a drug dealer that was the testimony of whalen williams the central figure in the overarching conspiracy in this case and it was unconvert and controverted when he testified to it the one time m tried to buy meth from him he said no i'm not a drug dealer even the government's case agent john morrison testified that mr hall was in an ongoing customer distributor relationship despite that testimony the government wants to convince the court that there was sufficient evidence to show that mr hall had engaged in the larger conspiracy alleged in this case for three number one because he had an ongoing buyer seller relationship with mr williams there's no question that he was buying one it is a methamphetamine on a regular basis from him prepare a personal use number two that he had distributed a quantity to his friend julie gethin and megan walk ins on one occasion when they were at his house basically passing the pipe in a social manner so can't can't we using the evidence favorably that the government reasonably infer that fourteen gram purchases would have been for distribution given  from him were wasn't very much and that he believed that mr hall was using those quantities and even agent morris and i believe possibly agent epps testified and acknowledged that methamphetamine users generally increase their personal usage over time which is very common with a meth addiction like mr hall  correct your honor it is a question of fact but it's a quick but are we submit that it wasn't a rational decision for the jury to take the word of a case agent honor i agree that yes absolutely it's evidence against us that wayne it i don't think that the testimony that the generalized testimony offered by the government witnesses can overcome the testimony of the actual person who was providing the met to mr paul that it's not while while it might be a choice for a jury to make it's not a rational choice because the testimony came from the one person in this that kind of separates this case from other cases and this court has of see where where it requires a lot of circumstantial evidence to establish whether somebody in mr hall's position was went beyond a buyer seller category here you have the central figure of the government not only the the conspiracy scheme but the government's case the entire case was built around him and in order to say the testimony that that amount of methamphetamine the mr hall was purchasing from m williams was not a user amount and was instead a seller amount you would be disregarding the person who was actually involved in those that distribution and he can i ask you a  the the threat posed by jessica in arkansas no your honor not if you look at that phone call as a whole because in fact if you review the phone call very carefully it's actually mr williams who starts the conversation talking about somebody in arkansas having a conversation and bringing up their names so mr williams just like other telephone calls that occurred where the government alleges that mr hall was providing counterintelligence for m williams it was mr williams who started that conversation mr whole weight isn't it was only after mr williams provided him that information and not vice versa and you see a pattern of mr williams talking in the in the exhibits of the telephone calls that were made you see a pattern of mr williams telling mr hall what he knows about what's going on and there is a one test where mr hall says the roads are too hot we read accused of talking to the police yes sure and that's and that phone call is critically important to our argument in relation to our st proposition challenging sufficiency of of the evidence but we also challenge the very admission of testimony of that evidence in our nd proposition challenging it as the other as just nor proper for a four b evidence that telephone call taken in isolation doesn't even really make any sense but it certainly doesn't show that mr hall was acting as an enforcer for mr williams and there's a couple of reasons why when you look at the language that she used in that phone call he doesn't say she snitched us out he says she snitched me out it has nothing to do with the greater conspiracy willing williams testified that it had nothing to do with drugs whatsoever he's not really sure what it had to do with there was no response by mr williams and to that phone call he didn't ever go find mr hall that night find out what was going on as far as we know the police were never even call so it appears that that phone call on mr hall's in was out of excitement and paranoia that something had happened that and did not actually draw any police response and so the phone call itself doesn't make a lot of sense we don't know what happened because the government never bothered to go find out what happened they never bother to contact they really who hate to even figure out who they really is a little known interview and mr hall was never arrested for domestic violence so we don't really know what that telephone call is about that and for that reason and the fact that will and williams once again testified that that had nothing to do with drug distribution does not help the government's case as it relates to whether or not mr hall was acting as an force or to protect the greater conspiracy and again you would have to ignore williams and testimony about that situation and the fact that no other information beyond them in you window was offered relating to that phone call to connected in any way to the drug distribution is he did he also  does because that would not be an employment exchange amongst friends particularly in the area of the state of oklahoma but that that that gun transaction occurred in and so know it in of itself and its minder standing based on the exhibits that it was actually williams who was purchasing the firearm from mr hall again not vice versa and so while it might reflect that mr williams had concerns about his own and drug distributions he it certainly doesn't show any act on behalf on the part of mr hall that could possibly increase his