behalf of michael barrett mr garrett is serving a twenty year sentence following his conviction for being a felon in possession of a gun possessing with intent to distribute about ten grams of marijuana and possessing a firearm in connection in furtherance of that drug trafficking offense due process guarantees the right to present a defense that right includes the right to a theory of defense instruction that directs the court the jury's attention to such evidence in this manner the court theory of defense instruction serves many purposes first of all it legitimizes the defense and it draws the jury's attention to that defense secondly it has another function as well and that applies in this case it can prevent the government from misstating the gut the defense the which occurred in this case in the closing rebuttal the government suggested that mr garrett's defense was that the gun was planted and that he was unaware of the marijuana in the back things which we never alleged and never argued and you the bag the use of marijuana that was not sustained in fact we did rely upon simple possession we admitted possession of marijuana in fact that played into all the other evidence of mr garrett's intoxication which we did request in a theory of defense instruction before addressing the details of this i'd like to point out there is no dispute that these that the theory of defense instruction was tangling and it was an accurate statement of the law so a differentiated between between the  trial we submitted some during trial the court drafted their own we requested all of those those were all timely and accurate statement the only question really is was there sufficient evidence to give this instruction instruction i do believe the standard of review is an important issue here the government maintains it's an abuse of discretion we maintain it is no go pursuant to game boa scott and long pro those last two cases are cited in my brief those cases are the only ones that specifically distinguish between an affirmative defense instruction and also they note that it applies to the question of whether the evidence w to justify giving the instructions now out concede that there is some of the already out there that says well abuse of discretion applies but if you look at the authority cited in my opening brief and the reply brief those authorities do distinguish different types of instructional air and they clearly support the fact that this court's review is to know we would suggest the abuse of discretion standard is really more a can to particularly worded instructions and things of that nature so the only issue being was there evidence in support of that that evidence is recounted at pages sixteen and seventeen of the opening brief and it includes physical evidence video evidence testimonial evidence documentary evidence i would suggest the most critical and the most obvious evidence of mr garrett's intoxication and unconscious was the fact that either a joint or blunt terms through his jeans into his inner of by and into the driver car seat that is completely consistent with our claim that he was so sedated he could not feel it now that's one of the ten the district court listed right i district court went down the ten and took them off that's right and that's one of the ten she listed and she claimed that speculation was her bottom wrong she is wrong judge because she's not taking into account that we do not need direct evidence to support the instruction in the government to suggest this that we didn't show how much he took we need to of things of that nature and as noted in the reply brief circumstantial evidence can be even more critical more satisfying then direct evidence that there is absolutely no distinction between circumstantial and direct evidence i suppose arguably someone the government could make the case that the burn occurred in some other manner when mr garrett was not intoxicated but we don't have to show that what it was at that one of the offenses charged is that does sell more that's the defense judge the defense is whether or not the intent has been proven and certainly the government could have argued that he didn't know the fact is we didn't we didn't get the instruction the jury wasn't given that up you got you got the you got the the ability to cross examine and argue without without having without the complexity of trying to explain to the jury out what offense that applies to and what it doesn't which i'm sure from the defense standpoint was a wonderful believe the case law requires it if the evidence supports it that the burn is just one point everywhere multiple witnesses including government witnesses described mr garrett as being intoxicated as being dazed as being confused the videotape evidence shows him collapsing to the sidewalk after his exit from the car the paddy wagon video is not just him drifting in and out of consciousness you can see on that videotape as he's accepting in the process of into unconsciousness again that is more than sufficient to satisfy the long cross standard that it must be weak in can see it may be weak inconsistent or doubtful credibility it may even be inconsistent with the defend testimony that's what kenyon indicates so certainly we believe that instruction was amply supported by the evidence up with regard to issue to the lab reports there's no question those were suppressed by the government after a trial it was discovered by mr garrett that that the drugs were not axis see they were different substances they were different purities we contend all of those  we contend it's not because they admitted it to show intent knowledge and we harvey well if it's knowledge he doesn't even know what it is he's not aware of it that shows ignorance we think that actually would have in some way supported this theory to fa and emphasize emphasis of floral for b others i don't think that in order to show that it wasn't the grog the more it would have caused it would have caused the witness to you know pay more attention to  are and i'm probably wrong i thought that i thought the reference to ecstasy is what would have been impeaching and i thought that came in the in the testimony not in the documents it did come in the testimony ok so now we're now  the government produces the lab reports and the witness being insufficiently prepared perhaps uses the word ecstasy or uses a street term when he was the one the lab reports are more precise and now he's  vigorously cross examined on that in order in order to establish that in fact it was it was a different drug remember ecstasy is what what what mr get on trial for that you think any trial judge is going to let you do to try the underlying facts and circumstances for all for bluster i just want to be there i would have liked the opportunity to cross examine the officers the officer that wrote the report did not even  prejudice in order to prevail in this argument right hand i believe when i'm in our brief suggest different levels of prejudice and we've been doing it collectively it is sufficient i do agree fully or right they're all premised on additional cross exam of the hundred four b witness right yes yes that is correct with regard to the closing argument i simply want to point out