rebuttal your honor the supreme court has recently decided the mcfadden case which makes it very clear is that it is reversible error not to correctly instruct the knowledge elements under the control substance that i would like to address the controlled substance act point of our brief first and our the knowing misbranding point second both of these convictions of my client involve very technical that use where there is a stated knowledge requirement and where it is stated mcfadden makes plain it must be correctly instructed to a jury or it's reversible error you have in effect change the crime now the controlled substance analog act has to knowledge components first of all the drug this substance must be a substantially similar chemical that must have a substantially similar chemical structure to eight controlled substance marijuana here when one of the controls it also must have a similar or greater pharmacological effect to a controlled substance war if you represent that it has such a pharmacological effect that satisfies a second knowledge of what the court did in this case is in effect what m reversed while the court below in fact instructed the jury that the government had to prove both that ms hogan and the other defendant knew that the substance was substantially similar in chemical structure to a controlled substance and that she knew it had the same or a greater pharmacological effect as a controlled substance he then said however there  inference issue can draw even if there is no evidence on these tapes that ms hogan knew that the chemical structure was similar to a controlled substance what the judge told the jury was you may infer from the fact that the defendant knew if the government proved it that it had a similar pharmacological effect to a controlled substance you can infer that they knew it had a chemical structure that was similar writes me that's quite consistent with what will three and mcfadden your honor i thought so too and i have to tell you when i first read that footnote i didn't like it at all but i asked the court to read it in light of what the court was then discussing because what it was then discussing was controlled substances not the controlled substance and walk out it is clear from the decision that the controlled substance animal  act discussion and the discussion of the elements and discussion of knowledge starts on the very next page after that footnote and that that footnote was was addressing controlled substances and what how you prove those but there's a mean there's more clothes than that the have to cut in front of it it wasn't brief and justice roberts also said said something quite intriguing and that was that it may well be that in a complex regulatory crime like this the defendant may have to actually know you know it isn't done but the problem is this isn't ducks this is highly technical chemistry and the only witness that it seems to me in the point in footnote three was circuit don't forget circumstantial evidence may be used here as well as in many other contexts particularly when intent is that issue and the word inference is simply an acknowledgement that we're talking about circumstantial  certainly didn't bless but acknowledged the usefulness when you have a known drug like marijuana that everybody understands what marijuana does pharmacologically and something comes along and you see people ingesting it and they start acting like marijuana in jesters it seems fair to allow that inference although i don't think it fortune necessarily single  it out let the government argue that inference here it's not that simple which is the distinction between footnote three talking about controlled substances and the controlled substance analog these are highly technical here is what this highly technical stuff as professor dudley said in answer to questions by the government that one refuted this is much too highly technical it's too complicated that's why by the way cut created years it created the inference to overcome that difficulty your honor which is not being addressed in footnote three why is it more complicated in technical than a drug that's similar to marijuana or heroin i mean if you break those down into the to be technical and complicated but you seem to be saying if it were similar to marijuana it's ok but if it's similar to this analogues than it's not ok to use the inference you  believe that the difference is this with marijuana the knowledge of the chemistry is not required you just have to know it by its generic name it's marijuana pot dope we whatever they call it that is what the proof element in this congress decided to make the knowledge requirement that you know it is sixty actually similar in chemical structure that's why there's a difference and indeed i thought we were dying by a drug that substantially similar to marijuana not that i marijuana well it but they don't but that's not the crime of the crime is substantially similar in chemical structure you have to know your chemical structure not that it's substantially similar to marijuana but that's the difference because the congress has made it this way and  reason i believe that one can ask the question is that you're asking and there's a difference between the two was was was highlighted intercut caught said the the the analog drug act read awkwardly it said it is difficult to understand it's ambiguous it said it is it pointed out actually the language intercut your honor was that unlike known drugs these are newly created substances that people may not they didn't your honor but they but they were did it the way they were did it enter caught made this very serious