i'm lucky in that regard but we have two cases right now st one well please be aware of our time clock even though  are only three cases total on the docket this morning we ask you to start winding up when the two minute yellow light comes on and conclude your argument when the red light signals unless you're in seeing a question from the court we please the court issue one this is efficiency of the evidence claim in this case this is a drug trafficking case and the issue here is specifically whether or not the the government prove that a reasonable doubt the knowledge component whether or not the defendant mr notes on whether whether it was proved beyond a reasonable doubt that mr motown knew that the substance he was dealing with was schedule one or two controlled substance or an analog of one of the substance in this case there was a man named of it actor who was a he was at the top of this drug trafficking organization and he was orchestrating the manufacture of the packaging the distribution and the sale of synthetic cannabis noid by employing and managing several people what's important in this case is that his business model was taking pains to compartmentalize duties on a need to know basis so some of the participants in this organization were not told the purpose of their job was to be involved in drug dealing for example mr elite of torah league he was a codefendant to testify to trial he testified that he would have people for example rant storage facilities but would not tell them why counsel so he brought the knowledge requirement right off the bat and i agree with you that that's the key issue insufficiency under mcfadden i want to hear what your view is about what the government is required to prove with respect to knowledge is the government required to prove the defendant knew that the substance  forbidden under the c s a and the analog act so i think is one possible reading from x or is the government required to prove only that the defendant knew that the substance was forbidden by federal drug laws which i think is a position that is taken by the nd circuit in the democrates what's what's your view of the best reading mcfadden i didn't argue that the jury instructions were wrong in this case and i think that the jury instructions are correct and if we look at the jury instructions it requires that the government prove beyond reasonable doubt the defendant knew that the substance was  schedule one or two or that the drug was an analog of one of those two of a substance less than one of those two schedules i think that that's i think that's a clear plain reading of the law i think that the jury instructions were correct in this case and those were the jury instructions that the government was proponent that they were the proponent of that those jury instructions so you're saying that's not even issues could i don't i mean it wasn't raised by you by either side i think that says you can prove that by circumstantial evidence you does agree with that ok so in footnote you want to make found courts as you can you can prove this knowledge through circumstantial evidence through quote defendant's concealment of have to look to the perspective of the defendant and here there are two things to look at one is the sort of the business model of this or a joe organization and secondly is sitting in a room and a house that has no furniture in it and he's doing something chemical to package she's little packets of something getting paid zero dollars twenty five cents per packet and he packs two hundred thousand of these at least and he's not paying taxes on any of it or getting any kind of employment form and i don't care how little english she speaks his family spoke english and this it got to reek of something foul as the court  that were drugs well there are a variety of things that are illegal that are not listed as a controlled substance for example it could have been that these substances were some sort of tobacco product tobacco is not listed as a controlled substance ok and i think that that would be a logical conclusion he he was not involved in manufacturing the product in so far as the illegal substance so there was a gentleman in her room who would come to that house on the holland drive and he would come and he would spray that synthetic cabin away on the on the product that was not what motown was doing he was that he was packaging the material and he was adding this flavor in the sweet flavoring to it so you know that there is you know we've all heard of the illegal there is an illegal tobacco trade i mean that may be something that was very common in india i don't know interestingly no one not to defend the fence and not from the government asked mr moton during the whole trial during  what did you think you were dealing with was never asked so it wasn't proven and i think that's a big problem i think that the government could have had the opportunity to reveal his mental state with respect to his understanding of the this chemical the government produced three different experts to explain to the jury what this chemical is it took three experts to do that he ran a garment factory in india did he not yes your honor so he couldn't have been too stupid i'm sorry he he did not mind the standing of the testimony is that he didn't run a government factory he was actually a driver so he would deliver genes from the manufacturer to the retailers that was him he was a delivery driver that's my understanding so he's not a very sophisticated person the synthetic hammon always were in two thousand i was working illegally he not yes your honor so i mean isn't there something obviously or something a foul that has to be the evidence the circumstantial evidence has to be specific to one of these controlled substances or does the jury have to infer that he knew he was violating federal as opposed to state law not an issue and i think it could be an issue  if there's a difference between the state and you all substances is there i'm sorry is there just texas criminal law is that this particular substance well particularly with these synthetic cabinets i would say yes but  honestly i'm not sure i don't i haven't i've never actually compared the two controlled substances act between the state and the federal right so how would he know if someone would have to tell him someone would have to tell him