i see that you were appointed under that c j to represent your client here i am here and we appreciate your willingness to take the case and then and work on and on behalf of mr stevens i appreciate it honor to be selected by the to be able to do defense attorney when i work in a two thousand two hundred and fifty four case i often feel like a child always being told no no you can't do it you know there's a default you know you've got all these hurdles to go through i understand the hurdles i understand the reasonable yes i understand what i have to do in th met with them last week he's on parole until two thousand and forty one and i was meeting with them last week in my office at the well what do you hope to get out of this he goes i want those two felonies off my record it if these felonies keep me from traveling i have a great job working for a roofing company i can't work on military bases i can't work for facebook i can't work at a company my birthing company when i'm working for a ruffing company i can't work at certain places i can only leave the state maybe two weeks at a time i have to get permission for that so these are some of the reasons why he wants to lessen the grade of his criminal history if the court would look back to the court really can't look back but i can tell the court that his prior criminal history goes back to two thousand and three and that's  reasons the district court tapped him so bad again sixty years it's as if he had a bad criminal history but right now when i meet with mr stephanie saying i want my past in the past i want to leave that stuff in two thousand and three i can deal with my  virginia and that application of conspiracy law which is pretty well settled as i compared the iowa law to the federal law that they pretty much mirror each other with respect to meaning of the  mind can't really read guilt by association can't be mere presence but the only difference with those two differences in iowa law is that i will require an overt act and also one of the participants can't be a confidential informant working for the government or be a police officer so in this case as you look at the common ground here which is the the agreement for for mr stephan to be working with m to manufacture methamphetamine it just doesn't happen and when this court looks at cases like conspiracy what shouts out very loud as if there's of course of conduct when you look for sufficiency of the evidence the courts look for course of conduct application of facts what's in recent about the facts in this case and how they were applied by the dial court of appeals i get in the supreme court and i'm for the review on it and just in the district court in the federal court is had been working midnight shift for eighteen years he pulled over this truck at one fifteen in the morning in a darkened murky road that is owned that's his own testimony so when he gets behind the vehicle he's about three quarters weapon being in there he says men and you to get out of that car right now get to the back of this truck so i could run right these was there any other evidence that would have called into question the credibility of that version of events on the part of the officer other than sort of wow i just can't believe that that's what he would have done as a reasonable obvious or in other words with their testimony about him not actually being able to see your client because of some blocked vision where it was too dark or say anything else that calls into question his credibility i would say yes he said he couldn't see what he was  whether that's a reasonable action by a police officer in the context of that time it's one thing but snow and the sun's out and you can keep an eye on them at all time but on a dark road at one hundred and fifteen to leave two men in there and that type of truck what with all that stuff in the back of the bed and the junk on the inside obviously little concern about these guys anyway to leave them alone if flies in the face of reason and i believe that this court based upon the power that is given can find that an unreasonable application of the facts but by applying common sense to police officer's actions how much deference the courts give to police officers is well deserved but sometimes you know it just doesn't make sense and an eighteen year old officer an eighteen year veteran officer working nights does not leave the two men alone and that's really how did he just how did the officer explain that calling into question what the officer saw so really there was no reason why the defense counsel would ask well why did you leave him alone if you were worried that it was drugs or worried about your safety it wasn't a strategy for defense counsel  at that time because it really wasn't probably relevant to what he was getting at to try to cast to show reasonable doubt that this because my client is sitting in a vehicle with mr scopa in his vehicle with this and hyd conspiracy law so what with that your honor and as we also look into this one stop this one moment in time there's nothing else in the vehicle to attach mister deafen and mr scope  have an agreement to manufacture methamphetamine justice potter field and it's clear in our in my brief that i did the district court and then i did it at in this case o potter field hit the nail on the head she's going this was not a rolling meth lab it had ingredients to make a meth lab there's no evidence of an agreement between these two guys that they were going to take this evidence and made a statement to the a fact i'm not i know i'm going to jail i know this is going to put me in jail or something to that effect what it was asked statement made in and isn't that pretty compelling evidence that he knew he was a waste of a lot of trouble in context it shows that he's in trouble but you have to look at when he made the statement he had it obvious the president had already taken out the two grams of meth from his back pocket and he was in the back seat of the patrol patrol car at that time so he had already been moved away from the truck arrested and put into the back of the patrol car had meth in his pocket and by the way he was on parole at the time i mean that's that's right in the i don't think it says that he was on parole on the record on the record but it gets if the court would look at the district court record in the piece of the vest a geisha that he had the court would see that but anyway he's on parole two grams of meth in his back pocket has a long criminal history of drug related offenses and