observation about the awkwardness of that in two thousand and five which congress spent why should the courts have to step in and gloss over something t congress an act the justice department is about two blocks away from capitol hill they can walk over there they do it all the time they're the ones that got this act passed they could go back there and get this straight now they haven't caught even called it an interim measure well it's been a decade now i want to switch to something suppose the allegation were that the drug a substantially similar to marijuana i thought you were saying earlier marijuana would substantially similar to j w a h o one eight in this case yes and so i don't understand your distinction between a drug that substantially similar to marijuana and a drug that substantially dissimilar to the j formula well  you want to try once more the difference is that when the when the knowledge element is substantially similar to chemical structure it's one thing to impose an inference where it's marijuana and similar but in princes don't have to be given in every case the inference is not grafted into the statute the inference your honor is something that the judge does and maybe you could infer that maybe that would be unfair if the stuff smells like marijuana you must know it's marijuana in fact that's what instructed the jury that it didn't have to find that the substantial similarity in chemical structure was to the same controlled substance as was the final logical fact he said it doesn't matter if it substantially similar chemical structure to heroin which gives you a downer and it is has to form a logical fact of a jazzy thing like cocaine that really renders this as follows if he thinks it bit of time i want to invest the core has more questions i wanted to just very briefly touch upon the in knowing misbranding of a drug which was the other thing that this store clerk was convicted of drug as we have been talking about marijuana heroin that's easy but drug under the food drug and cosmetic act is defined as any substance offered to make any improvement in health whatever i asked the f d a to understand whether when my grandmother called me from connecticut and said i understand you have a cold you're in i'm in new jersey you may not come up for easter have some of my chicken soup it will get rid of your cold i asked him if that made chicken soup a drug under the act and he undeservedly said yes now your honour's for somebody to be convicted of felony fraudulent misbranding of a drug they certainly have to know that it's a drug  context the judge read that out of the case when he instructed that that the that the conviction did not require at all that they knew that this was illegal yet the jury and the jury failed her guilty of knowing lee misbranding and defrauding the food and drug and island says there have to be there has to be knowledge of misrepresentations on the label yes doesn't say you have to you know the word misbranding which is which is a lawyers term of art or a legislator or of art that wasn't that incorporated in instruction no your honor and in fact and infill it also says that you have has the instructions taken as a whole do that and you're on it for you did not for one to know that that something is not yet approved by the f d a they must have to know that it's something that's under the control of the a for approval i e a drug she had no idea and that's why they should have instructed the jury that it would or to know that you it in order to be convicted this you have to know that you're violating the law because it is the law that indicates that this is a drug it's a very odd definition how much evidence was areally about what she knew that was going on and she worked there for quite a while didn't she she she knew what was going on your a said you had to do certain things because it was a drug that's the crime and convicted by time it's despite an adequate basis having been made for presenting that defense and on the other hand the government in the dahlberg issue gets to present their witness dr terence boo's who testified on the key issue of the chemical substantial similarity in chemical structure so you've got carlson who's denied his defense you've got the government who gets to present a witness i don't know i'm unclear as i have at times study the record but what happened after the motion in limine they denied what what what colloquy was there about the entrapment question during the trial well they had a session before the trial started where they kind of went through this at length and the defense you know we want to present this evidence the judge didn't think certainly didn't think that senator to testify on we're not saying he she should have been required to testify but the one who should have been a lot to testify and who the defense said during this colloquy was important the key witness for this was barbara qur'an all the d e a s spokeswoman who got on the radio when after hearing this i hear you i didn't hear an answer to my question and for the for the answer is none during the counsel and the defense counsel ever say ok now we've got the government's case judge we told you in the motion and eliminate but you didn't you weren't satisfied that we need we have an entrapment defense here is why we do with gospel depending upon what the trial so ok i understand the landscape nothing happened at trial that was the defendant's any of them to say now we've got now we've shown you judge or the government has shown you queue had to renew it yes let me ask you this why would her testimony been relevant if if what's relevant is the defendant's