cooperation of the attorneys in this technological approach to doing that as for special instructions i have none other than to suggest that if you are arguing multiple case the court has any questions we will of course the asking questions during the course of the argument on the issue so to accommodate that if you would speak in a normal conversational instead of the breakneck pace that some the st issue that i wish to address before this court is the issue of the but for cause of death of the woman who died in this case after the drugs in this case were distributed in thinking of this issue it occurred to me that there is a famous saying among straw members that absence of proof is not proof of absence and i believe in this case what the government proved the trial and what they are arguing on appeal is that absence of an explanation for the death of the mc becomes proof of her death related to the drugs in this case and that proved did not exist a trial there was no but for proof regarding the drugs that were attributed to johnny benjamin and her death what we know is that mc was tragically addicted to painkillers her husband testified that she often bought pills when her prescription ran out and the government argues without any firm proof that the only pills she could have bought were those pills attributed to johnny benjamin the only pills she used were those pills she got from mr slater who got them from a zachary stewart who got them from a johnny from johnny benjamin and there are too many assumptions a fact to consider that this was proof beyond a reasonable doubt to trigger the enhancement and the life sentence the other serious lack of proof in this case was from the medical examiner and t and sensually that proof amounted to the fact that since this was an unknown substance and since it had not been tested any consumption would automatically  that i particularly don't recall that statement but i would not disagree with the court's recollection of that or that this in fact was a powerful substance but what we do know is that there were points to t this is a dangerous amount or not and the facts in the case belies the medical examiner's testimony because the government's facts in the case through text messages where that mr slater and mc had in fact taken these counts and of course had lived mr slater testified he sold three sets of pills to mc so to argue that the medical examiner's testimony was there was not enough evidence to support it because if you take it one step further and look at her answer to why she arrived at that conclusion and experts conclusions must be supported by the record her conclusions are we don't know what's a safe amount this is dangerous so therefore any amount is lethal i'm just curious i thought that the experts said  agree with all of that but here is the next leap that can't amount to proof beyond a reasonable doubt because of that and because this substance is unknown as to  not i agree that the chain of custody is that she received pills the day before she died but of course the assumption is those are the only pills she received and that well those pills a jury could  er that the reason she died when she died and that relate to when she got the pill that the defendant himself said and warned were much more potent and stronger is because she shows that that's actually the pill she took from dr benjamin and this pill in fact was the was lethal enough to cause her death because all the medical examiner ends up saying is she there's clear evidence page nine teen she took enough to kill her it's not the same thing that she that this drug did kill her if i may move on i'm at two minutes and forty seconds left on my ten minutes the nd issue i would like to address before the court is this somewhat complicated issue of jurisdiction and i would basically simply say this we've presented the court information that the criminalize this substance f u on november th two thousand and sixteen and that that is after the time period of the indictment and that the notice that is that we provided a cite to says that all criminal and the government's there it is and essentially what i would say is that this notice on its plain language criminalizes this substance because it says if you have it before this this is how you turn it in so i understand what the court in the government is saying that essentially these substances all use the word blink into existence and criminality when they are created by a chemist at whatever time that is then the d becomes aware of it i will note that the analog substance act is inside of the controlled substance act and this notice of november th then criminalizes and places the substance inside the controlled substance act i would like to move very quickly to the search and seizure issue and argue that this is playing on the record that the search was not consensual that the court's findings that this search of dr benjamin's back would have occurred because there was probable cause specifically as but lied by the order on the record by the testimony on the record that the agency said they did not have probable cause and i would ask the court in the fifteen seconds i have left to consider this it can't be consensual under florida versus boss stock which was a bus case at a bus station dr benjamin argument on a pill on appeals fail for the reason stated in our brief but here i will just make a couple of points and response to the discussion today and of course i'm happy to answer any questions that the court may have examiner testified specifically quote she would have been alive if it wasn't for the pure and sentimental end quote the record fully supports that opinion the alcohol and tramadol found in her blood in addition no did not contribute to the death according to both the medical expert and the toxicologist the alcohol that was in her system was approximately one drinks worth far under the legal limit the tramadol was a trace amount if that and again the medical expert or the medical examiner testified on equivocally that those substances did not contribute to the death there was no other explanation for the death there was no dobber challenge below it and the basis for these experts opinions they were undisputedly qualified experts and it's true that there are no studies specifically but it's not as though the medical community knows nothing about it and has no basis for concluding how lethal it is medical professionals know what toxic as the experts testified clearly here the medical basis for making these conclusions about france and the toxicity and the role played in the deaths here are supported and the reason there are no studies is because the drug has no legitimate purpose and it is so dangerous that the medical  examiner testified that you can't ethically do studies on this drug so there was plenty of evidence to support causation in that regard there was also more than enough evidence to show that came from benjamin construing the facts in the light most favorable to the government as the scores required to do shows that benjamin purchased and thirty mold dyes for a tablet pill press and again am thirty was the marking on the