as judge bintan noted there was a sustained the argument that evidence was planted but not that we claimed he was ignorant of the bags of marijuana in closing and this was not sustained the government describes a fall for be evidence as defendant being in drug trafficking and he admitted to officer passing the see that he was a drug dealer that was not supported by the evidence or the testimony moreover the four four b instruction the court gave told the jury you're going to hear evidence defendant sold drugs in two thousand and thirteen that was not supported by the testimony assume the cautionary was given when the four hundred four but it was given before the test and i was an immediate objection to that phrasing we did not know i don't believe we objected at that time because no one knew what the evidence was going to turn out that what maybe the government knew i certainly did evidence was going to be it wasn't apparent to the judges characterizing evidence that hasn't been heard i would think you would have been on your feet in an inside don't know if you tried the case but i did try to be but no i did not make that objection at  time the testimony came out i did subsequent make it i do say i only have a minute left i would like to reserve a little time thank you with the issue one which is in regards to the intoxication destruction and it was not an abuse of discretion for judge catch mark to refuse to give that instruction you want to quickly address his cases that say it's de novo his best cases ar reply brief you want to address them the cases that he has cited for dyno review don't specifically reference the intoxication instruction what specifically does reference intoxication struction is this court's precedent and united states phelps one sixty eight f third ten forty eight where this court definitively stated and analyze that case under an abuse of discretion standard when that judge did not give an intoxication struction and that is why the standard review list in the united states brief shows abuse of discretion as being the standard of review in this case now those precedents united states versus phelps along with united states versus kenyon that for eight one f third ten fifty four note that it is defendant's burden to get that instruction and must present evidence that would support a finding that defendant was in fact intoxicated i would show evidence that someone is showing evidence that someone is under the influence of drugs is not enough warrant that instruction you must show that the defendant lacked the capacity to form intent and phelps specifically states that the intoxication instruction must not be given if premised on speculation i agree with judge catch mark in this case that there was far too much speculation to submit to a juror one can anyone actually answer the question as to what mr garrett was intoxicated on what doesn't matter yes it does why does it matter it all matters because he was really something about all this you know she listed ten factors go ahead well that's the danger that this court's precedent seeks to remedy which is you don't want the jury just thinking why i don't know could have been alcohol could have been marijuana could have been pills who knows we don't know for west what difference does it make when alternately the question is one is of intent right and so you know that kind of cuts both ways your argument is that well you didn't need instruction because you could always argue intoxication because the jury was thoroughly instructed on intent and now you're saying that well wait a minute intend to alone isn't enough we have to know why they're intoxicated and the reality of it is is if you're going to commit a crime and there is pacific inten required it doesn't make any difference if you're impaired because you've been hit on the head you've been taking an illegal drug or your doctors prescribe you something the law makes no distinction between why you can't form the intent you know you could be and just incompetent or whatever so now can you explain your answer because i have an idea as to i agree with your statement your honor and that actually came to fruition in this case the defense got to stand up in closing argument and make that exact argument this  claim that mr garrett was far too intoxicated to form the specific intent to carry out counts two and three of the indictment that mr garrett was so intoxicated he was falling over and therefore there is no way he could have been in possession of a fireman further into traffic and crime or that there was no way that he meant to actually distribute drugs this has to do with the intoxication instructions with difficulty which should not be based on speculation here we have no evidence as to what drug  the effects of it the effects of the drug on the actual defendant is of paramount informing the  where the a fax at the time that they are on the scene there is evidence of that here would would i think you're really getting at is we don't know what the effects were at the time he that really go into the propriety of organise acidy of giving the instruction that mean time timing is critical easy if he's even if he's even if he's high when when the security guard  can't wake him up for forty five minutes or after forty five minutes i agree that i have the moment when intent matters but but is that really relevant to the instruction issue i think it's relevant to the instruction issue only because it's just another layer of speculation and i agree with you these crimes do not they don't really work in the way that the intoxicant cation instruction i think intends to remedy which is possession with intent to distribute marijuana as i explained in closing argument during this case that crime involves getting marijuana weighing marijuana and putting it in black bags if you found if you found a case where  there isn't one in all of federal jurisprudence but i did not find one in this circuit nor did i find any apparent one in any of my all feds search that that i did on this issue the the other question that comes to mind did you did you find a case gusting where particularly when there's multiple charges some of which do not the offense does not apply to whether the if it's an abuse of discretion standard drawing the discretionary line between letting  but not charging not instructing it letting the jury use its common sense to weigh the argument so it seems to me that if it's an abuse of discretion standard that's that's a pretty significant wind that the court has to draw in that we probably review deferentially but that's why i'm asking i've not found that case however one of the remedies in this case was judge katz what did allow him to argue that in regards to count two and count three he could argue that hey we don't know that this defendant intoxicated or that this defendant was intoxicated so we don't know that he could have had the intent and granted in any case the friend defense should be able to get up and argue that this defendant didn't have the intent to carry out this crime and in this case he was able to do it this has been civically to do with as defense counsel state drawing the jury's attention to a specific instruction and in this case i think judge