understanding or what he knew from what she said on the radio what difference would make what what she had to say because carlson gets on the radio and it's because of the little bit of time i have left you're not going to go through everything but the just of it is carlson says there's the band five substances now including j w h national want to ok there's at least two hundred ten other substances out there that haven't been scheduled yet carol his part of the interview is done barbara corrino gets on by phone she's on and she knows that she's been preceded by carlson because the interviewer basically summarizes what carlson says and talks about the two hundred ten substances that he says he can keep selling legally they're still legal is what he said and she says unfortunately he's correct so she knew that he was talking about these on schedule substances and that he felt it was still legal to sell them and that the government says well he did i don't fortunately it's true they can they can they can keep quote was something like unfortunately that's correct he's correct he's correct about what that he can keep selling the two hundred ten substances how do we stay one step ahead of the law that's where you say she meant but how do we know that's what she meant well in my i have got the news article unfortunately read a news article but how do you know that the reporter put together her statement with precisely what you're suggesting well this is it was affirming it's a news report  the news report lays out basically what carlson says and i know i'm just saying that's how the newspaper article reads but how do you know that that's actually what she was talking about it's not a verified complaint or something we don't have a verbatim recording that's correct this is this is not the high times reporting this this is him p r and then when they say this is what carlson and then she's quoted directly after that after that five paragraph summary as to what he said she's quoted directly unfortunately he's correct ok you know and the thing is if if they let the defense present this if this is just totally out of context the government can bring that ou testified to what he would have testified that he thought he could legally sell these unscheduled substances and the judge he says i'm i'm not going to testify so that big well  wasn't that specific but it was implicit that what his testimony would have been was i had good faith belief that i could continue to sell these that was as of the n p r report you know because of the pretrial discussion as here is what our defenses i mean his good faith belief he says he would have said was based on listening to the n p r report yes now there were other things sources that they relied on but we're not saying that those should have been a lot into support it like the legislators who have websites and they say this stuff is legal can keep selling the stuff she is wrong but that's what entrapment by a stop with a official unintentionally but mistakenly leads the defendant into violating the law by telling him or her something that but how do we know that how do we know what she was talking about well the news article is reproduced in my brief and i agree that it's not the most perfect it's not the best way to do it no unfortunately not it probably would have been better to have the recording introduced or bring  a well yeah you'd have to show that when she said unfortunately that's correct that the whoever it was asking the question had laid out everything you're positing but how do we know that the district judge you know i ask you to read the articles reproduced in brief and i think it's fair to conclude that they had sufficiently raised that defense that there was a factual basis for and again all of the government's argument simply go to the reasonableness of carlson's belief if he's got a reasonable belief let the jury decide that that's my point carlson gets to present this to the jury if there's nothing to it if it's not substantiated big they can convict him but he didn't even get to go to the jury it's not the judge who decides us this is just like them or indicating that this article was not enough but then their support to get the defense in but then they're supposed to present they had trained it was enough i'm saying if it were enough why wouldn't that be the proper way to present the case to present the defense rather the fact and i think if you look at these cases you'll find that it's an unusual way to charge these two charge aiding and abetting that he had to know by aiding and abetting that a crime was being committed by jim carlson and that's not present assuming that he has to know that he's not guilty based upon the evidence in this case if you get past the aiding and abetting then he has to be convicted as a principle if you have to be convicted is a principle and principles to set forth by united states supreme court and park apply that means the strict liability can only apply to mr geller manisty as if he's in a position of authority because park pointed out there's a limiting principle that you have to be in a position to be able to change alter or do whatever my client was a clerk i've reserved one minute you're on for re part of our case but it but it would have been helpful certainly if that was the law in our case that that standard is that the defendant is guilty and has the mens rea to commit an analog act offense if circumstantial evidence shows that the defendant knew of the regulated stat it status of the drug under the controlled substances act and footnote one of mcfadden lays out many of the same types of circumstantial evidence