one for prosecutors and defense attorneys and judges in the circuit for many years regarding the standard of review in a particular type of case drug conspiracy cases and now as we arrive here today the law really is not int there's no i don't think there's any dispute among the parties that the government in a drug conspiracy case must prove beyond a reasonable doubt that the defendant knew the object of the conspiracy and it's also understood that the government may present circumstantial or direct evidence manner of criminal prosecution in applying that standard of review except in this small handful of cases involving drug conspiracy but this small handful has had a significant effect in charging decisions in compelling district judges to engage in very difficult exercises and reconciling the opinions of this court and its statements of judges of this court in trying to reconcile the opinions with the time has arrived we respectfully request your honor to clear the area here and to make clear that the standard  review review dictated by jackson versus virginia applies to truck it seriously cases as it applies to every other type of case and then to apply that standard to the facts of this case now my esteemed friend mr warren and his decisions that it could have been stolen computer chips it could have been jewelry it could have been money that's a violation of the standard of review because the answer always is yes it could have been chips it could have been money he could have thought it was who knows what but the fact is where a jury may reasonably infer that he knew it was drugs the verdict must be affirmed to be faithful to the standard of review the defenders in their amicus brief say there's no problem at all here that th granted we completely disagree this court has itself in the inquiry and it claxton that it's precedent is not consistent with the vast majority of circuits and this is an opportunity for which we're grateful to clear this up and job was to get off the plane and pick up two suitcases off the carousel they contain twenty five kilograms of cocaine any reasonable jury looking at those facts can conclude that no one would trust him with two and a half million hours worth of unless he knew what was in there and they could trust him to do what they had asked him to do as opposed to taking off with the loot going to the police once he did realize what was in the suit cases and similarly a jury can infer that no reasonable person would get on that p possible that he thought it was computer chips it's anything is possible but that is not the standard and in fact those differences that have been suggested in some of the cases tend to be the more assertive and no reasonable jury is required is we charge conspiracy to trigger a controlled substance that is cocaine heroin whatever this court's precedent is that the government does not have to prove that the fed knew that particular controlled substance when a charge like that the government has to prove that he knew it was in the suitcase correct but not the specific you know that it was cocaine in her well correct for in terms of knowledge we don't have to prove who was in her heroin given that there was a charge here of the amount which does isn't a pretty factor that has to be decided by the jury the jury has to decide the exact type of substance and the quantity but well what this case is about this appeal is about is knowledge mr sizing are you there has been described the so called tension in some of our cases n that up given the fact that what we're talking about is something that is an extremely fact sensitive there it isn't the way to clean it up your honor i would suggest i can't write the court's opinion but would be to say  mind run circumstantial evidence because the cases that have reached other results the civically addo cart right zavala and there are others those cases really cannot be explained unless there was some additional burden on the government in those cases that is incorrect that and a great example of that your honor is the claxton decision of this court last year in claxton that was a divided opinion in which this court these many cases and figure out a way to reconcile them and you had a believe it was george jordan who wrote the opinion and carefully went through all the opinions and came up with a distinction and judge how and just as faithfully writes a dissent it would she says no i'm looking at our cases and they may be different from other circuits but there are cases and they do require an additional factor to show knowledge of judges of this court are forced to go through this exercise and judge roof in this case and many other cases it's time to clean it up and just make additional proof of knowledge required that the court will consider all this evidence direct answer come stansell and decide whether there is any reasonable inference that supports the verdict even if there are equally reasonable inferences the other way but if the judge smith really as enunciated right i don't have the people who are required in some cases well yes and no i don't have a beef with this interview but the reason there is tension is because there are these cases they can be read and judge callan for example most recently read it need to be rejected ito for example says it could have been computer chips or money or whatever that suggests the equally reasonable inference is have to be accepted to acquit the defendant that needs to be eliminate really that the test that we should be applying and that perhaps we've lost our way not applying yes your honor that is the test and more specifically the supreme court last year in coleman versus johnson reversing a decision of this court versus johnson expressed that as looking to see whether the finding of the jury quote was so insupportable as to fall below the threshold of their rationality so what we're looking for here judgement out is whether the jurors were barely rational and then when we we say of course i mean how could a reasonable juror not see that nobody is trusted to carry two and a half