pills that eventually made their way to mc in the storage unit the benjamin least the pill press wheel and other items were contaminated with journal sentinel residue the testimony showed a clear chain of distribution from benjamin to stewart from stewart to slater and then from slater to n c in august of two thousand and sixteen the testimony showed a final sale of twenty mc on the day she died and those came from slater fourteen pills were found in her bedroom with the same and thirty markings and those pills tested as  chemical that was found in benjamin belong in stewart and later immediately suspected benjamin's pills and benjamin expressed no surprise over the death again in this case benjamin also home he testified that he never manufactured pills despite an abundance of pill manufacturing equipment being found in his storage unit he denied the voice on the audio recordings of his the jury can consider all of this as well as substantive evidence of guilt in addition to the clear chain of causation or chain of distribution from benjamin to the victim who ultimately died here turning next to the question of subject matter jurisdiction this court had subject matter jurisdiction all that is required i mean the district court did all that is required is that the indictment alleges offense against the laws of the united states here the indictment did that  analog before it was scheduled the fact that it was later schedule does not mean that it was never an analog of the panel pointed out of course the whole point of the analog act is to catch substances that are on their way to being sentinel has no bearing on what benjamin would have understood before that order came into existence turning next to the suppression issue with the airport search the district clearly err in concluding that benjamin voluntarily consented to the search this circuit's case was clear and both lopez pages and hers bring case that their airline passengers consent to a luggage search by entering the screening area again lopez pages held this clearly stated that alternatively we hold a sign at the airport security checkpoint informing all persons entering  the defendant consented to the airport airport police are searching his bag regardless of whether there's consent by just walking into the security area right correct correct i think there is consent on both grounds you know you both consented by entering the screening area and i think that there was not a clear error in concluding that he consented to the search itself of his bag right because i know i have a record please correct me if i'm wrong the the way this works if you put the stuff through the conveyor belt afterwards an airport police officer approached them said you know brought him over said can i search your bag and he said yes you can and then they brought him to the other room and that's when the officer mentioned the bulls isn't that what happened correct correct and the district court held that the consent was violent voluntary and both of those steps i agree that there is no clear air the district court made both of those holdings so i completely agree the record supports consent here even if there wasn't you know again we had several alternative arguments in our brief but i don't think the court needs to reach that i would just say too that in the briefing below an issue was made with respect to the distinction between an administrative search for safety versus a contraband search but fentanyl is a very dangerous substance here and so i think the idea that there was no safety reason to do this search very dangerous and i believe that is all i would address today based on the discussion in the opening argument here unless the court has further questions we would rely on our that thank you i have five minutes i will respond to the last question the court asked me regarding essentially the inevitable discovery and rely on a case from this district  and fifteen united states versus johnson written by judge pryor that says the government must establish the police would have discovered the evidence by virtue of ordinary investigations of evidence or leads in their possession but they can't establish that because even though it's an objective standard the agent testified that they had asked for permission to get a warrant and they were denied by a supervisor so they weren't going to go that route even if objective leave they could have with regard to just left questions regarding consented and the questions of the panel the lower court the district court here failed to distinguish between the difference of a contraband check and a security check and there's case law that has says there is a difference between presenting yourself at the airport to have your back screened for weapons and a subsequent more intrusive check for contraband which involves the th amendment sorry this is rugged love even if i agreed with you on that legal point think what i wrote in my brief was that unless you are a learned scholar of the th amendment and i think i've cited a case from a from a judge in the th district court of appeals in florida that said he as a lawyer was never aware that he had a right to refuse a request of a officer from i think that michigan down to testified to that fact yes this is different a home is different than an airport and when you're walking through an airport and you go right through the security screening for the weapons and someone approaches you and says they want to continue the screening now we need to remember this was a setup that could have stopped mr benjamin anywhere between the airport and his home as he was driving to the airport but they knew he was going to the airport to search but my argument to you is that this was clearly by anyone making under the under the factors of whether this was voluntary or not they were asking to continue a search that just occurred bullets were bandied about as a reason for this at a point when he was removed from the area and taken to another room i agree and the point i would like this court to address is that this isn't a bus station and this is after september th two thousand and one this is at an airport and the i guess the term of the word i'm looking for is the coersion here is significant you're entering an area where being checked for weapons you're being asked by uniformed police officer to search more intrusively but we know this isn't for weapons we know this is for contraband and the th amendment comes into play in this matter so it's different from a home and we also know that  it's a factor and it's only a factor there's no hard line rule each case is a factor and we think that this is a significant factor based on an airport not a bus station at this time period with the rules of society being what they are in airports i'm out of time i'm not asking the court to ask a bright line rule i'm asking the court to make a decision thank you for your time let me take one second and compliment the court on this court room deputy and personnel who've made this i think for all counsel much easier than we anticipated thank you very much thank you council would present that would take that case and a submission