that we presented in this case in particular it lays out that word defendant knows that they're selling a substance for human consumption and it gets someone high like a controlled substance that is strong circumstantial evidence that the defendant knows that the so the substance is regulated under the analog act similarly as just your point here though i thought you said the jury was not instructed on this theory the jury was not instructed on this there you are and that's your lead argument well my point my point was going to be rather that the standard in our case was higher than mc if you took a look at the briefing in mcfadden and robert's concurrence it's clear that the supreme court that standard of knowledge that requires knowledge of chemical similarity and knowledge of pharmacological similarity was first outlined intercut and that's where the supreme court is getting that standard i just wanted to agree with the question from judge loken about footnote three footnote three i agree pretty clearly states of the supreme court is adopting the use of circumstantial example have been executed on their premises or arrests have been made knowing about charges in other cases but that is circumstantial evidence to prove either knowledge of regulated status or that the defendant had facts that would require that would have incentivize them to bsolutely right i think both target and mcfadden focus on all forms of circumstantial evidence and we had significant circumstantial evidence of the way that the product was was dealt with for example  of one brand of the synthetic canal benoit's that they sold at last place on earth he testified that after the last place on earth was searched by state authorities on the first occasion mr carlson called him and told him to put false names on all of the packages and all the invoices that mr kanaan sent following that last place on earth that type of a vase of conduct treating this substance as if it is something that is regulated is important and then the more pervasive evidence of that was that all of these products were sold as not for human consumption and that one which is taken directly from the analog act there was an e mail in mr carlson's e mail account from another synthetic drug seller which switch cautioned all of these synthetic drug sellers to make sure they put that on the label and that is strong evidence to not only had knowledge of the regulated status under mcfadden but also that they had strong knowledge that it was that it was a substance that had an effect similar to a controlled substance and that the analog instructed so the jury is instructed on knowledge of the chemical similarity right correct your honor and judge just to clarify your position on this appeal is that the target inference was appropriate in this case and the district court did not its discretion in giving that inference but since we didn't have an opportunity to brief mcfadden i just want to start there we're not backing down from the instruction that we gave the we promoted to the district court in the district court gave in this case and we believe that e is based on the facts of the case at hand and so while i might concede that there is a hypothetical situation where that target inference might not make sense what the district court did in this case in its discretion is determined based on the record that it had before the charge conference right before it instructed the jury did this inference make sense to give as a permissible and not mandatory inference all right so what's the evidentiary basis for a more rational connection between one knowledge and the other in this case first in this case your honor the evidence wasn't starting in two thousand and ten the defendant's admittedly publicly knew that they were selling eighteen which is an obscure research chemical that has no purpose outside of a research lab other than as a say as a recreational drug and then on march first two thousand and eleven d n a temporarily scheduled j w h eighteen as a controlled substance and on that date mr carlson ma numerous public statements that there were several similar chemicals available he then started the selling the same products in the same bag with the same labeling but that contained a different chemical the evidence throughout the trial was that all on that record the district court didn't abuse its discretion in instructing the jury that where a defendant knows that they're selling a product or an obscure research chemical for human consumption as a substitute for  a controlled substance that they're likely to have also become aware as a result of that business what the chemical similarities of that substance are to the controlled substance in this case j w h eighteen and whether the inference is correct or not not whether they have to prove that the drugs are the same whether it's permissible to infer from an effect similar to methamphetamine that the drug a similar to marijuana and chemical structure method methamphetamine like effect but their structure is similar to a team and the reason is that if you're in the business of selling research chemical that really has no business being outside of a research lab except as a recreational drug and you sell it for a high price and it becomes a centerpiece of your business then what the target what target is saying is that in those situations somebody in possession of that type of drug is likely to have also learned by by  by operation of fact that they've obtained this obscure drug by the fact that they know what price to sell for by the fact that they know which controlled substance that is illegal substance that