participation in circumstances around meccan law megan walk ins testimony that she left his house and want to cation with methamphetamine for all we know she could have stolen the methamphetamine so so on its face it does not and additionally low level mid level or higher level drug distributors who are basically distributing drugs for profit or for other benefits and mr hall passing the pipe to the two women at his house certainly doesn't under this court's case law constitute distribution and the information that meghan walk ins testified to for the st time at trial nobody ever had ever heard that testimony ahead of that and at least there was no notice of it and certainly does not suggest that he in any way had any kind of benefits and or received anything in exchange for the minute they put him in that she took so i do not think that that testimony is enough but it is certainly not in any kind of manner reliable enough for this court to rest it decision that that chris hall was more than an engine user as opposed to in the actual distribution scheme and part of the greater than the sphericity and if if the court will let me i'd like to reserve the remainder of my time you may trial actually ask or there was any forum for the evidence and you got a reply from the prosecutor that there was not but in fact it was very serious for the evidence and in particular the defendant was arrested at object i think he had early objected to the introduction of the other crimes evidence during the course of the trial proceedings at the time when we're talking about the eighteen grams as opposed to the additional tax i don't know for not bringing it up earlier but i don't think he should have been expected to bring it up earlier because the prosecutor told him there was no formal for the the prosecutor tries to claim that this type of evidence is rest just odd but there are that is something that is designed to divert the jury's attention huddleston case obviously addresses whether or not matters are substantially whether the introduction of this evidence has substantially outweighs the potential for run for president and also whether or not the jury was ever instructed proper when the jury was never instructed properly in this area and in what way was was the jury not properly instructed told the judge that you withdrew your request for a living instruction so is it waived with regard to an argument that the jury was i that mr cushing was purchasing roughly this amount twice a month for mr williams so if you say fourteen grams is just for his use the argument was that he was a heavy user and this is still just about the amount that he was acknowledging that he routinely purchased for mr williams why was this in the in this  obviously the testimony of officer brian epps testifies very commonly for the defendant usually at the end of most trials and the issue is not whether officer epps is qualified clearly this court found that officer qualified to testify with this increased carnivore says gonzales but the issue is whether the district court exercised its gatekeeping function to ascertain whether author has the money was necessary to assist the trier talk about you may be getting opinions from experts which basically is nothing but the regarding evidence connected to existing data which is only if it's a fix it of the expert this court has noted hall and researchers who argue that this type of evidence should not be allowed and they cited the case the district court case rodrigues which is an excellent treatise really on  the problems that arise from this type of expert testimony and there are three problems essentially that arise but one if you have expert testimony that mirrors the testimony offered by fact witnesses and in this instance there was ample testimony beyond the can of the average sure there's not anything particularly after the testimony of these witnesses that was not something that the average girl would not have already understood and then finally the expert must point to testimony only to hear when the issue was raised a little bit more about officer epps credentials but the prosecutor was never even required to disk just what the testimony was going to be about and the district court never their officer s testimony would in fact assist the jury and during the course of officer s testimony of course all these problems arose he decides that a large plastic bag means that the defendant must be higher up in the organization he decided that somebody who says they want to twenty because they're down and out could only be wanting twenty this related to drugs as opposed to a twenty dollars bill to try and help them get something to eat the jurors are left with see him premature of officers conclusory opinions based on this and it conflicts with their  constitutional duty to sort out the evidence and selves rather than to have officer eps come in at the end of every trial and sort it out for them finally there's the issue of whether or not there was a prejudicial eviden so this was the only time that was mentioned right but it is the type of language that harks your ears to think that he is my client and he could have already been busted and gone to prison beyond that we think that either singly or cumulatively under the analysis that these three errors prejudiced  morrison testified that there was nothing sinister about those text messages and you have ample testimony from williams another sister what those text messages you have a situation here where i don't want to run out of time today so to make haste that was published after the primary breaks were filed in this case and i apologize for not providing it sooner because i didn't discover until i was preparing for this oral argument  and twenty an opinion by judge holmes the case although it rises in a double jeopardy context with a mexican border gate heap or who was charged with conspirac and colorado and texas because it discusses quite a bit about conspiracies interdependence what this court will look to whether into germany if there's one conspiracy or two