and there wasn't any evidence at all about what anyone told him about what he was dealing with how does this case and differ from the legion of cases we have where people bring drive cars across the border they go into secondary inspection some illegal drug is found in the car and they claim ignorance of what the drug was but they were paid a one thousand dollars should drive across the border how does this differ and in point of knowledge from all those cases well you know there is a willful blindness aspects to these cases too like for example if your checkpoint case right that's a common thing but that was not an issue in this case at all the jury was in the instructed on willful blindness so the law that the jury had in its hands was what's written in the soudan do you want to move on to your other issues yes your honor issue two is the calculation of the relevant conduct in this case so important thing i think to note here is that the pre sentence report the probation office possibly in consultation with the judge or and certainly possibly as a result of the probation office is understanding of the judge preferences the pre sentence report made the deliberate decision to hold mr motown accountable only for quantity c what's important also important on this point is that the jury  and i believe it's page eighty two of the record there was a jury no where the jury was asking about whether or not conspiracy required whether or not it was enough what can and can't remember the  exact jury now but basically it's seems clear that the jury was concerned about the timeframe with respect to the conspiracy charge they found not guilty the conspiracy was charge from february two thousand and sixteen until april  thousand and seventeen so the jury decided not guilty of conspiracy between february th and april two thousand and seventeen so that the all we were looking all the defense and the government everybody was looking at where the amount seized now one of the amount seized was from mr morley deposit box that was actually it was money that was the proceeds from drug trafficking it was  extrapolated into a large amount of controlled substance actually eighty eight percent of the total amount of relevant conduct the mr bolton was how to output for that would be i think pretty clearly admissible because there wasn't any testimony revenants about when it was that mr leak require that money as a result of drug trafficking mr malley was involved in trafficking and controlled substances at least a year before mr millet son was involved in  so another way to look at it is only eleven percent of the relevant part of any limits i mean i'm looking at the objection to the p s r and it says defendant objects to paragraph twenty five does denies and does not recall testifying that he labeled two hundred thousand dollars packets he did not knowingly package any illegal substance he was told that the material was sentence so to the extent you're quantity here it would seem to center on whether he claimed that he didn't package may not a package two hundred thousand packets i would consider that a preserving the argument that the relevant conduct was not correct as essentially the argument and and although it wasn't argued as and as much details of argued i would say that still preserve that for appeal i think you've done a great job but you level on this case by the preponderance of the sufficiently reliable evidence and the rd issue is whether the two level enhancement under the maintaining a resident or facility for the production or manufacture and distribution of a controlled substance case i do expect the courts focus on this issue on these issues will primarily be to the st issues so proceed to that one  that a controlled substance analog cases the defendant has to have that knowledge the controlled substance and that can be found in one of two ways the defendant has to know that that substance is treated as a controlled substance of the controlled substance act and the analog act or a can know the chemical structure of that controlled substance analog in a couple of different ways specifically he can know whether the and not the specific analog he's dealing with and if it's meant for human consumption with a similar to a schedule government did clearly establish that by substantial circumstantial evidence as you pointed out to commend judge jones and specifically in this case there is a lot of evidence as to the packaging material the packaging material include these ten gram tin foil packets with stickers put on and judge jones as you pointed out the testimony at trial by mr motown themselves showed that those stickers had specific chemical flavorings they said things like blue cotton candy skittles bubble bill but importantly they also itself having what looked like a marijuana leaf on it and showing a potency which the ousters did testify that this is six x ten x symbols were meant to convey the potency and the effect that those drugs would have on a user now mr moat and stiff sense was presented to the jury in this case and the standard is just that let me ask you question on page twenty five of your brief you thought twenty two or three pages of the record motown a minute that subterfuge involved was due to the illegal nature of the of this and thought it  operation ma like testified it was known that these products were illegal but you thing matan said he didn't know that motown claimed that in his defense the trial was just fell off the turnip truck but the jury he completely disregarded that and the jury's credibility determination is there in the place to do that the core usually does not question the credibility germination in this case while mr motown denied the knowledge mr miller leak admitted that it was common knowledge that these products were sold and the clandestine nature of the way in which mr mo todd conduct  activities is evidence of the fact that he was aware that this was an illegal substance and treated as such is it also illegal in texas law it is illegal under texas law and that was testified  to by officer guera in the trial testimony that it was illegal under texas law now where in federal court federal jurisdiction under federal law so that is not controlling in he went off site to visit a gas station to throw away some of the i'm sorry judge higginbotham that was that was you you