petrarch was right on there was far too much speculation to allow the jury to just guess as to how intoxicated when he was intoxicated how much drug that mr garratt allegedly took we don't know but i would note that the person in the courtroom who could have cleared this entire thing up was mr garrett himself if he was intoxicated if there was legitimate evidence of that intoxication he could have taken the stand and i'd have had no argument if he explained that he didn't remember anything because he was overcome by the result of a drug now granted he would have been subject to some rigorous cross examination but he could have just might interrupt yes i don't think correct me if i'm wrong that you replied to the argument and it's on the record here where the district court says that the jury could see how he's looked at recesses how uses a cane and his physical condition she's heard about is consistent with the jury scene and the struggles the last few days did you reply to that argument in any regard i noticed the other side as a side of the warning going i did not reply to that argument ok you have any any comment on the only comment i would make is during the course of the trial you see mr garrett coming from where he's being held when he's moving around the courtroom he has a significant limp he was using a cane and i think what judge catch mark w touching on was this video that they're showing that mr garrett is having trouble walking well i think the jury can clearly see a correlation between that and his is an ability to move around which doesn't relate to the intoxication instruction which is which i think was part and parcel as to why she turned it so it just went to the struggles part of her to in fact yes it doesn't go to the officer saying dazed and confused a doctor you know in the prescriptions and notice which referenced an issue an incident from december of two thousand and thirteen involving michael garrett in which the eate executed search warrants at his house where they discovered a large quantity of marijuana approximately nine hundred pills of what is colloquially known as ecstasy plastic bags a drug ledger a firearm a lot of drug paraphernalia that would indicate that the defendant is engaged in our contacts trafficking as part of that case the defendant made a statement to one of the d a officers that he had recently purchased a large quantity of pills from an asian guy and so when defense counsel references that in closing argument i stated fed admitted he was a drug dealer that isn't what i said i said when you take defendants admission and all the other evidence the defendant is a drug dealer it's a reasonable inference which could have been drawn from the facts of not only the instant case but the december two thousand thirteen incident now in regards to the lab reports regarding those nine hundred pills when this case was transferred to me part of the case file was an e mail that was sent from the priory usa to the defense counsel noting and attaching the lab reports and the investigative reports from that case and so we fast forward six months later after that e mail us and after the notices and it's not until i have the dea agent on the stand getting ready to testify that i find out for the first time that the friend says he had not received the lab reports in that case and this is entirely briefed in defendant's motion for a new trial now was my understanding that based on that e mail he had received in the attachments that he had he did have that but apparently he did not and of course judge judge matsch mark ruled in her order on defense motion for a new trial that even if that evidence was somehow suppressed it was not material without even getting to the issue of favor billet in fact the standard for materiality is its material only if there is a reasonable probability that if disclosed the result of the trial would have been different results in some sets of pills the pills were methamphetamine and caffeine and other sets of pills the pills were cocaine methamphetamine and caffeine and another set of pills the pills were cocaine and caffeine and so as these things are dealt as these things are investigated by d n a these are sold and these are discussed as ecstasy now whether i'm witness say that in this case are you and me making it up so i say to authority in my brief but the witnesses to the stand testimony that was given was about now i wouldn't i would the i suppose the defense notes that he could have had a more effective cross examination but again i think as as was pointed out the cross examination would have had to be it would have had to go into the substance of what these drugs are and ultimately how does that improve mr garrett's case i don't see how they were drug ledger's found in his house drug paraphernalia other and other large quantities of marijuana found in this house and ultimately this case was about the marijuana of the marijuana that was found in his house in december thirteen was packaged in the very same way that it was found in the incident in december of two thousand and fourteen which was the subject of the trial that was the emphasis of the four of four be it in regards to the closing argument and we know that it's worth pointing out that during the objections at no point was a mistrial requested at no point in the defendant's motion for a new trial was any of the statements made in cross examination brought up for a reason for a new trial of package the same way on how is it unique so i mean with so and so that is that it's for all for be right on the head when it goes to knowledge and intent in the instant case regarding the objections that were made during closing argument i noted that there was a gun found on mr garret and i think you'll find with the other objections that there was indication in the record that would allow me to make those statements and unless the the court has says has any more questions for me i think i'll finish  of with regard to the theory of defense issue i'd like the court to imagine just for a moment that this appeal is a sufficiency challenge regarding mr garrett conviction for dui if that's before the court is this court going to look at this savage dents and say you know they haven't it's is just insufficient it's going to be insufficient i would say of met absolutely the court is not going to do that and that is because of the beyond a reasonable doubt standard that is a much higher standard than that of a wrong pro which only requires the evidence to be weak inconsistent or doubtful credibility clearly the evidence is more than that and it was more than sufficient to justify the instruction regarding the standard of review phelps was decided after scout and long proud of those two cases are the only ones that distinguish when you why did no vote and when you apply  discretion and those are binding on this court that makes the standard of you know both need evidence was decided before you said after i'm sorry if i may have misspoke phelps was decided after scout and long crow mr  ability so phelps is controlling you know it's the earlier cases the one that's controlling well not a vote scout and long crow were decided prior to foul play you're going with their major major yes and