the court will look at whether or not there's a shared objective if we're going to use only that which tests we're going to use and understanding that when we're looking at whether or not there's a variance that you're also allowed to look at the time the commonality of time place and activities  and there is just language there that i think is important for this court to consider in issuing an opinion in this case and i really want go beyond that list court as questions because it's not a case that was raised but it is something that circuit very recent published law that the court should be aware of in this case there was the jury found a commonality and a conspiracy in which both of means listed in that indictment indicate the kind of activities that were undertaken there was a chance an agreement to possess and disturb it was disastrous intent to distribute methamphetamine that the parties with  phones to communicate with each other through fun calls and texts that they would use automobiles to travel whether some acidic pick up items from a source or to travel to each other's homes in that rural area there still well  question i don't think that that's the only way to construe it be the testimony at trial indicated that on the one hand you had what i consider the three amigos hall wayne williams and jesse catron who had no each other for years since childhood were right france mr lance client mr cushing was brought in and later on mr cushing was brought in i think it's reasonable conclude from the evidence because he had a house that was on a highway that had a lot of traffic that clearly he had customer base and that assists the the organization that like there was a lot of a lot more testimony about mr cushing having a lot of people coming and going from his house folks who would hang out over there use methamphetamine mr hall d tended to be much more circumspect kind of tended to share and distribute only to you know close friends the both defendants were indicted for certain over acts as far as receiving methamphetamine and distributing that others here there are a number of items that were similar in how they treated this conspiracy that they communicated by calls and texts that there was a code that they utilize to stars when williams if his gate was open it meant county and they all understood that sometimes on the phone he might say that he wasn't there but you could still come by because he probably was there was a lot of secrecy they tended to keep this a very tight group there was transportation and driving to and from the various house for drugs or for money it's on the parts of the know yes we certainly esther mr hall we can look to the amount that he's using we can look to the testimony of at least two women who went to his house and they knew they were going there to get methamphetamine and one of those witnesses who indicated that at least want she left there with with methamphetamine that she took with her now there was an argument made here today that perhaps that was because you know she could have stemmed of that it's much more likely that she left with that amount because she was being provided that amount by mr hall if i give drugs to a pro you know  that it depends upon what he's receiving in return if they're just sharing the drugs maybe not although there certainly case law that indicates that he doesn't necessarily have to sell that i believe that it certainly reasonable for a jury to assume that part of the reason all that was being done was because he was a source of meth that that me for the defense would like to point out here would like to indicate that mr hall was  user and he was using all this meant that he thought over these years from when williams that mr williams testified well he may have said i never knew he'd be a drug dealer mr williams also sandy he would not agree with defen questions that mr hall was out of control or major drug user he said in fact he was lame or worried about his friend mr hall's drinking that he was his dress now so julian guffey specifically said i did it because he was my forehead so when you said i think that the jury could disbelieve that well jury can do anything they want i suppose but there is no evidence to referring to the person who left with a hamper graham which was begun walk ins and there was no testimony to make him walk ins and given any consideration had paid for it or anything like that  correct that is correct as you make it that was that she left with them but she did not indicate things that she did in return and where i also call court's attention to d the fact that it is not unusual for a taste to get them interested or as a reward perhaps for something they've done we know that in this case one of these individuals to tell you the summa sure it was wang williams  because when she got up at hall's house it always tasted oily like mine well i mean it so there's not a requirement that there has to be a show in exchange for cash in order for this for him to be asked mr about the you know the call about jessica and she pointed out that that was really williams who was initiating that in with regard to the call about hailey you know he he presumably was talking about it when he said the program and he the complaint was that hailey had snitched on hee haw will so so what evidence is there a whole supply counter intelligence for williams well he's talking about st of all as court previously mentioned he did indicate on one occasion that the road was too hot for them to be on these are this is a rural area and i hear county these are ranchers who are able to watch out for one another and that's what they're doing be even if even if the defendant is remembering correctly that mr hall was the st one to mention this woman's name they did discuss the possibility of whether or not someone was talking with the yes and whether it's people surrounding someone's house or gathering up near the church building or any of the other while wayne williams may have a chimp in to protect to spread mr hall to the extent he could during this trial