it mimics but they've also learned what actually isn't that difficult to learn about its chemical similarity to a controlled substance and in fact the defendant's own expert dr dudley admitted multiple times that the information that's necessary to satisfy knowledge of chemical similarity to controlled substance isn't really that technical at all it's widely available available on the internet and our expert also indicated that anyone in a more legitimate business for example that wants to start selling a medication or a drug for human consumption the first step that most people take when they're selling a drug for human consumption is to check what it is and what its regulatory statuses and our expert dr pose indicated that that's not done in these cases it could have easily been done but it's not done in these cases because the because analog act offended are trying to conceal what they know about chemical structure what they know about the chemical name of the substance that they're using and so when when jim carlson and his and the co defendants make a very open switch of chemicals from j w h eighteen to am twenty two a one and they know the effects of it are like a controlled substance that knowledge creates the incentive for them to know or learn more aptly that the substance is is a chemical am twenty two  and you are one forty four x they need they want to know that it's not the same as the thing that it was before in the process of getting that knowledge i believe the defense expert established that they would have learned what is required in terms of chemical structure i think another point in that regard your honor is that this court has had multiple prior analog act cases and it's never required either pre term or poster caught the kind of detail knowledge of chemical structure that i think mr markham was advocating is required under the statute the stant the the requirement isn't that the defendant must be able to sit on the witness stand and drop the chemical structure that's not what's required the knowledge requirement is that the defendant must know the similarity to a controlled substance and i would submit that a defendant could know a layperson can know that something has a chemical structure whatever that is and it's similar to the chemical structure of a controlled substance without many years it's been a lot of opposed to the about the means and suspicions apparently that law enforcement had not been reported how important was it in the end they have this inside that informant or somebody cooperated how important was it in in the end to have mr anderson testify customers for example what dosage how to administer the drugs by using them by putting them into a one hitter which is a pipe that's used often to smoke marijuana to use it sparingly because he knew that there were potential health effects of these are very potent anderson's testimony established that mr carlson knew not only everything that he needed to know about the effects of the drug but also everything that he needed to know about structure so even if the court were to find th mr carlson knew about the chemical structure and similarities between g b h eighteen and the other analogs that he ultimately ended up selling he would discuss the chemical names with his suppliers and he had e mail correspondence from suppliers which specifically identified the chemical names even on one occasion he received an e mail from a group of other synthetic drug distributors that had an excel spreadsheet attached which lists them in a molecular number for some of the analog substances that he was selling and compared them to a teen he made public statements indicating that the l l c were selling he only needed to change one molecule and then the government's got to start all over again and can't prosecute for his offenses so although he he clearly made a mistake of law about what he was doing there was there was no lack of knowledge of chemical structure in his part of what it's like how and i was and i was just going to get to ms and ms how can your honor and and candidly there's there's less direct evidence of for knowledge of the chemical structure however viewing the evidence in the light most favorable to the verdict there was a significant amount of evidence that she also learned the chemical similarity of the substances first as in any conspiracy where the defendants have a close relationship they're involved in the same scheme or plan the jury is entitle to infer that the conspirators spoke to each other and in this case perhaps more than the normal controlled stop controlled substance trafficking case mr carlson was making repeated public pronouncements he went to a city council meeting he made he did a number of television interviews many of which were at the store there was one television interview where  was interviewed in the mr anderson was smoking the substance right outside the store ms haugen wasn't just a clerk miss miss haugen was responsible for ordering these substances from the suppliers there's e mails where she used mr carlson own e mail account to communicate with synthetic drug suppliers when he was either on vacation or otherwise on unable to do it and importantly there is a there was testimony from sherry anderson who was also an employee at the store that indicated that when an employee took did inventory of their existing stock of synthetic drugs they would prepare an order form and then sit or stand with mr carlson he called the supplier and at you know our  ordered the drugs and on one of those forms he wrote am fed lost and d in his writing write over the order that she was making in that drug