please the court james feldman on behalf of the appellant's brian require an injury raymond sentenced to twenty and twenty five years respectively for violations of the federal analog act and related money laundering  i have raised six issues in the brief in light of the time i'm going to start with the jury instruction issue my view is that that is the clearest bare it is reviewed on planar standard however we feel that this jury instruction which specifically advised the jury that they need not be unanimous as to whether any particular substance at issue was in fact an analog have to be unanimous that there was an analog in the in the and in violation but not the same not the same substance that's right that's correct what's wrong with because unlike the traditional controlled substance offense in which any one of these substances is by nature unlawful and so any conspiracy to distribute any of these things is in violation of the statute with respect to the analog law there is no violation of law analogy to the traditional controlled substance of fans where you could have a lack of unanimity and one of these substances was not i think it's overwhelmingly likely that most of them are not  well this is of the statute and where there was a two adams substitution in combination with the fact that the analog upon ingestion metabolized into the list of substance both of those things one singly was not  panel to overcome bigness but both together and then in the next case and so it was a three atom substitution but again it metabolized into the listed substance upon ingestion that was a none of these substances metabolize into the listed substance and we're talking about substitutions of more than one rd of the atom are you are you saying that would be a plausible argument here i don't think it was that you could say that you could say that there was insufficient evidence with your because of the way the jury instructions were given insufficient evidence as a matter of law that one of these substances or more were not analogues because it relates  to the court permitted a government expert to come in and say that in his expert opinion these are substantially similar i think given the admission of that testimony the jury would be in it might be one way i'm thinking back to your jury instruction argument and thinking through this one arguments in favor of your position that this is different from the controlled substances might be that if you give the jury substances and say you just need to agree that there was impossible sufficiency review here i would have to say that there is insufficient evidence as to any of them literally i mean in terms of the defendant's mens rea i'm shifting a little bit now from the issue of whether it is an analog to whether there was evidence  the defendant knew that both of which are essential there was no evidence here at all that the defendants knew anything about substantial similarity with respect to any of these substances but the jury instruction it can't possibly be the those substances did the expert testimony deal with well it dealt with all of them productive family from the da came and said that in his objective nonscientific well he didn't say nonscientific but he had to admit it was subjective in his opinion every one of those six qualified as an adult because they were substantially similar in their chemical structure to a listed substance and then of course the defense expert also testified that in his opinion none of the six were similar in structure and the difficulty here is that this is not science what the chemical structure that's science there's a rate of error that if you get that wrong everybody can know it whether these are substantially similar to each other is an opinion it's not something you can know it happens that if before you guess you confer with the leading professors of chemistry at the most prestigious universities in our country you will guess wrong the controlled substance and put it doesn't depend entirely on whether it's substantially similar or from a chemical perspective does it in other words isn't there another provision that says it can also be an it is that it is one and either two or three and looking at one dollar and three dollars and they get there's no requirement for two you're right one has to be the chemical structure as well it i absolutely require that prong one be satisfied and that's the substantial similarity of chemical structure you're correct your honor that we're stuck too prone to the pharmacological effects there is an alternative a need not prove that if the defendant has represented but they still have to prove the chemical structure is substantially similar to that control scheduled substance that is the unanimous ruling of every circuit i'm i don't quite understand the argument that there's a deep problem with  with calling experts to say that this is the chemical composition a substantially similar is not a scientific term but i don't understand how you would go about proving that elements without calling an expert to talk about chemical structure i don't figure i would not dispute that it would be to her perfectly appropriate to call experts in chemistry to say these are the structures these are how they're similar these are how they're different it's just that ultimate question that the jury has to decide is are they substantially similar that's not science and they shouldn't be allowed to say that they should be allowed to point out the similarities and differences and problem with the testimony is they shouldn't  allowed to draw the conclusion correct how do you know whether one difference or two differences if there are if if there are fifteen components to that particular chemical  that one difference is is is substantially similar to just get to two may be substantially similar we don't know about three we don't know about four or five without an expert but i have no has maybe the final conclusion has to be the juries but they have to listen to the experts and they have to pick one i have to listen to the experts but i have no earthly idea how they make their decision as to whether they are substantially