i'm going to begin with what this case is not i would assume after reading the briefs that you think of this case as perhaps a loophole is that we're looking for some technicality and the fact of the matter gears is that the government could have charged mr mackenzie with a variety of crimes there was more than enough evidence for these crimes so i can't tell you what bothers me about your theory only seems to me that it's quite common in the drug business for there to be intermediaries and so you know the intermediary might be the person who's driving a car with a locked trunk or might be somebody who's handling is in this case you know a box it's locked and they don't have the key all kinds of ways that you can you know box suitcase and the fact that you can't readily unlock the thing doesn't strike me is  all that unusual and yet they're part of the distribution chain and students manufacture to broad distributor to more specific local distributor on down to the retailer if you want to use regular business  so so the notion that distribution necessarily includes the concept of possession isn't one that comes easily i agree to disagree  think what you have to look at here is that mr mckenzie and mr ballen court were in this together and they mr mckenzie was bringing it up from kansas city they were going to go to the store front that they owned and they were going to break c well then it gets to my second point which is when congress passed the controlled substances act it was very clear that what they wanted to get out and what the evil was is they had a primary evil and secondary the secondary evil was look we have all these people who are possessing it and using it and that's bad but the people we really want to punish are the distributors and those are the people that are moving it down the chain and here this wasn't moving it down the chain but you don't we have to look at the statute itself i'm sure statute defines distribution as to live fire and delivery as the actual construct of or attempted transfer a controlled substance it doesn't say transfer obsession of a controlled substance that sense transfer yes and i think to transfer something or to deliver something you no longer have to have you have to dispossess yourself of it but yes you're saying to transfer the other person has to take possession of it yes i just if i had a box of methamphetamine or let's say a defendant had a box of methamphetamine and just possessed himself of it by say throwing in the river it's not a transfer  distribution not a delivery but what about a simpler case what about somebody who's who's selling you know i pads or something and there are all these boxes and they're all carefully wrapped up in there in the back of the trunk and get moved from the play lanter then the port of entry if they are imported or however they come in to another place that the truck driver isn't opening up all the boxes indeed it's understood that the truck driver will not open up all of these boxes that would be regarded as a real problem if they did and yet the truck driver surely has been transferred he's he's part of the distribution chain  a idea that you've got to get inside the box is what i'm having trouble with well what i would ask you to think about then is that do i transfer or distribute something that i put in a safe deposit box that my bank h custody other they have and it has certain duties toward you when it's in the safe deposit box so they do it and he says you have transferred it doesn't mean you've transferred all your shit you probably conducted a bailment or some some such thing but i don't know that that suggests that there's no transfer well then i think we're back to the controlled substances act which is what they're trying to punish and what congress intended to do is each time you bring it down you know in the chain of distribution that's the that's the harm it's looking for that's the crime let me ask you this a student suppose we have a guy named smith mckenzie gives the key to smith smith makes his way to the store gives and the key to gether they certainly the two of them certainly both possess it with intent to labor and it's way too much for personal use isn't that isn't i mean isn't that classic constructive transfer i give i give the key to access or smith does gives the key to access the you have essential eighty people at the same level the supply chain passing it back and forth each time they pass it back and forth is not a distribution it's just an odd outcome that smith could be convicted and in my view on that hypothetical and in mckenzie cannot what i would go back to again is the act which shows there you have another intermediary that you have somebody that's pushing it down the chain and each incremental step down the supply chain that's a distribution that's what they wanted to to punish but we have more when essentially confederates at the same level are passing it back and forth one ways that one ba world's most secure things at least for a professional locksmith i would assume some wal mart lock box it's a locksmith opens it up and and down court happily cuts it you know gets it ready for distribution surely in that situation kenzie has distributed the methamphetamine to valen court absolutely if at all shows that the key isn't so magical there are ways around lacking a key of course i think you have to look at the totality of the circumstances here and what their business dealings were and how they acted if mackenzie hands off all the methamphetamine to valid court and says this is first you know you back it up if you come back to me with money to pay for it then we have a distribution we're done i'm not here the trial never happens but instead  law enforcement arrest them but there is a clear intent to transfer in judge what's hypothetical you know in the real case in the parking lot in the parking lot there's an intent that yes he  a corporate yes he gives the box with a plan to go meet at the store yes and he's not giving it all to him otherwise they wouldn't have come back to meet at the store to wait it out and ba it also they've done this before you have evidence in the record just clear that this is not the first time they're doing this doesn't that support the distribution argument that this is something they've done in the past oh no quite the opposite i think if you look at the what that went to bellecourt and he leaves that's a distribution because then what we have we have the breakdown and it's going down from mr mckenzie in minnesota for mr bell in court to take to cross the border  gives it to him with the intent to completely part ways with that that's when we have a distribution so the key doesn't matter to your argument is that right now i'm saying that he is i wouldn't come here and say that ye oh the key is the whole thing what i'm saying is that it's just part of the totality of the circumstances about how they dealt because they use the same or you know the identical model of lock box earlier at the end of the deal thank you may please the court my name is corey stuff and i represent the united states in this matter this is a straightforward case involving distribution of eight hundred eleven grams of almost pure meth and fed to me from karl mackenzie timothy vaillancourt his drug methamphetamine if you recall the record suggests and supports that there's evidence in the record that mackenzie had verbalized to vaillancourt that he thought he was getting pulled over as he was coming in to ashland wisconsin something similar it happened when he had made a trip down to kansas city when he was pulled over by