which approved a trial that sheet that they were ordering rolex contained for f a for floor and fed in the unit differs from amphetamine by only one atom so it's pretty clear the inference from that was they were ordering a drug that they wanted to mimic amphetamine and it's written right next to the drug that does that so she wasn't just a clerk that stood at the counter and sold the stuff additionally she used it there was a significant amount of evidence that she was using the drug herself she wanted a marijuana substitute she became addicted to the drug all of these would support an inference that she along the course of this long term conspiracy large scale conspiracy she learned what the names of the drugs were and had sufficient information to research them additionally there was internet search history on the store's computer which indicated that someone like mr carlson but anyone who used the computer actually went to websites him and looked up information about j to view each eighteen additionally run of there was a deliberate ignorance or willful blindness instruction given so we would also rely on that if the court determined that the target inference doesn't apply or that there was error in giving that inference but so just to come back before i move g on the issue of proving that something something is as a matter of fact it controlled substance analogue i think their argument is that that doesn't work well with the tour conference and my response to that in my the knowledge inference they're saying doesn't follow that if you know something has an effect like methamphetamine then it might be reasonable to infer that you know that the drug is similar to methamphetamine right and i know when the drug is actually not similar to it's similar some other drug why would you infer from the other i think that's the the question then and i think what i think my my initial response was that if the defendant knows that something has a controlled substance like effect and that means that the defendant knows that they're selling something for human consumption that mimics the effect of something that they know is illegal like methamphetamine they know they're selling a substitute for methamphetamine and they know what price sell fork cetera are selling as part of their business not for research then that fact gives the person such an incentive that it's reasonable to assume in most cases and certainly on the facts that were presented in this case that the defendant also learned in acquiring that drug in determining whether they were actually going to endeavor to engage in this conduct that they learned the name of it and that they learned that it was a chemical analog of a different substance and that's important because many controlled substances have widely varying effects they may have an effect like cocaine and marijuana and some of these drugs actually do some people would describe the effects of these drugs as calming depending on the dosage and then if they used too much they would they would amp somebody up and they would get an effect like methamphetamine it's also very important for prong three which i think oftentimes takes a backseat to prong two of the analog definition prong three relates to represented and intended effects and this is what congress was really focused on when it passed the analog act because they had a group of people in california selling fentanyl analogs and they would say this is like heroin ok well it was like heroin in effect to get to the issues i wanted to hear a nd start with hyland i think your brief misreads hyland and so where is it in the instructions that that i will find adequate coverage of the three company knowledge prongs that highland requires knowledge of drug knowledge they are not safe and effective and knowledge of miss labeling this representation you're out of there was to instructions first i think perhaps what you're looking for is instruction number thirty eight and that is the instruction that pertains to the specific intent to defraud or mislead a federal government agency and so you're correct your honor that there are multiple requirements in highland one of them is the specific intent defraud or mislead a government agency and those are laid out by name in instruction number thirty eight so the jury was instructed that any misbranding count required the defendant to know that the substance was regulated in some way not a specific way as is contrary to what mr markham told you the instructions specifically required the defendants to know that the substance was misprinted as a matter of fact not as a matter of law and misbranded means that the that the labeling or the marketing materials or the oral representations surrounding the sale of the drugs was misleading either contained of a specific misstatement or a misleading a mission was the word misbranded used in their instructions in every in every one of under fire and in the defined as you just defined misbranded was defined as either something that contains a misleading or statement or omission or that fails to identify the distributor or the packer of the drug or that fails to provide adequate warnings where the use of the drug might be dangerous it listed the same things that were listed in the indictment which come from the statute but that's as a matter of fact not as a matter of law and highland is very clear that if you know they shut down the defendants who are making the same argument in highland that they needed to somehow have knowledge of the specific misbranding provisions and be able i have answered your question  i'd like to turn briefly to the other one that bothers