good morning owners i'm michael drake from the federal public defender's office here on behalf of the kids and i'm going to try to reserve at least three minutes rebuttal and i'll watch the clock on that and i want to talk about sufficiency in this the court for to start somewhere else  there are two ways this court can rule in favor of mr has been on his fishing to claim there's an easy way and a somewhat less easy way i'm going to focus on the easy way which is to rule that the government completely failed to prove that the pills that were sold as a legend in each of the counts in the indictment were actually counterfeit biography how can we do that given defense counsel's repeated statements taking that issue off the evidence don't matter because by that time failure proof was complete no rational europe could have found anything different after listening to a lawyer tell them more than once the pills were a counterfeit they couldn't have found the pills counterfeit well they couldn't in any case have found the pills were counterfeit because there was a complete failure proof point there was no evidence before them so i mean the government tried to have any any authorities for the proposition where acknowledged i don't i mean we don't have anything the briefing on that i hadn't seen anything in the briefing what doesn't it seem kind of contrary to common sense well i say if i think if you look at the case law on judicial admissions i don't think you'll find a case where defense counsel made concessions where there was a total failure prove that were held against counts usually when you look at the judicial admissions cases it's about them i think so best that benson in particular u s b benson record and then the government forgot and so there were lots of this kind of we're not going to focus on you know our focus isn't on whether the bank was insured statements like that from sent samples those weren't admissions in that case because there was a total failure proves i think if  and who witnessed the seizure and who transported the drugs and where they were held and where they were transported from dates of seizure locations of seizure right not to say that all of those facts matter but one of them does and here there are none literally none that the government tried to prove that the government's that the that the pills were kind of counterfeit through the testimony of the pfizer chemist but there's nothing in her testimony that that contains that provide evidence that those but she does reference this case well every testim she could have that every case is going to reference this case but the fact that there may have this witness testify in this case about those results isn't any kind of evidence about the pills that are at issue in this why not it is evident she says that the camphor in this case now she may not have offered much to back that up but she said that why isn't that evidence is evidence subject to attack but it's evidence  i think that the generic statement that this this legend eric references to this case i mean every every witness who testified in a case testifies that this case that says nothing about what the evidence that you're testifying about and that's the only itself is evidence if you can challenge the evidence but it is evidence so how do you say complete absence of evidence in the complete absence of the relevant evidence well because it surely relevant it's about this case it may not be in your mind pro but it is certainly not compelling but it's evidence isn't it is testimony offered during the trial but it's certainly evidence offered during the testimony at trial but the question is what in the testimony makes evidence every every statement by a witness at trial will be about this case and evidence in this case exactly your ear attack is on the strength of the evidence you're saying that she wasn't capable of making the connection but those are things the defense counsel could have attacked during trial and instead defense counsel busy telling the jury the bills are counterfeit that's not what we're focused on well ok that's a strategic choice you've got to make strategic choices but i don't see how you can say that is not evidence when in fact i think it is by definition it has to be evidence of evidence and the question is whether it's relevant evidence in the jackson no that's not relevance it's surely relevant the question is whether it's sufficient is just an on its face what's not relevant about it because there's no connection to the dot you're saying it's not probative you're not saying it's not relevant if she says is these are from this case what's so relevant about that was insufficient about it i mean i i think i've said what's insufficient about is that there's i mean that's i have to say except for that i'm going to clarify one thing one somewhat different point but it is the case that during closing the court allowed the sufficiency claim and right you can frame that as a chain of custody issue and it was framed in that case is a chain of custody issue but if florrie means anything it means that you have to have some of those points and then i would urge you to compare and if the court would like i could provide twenty a briefing on benson and the difference between benson and james where you have statements by defense counsel that big could be interpreted as as concessions but i don't i think if you look at benson i don't think that and if you could james i don't think this case compares i don't think what you have are actual admissions that can be held pencil because by the time he made something that you could fairly construe as admission by that point what i call this is a failure of proof was complete and that's what i tell what i think that's what i came to talk more questions on the on the hearsay statements aren't they only relevant if used to show his man was actually accurately stating his belief yes yes certainly they have to you have to believe that that is you have to take his statement as reflecting his act of belief and i think that's why he's making a sales pitch well ok so there's two games he's not caught in an unguarded moment he's trying to sell product to somebody so why do we have to take that as being a reflection of his honest beliefs the well you would have to take it as a reflection of his honest belief in general i mean the the the  chance for reflection because it's a sales pitch the problem though is that it's difficult to maybe