missouri state trooper and he had told vaillancourt weeks earlier that next time we need to have a cover car well so this is all percolating in the back of mackenzie's mind i'm sure when he's coming into ashland and he says that he thought he was getting pulled over  police officer turned on his lights and actually pulled around mckenzie and was currently targeting somebody else so mckenzie wanted to pull off and give vaillancourt the meth unfed and at that point in time to dispossess himself of that nothing fed him in his concern was the event that he got pulled over he would not be in possession of those controlled substances so the legal question is i understand it is really can you be said to have just repeated and i had him to a person who actually has no access to that item or do we need some other concept because distribution could you imply the idea that the person you gave it to has access to it for purposes of dividing it up for further distribution or for purposes of using it or for purposes of you know in some other fashion getting a benefit from it where is you know if you actually have no access whatsoever are you a proper distribute t that's a great question and i don't think that's what's the question in this case anyway it is in a veiled court had access to those drugs and i think the court was right he's locked away from  mean so we have a situation in which he once upon a time apparently had a key to this box now i made an assumption a few minutes ago maybe it's really easy to get locksmith to come break the box open i don't know that as a matter of fact and i access is important we have a more difficult case here actually it was actually covered during trial when i asked specially to charlie mcbain on my cross examination is called as a defense witness about have you ever been able to get inside of these lock boxes before have you had to do them of course your facial duties and did it require a key and his testimony was that common household tools can get you inside this lock boxes this is not the first time that mckenzie unveiling court had tried to somehow lock something away to keep it away from law enforcement but that would also give them trouble getting access to it if you recall there was also the theory that at one point they're going to put inside one of these emergency spare tires in the trunk of the car and they'll cart was discussing what types of what type of tools he might need to get inside of that but as a legal matter though it is your is your position that you need you need to transfer possession and here the facts show sufficient access such that there was possession i thought you were simply saying there needs to be a transfer there needs to be a rewrite the seventh circuit pattern instruction to make that war and work to the statute is what governs you know we have various discussions about the pattern struction sometimes with the best of intentions they don't quite capture into the statute are you asking us to do it because the statute distribution is to do a delivery and deliver is defined as the actual construct of or attempted transfer a controlled substance are you reading transfer of possession is that required no not from the perspective of the person who distributed it i think you're talking about the protective of the person who may have had the drugs possessed with intent to deliver which is frankly that's the bulk of the cases that the defense sites in support of his theory of defense in this case it looks have from the perspective of the person possessing the drugs with intent to deliver it and it's a mystery to me why the government didn't charge that here wouldn't this have been just an open and shut possessed with in tent to deliver on the candies part he has the drugs first before he gives them to violent cord that that's a good question and any time you have it if you're making life difficult for yourself it's not anything we can do  i think anytime you have a a long drug investigation at various points in time you can charge possesses with intent to distribute distributions attempted conspiracy i mean to the point of almost overkill where you're where the government would open itself up and i'm just saying methamphetamine that's the case you had he possessed it intended to distribute it it wouldn't matter at that point whether xylo cortex the final distribution stop or whether it was really go be at the store where they were going to open the box up and package it got all sorts of evidence of that and there were there were certainly a number of charges that we could have entertained in this case but the government's position is that it was correctly charged in this case the jury correctly convicted in this case there is i can't speak in a more broader legal perspective but in this case in fact the bodywear that vaillancourt was wearing along side of the highway going into ashland he asked you can see is the stuff in the box mckenzie acknowledged yes it was and this is supported by a number of phone calls over a number of weeks business plans etc so both of those participants at that point in time big knowledge what was in the box they acknowledged what was going to be distributed delivered and keep in mind this is delivery for transfer of possession and the government believes in this case that under both of those means of proof that that we have sufficient evidence to certainly find him guilty on his motion to acqui and on the theory of defense instruction defendants aren't able to theory of defense instructions if they meet certain factors the first of which is the instruction must represent a correct statement of the law the defendant's theory of defense in this  case would have invited and asked district court to instruct the jury on a number of factors that are just simply incorrect and the law itself the first of which is the instruction that distribution transfer of possession from one person to another now that is perhaps half right but in as much as it neglects and cuts out the deliver aspect it is wrong and it is not an accurate statement on the law and as i think that the court had mentioned questions  mr morter there also were asking that the court and district court instruct the jury that they needed to delve into whether or not they'll in court have the ability to steal this metaphysical possession that sometimes courts have dealt with when talking about possession with intent to distribute cases not delivery cases and that instruction also would have asked the district court to instruct the jury sensually not essentially but to a to a quick and find mr mckenzie not guilty if the jury were to find that vaillancourt were merely simply acting as a quarry or to bring the drugs from the parking lot to the store and now this district's cases as well as across the nation have have understood and acknowledged that careers a very vital part of any drug trafficking organization and i think if this argument were taken to its logical end and applied in different courts across this circuit it would lead to the absurd result of insulating members of drug trafficking organizations merely because they one person had the key the other person had the box and the drugs so if the court has any other questions i'm willing to entertain otherwise the government rests on it all right thank you very much thank you mr moyers can't time left i'll give you a minute mr meyers if you need to respond mckenzie is out of hot water here if it does if it chooses to look at the statute the way that it's written i would finally say with my last little bit here is that the government had choices and they chose