drove offsite to a dumpster and a gas station to dispose of these products that in fact mr wong testified that the materials did test positive and that they were controlled stops and says and that is not disputed in this case at all the knowledge and the business there they conduct these blind drops storage facilities or in the trunk in mr millings car where they don't meet face to face he just walks up to a vehicle and drops a bag of several one hundred of these evidence it is the key thing is that knowledge that this is a controlled substance and it can be treated as such and that there is that knowledge now when you get down to the nd element of knowing the specific analog or that it is an analog and then there are a quorum and so we think we also satisfied that component that he knew us now analog he's in this house they're using respirators they're using acetone they're these packages of the core components they're the cement mixer is on the on the address at mulholland where the core chemicals are being mixed with the sleeve there and they have and seventy nine all these pictures of these massive tubs of the over five hundred and eighty pounds of controlled substance that was seized finalise controlled analog they also had massive of the leaf and so this leaf is mixed on the smith mixer there's ventilation going up the chimney through this empty home there's a production room there are thousands of these stickers in the production room there's a packet sealing area and again mr mo tahn testifies themself that originally they operated out of another home but they were scared woman neighbor came in and asked what was going on in the home so they changed houses over to the  that had a little marijuana leaf on it and a funny looking symbol i'm thinking what am i supposed to do with this is a dog food is it something is it a variety of exotic knowledge but i think that you'd still have to do that but that's me and i house where they're manufacturing chemicals that are plainly not marijuana so that it's yes should be sure but i thought that the evidence that one of the one of understand that because it wasn't a major issue at the actual sentence hearing as far as the drug corny calculation and arguing and that goes to what judge him often destroys the difficulty in in some of the valuation but as the ninety thousand kilogram threshold to reach that thirty eight base offense level that it really is harmless error because just fifty five thousand of these telling girl ten kilogram or ten gram packets wouldn't max out mr moto that they're not at above that i need one thousand kilograms and in his own trial testimony he states that he packaged anywhere between seventy five million two hundred it is brought in in these per in the are mailed in from china typically in these packets and it's mixed with no controls in a you know how lists off mulholland  testified these element these drugs seats in the home if you take the low end of thirty five dollars high end of sixty dollars anywhere between two million six hundred thousand dollars and ten million dollars a product and the th circuit looks to the stash house statute which is twenty one u s c i think it's a fifty so you go and look at that law and you go to the barnes case  and this is a case where there were two a palin's jones and barnes they were helpers of the sort of leader figure in the case he was selling  drugs at at the house so this this gentleman hall he was the person that was maintaining the residence the th circuit stated in barnes thus the government may have failed to introduce sufficient evidence to show that barnes and jones themselves violated the stache house statute so we have to have helpers that may not being a helper itself may not be enough to maintain a premises other to circuit and  barnes decided that the evidence was enough to find the two helpers guilty because of that they were aiding and abetting this it's different in that in the guidelines situation for example leaders leadership it just doesn't work that way so in this case what we have is mr motown is clearly a helper and it compartmentalize to need to know basis only organization so he was a helper going to the house i don't think that's sufficient in this case although he was there a lot if his name was on an electric bill but there were new there were other people whose names were on for example the rental of storage spaces but those were people who either maybe didn't even know what was going on the fact that he had his name on electric bill is actually evidence that he was just a mere helper because the purpose of putting people's names on different things this was to hide the people higher up in the organization i wanted to deal with the packaging that the government brought up the marijuana leaf simple you know i've had the privilege of representing people who use drugs and manufacture and distribute them for a while you can go to a grocery store or i'm diabetic but i have especially convenience store in there with the tobacco products are they have the zigzags to go rio's strawberry flavor a lot of them in line flavor people buy those i don't i don't think people actually buy those to smoke them i think they buy them and they cut them open and put marijuana in them and they roll them up because the marijuana leaf has a flavor to it so you know the fact it has a marijuana leaf on it i just i don't know if that that doesn't necessarily say that it's a marijuana product or  one thing the government points to there's the six x four x potency value you know designations and this is that i mean exactly what about that mr mole time was never asked about that they never put a bag in for mr mole time and said hey what do you think this was no one ever asked that the evidence was just simply not presented in court wasn't it wasn't given to the jury so we don't know we actually don't know nobody ever asked mr millet on what did you was that he was making between two hundred and twenty two thousand five hundred dollars a month and that's still ten thousand and four months so it was good but he was working almost full time i thought you said he worked i thought someone said he worked a few hours in the morning and a few hours in the afternoon bret next it's almost full time so he wasn't making much money and that he wasn't supposed to work at all is not charge busy of that one