million dollars with cocaine who doesn't know what's going on or ministers iraq doesn't come down to the at the trusting of the jury once they've been instructed as to the law and the evidence we usually presume that they that they follow that instruction that's right because fundamentally the ours is a jury system the constitution has made a choice that is the jury of fellow citizens who makes a decision as the  appellate court is limited this court's role is to make sure that there's not an exceptional case in which the jury simply went off the rails or it was a refuge can we explore that yes or let's assume that that mr carr bio was traveling from switzerland right why wouldn't it be more likely to would have been their bonds or jewels rather than drugs that would take away one of the factors that it's not a sore city i've done this many many times working years was was a regular he's a repeat performer but we don't know anything about like about this fellow is there no such thing as a point you'll in the government's world well the expert said no the expert said in th it seems like every there's no possible circumstance where someone could be caring of the least that you could argue there's so much drugs in the they have to know what to answer to that one is the agent to give examples such as where a friend is asked at the airport to carry a bag the friend says i don't want to pay for the second checked bag could you carry this for me that would be an example of where you could have a blind you know well let me ask you let's play with that  so why wouldn't you argue if it was the same police that had five million dollars worth of drugs you'd say well he had to have known why would we trust this fellow with five million dollars worth of drugs that he didn't know if we could say that from the ninth circuit which this court in caminos said was a blatant example of willful blindness where you had a large amount of person has to carry a suitcase and the other point i just have to make again though i know you're on as i understand it is that even having this discussion of competing in francis is not the right discussion before this court when when i'm saying a large amount means you're not going to trust five million dollars a somebody and somebody else says well why not that's the jury argument that is the issue that's commanded  this a reasonable inference or is it sheer speculation don't you have to address the other possible inferences from the evidence i don't think so your honor because what we have here and how do you know well here's what we have i'm suggesting to you practice absolutely at the heart of this entire story you just want to reason at some point this school is being asked to make reasonable those determinations are we not yes sir but in the context of deciding was the jury's blindness means and that himself was just really aware of the high probability of the fact in question merely that a reasonable man would have been aware of the probability are you satisfied with yes yes we are on the end going to my daughter's college graduation and i'm taking a flight this afternoon and if i were on my way or the airport and someone came up to me and said you know they're going to two suitcases on that plane you're taking this afternoon and don't worry about it but we'll put them on the plane but when you get to baggage claim you get off and just pick them up and they'll be somebody there to tell you what to do if i don't well i'm here and here's five thousand dollars or any amount of money or no money if i don't take steps to help with the sequester and if i m i'll let the attorney general know you're in me if i don't take steps to find out what's in those cases either by calling the police or by calling the airline and i get on that plane it's one of two things either i'm insane or rodriguez being the first we're in any of our cases we said anything to the contrary pretty legal principle wise is judge ambrose question is just that's what's made this so troubling which is that the court has not explicitly sa and then inconsistent results no but then when courts later try to explain a case like ito we have cases like berea and claxton saying it looks like we were requiring more because there's no other way to explain it so expert says that he's interviewed who knows how many a drug traffickers and you don't give this to somebody who doesn't know what's going on because of that person could just take off once he realizes what's happening or go to the police and this is really it is not the expert witness correct is that an expert can testify as to the ordinary practices and knowledge of drug traffickers as long as he or she does not rock the ultimate inference and say therefore i think that guy over there so knew that your arguments will be saying without the expert add it again you have to consider all of the evidence in deciding whether the jury was reasonable when you given the fact that number one it is drugs number two it's coming from a source eddie number three the other guy who has the same conversation is paid to do the exact same thing reaches this conclusion a jury can infer that a reasonable person would know it just like they have yes no way take a break at any one of these facts i'm never i don't think i'll give up on the size of the transaction i think that's accurate but sure you can pull out these facts and that's why our jobs are not going to go away i don't expect to be out of the appellate business when when this case is decided like your tension in the law i know you are all about is attention the result of the tension the analysis aren't you are the tension you feel the tension between those cases that say if there is just as consistent inference well that's right it's a tie should go to the defendant under that circumstance and therefore looking beyond the inference is run by the jury and therefore is a tension between the ifa least language and the language of lax and some of the other cases that were the tensions yes i think that's very helpful judge or to say there's a tension in the analysis