similar and more importantly i don't know how the defendant knows that bears in common in a battle of the experts to have one side saying a and the other side saying not a and the jury then picks one it differences that here a question that is the ultimate question the difference is that here that ultimate answer is not science that expert doesn't have any more credibility in saying these are substantially similar than you or i do it is a need to be science and it  made please the court stephen climber for the united states with the courtroom mission all begin in the reverse order i'll talk about the expert testimony st and then i'll get to the jury instruction issue there is at least four situations in which this court has affirmed the admission of substantially identical maybe i should say substantially similar in this context expert testimony where it's an expert relying on specialized knowledge or science to draw opinion that's inherently subjective st there's the williams case which is the ballistic expert testimony judge walker i believe you wrote that decision and there the expert testified to believe because it's in the opinion that he looked at the  is cited in every twenty jury when i put in that the handwriting case united states versus proud unpublished decision where the scored side like all of our sister circuits we allow the admission of an expert's opinion again subjective that disc handwriting opinion or experts could say this is what i think appropriate grade for this coin is this is what i think the appropriate value for a square is that the latter case was clearly experience based clear in the testimony that  with that this year and in that context i would say two things one legal one factual is a legal matter this court in there steve ok said that when a scientist testifies the scientist is not limited to express opinions based on scientific knowledge that expert can also testify based on specialized knowledge which is a different category under adopted the opinion what was that was the opinion here this is substantially this these substances are substantially similar to the controlled substances that i have compared them to exactly the expert and there was there was extensive three trial litigation here that the judge heard and briefing and the expert took the stand and using the same diagram that you shown today which was shown to the jury as well the expert explained how he came to the conclusion with respect to the his opinion and substantial school similarity with respect to each one of the six so the theory is that he was offered scientific  testimony about chemical structure and both that science this is this one this is that when the ultimate this is the further statement that these are these are analogs was a set form of specialized knowledge or what was it exactly i believe the district court judge did not abuse his discretion by relying on either one of those laws and the rule seven o two doesn't say the opinion as to be scientific or the opinion has to be specialized know has to be based on and hear both of these experts testify that their day to day job is to look at question substances look at controlled substances and determine whether these things qualify under the test th set out for them to be substantially similar they do that on a day to day basis and each one testified about other cases in which they gave the same opinion and i realize that that doesn't constitute general acceptance but my point is this is what they do this is an area specialized knowledge to compare schedule one controlled substances to question analogues to decide whether this substantial simile test has been satisfied i think it's also worth pointing out a couple of the things you are number th circuit have all affirmed judges admission of similar expert testimony under the abuse of discretion standard to my knowledge there is no contrary authority the final point i'll make is this to judge didn't make this decision was extensive briefing he looked at the evidence he looked at the same diagrams counsel is shown you today there was cross examination vigorous cross examination of both these experts there was rebuttal expert testimony there was defense argument extensive argument on this point and the judge gave limited instructions for the spectators but if there are questions about expert testimony that's the appropriate way to address it so so accepting the fact that they were experts in the they testify that happened how does that play into the the the you're defending the charges given that gets me to the nd point you are the claimant instructional error and i begin by reiterating the points that there was no objection below to the instruction the judge gave the st objection to the instruction came post forty so obviously the playing error standards are in place here and when counsel says to the court i know of no decision that holds that the that the identity of a controlled substance analogue is an element of the crime that ends our inquiry here because this is at best for the defense an open question and it's an open question that cannot satisfy  the supreme court in richardson made very clear that the way this gets decided whether a jury unanimity is required as to a particular fact is to determine is it an element or is it a means and in mathis the supreme court gave us a methodology for making that determination and this court applied it in the harbin case and the methodology laid out in both mathison arb and if you look at the text of the statute here the statute talks about  controlled substance or a controlled substance analog not a specific substance that favors this being a means that doesn't require unanimity if you look at the penalty structure the penalty is exactly the same without regard to the identity of the controlled it an element disapprove this court in thomas determined that if you don't have a controlled substance in type and quantity that increases the statutory maximum and minimum sentences it is a means not a no so this court has made that but as a matter of actual operation they are different because you have to go through a different step you have to find that they