the course of this investigation because well i don't exactly but it's not exactly a chain of custody i think that's the interesting one of the interesting points you're out of the chain of custody generally is a situation where one end of the process of issue that the two ends were never linked and i would submit to the court that distinguishes two problems with the conviction one is the authenticity of what was analyzed and whether it was in fact the drugs that that were taken which goes to the admissibility of that evidence when more and more importantly i think your honor it goes to whether there was a i'm sufficiently of the evidence to demonstrate that mr mitchell was involved with the actual drug p c p it's an interesting case because there is no there is no testimony other than this seizure and the analysis that identifies what mr mitchell was allegedly doing as being involv where he created a a sample of one ounce of the liquid in a generic one ounce vial which was unmarked and then that vial was a analyzed by the chemist and in both those pages the government failed to prove the identity of what was happening no one testified to bringing the drugs through to officer a doll i checked this morning because it occurred to me they're right but he wasn't sure which one we don't know which one he didn't know which one i know but one or the other did to the best of his recollection one or the other did neither of them testified to having done that mckay and tar both testified at the trial neither of them testified to actually bringing the packages to have dollars and in fact the p g county officer said he turned to the seizures used to seizures gone through his his or her testimony then the seizing officer identifies those samples and the transporting officer does as well that didn't happen here and it's curious that abdullah didn't even identify the samples that were analyzed as having the bag was what was in evidence the photograph was never in evidence it wasn't in the books that was given to the parents counsel in preparation it wasn't marked isn't as an exhibit it wasn't shown to the jury what we've got the government is total alliances on the bags in which the samples arrived at the lab in the first point i would make sure owners that as far as the record shows that bag was never shown to the jury it there is no it is that it was exhibited on the alamo or otherwise or around injury and there's certainly no evidence of that ever went to the jury room and it would have been highly unlikely that it did drugs just on could it were an unsupervised jury so there is no basis upon which the jury could have worldwide on those on hopes to make that connection and find beyond a reasonable doubt that what was seized was in fact p c p and that mr m involved with p c p furthermore the government didn't rely on these on phillips when it opposed the challenge to the chain of custody of the trial they relied on testimony alleged purported t exhibits exhibit one b was never identified was never testified to a bell and didn't say he created it and yet it showed up in court furthermore we submit that these these writings are unreliable hearsay they were never authenticated we don't know who wrote any of it we don't know when it was written and finally and because it was sorry and because it wasn't offered by the government for the purposes for which they're now citing  never argued with the trial judge as to whether it was admissible or not and finally i know in order that it doesn't say this was seized from mr mitchell or it was seized from the package that i got it the came from the p g county it's got you know some indications of who was involved but nobody's identified it nobody in a more general sense testified to the process there's no testimony that i recall in the record that described it in a general way how is the evidence processed how are labels created that labels are put on who signs them what they mean and how they're trance created and transported so there's question first of all there's the whole question of exhibit one b and then there's the whole numerous entries about them that way which appear to show that it weighed more after it was analyzed than before it was analyze it's not a difficult question or proof when i was an assistant u s attorney a long time ago we it was it was simple you call the chemist the chemist write the evidence it was marked and then it was shown to the seizing officer who identified it that just didn't happen here particularly her closing argument and rebuttal are an additional a strong basis for this case to be reversed we believe the case was not a strong case it was good with a circumstantial case the government probably believed that its case against mr mcallister was his strong as its case against mr mitchell and it obviously didn't convince the jury in that in that case and yet the prosecutor made some very strident you know accurate statements during are photos that were taken actually i don't know whether they were taken for the purpose of appeal or not i don't believe the photos were offered a trial the actual heat seals were shown to the chemist and the heat seals were what were present in the trial and by the way if the court wishes to see the heat sales were more than happy to make them available for a few one i'd like to address the chain of custody issue as know that the wishing chain of custody is a little hard to keep straight and appellants focus on what was not presented may be obscuring the significance of the evidence that was presented and if the court will indulge me i'd like briefly to walk through the evidence that does the stablished the chain for the drugs in this case starting with the november two thousand and twelve trucks these were the bottles that were intercepted at the  that after he draws out the sample tosses out most of the contents of the bottles replaces it with iced tea he gets the bottles he gets the items back to pay he and he testifies page forty two of the october tenth transcript that the items were placed in the heat seal were processed by ok he in place in the heat seals are placed in the evidence