of now ledge was we claim insufficient up a trial of all and not only was the evidence of knowledge insufficient the roles that were advanced by the government to attempt to sustain the jury's verdict and adopted by the trial court we believe are or is a and all that has been misstated and should be corrected in addition to that what is the elephant in the room i suspect is the very inferior quality of counsel's performance presumes now much from possession of a package that is to say they've knowledge of the contents of the package is presumed by virtue of the possession of the package and as i read the cases that have sponsored the ruler and have set forth the rule that it appears that we're getting more and more confused by this definition of mere possession just the fact that you're standing there with a package would you know of itself allow a presumption of knowledge and that's i believe not the case what we should be looking at is the surrounding uling adopted that rule in an effort to sustain the jury's verdict cancel let's suffer second i understand why you're concentrating on are there drugs in the packet but don't we look at a incident where he checked into an extended stay motel using a false name on a fraudulent credit card and picked up a fed ex package the modus operandi is that as it's called was identical to that of bolden that's a different activity well that's a different activity but it's related to this because it's very similar sort of both in the same conspiracy right they are the same conspiracy so yes the whole point is you look at the totality of facts and circumstances you know isolate out one and if you take a look at concern with the the way that it was done in the trial court is that in order to support it's the court saying now that even if you don't use the rule of mere possession of the package that all the other circumstances support the jury's verdict obviously that's a different argument and we take the position that what supports the jury's verdict is not just the circumstances of the courts that your honors have put forth now and that have been set forth in briefing and in the record but also the fact that there is a whole slew of evidence that comes in through defense questioning that adds to that now imagine getting an ineffective assistance of counsel might give once once you take that out and just look at the circumstances of the use of the credit card at the extended stay america to pick up a package we don't know what the contents are of well but a fair inference from was sufficient evidence to convict him without the improper ever without the evidence of counsel volunteer a gun on his behalf is it enough that there was sufficient evidence does that mean that it's not so prejudicial that we would say we can't be confident of what the verdict would have been well what i'm suggesting is that this was a very very close case on knowledge just on the evidence presented but they got lloyd's house three just on used boxes my problem with this is it's not an unrealistic strategy to me to attempt to distance my client as far as i can from mr bolton and in that appears to be the pursuit of the defense counsel and this was the say not my guy he's got this person over here who's a very bad person and has been going on for a long time oh no why should you question allies defense counsel for trying something if we want to quibble with your assumption of thin evidence versus fairly strong evidence and this is my only way of saving my guy no question that the perceived strategy or the strategy that the defense counsel tried to put forth is to distance him like from no question about that the problem is that he he really stumbled from boulder and completely lost the game when he asked an officer about a ninety five investigation and asked him what did the reports say he's inviting trouble i knew it was there was no other mention of the one nine hundred ninety five incident was it i don't know until he brought it out at school that the government was the court steve king for the united states the owners perhaps i could first begin by addressing the last point that judge reinhart mentioned which was this two hundred ten thousand dollar incident the evidence was not i should make clear and i guess i am trying to defend truck counsel a bit here the evidence was not that the defendant was identified as being involved in that seizure the problem that occurred here was the report was prepared nine hundred ninety five by other agents neither none of whom over time that once he got hot from law enforcement in ohio trying to transport money personally he changed his tactics to federal express and then he changed his tactics again by using hotels and  five which the government didn't really have his own counsel that well i don't think it was brought out that way when you look at the record the cross examination the defense attorney was trying to make clear to the witness my client was never identified as actually having been involved  of well certainly i don't think that affected the verdict either at all you're one of my least wanted to clarify from the record that there was no indication that the defendant was identified as being involved in that stage and i think that's what i'm really lost because it seems to me that there is i mean i just looked at this and and the lawyer starts trying to show that well maybe it wasn't the same guy did you follow up to see if it was this mr lloyd answer if it actually wasn't him wasn't answer i think it opinion it was the same person that trying to claim the money back in one nine hundred ninety five i mean they nailed him as the same person i think the question is who continues to try to at the end of year if you fifty eight he says i understand you have a picture but my question is no one had a telephone call i don't know who the person was you're speculating that the person you have is the person that made the phone call answer it's the same person's name who was later identified as shipping seven kilos of cocaine did you have a picture of mr of lloyd i don't think anybody had a picture of him making a phone call but they identify him as the same guy trying to pick up the money and then later on he backs even worse into it then why do you keep saying you didn't find them on what basis do you keep saying you didn't find his money answer because i believe he's a major narcotics dealer he's part of a conspiracy i mean you're the lawyer just keeps backing into a fan well the vault along here is a question of getting questions that you're not elaborate but the question for purposes of whether there's stupid questions i mean that's a very your own client well i think that in the context he is trying to impeach the agents investigation there was a broader attack here on the agents investigation he was trying to draw out gaps in investigation question that you raised just because i think the evidence here was not just a case in which it was a mere presence case where the evidence was very thin this was a very very strong circumstantial case i think that the defendants the appeal is that this is just like the mere presence cases where you have a person who is just guilty by association by mere proximity to illicit activity there are three large activities here that make this certain a very strong circumstantial case which is the circumstances surrounding the october twenty third shipment itself shows a knowing participation in the conspiracy that's number one there's number two the fact that defendant engages in illegal conduct that matches the modus operandi of the coconspirators and then of course there's physical evidence linking defendant to the conspiracy and showing guilty knowledge these sorts of facts take this case away from the mere presence cases which is why i think the defense wants to portray you say physical evidence linking when you were trying to for example you wanted the false credit card there's the john miller credit card which was the credit card used when different checked into the extended stay hotel it was found together with a second false credit card of michael rowland credit card those two credit cards were found concealed in the bed of underneath the be counter there's a physical evidence there that ties those two things together there is the fact that there are federal express shipping materials boxes a drop off location sheet airwave bill at the defendant's residence as well there is deodorizer it is an identical industrial size thirty two ounce can and same brand size type scent hadn't been used had well but it was certainly one suggesting in any sense that the shipping occurred from the conspiracies i guess i cannot emphasize enough the defendant has engaged in illegal conduct that matches the m o of the coconspirators this isn't a case where to find it just happens to engage in illegal conduct by having a false identification we have him on surveillance video actually using that false identification to check into a local area hotel the extended stay hotel which is the same chain of the hotel where the coking was shipped just one week prior defend its rights to conceal this conduct by hiding the credit card the license the hotel room underneath his bed and then the circumstances running the shipment itself are suspicious because if a defendant is was going to be kept in the dark there's no reason why bolden would go with them to the drugs i mean if the fed it was just being asked to be an errand boy there's no reason to both of them would be there as well because both been cast as much this mission on himself by meeting at his own house driving together to the federal express center to mail this package of co i would note that this shouldn't was done by the defendant in defendant's car there's a package of cocaine in defendant's trunk they're speeding to the federal express center to make a six o'clock cutoff there's no explanation for why they have to go to a different city forty five minutes to an hour away in order to ship this federal express and it's hard to believe the jury could have assumed that a defendant would allow someone to put cocaine in a big patch like this in the car never asked what's in the what's in the box why are we traveling an hour away to drop this off why do we have to make the six o'clock today and if you want me to do a favor i'll just drop it off myself some other time but they do it together that's evidence of joint coordinated activity the shows the conspiracy here i stared i just got ten seconds left if there's any further ling don't defense was wasted by defense counsel when he invited testimony that had not been put in by the prosecution and once in bikes in the testimony w