are what they are it's not that you have to find that they are an eye and normally controlled substances you're not in that position and it's either a controlled substance or not depending on the chemistry and i understand that's the defense argument the argument essentially is this because there is a standard based approach for controlled substance analogues not a strict rule based approach it should be treated as an element not a means that doesn't hold water there are other examples in the criminal code of  figure out this court's going to sit in call room rivera were talks about the difficulty in resolving that but if the fact that that is standard based not rule based makes it an element that means when we sees media with fourteen thousand dollars images of the serious exhibition of minors we could charge that is fourteen thousand dollars counts or if we charged one count we would have to give the jury a special verdict asking for unanimity in each one of those  we don't do that as long as the jury is unanimous that there is child pornography on that media we are done with that the same rule applies here in fact just limiting us to fence counsel question is there any case that holds that there is one case that comes close to holding that in the context of controlled substances the harbin decision from this court in that decision this court sad that if you have multiple controlled substances in state of new york say cocaine marijuana when all charged in one county under the state's statute the issue there the jury can not doesn't have to agree as to which controlled substance if two jurors think it's fifteen jurors think it's a nd and the remainder of the jurors thi this court explicitly said in harbin that's good enough unless we're going to start using a brand new test which no court has ever used for dividing means from elements namely this rules versus standards approach that the defense picked out of thin air here what it basis for them but if there was a sufficiency challenge one of the and three of these one of them was a controlled substance and one of one was an analog but these three others no reasonable jury could have just discerned that the way this case was tried wouldn't you have to reverse in that situation i believe not you want to because under richardson as long as it's a means not an element jury un you give one we'd like to preserve our options for appeal but that never happened here the judge that the defense had multiple opportunities to do so and didn't do so so and maybe that gets back to the play area standard but i will say this again the supreme court and this circuit have described a methodology for dividing means from elements to test that the defense offers in their preferred is not in their approach so not only is that the ultimate rule that they offer nowhere in the law meaning there's no but the methodology they want this court to use has no legal basis unless the court has further questions that's all why you agree that there's no case as in this one i know of no case that addresses whether it but you're right i fear i may have misspoke i heard counsel say that i don't know if a case where it was described as an element i don't believe i said that i do know of a case where it was described as an element of his and so all the it was decided by this court if one read footnote two of and salty it says that substantially similar is an element of the crime i don't even know what this dispute is about that is not an element i've cited the full of cases where they say this issue goes to the jury what else goes to the jury but elements why would it not be an element that is at the heart of this is it an analog or not that was what the case was tried on that's why we had all these disks dueling experts that's what the prosecution a a standard the jury has to decide and they're not asked to specify they don't have to tell us which one generally they just have to tell us whether there was a possession of child pornography really don't know i've never done a child pornography case i mean i was defense counsel i'd ask for some sort of humanity instruction i'd ask for a specialized verdict so that we would know that this is not that complicated this isn't thousands there are six and all i'm asking is that a mo how do you satisfy the plane well i began by acknowledging that it is it's it is error it's it's plain because it's obvious that if it's an element the jury has to be instructed that they have to be unanimous on it the fact that no other court in thirty years has made this error does not make it less plain to me makes it more plain isn't it isn't a problem with regard to the controlled substances not leaving s it's not a problem this the idea that that the verdict can be based upon different jurors finding different substances to be in in violation is all the substance as long as it's all clear that every substance they're considering is an illegal one yet correct here that's what the trial was about well doesn't the fact that that there was no objection taken to the specific requirement that that was given by the judge to the effect that you didn't you don't you don't have to all agree on the particular substance which defense counsel had in hand some indication that that defense counsel at that time at that point was thinking that this is very similar to the to this just a controlled substance like that that they're all and well st the instruction was not requested by the government they didn't ask for this instruction the chance just came up with it i don't know what was in the defense lawyers mind when they didn't object to it was  ineffective i hope we don't have to get to that point it was also affected their substantial rights and it undermines the integrity in the proceedings i can't tell these gentlemen why they're in prison for decades earlier often i don't know whether it happened here but very often there  given i may have a question just reacting to what went on in the court well i make no argument that the court erred by not giving the defense an opportunity to object not making that argument they just didn't they should have and that's why this court is here to