impossible to view this as a sales pitch in this context because if you are a if you are selling pills and your buyer is saying yeah i want the super strong stuff the stuff that's stronger than the real stuff and you're telling the the buyer that well what you have is just exactly the same as what you get when you buy over the counter that's a very weird kind of sales pitch you're telling the buyer you don't have the super strong stuff what you have isn't stronger than the real stuff it's the real stuff so i don't think the sales pitch theory what you know works i don't think that's a coherent way to to reject is there a difference between the statement about testing is that in a category by itself i tested the pills taste in effect and the other pills yeah i do i do but i think statements when he says directly you know i think it's because i mean he never i don't think we have any since we just says flat out you know i believe these are real laggard he says states make statements that were flecked that belief those are probably the most where the where the we have to make the largest inference yes statements where you know i sat down and cut the i put in side by side a cut of them i had him up i tasted them those are statements of memory to prove photographs they can make things look different than they really look i think all that was required not much was required nothing exotic was required simply a question by the government counsel to that to the effect that you know just to get back to your question that the district clearly took defense counsel's concerns as concerns about the accuracy of the photographs and compare the pills with what would be the only physical evidence to go back to the jury on that on that of whether or not the defendant's pills were counterfeit was certainly not at issue at all during the trial was something that the government had to prove it certainly was something that the government had the burden of proving unfortunately the chain of cause the evidence wasn't as strong as it ideally should have been however it's very clear from the record that the fence counsel conceded that the pills in this case were in fact counterfeit during the opening he says that the reason we're here is because what i don't expect to see is any evidence that mr hickman himself actually knew that this is counter fit that directing the jury to the question of whether defendant actually knew as opposed to whether the pills were in fact counterfeit and in closing counterfeit was not at issue during this trial the government yes it did have the burden of proving that they were in fact counterfeit but we would submit your honor is that in this case on this appeal all evidence presented a child must be viewed in the light most favorable to the government and yet the chain of custody evidence was weak however we had the case agent testifying on the stand that for each undercover by he submitted one box as a sample  pfizer for testing to ensure that those pills were in fact counterfeit the chemist from pfizer ms callahan then also testified that she received five samples in this case and she tested each of  and they were each counterfeit in addition to that you have the testimony of ms callahan lined up with the testimony of brian donnelly also from pfizer both of them testify that the counterfeit pills that the defendant was selling were distinguishable in the very same ways from the authentic the polls that were presented or emitted into evidence by mr donnelly but as they were larger they were darker and they all varied in the same way so defendant we would cement is taking an unduly narrow view of the rule against the state here if you look at each of the five statements that defendants sought to admit trial each of those statements consists largely of the statements have no probative value unless they are taken as true so we would submit that those are in fact the statements of a salesman a salesman who is trying to sell a counterfeit products as a real product as a genuine authentic accepting what you've just said is true aren't those statements that i tested the pills different from the pills came out the back door of the pfizer factory recent news reports are full from a suitable company fly to protect their profits would you agree that that's a separate category of statement i am not i am looking at each of the five statements that were different but to admit at trial your honor and i believe that your honor is referring to statement number four but in that number four as distinguishable from the others because statement one as your owners know from the from the papers the government actually introduced in its entirety statement number three half of that statement the government also introduced in its entirety statements two and five your honor as we would submit say pretty much the same thing as statements one and three that is the stuff works for me as well as anything i've ever gotten over the counter and you know i think i hope that answers your question regarding what our characterization of the statement it took me a moment to find a list of which one was which so i didn't stay up with the a let me ask you about i think what you call statement number four which is the back door of the factory statement and isn't there a difference between offering that statement to prove that in fact the pills got out the back door and offering it to say that defendant thought that they were authentic because that's how they'd been acquired a surly couldn't prove the first but arguably can help demonstrate his belief  true they have no purpose you know i think that let's focus on that suppose is dead wrong they didn't come out of the backdoor the pills are counterfeit but if he thought they were authentic he thought they were made by pfizer and that some employees had smuggled them out it won't prove the first but it could prove the second that is his belief in whether they were counterfeit so i don't think you have to accept them based on being the testing argument i understand that but this one i don't think so i don't think this one is aimed at going to proving that the pills actually came through the back door it's offered up to try to prove that defendant thought they had gone through the backdoor and hence thought they were not counterfeit shouldn't that admit admitted this statement says let's face it pfizer is not making it here period it's just coming out of the factory out the back door and pfizer