and the fact is as you all know ours is a presidential system this requires have to look to the precedent of th rodrigues i would like to start out with what i think is the point that a lot of you guys have been raising is a government really quibbling here with application of the standard or abuses been correctly stated in every one of these in every one of the cases that they don't like  quote unquote or the court quotes from jackson versus virginia the court states the standard there is no opinion that they have sided with the court has incorrectly articulated the standard to review what you have here is a situation where they just don't like the way that standard was applied some cases that's what this whole thing is about they look at cases that they disagree with and that they have problems with and they think it's because there's some defacto direct evidence unspoken rule of law that is applied and correct standard of review is there they just disagree with its application in specific cases i disagree with its application in specific cases to the extent there is tension when every you have reasonable minds looking at the same issue you're going to reach different positions that's the nature of this type of review but just because there's tension does not necessarily mean that there is a de facto direct evidence requirement in this course jurisprudence there is no requirement or no need for this court to say ok it's about time we started playing jackson versus rich and the court has been applying it correctly for over its you know decades so this case does not need a statement from this court in jackson versus virginia applies now just quickly and he the indictment in this case did alleged ok so that's where we did argue we did argue that my guy thought it was money i tried the case his argument wasn't that he thought he was taking money and there we faced that on statements that they had d s had made during the briefings this is then why in three of the appendix of page seven thirty this was the briefings where when he had been interviewed he stated  that he had been recruited to transport what he believed was large amounts of undetermined u s currency to new york new jersey area so that's at least what he told the government during the briefings obviously said something different trial but that's what we were arguing and one thing i really want to have the government takes the position that no defense attorney ever gets up here in front of an appellate court and says my guy thought it was counterfeit jewelry my guy thought it was this like i thought it was that the government never once argued to the jury in this show that he knew it was drugs as opposed to some other form of contraband so what you're dealing with here an inference that the government raises on appeal no i understand i've argued in my brief that you know they raised for the first time on appeal but if this inference was so compelling how can the jury draw an inference the government did not even invited to draw at trial that's what they're doing up here and they're claiming that because the jury rationally could have come to this conclusion based on an argument they didn't arguing some sort of extrapolate of knowledge argument you can take they had the is was told this day it is was promised this day ideas depending on which portion of his testimony you want to believe well he did have the the before blindness instruction and he could it could have certainly concluded from that evidence could it or that there was a high probability that he knew what was in the suitcase i don't believe so your honor here's a reason why we don't even know in this case the government didn't even put in evidence that the guy had flown to the united states before not one piece of evidence to show that he had ever been to the united states before had ever left or to rico had ever gotten on an airplane so here's the evidence which in my view is stablished i mean france has to be based on an objective fact they showed that he had contact with a telephone number that was the same telephone number that they had be as a contact with there was one trip that was most take place on the twenty sixth and then picked place and then a week later he had contact with that phone number isn't that an argument o that is made to a jury in the jury in this case you had a very clear instruction from the you from the presiding judge and the word cocaine was used eight times that you had to have a conspiracy for th possession and distribution of a controlled substance in this case cocaine and you must find that it was cocaine be on the reasonable doubt as to says on page one fifty nine of the appendix the jury having made that determination having figured out whatever inferences it wanted to accept why are we then to over look over that and say you know what those twelve people were wrong and where the thirteenth juror we got it right i don't suggest that this court is the thirteenth or actually just what the court is doing is actually applying the standard to review that it's by i think the problem in these cases is that everybody assumes that the guy had no the jury assumes that the guy had to know the problem is a court cannot make that kind of give that back your hand but if if he was told these things what's irrational about the jury saying we believe that that car by our readers was also told those things and if if you're going to get on a plane in puerto rico with  heavy suitcase and give it to people you don't know we think there's it's probably can we think yeah it's a controlled substance that's not is that assumption or is that rational reasoning if there is no underlying objective you've got a coconspirators testimony about the things that that coconspirator was told and you've got all the surrounding information that mr zazi pointed out in this brief how is it irrational for a jury to say you know what had he is says that he's basically called out of the blue and he is not told that it's rugs that his name had been given to whoever this fellow is and there's nothing the day of