the court can take additional notice of the trial information this case he's a big offender and to it and some of those offenses were prior drug offenses so i mean i don't believe that that is an indication of guilt in contexts that w probably would have gotten even more time and the fact that he's now out on parole is that case the nd and he likes to it i mean i never like to say no you know it's it but i will say it probably doesn't have strong legs to it i understand you a lot of federal work too with mandatory minimums and stuff and to have my guy out in eight minutes over eight years on parole doing wonderful it is a godsend as far as i'm concerned so i'm not pushing that say out of the week legs on that that he was putting the precursors in between and it was stripped lithium batteries and it was crushed pseudoephedrine it wasn't living batteries that were that sort of veteran these things were ready to go there ready to put in the picture that was in the back of the truck with and hydrous ammonia that i think it's a reasonable inference was in the back of the truck and he's there with another gentleman mr scopa who's truck it is and the script lithium batteries and the crushed sudafed or mr stevens and from that we can infer that they had agreed to manufacture methamphetamine they had but do you need and putting aside that issue if that weren't there would win the case be sufficient for a conspiracy between these two if you didn't have the visual the visual if the stuffing something in between the seat or was making motions where it was found i think it would be extraordinarily fan on a jackson versus virginia review i think that maybe it would be no reasonable fact finder could make that determination but when you stack the un reasonable application standard on top of that i think that it's probably close to there but with the deference that that's given the state courts and that's given the jury verdict i believe that even without even if you were to make the finding that it was an watching him i don't think the hindsight bias explanation here is clear and convincing evidence that he is not credible and that he did not see those sort of movement s an officer standing there watching somebody going and going into the seat or doing something down to a side and said that he was waiting to see if he came up with the weapon i think that is a memorable moment for the you know if he was concerned he wouldn't have just gone back to was his patrol car this is if you were sac should i assume an officer withdraws weapon if he thought that one might be coming out but this record show that the record doesn't  he he didn't say that he had his weapon drawn  that ishy didn't really get addressed in post conviction review there wasn't a lot of testimony to that effect on and on his why did he go back to the car i think that is i think that for this case and i don't i don't know if it's an exhausted exactly but it's something that the state court didn't didn't have before and didn't have a chance to of to look at as far as i remember  so i think that if the officer was comfortable waiting to see if a weapon came up and his testimony was that the two men didn't notice him back behind or there so if he was waiting to see if if you came up with a weapon it's a reasonable inference that you know he would he would notice that and then decide whether to take his own weapon out because it was just  was that car that he was driving didn't have the equipment at the time from remembering right to two thousand and nine driving stop i think there were cars that did have the the  not to get to go back to the evidence supporting the conspiracy he did when he was when he was put in the patrol car say i know i'm going to prison there are other explanations for that to go back to the additional evidence of a conspiracy he did have the finished product in his pocket the methamphetamine made from the lithium and ammonia process so i think you could infer that he's at least a one million with that attributed having more of the ingredients attributed to him and he's the one with probation i realize that's not an issue here but it's sort of a background fact it does seem unbalanced but we and comparing comparing these these cases to conspiracy cases that have that have been affirmed or reversed under iowa law there's the speicher case where submit that that case is comparable to this one only if mr speicher had precursors to manufacture methamphetamine that he discarded on his way out of the police tha as i mentioned we're not on the jackson versus virginia review we're on the doubly deferential review and there are some admittedly thin cases that the u s supreme court has addr with respect to the credibility of officer parasitic on page sixty five dollars of the appendix is where it talks about him getting out of the car which goes to the credibility finding also which isn't included in the appendix is docket thirteen dash one the trial transcript was filed regarding the the methamphetamine the point to grant found his back pocket i don't recall but the record the trial transcript will speak for itself i don't think there's any testing done to determine the connection between the two grams in the back pocket and what was in the middle console seat on page ninety three and ninety four of the appendix is when the i think n testifying to the met the results to the testing of the of the powder in between the seat and the two grants in his back pocket i think is to grant in his back pocket was fifty seven percent pure i guess which shows that this is an older case because now it's always so much stronger then also your honors with respect to a moment in time i'm thinking this is kind of a moment in time case and what type of speculation or inference if you want to most similar that i could find as opposed to the course of conduct cases that we see that so easy you know it just takes a little bit of evidence in these courts to conduct conspiracy cases you know to draw the connection but i think in th moment in time cases where you're just looking at the tangible evidence it's far more difficult and a former strange danger standard should be placed upon it before we hold somebody guilty to forty five years in prison i've also asked the court to find the evidence insufficient based upon the standards that we have to go through for the nd count of lithium with intent to manufacture that was count two we also got forty five years for that and that's really for the same reasons the same inferences the same speculation