then to what is the evidence a government relying on with respect to both the enhancement and even the underlying can conspiracy with respect to the tetra fentanyl and this goes back to the question about ls i had read mr a keys statement  that i'll go back to the statement and this is back a government's exhibit six point one he told the agents he got it the touch of fence and all from just that one place they don't make it anymore they had it for a limited time and i just a little bit and that was it i had understood mr aiki is later this is what i think i was asked about in the opening bates number of thirty nine to six the government's exhibit six point one he's asked about how do you communicate with your suppliers plural this discussion i did not understand to be specific to touch into law so when he's asked about how he's ships you know shipping less than a kilo i did not take and did not understand this discussion to be specific to fentanyl so i think what we i would still maintain is the government did not submit sufficient evidence of a conspiracy with mr ag and someone else to distribute the  that caused the death so the minimum the enhancement is would need to be reversed which is our if we're maintain that position even as to the overall conspiracy obviously we've we've maintained that  this st paragraph of the indictment is an iraq conspiracy that's what we're maintaining and that the government even has respect to the wife the wife there's no there's no evidence that she was involved in the specific conspiracy charge so that's where the evidence is lacking and the government told the jury that's the you know we have to prove the conspiracy that the unlawful object of the plan the agreement was as to these two substances and so we are maintaining that the government has not proven either the overall conspiracy or the conspiracy related to the death and handsome and predating the death that's one of the issues of course as well is some of the evidence the government relied upon post states february th teen but the only operative conspiracy that's charged for the spec to the enhancement of count one has to predate february twenty seven thousand when the death occurs thank you thank you to our last case austin versus united states