bags by him now the next step is from the heat sealed to the c to be sure there's no testimony about how the heat feels travel to the lab but if there's a hole here it's a shallow one because one we have the testimony of a doll of the white ten of us the photo in government exhibit one zero one hundred g which is photo of the one out sample as the sample that was submitted to the da mid atlantic lab chemists for an analysis we also have the testimony of the chemist who discusses the procedures at the lab for checking out  items for making sure the numbers matching up for making sure there's no sign of tampering and he found no sign of tampering here and then we have a comparison of the heat seal and the da lab analysis i know by the way that the day you know with respect to the heat seal itself appellate argues that the notations on that are hearsay at trial the only hearsay objection of helen raised was to the notations five the first you will call that the original chemist to pick was unable to testify due to a family emergency chemists lou retest of the drug stirring the trial and the judge overruled the hearsay objection with respect to what the first chemist had written apparently relying on the residual exception to the hearsay rule when he finds circumstantial guarantees of trustworthiness the defense never suggested there was any hearsay problem or asked for redaction on the stickers of the heat seals when they were admitted into evidence no to that as mr bear has pointed out the really two issues raised by the chain of custody one that is whether the district court of used its discretion in admitting the drugs whether there was sufficient authentic authentication and their course gaps and any gaps in the chain tend to go to weight rather than to admissibility and then second issue is the sufficiency of the evidence whether the government sustain its burden of proving that appellant possessed p c p and to that end the court can consider not only the evidence of the chain of custody but also the other evidence indicating that  court can consider that these drugs are all shipped from l a is source city considered that the bottles looked smelled or package like p c p that in a palace apartment were tools for the distribution enterprise this going back to this these two issues that were suspect to the live drugs you'll recall that the july trucks were not actually the subject of any substantive count so the issue for the two large drugs is not whether there was sufficient evidence to convict appellant of the july drugs but rather whether the judge erred in admitting that the july drugs were mentioned as an overt act in the conspiracy only and there's plenty of other evidence supporting there are plenty of other over notice when one notice wasn't required because this were these were drugs that were intrinsic to the conspiracy this was not other crimes evidence subject to the strictures of rule for a for pay and the procedural requirements of parole for for  this other reasons yes just move the ball well not only not only that you want to they were offered as direct evidence of the conspiracy because again it was alleged in the conspiracy charge that appellant was shipping drugs throughout the time period of february two thousand and eleven to february two thousand and thirteen and these strikes felt right on that and they were offered and argued as evidence of the conspiracy for a for the exceptions because they were offered as direct evidence of the charge offense of conspiracy let me just briefly address some of the concerns raised by how much he expresses concern with this government exhibit one brief i believe addresses the specific points appellant has raised i would just note that at sentencing the judge himself know that page eleven of the june twenty fifth sentencing transcript that he did he considered the evidence to be overwhelming and based on the evidence that was presented and the really relatively minor concerns presented by these comments in closing argument there would be no basis to reverse the conviction that i have one question just because i'm curious does the record reveal why another judge came in to answer the questions of the jury that's very unusual that's interesting that it's a very common practice across the series of bad practice because of the jury sitting there the judge you agreed and there may be questions that a judge becomes then may not be in position to ask sometimes judges can confer telephonically with the there was no testimony about the audible opes from that which we've been discussing this morning and therefore the judge never ruled on me whether this notations on the on both were proper hearsay  or were not hearsay the only objection was when there was a question asked of the chemist about a statement written by another chemist to my recollection of the record is that the judge has already been admitted that was his response to the to the writing up on on the details but as to the other writings they were never offered there was no discussion of them in the defense never objected to them because they were never offered for the purposes for which they're being cited to this court  the other point i want to raise on the july twentieth eleven drugs the trade off they asked about we don't believe that there was an adequate evidence that they were part of the conspiracy certainly not a conspiracy between mr mitchell and snow testimony mr cows are being involved now with those drugs there's no question of anybody else being involved with those drugs it's quite conceivable that mr mitchell if if he didn't fax and the drugs were sending him to himself because his testimony that he would  go to california and ship packages to the onyx which he picked up himself so when we submitted it was only offered for the purposes for purposes that are not it's not acceptable to show either bad character or some other purpose doesn't show motive and it doesn't show intent we don't believe and certainly we don't think it's part of the substantive evidence of conspiracy during the time difference in and the different players that are involved if there