it please the court in this case judge conrad and i know you're familiar with that having seen it once before judge conrad ruled or trial the government did not have to prove that steve mcfadden knew that the substance he was distributing  there were two major differences that if we had known if we had not been told in advance that we were going to be limited by the clutter doctor and there are two things it would have been different number one i  fairly certain that we would have had mr bad testify about his state of mind which clearly wasn't relevant under or under the instructions ultimately given and also it's possible that we would have had an argument that we could have made that he might have been guilty as to some of the later transactions but not as to some of the earlier transactions for example his state of knowledge might have developed over time and he might not have been aware early on but would have been aware later on and certainly some of the evidence that the government as cited about his state of knowledge would come for example in some emails in law there was a we had filed a motion asking for guidance as to what the court's ruling was going to be a pretrial motion for a trial pretrial he gave a ruling on july on january fourth right before trial that said in fact the specific comment that he made on our motion the defense request for an instruction that would require the jury to find beyond reasonable doubt that the defendant knew that substances he was distributing were controlled and then the trial started i believe it was on on the seventh which is i think the monday following that we had a charge conference with the court i think it was either on the eighth the second or third day of trial  along rather than you have you know the days of trial and testimony and then all of a sudden the one time when you actually talk about things it's an argument in your brain i don't remember i didn't i didn't make a trial  actually discuss that particular issue frankly the argument that we made now for five six months ago in response to this court's invitation  equality frankly based on law and why it is but it but i think the important point that i want to make for the court is that when you look at the at the already cited by the government and for example look at united states versus neater neater is a case where there was no issue that somehow facts would not have been presented i mean all of the cases decide that neither refers to rose versus clarke for example talking about mandatory presumption that is entirely an issue of argument now in seoul or the legal standard be applied it doesn't affect there is no allegation in those cases that it would affect the actual trial of the case the evidence you've got a little bit of a problem in your chronology of events this is what i'd like you to address because i think you have a very strong justice thomas breaks down into two different categories knowledge of the identity and knowledge of the didn't know didn't didn't know either at the identity and he didn't know the chemical composition but after august twenty fifth when he starts talking with mcdaniel in those recorded phone conversation and he starts comparing the bass all the methamphetamine cocaine and then talked about well this does a little bit more than then hardball you know it's a half a hardball or whatever new talks about a roman therapy burning something is more hardcore than another and i won't go on and on but he seemed to show a level of familiarity with the chemicals and what the  get beyond justice thomas category two of cases and miliary with the chemicals once we start looking at those phone conversations in the county five on down well probably the best answer i can give to that is to say that mr mcfadden not having ever actually used either any of the stuff and see was selling or the substances he was wearing to thank you testified at the at the sentencing was basically that's what he was saying to make a sale now that's a that's a credibility issue it's a credibility issue for a jury to many if he gets the he if he wants to get on the witness stand we would have him get on the witness stand of the trial and say i was there is a salesman i may be a jerk but i really wasn't trying to violate the controlled substance law gak or any other federal drug act and i didn't know the things that the u s supreme court has said that i have no now again me at sentencing you know just the times yes and that was one of the reasons again judge conrad had said that we could simply proper is for testimony at sentencing given that he was ruling against us on  i preserved that point during the trial the court's civically said i could present him at sentencing for that purpose it would be considered for that purpose and we did so well the need to under your theory that there could never be harmless the under reasonable doubt  m's so there i mean isn't that the necessary end point of your argument well that you could never have harmed was beyond a reasonable doubt actually because the defendant could have been lying when he was trying to make the sale you are in it is inferred miscible inference that you know something about its chemical structure and that is simply in this case not a valid inference there is a recent decision by the by the ten circuit us versus my r i make a r that was decided after our briefs went in it's eight ten f third eleven thirty nine the basically makes that that point that's a case where the court said that would not have been appropriate and it's a case where the ultimately the case was reversed even finding that there was plain error in the in the news we've been spending a lot of time discussing legal doctrine here but let me let me say first of all and i know i'm about to run out of time and i was about to run out i was sure to have moved on before you asked a question but let me answer it the first point i would make your honor is that with the argument that we are the first argument the first response i would make is the court has identified what might be a great misbranding case a great court misbranding in fact many of these cases are actually brought up with account for misbranding and i don't remember problem in many of these other cases and i see that i'm out of time simply responding to the balance and thank you for the second point that i wanted to make your honor is that when this case was argued the us supreme court specific point was made that steve mcfadden thought he had done that i moderate american practice of finding a loophole and that's exactly what he thought he had done the third point related to that is and this is i'm going to take the rare step of quoting justice scalia from the argument where he