me is the one the one sixty seven where in the guidelines is that your honor and i look at that note eight the duty one point one and i don't see i'm not enough of a drug name and only the only reference where i see a one point six seven is for two five dima the i meant the oxy for methamphetamine deal and that's not t h c where is it it is there your find the legalism of this equation which strikes me as pretty possibly you're right and i'm not going to argue with you that the legal that there may not be a lot of legal wisdom behind the one sixty seven ratio itself and it's not we're past the mandatory guidelines which is the way you argue it in your brief where what t h c is the active that's what gets you high from marijuana right brecht and one hundred one sixty seven the riser guideline level right in the government is not contesting that the court could have considered dr cozies testimony under thirty five fifty three a what the government's position is is that the defendants were inviting the district court to commit error by applying a ratio that isn't listed in the guidelines the court first has to determine the guidelines correctly and then it can vary or depart upwards or they argued for they argue for a variance on the grounds that they thought this ratio was the applicable cross reference here that's correct your honor thank you for finding another one it's organic and one synthetic and they're both the same ratio you're on right now so what are we dealing with here the synthetic or to the crux of the application note six requires the court to take a look at whether there is a substantially similar chemical structure and here there isn't to it to a substances listed in the guidelines and then effect and potency and none of the substances that are listed in that in that note eight are similar in structure to eighteen or to in twenty to one of these others ok and so but the court did say that the if fact and our experts said that the effect in the potency are most similar to t h c and so the guidelines say any time there's a substance whether it's an analog or a listed controlled substance and there are many listed controlled substances that aren't listed in the guidelines so we can have many cases where we have to do this marijuana conversion and this is the ratio that is used for anything that's most similar to t h c and the then the court has to apply its good judgment in deciding well is that really fair does the sentencing commission have this right or  explain the process as i thought this is not science this is not going to the guidelines in reading you know five age one point eleven and say oh that applies  when how do we gauge whether there's procedural there and using that ratio for this offense well it would be procedural error error if the court made the findings that this was most closely related t it did and then didn't apply the same ratio in the guidelines and finding itself to be procedural the finding of it being a different ratio would be procedural question whether the finding was accurate here that it was most similar c and also in potency and the defense didn't present any counter evidence not that they have to it is also not my understanding that the defendants even argued that the court was wrong in finding it was most closely slimmer to t h c in fact their whole argument is that yes it's most closely similar to t h c but the concentration of t h c in marijuana is so low that the court should have used a different ratio not that it's not most similar but that they use the wrong ratio and there's only one ratio that can be used the government's argument so the defendants haven't preserved or argued the that this isn't similar to t h c see the my time is running out if there's any other issues the court would like me to address i will otherwise thank you very good friends council have time known of the chemical structure we disagreed with his version of those events but the point is that in a trial the fair thing to do is to let both sides argue with that evidence means that circumstantial evidence not to superimpose that you're caught  struction on top of it if he had all that evidence he didn't need to cut instruction that's our point he needed it because it is not the way he said if one reads the record carefully for one thing concealment this guy mr carlson was in on radio saying what he was doing the testimony was that there were people lining up outside of his door his door his door taking these products in calling out on the street and throwing up the local businessmen were complaining if that's invasive conduct it's like a duck being a fraud it simply was not invasive we could have made good arguments to that effect but what the judge did was he took all of that out of it took all that fireworks out by giving the director cut instruction for the reasons that they're going to cut set because this is a difficult thing to prove it would have been a much more fair fight without the recut instruction and they've had ten years to change this all right now the second thing that i want to address here is that in answer to mr sexiness questions which were not asked of his own expert which is actually in the prosecutor but asked our expert our expert said you cannot predict pharmacology from substance the unpredictable nature of pharmacology means you cannot look at one and determine the other that's the factual record in the case your honor and i respectfully ask this court for the purposes of the jury instruction it approved which had the requirement that you know that you violated the law who knows what a drug is under this broad term unless they read the act