the is claims that he was told if you want to extrapolate what was he didn't know it was drugs he wasn't told it was drugs so there's nothing in what was told today it dia's it would support an inference that my guy was told it was drugs none of none of the information about look you'll be contacted here picked this thing up i mean there was nothing in the crap in the interaction they'd be as had with the people that would rationally leave one believe i'm carrying contraband and in fact i'm certainly carrying drugs what  be is it based solely on the testimony that they got from b d s a trial there is nothing in there that allowed him to conclude that it was drugs what he said was based on the weight and his commonsense and the amount of money he was being paid suitcases on the table and i saw it was drugs later on he says well when i lifted the suitcases off the carousel they were heavy i was being paid a large sum of money and from that i concluded it was drug below what my colleagues and i have referred to as the threshold that's what i'm saying is whatever inference you draw if the evidence is an act of poise i'd agree with a law that says that that's not sufficient to set aside a conviction ok but what the government  over is whatever inference you draw has to show that he has knowledge of the specific object charge but why isn't it reasonable for the jury to infer that a bag containing whatever it is part of a million dollars with a two point five each pair two point five million dollars worth of cocaine that they infer from that fact that mr karr by a rodriguez must know i sat in on reasonable inference because if that's a reasonable inference then you're going to have knowledge of whatever object is in a suitcase even if you don't to me that's more of a willful blindness but remember the jury can take that into account with the expert testimony that's been presented and also with what  the ideas has said taking all those facts into account why isn't it a reasonable inference to say knew because i don't think it's reasonable to infer they knew it was drugs and you don't really have any objective facts which would support that specific inference that's the problem i have really talking about direct evidence as opposed to objectify i don't think you need to read every once in all i think you could have plenty of circumstantial evidence i think i study cases where this court has you think you what was wrongly decided no no i don't think it was wrongly decided i believe it either was was correctly decided all its answers in my opinion is pretty unremarkable proposition that whatever evidence you present and whatever inference is you want to draw show that the guy knew it was drugs as opposed to some other form of contraband just her name they're not going to know i'm concerned the other side of the the pole here is concerned about the limiting principle with the government concerned about it on your side because you seem to be telling us that as long as drug kingpins assiduously avoided telling their mules what they're carrying and they can't be convicted sufficiently in a conspiracy case i'm not saying that all  regular way he's from a drug source country i mean that's what hell evidence is the amount of money he was there's no evidence that he had ever flown an airplane before there's no evidence that he knew that there was anything wrong with giving suitcases and of these there's nothing really  i'm going to say well that's it isn't your statement that you just made evidence from which a jury would find beyond a reasonable doubt isn't that exactly the wrong standard our standard is is that the problem with the cases we have required and we said in korea we required some additional piece of evidence and isn't that exactly what you're saying end there were additional pieces of evidence necessary whereas we're supposed to say no you with no rational juror be able to conclude on these facts that this had occurred and there was he was willfully blind what i'm saying your honor is you cannot draw an inference based on an assumption all right common sense that when you pick up the suitcase and it's so heavy that it had drugs in it why couldn't you infer that caraballo rodriguez has just as much common sense as dan d s has i don't believe that it's common he was paid like an irrational jury say we've got two people that are operating with the same folks that make a phone call to the same people they're carrying the same stuff it's ok for us to believe that they're getting paid the same amount they got the same information th they have the same level of common sense and therefore we believe it because you're marginalizing all people under those circumstances you're assuming they care about the right radius is identical today it is no use in a fine nation of where we have to start this whole that's exactly what i'm sure you're i'm saying that based on the evidence the government presented in this case very rational jury could not conclude beyond a reasonable doubt that he knew it was cocaine as well as the way you have to say that you lose but how consistent is that with a jew his application travel now a days without being in an airport and hearing the public service announcements about not accepting packages or containers from other people if you see something standing idly by reported don't accept luggage or anything from other people that prove beyond a reasonable doubt he knew it was cocaine or a controlled substance or some other form of contraband what role does the expert testimony take in all of this if you go through the iteration of facts that all my colleagues  before you in that you support as well and you add on top of that the expert testimony are we to as we look at what the jury in for this regard the fact that they took the expert testimony into account doesn't meant that he was and made it it was admitting it correct so as long as it's admitting the jury can consider it how can a judge after the fact say i'm not i'm not going to allow that tip the balance the jury had it and the if your evidence of culpable