basically said you know your price you charge what the market will bear and if it has the same effect as cocaine it's perfectly legal why not charge the price of  is i don't have a clue what it asked all those except maybe you put it in when you take a bath but not what mr mcfadden was telling folks that it was for was a roman therapy you put it on a burner we introduced the burner to burn it sold in stores all over the place and you put it on the burner and you light the flame underneath it and it creates an aroma that's the way it was being marketed i mean there are the name popularly given is bath salts and in fact there are some places that have sold things as bad as all of mr macbeth and was selling as their own their question of mr snow and these are the things like the use of the name i mean everything he did was was exhibited knowledge of controlled substances use names like controlled substances and he marked it of these controlled where's the evidence under number one that he had you know which control seems to me the only way you get to where you want to go possibly is number two and he was aware of the specific features of the substance that make it a controlled evidence in this case comes directly from mystery battens mouth after the date that you've identified as being the cut off answer the court's question i think the question was asked you may have answered directly or asked question directly what is your baffles how to use them what do you do with them bass all to me is something you put your back to if we accept mr mcfadden me what the rational person think about that if i took a bath and i want to run with therapy do i really want to get stoned on cocaine or methamphetamine and the answer is no and the other thing i think it's important is very concerning the knowledge element it apologize just sidestepping your question i don't mean to i think your answer but in this case it's not the kind of case where what mystery fagen was doing was taking a package product he out and when he's making these representations ms madang is saying this stuff is just like crystal meth is just like cocaine and i'm combining the alpha and the for any city and that just like the m d p v and it's only logical despite the fact these one just a construction worker he had to have some knowledge gleaned from some source to be able to put this together because no one was he making it and representing it as a controlled substance but it was in fact we know for a that is pretty strong evidence that you come on this section if you're one of the bad of the supreme court's mcfadden opinion because that are you aware of the nature of what y fadden when he sold the stuffing and for human consumption the jury found that beyond reasonable doubt so if you add that and his representation of what the effect would be on the cloud to affect i think that certainly the government strongest number of reasons why you might or might not do particular thing i can make a very strong reason not put mr mcfadden on the stand because he'd be subject to cross examination by my colleagues who actually did the trial and in that cross examination at the sentencing not to trial but  cause in the case i mean because the statements he was making it really it was eight there was a mountain of evidence or irrefutable evidence against no rational jury which accepted that that for example his statement that when i told him that when i told  ms mcdaniel this was like cocaine and methamphetamine that was mere salesmanship o j long behold it actually had that effect and you see all this evidence that came in the rectory of the government's case in chief all through  thank you for letting me have a few comments there are a couple points i want to make one was as i look through the record just to further response to judge wilkinson's question i don't see any indication that mr burning or aroma therapy or something along those lines not that small the government talked about bath salts the government agents referred to it in as they would give their preamble to a phone conversation that happened on page seven earn on mr make battens credibility maybe we didn't put it up put him up on the witness stand because we didn't want the case around his credibility i can tell the court we didn't want to turn on his credibility when he had nothing to offer on the issue that was in fact before the court it would be malpractise to put him up for no gain but if the jury were properly instructed there might have been again too and that's the point that i want to make in that respect but what i think we look at is court was to be taking us there and so to a certain extent you know we're putting him up there in part as a prop or in part to convince judge conrad that he's a nice guy and that you know he wasn't trying to break the law in fact he was trying to not break the law and obviously the jury had already found in a way that that made that only a sentencing issue and not a guilt issue i personally had the  sense that he came across reasonably well and sentencing that you may read a full transcript and get different opinion obviously a jury would have to make that determination at some point which gets back to my argument that this is essentially the question is if it's a credibility question it's a jury question it's not a question for this court it's a question but that your hope with the supreme court remanded bill sawn off on harmless or up and down you know there's  there are a lot of our most are questions under the meter standard the reasonable doubt standard which i think we all agree applies here it's nice to be somewhat close but honestly there is just  of the illicit trade in drugs or at least an awareness of the nature the exact nature of what he was selling it's hard for me to see how a reasonable jury you know at a certain point in time evidence becomes cumulative your honor the i get back to get quoting my good buddy justice for the proposition that you are allowed to go sell something that they will get you high getting you high is not a crime and i understand that there was an instructional error but this is not just getting and it's just a specific comparison with mcdaniel to known illicit substances that's so damning it's so damaging you would give anything driving down here driving back not to him i'll just say well certainly i would rather work in evidence but i also would submit to the court that that's a proper role for a jury and that the jury might well conclude that mr mcfadden denial of that intent and it is a statement that he didn't know the chemical involved and he didn't and he was just sort of upping it to make a sale the court will note that in virtually every instance when it was always she was asking