by to some degree minimizing whether or not hall was a drug dealer you know the way your major conspirator mr williams by this point had already confessed he didn't live guilty he's testifying on behalf of the government but that doesn't mean he has to go out of his d way to hang his friend hall if there's any way that he can assist him and i believe that that's what happened here difficult question because it's different but that's because they play different roles in the conspiracy the evidence as to cushing is much stronger as far as him being a distributor because that's what his is he's brought into this because he's got a lot of test mr hall distributes to a degree and we admit we only have couple of witnesses who talk about mr hall distributing sharing giving someone a little bit to walk away with but mr hall was in this from the beginning and mr hall helps keep an eye on who's going up and down the road and i guess county keeps an eye on who may or may not be talking and no matter which of those defendants mention the name st they're both having the conversation about whether or not some of these women are snitching them out so they play different roles and the definite roles that they play are all important to the continued success interconnect and it's important because the success of each one of them depends upon the success of the others without the customer banks provided by cousin who was wayne williams  we have with mr hall is the testimony of the two women his method his house that must be particularly the one who left with some and the five calls and five text messages that went back and forth with mr hall indicating discussions about law enforcement his engine whether the roads are hot whether or not one or the other of the may be under surveillance suppose it was not preserved but as to the forum for be evidence we do not believe that that argument was necessarily preserved either there was not an objection made at the bench they simply agreed to ask for limiting the search and then they did not do that january the twenty these are in march so why wasn't this just classic or improper for him or be evidence of other crimes other other mainly because the text messages indicating later sales indicate is indication that he was continuing that he had these these people distributed before and that he was continuing to do that it supported the argument as to what he was doing during the time that the conspiracy it also this tax also or sponsored with information that was ask you this are both of those answers completely contrary to what judge white his explanation because he he held it not because it was evidence of consciousness of appeal or for some other proper purpose and for a for b but because it was rest justified and you have it so far defended that rationale so if that was his reason did he not abuse discretion even if he could have even if we credit your two theories even if he could have been doctored those he didn't do that so would isn't about risk just that feel within his discretion i find that the material was racist yes i we would argue that that is similar to finding that it was intrinsically connected  that we would argue that the court made the problem considerations in looking at for a for be evidence and the court should rely on what the trial court said as opposed to my bill of these two recall off the top of my hand what went on with the knowledge that we believe was shown as far as the shared objective the interdependence among the cups and spears we do not believe that this is a case where there was any kind of  that the instructions on the conspiracy were sufficient that the instructions talked about a single conspiracy the conspiracy and that they were adequate under the law to cover this consideration we also would urge the court to find that the other crimes evidence that was admitted was properly admitted that even if there had under any circumstance and the single question as to mr this thing as far as where he lost his source we women are this court to consider what's already been pointed out that that was not referred to in closing argument it was never mentioned again it was one question in the course of a long trial but to read that as something where a jury would understand mr seem to be saying i went to prison just doesn't make sense given the language that was used and he got best if he went to prison and  in fact there's just no way that that could have influenced the verdict to the point that it would be fine err given all of that we would urge court to affirm we would urge the court that there has not been any error sounds of the certainly not  jetted to that testimony as it related to mr hole in the objection was the state and so i do not think that portion of the record assist the government in terms of its case against mr cole and grouping him in with millions i want to make a comment about quickly about the government's argument in general because the government's argument in general is this was an overarching conspiracy everybody was acting together everybody had their role involved we can talk generally about this dearest say it comes very close to to transferring guilt from one coconspirator to the other and the the government that answer the question about what the what the strongest cases against mr hall in terms of sufficiency of the evidence to show he was part of the overarching conspiracy and we never challenge that mr hall was regularly purchasing methamphetamine from mr williams they clearly had that relationship and they were clearly concerned about protecting that illegal relationship they were also friends they've been friends for twenty five years but the government points to the one time that are at his house and passed the pipe and it suggests that he was circumspect so while that is the only incident of distribution they actually have evidence of and but there were over six thousand two hundred communications seized in this case of the six none of them prove that it's more that they can sue friends sharing methamphetamine socially i