knowledge is insufficient you can't plug the gap with expert testimony is it unreasonable to conclude if you take up not one sou pieces from an airport carousel that they are your suitcases and and you know what's inside th ok and if the jury's verdict in the inferences which have to be prime to support that verdict are rational and reasonable and supported by evidence not speculation assumptions or what somebody else thought believed then yeah of course you have to accept the verdict so i guess i'm asking is isn't there a problem with our standard of review if you've got and we've got high respect for colleagues as callan if you've got a thoughtful judge like judge callan trying to apply the same standard reply me coming out and saying now there's got be something more that is isn't that why we're sitting here in bank that thoughtful judges like to its roof and judge callan try to apply our case law are in a circumstance where your knowledge isn't that reasonable mice could disagree and say no our contraband and i thought that you said earlier that if it's an apple boys you lose that that's correct i think the claxton case and what i think judge helen was not dealing with is that you had testimony in that case that the defendant was a member of the own goes back to common and why for president that it's it's just as reasonable to assume that it could be some other kind of contraband that that just is reasonable kind of a comment in our case law seems to have some other form of contraband is supported by the objective facts i guess your comment seems to me to go right to the hard when you say the something extra isn't that something extra the concern that the government is raise that you have changed the standard in drug conspiracies you're not satisfied with ordinary circumstantial evidence you're looking for something extra and source the smell like direct evidence but you're looking for something more and that's just not jackson versus virginia you've gotten off the path so what they see in the scene is go back and say no in jackson versus virginia it applies everywhere there isn't something extra what's wrong with that as a statement of law this court has applied wexler and i don't will to hold the circumstantial corey kemp case where he was up there claiming it's been cited in other cases now it is not insufficient and generally it's not been sufficient because the evidence was found adequately those cases to show that him knew that he was involved in a conspiracy t appear what it was you know from the bank or whatever it was it's generally because the evidence presented by the government that type of case establish beyond a reasonable doubt that the defendant had conspired to commit whatever the so you're not saying that the law is if there are a basis of facts that have been a deuced and that there are just as consistent inference the second be drawn consistent with it being a drug conspiracy versus another conspiracy the that is i don't believe that opinion exists when that would spoken but again what we do seems to suggest that's the you know all the court is doing is looking for evidence from which a rational inference can be drawn that the defendant knew it was drugs as opposed to some other form of contr that's what the government has to prove all right that's all the court is looking for the court is saying all right government show me show me the piece of evidence in this case they say well it was a heavy suit case so they're asking the court they're asking the court that argument or why why why couldn't the jury have believed the willful blindness struck because there was insufficient evidence as to what happened in puerto rico this is the these are his suit cases well no the the darrell and they it is go walking off but even if they had a discussion it doesn't show you that that discussion meant that it was drugs as opposed to some other form of god gram just another piece of evidence which you could for they were all act in the gather  consciousness to go with respect to those other two that is not present with respect you care about harry i do not believe that the evidence part of having you said don't believe i don't believe that the evidence is sufficient to  inference that the person in this case had that same intent the second circuit has said or suggested that expert testimony should not be allowed to tip the balance that's never been accepted by any other circuit and it certainly inconsistent with the precedent of this court which we believe leo just legal cases consistent with wexler the other cases which are cited a couple of them i believe the eighth or ninth circuit are cases in which the court found that the defendant didn't participate at all he was standing there but he did nothing you're not dealing with the knowledge factor you're dealing with the participation factor of somebody who just came along for a ride and did absolutely nothing on the cases from the first circuit and the second circuit that he cites are nowhere near that wexler and he goes situation there are situations in which there was evidence that the people were just doing lawful things on one occasion and happened to be supporting in the first case the cocaine was hidden inside paper ballots these were commercial truck drivers who went to a commercial port who had customs authorizations everything was ordinary it's really only the second circuit and that's they will case that has ever accepted it and that brings me to the final point that i would like to make which is that opinions do matter even if this court has said over and over there's no requirement for direct evidence the problem has been and just we i saw it in my friend's argument the problem is when you try to explain those cases you inevitably have to say we need some more evidence and if that's not direct evidence you just left scratching your head as to what it could be there to write this forty page opinion and i spring this appeal and that's the reason we are so thankful to have the opportunity to address this and back and get a clarification the there was a dis