can't control it more and it's not entirely clear that the statement relates to the pills that different was selling because if you look at the beginning about statement he says you know some stuff pfizer says it's counterfeit but i don't think so the some stuff that pfizer says is counterfeit what he would be seeking to prove with this particular statement here on that subject tell us why it's harmless your honor looking through the record this case involved hours of recordings both audio and video of the of the defendant trying to sell his product to our undercover and he knew that his product was counterfeit and that is proven in a number of different ways and he was selling a lot of packages what he characterized as a lot of packages at a very low price the records show that he knew exactly how his prices compared to the prices of authentic buy agra he knew that he was selling his pills for three dollars and seventy four cents each whereas at the kaiser pharmacy biography awesome in two hundred dollars he said that there was no difference between the pills there is no do reason to compare two items that you honestly believe to be the same unless you think that there are actual differences between why i take a bottle of aspirin and cut open every single pill and paste every single pill if you didn't think that they were the same product well he's not the one that got into the back door maybe that's his way of checking out his source to make sure he's getting what he thinks he's bought potentially  but the evidence here also shows the defendant expressed a fear of both law enforcement and a fear of five investigating the reporting so that this defendant is constantly asking undercover agents whether he was he was law enforcement whether he was a fighter investigator and there are statements from the defendant saying that he was laying low taking a break due to some attention from one fourth man and that wasn't just general attention from law enforcement it was on for some attention to counterfeit products and sale of those products he talked about a sixty minute special he talked about a deadline special and those shows specific were specifically directed counterfeit goods and then there's a friend that goes ahead and says he talked to his attorney and his attorney said trust me if they want to talk to you you're the last one on their list and that conversation took place right after the dateline special about the counterfeit goods in addition the defendant says to our undercover agent that pfizer sees millions of dollars they're not getting because these countries other countries can break it down and remanufacture it the breakdown of a product and it's remanufacturing simply isn't relevant if defendant in fact thought that these pills were coming out the back door of the pfizer factory so we would submit that the evidence in this case was strong enough to support the government's view that the defendant and the more the man i mean this is a sufficiency of the evidence challenge on on this element this is that the admissibility of evidence and of evidence that should have been admitted was not the question is what's the impact so the question isn't quite the same is was the evidence sufficient to support the government's case the question is can we be confident that the exclusion of evidence that perhaps should have come in didn't have an impact crackdown and we i would i i do apologize i did misspeak but we do believe that the air here was harmless given the amount of evidence that the government put on sewing that the defendant did in fact know what he was selling and that was counterfeit goods i'd like to ask about the belts and you sure do you ultimately concede honor there was no other possible reading of the record except that the government explanation less protection will sanction so on the other hand provides that unless the defense counsel makes a record because the government otherwise could have had the opportunity to explain itself but the review should be plainer that alone is to impose on the trial court an obligation to complete the three step process and make a deliberate decision articulated a deliberate decision that is correct your honor however we would submit that the very distinguishing characteristic between a is that the only possible reading of the record in a long it was that the government's explanation was predictable and where there is any sort of ambiguity or provide that there should be some record laid by the defense counsel as far as why the government was insufficient or why the trial court's procedures were insufficient in the briefing on appeal the government focuses on new explanations post hoc explanations for the actual size of the strike this court can't look at those the court is restricted to the record made a trial correct further explanations proffered by the government give some context to the challenge itself so that this court may see that the only possible reading of the record was not that the government explanation was protect of custody evidence wasn't strong strong that should have been it was weak it was nonexistent the question for this court is what that means in the context of a jackson claim on the here's the issue there are two points on that first statements for example when the testing statements make sense only if in fact he did the test right right and to the emmett to the extent there is any concern about what the government calls a merger i just want to make it clear that it doesn't matter because under eight zero three three because you can he could say i think these are real viro think these are the real thing that could be considered under you know three three flat out that's a statement of belief to prove the belief and that is fine under eight zero three three i think consistent with selling gray market goods and for that reason the government's argument sale in the blanco and silverman because they have to the evidence has to be sufficient to prove the something else but i think that's really true it is irrelevant i mean he's talking about right he's if you're selling gray market by agra then the fact that there are investigations of d n a investigations into the into the viber is going to affect someone who's selling grey market indicated she was emotionally affected but she did request a sidebar isn't that can't that be reasonably construed as some signal of discomfort or emotion not wishing to discuss the matter in front of the others